Egenberg et al v. Fish et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No.: 24-cv-24101-JB/Torres
BRADLEY EGENBERG et al.,
Plaintiffs,
v.
GABI FISH, et al.,
Defendants.
________________________________/
NETWORK FREIGHT AND
LOGISTICS, LLC,
Third-Party Plaintiff
v.
STAR INVESTMENT HOLDINGS, LLC,
Third-Party Defendant
______________________________________/
ORDER GRANTING MOTION TO DISMISS
SECOND AMENDED THIRD-PARTY COMPLAINT
THIS CAUSE comes before the Court upon Third-Party Defendant Star
Investment Holdings, LLC’s Motion to Dismiss Second Amended Complaint. 	ECF
No. [85]. 	In the Motion, Star Investment argues that the Second Amended Third-
Party Complaint fails to allege a prima facie case of personal jurisdiction. 	Id.
Third-Party Plaintiff Network Freight and Logistics, LLC filed a Response in
Opposition to the Motion, and Star Investment filed a Reply. 	ECF Nos. [90], [96].
Upon due consideration of the parties’ submissions, the pertinent portions of the
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record, and the relevant authorities, for the reasons explained below, the Motion to
Dismiss is GRANTED.
I. 	BACKGROUND
This action arises from an energy brokerage transaction in which Plaintiffs
Bradley Egenberg and Mela Industrial, LLC, wired funds to Network Freight for
costs relating to the purchase and storage of jet fuel. ECF No. [35]. Plaintiffs allege
that 	Network 	Freight 	and 	its 	principal, 	co-Defendant 	Gabi 	Fish, 	wrongfully
transferred those funds and have refused to return them. 	Id. ¶¶ 24, 36–37. 	In its
Second Amended Third-Party Complaint, Network Freight seeks to bring claims for
indemnification and contribution against Star Investment, which Network Freight
alleges “arranged and orchestrated the Jet Fuel Deal . . . .” ECF No. [82] ¶ 8.
As relevant to the Motion, Plaintiffs are citizens of New York. 	ECF No. [35]
¶¶ 5–6. 	Network Freight is a citizen of Florida, as is its sole member, Mr. Fish.
ECF No. [82] ¶ 1. Star Investment is a Louisiana limited liability company. Id. ¶ 2.
According to the Second Amended Third-Party Complaint, “Brandon Gaspard is the
principal and managing member of Star who personally directed and controlled
Star’s Florida-directed activities giving rise to this Third-Party Complaint.” Id. ¶ 2.
The Second Amended Third-Party Complaint does not identify the statutory
basis on which the Court allegedly has personal jurisdiction over Star Investment.
See generally, ECF No. [82]. 	Indeed, the Second Amended Third-Party Complaint
does not mention Florida’s long-arm statute, Fla. Stat. § 48.193, at all. Id. Instead,
Network Freight alleges that “[t]his Court has personal jurisdiction over Star
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because 	Star 	orchestrated 	the 	Jet 	Fuel 	Deal 	and 	obtained 	invoices 	from
2BestConnect that designated NFL — a Florida limited liability company located in
Miami Beach — as the payment beneficiary.” 	Id. ¶ 3. 	Network Freight further
alleges that “Star, through its attorney Joshua Koch, then sent correspondence
directly to NFL in Miami Beach discussing these invoices and directing a refund of
over one million dollars back to his client.” Id.
In addition, Network Freight alleges that “Star’s principal, Brandon Gaspard,
has demonstrated Star’s purposeful availment of Florida through text message
communications with Plaintiff Egenberg” regarding the status of this litigation. Id.
¶ 4. Network Freight also alleges that “Gaspard also voluntarily submitted a sworn
affidavit in this Florida proceeding that Plaintiffs have relied upon—demonstrating
Star’s willingness to participate in Florida litigation when it serves Star’s interests.”
Id. ¶ 5; see also ¶ 16 (“Notably, Gaspard voluntarily submitted this affidavit in this
Florida proceeding, thereby availing himself of Florida's judicial forum when it
suited Star's interests.”).
Star Investment has now moved to dismiss the Second Amended Third-Party
Complaint. ECF No. [85]. 	Star Investment argues that Network Freight has failed
to 	allege 	a 	prima 	facie 	case 	of 	personal 	jurisdiction. 	Id. 	In 	particular, 	Star
Investment argues that Network Freight’s jurisdictional allegations are insufficient
because they do not reflect that Star Investment engaged in any conduct directed to
Florida that could give rise to personal jurisdiction. Id. at 6–8.
Network Freight filed a Response. 	ECF No. [90]. 	It argues that Star
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Investment is subject to personal jurisdiction under Fla. Stat. § 48.193(1)(a)(2) on
the basis that Star Investment allegedly committed tortious acts in Florida. 	Id. at
4–5. 	Network Freight contends that it satisfied Section 48.193(1)(a)(2) by alleging
“that Star orchestrated a fraudulent jet fuel transaction, designated NFL – a
Florida limited liability company with its principal place of business in Miami
Beach – as the payment beneficiary, and directed wire transfers to NFL.” 	Id. at 4.
Network Freight also argues that Star Investment is subject to personal jurisdiction
under Fla. Stat. § 48.193(1)(a)(1) on the basis that Star Investment is engaged in
business activity in Florida. 	Id. at 5–6. 	To this end, Network Freight contends
that “Star engaged in a business venture in Florida by deliberately routing its
transaction through a Florida intermediary for profit.” 	Id. at 5. 	Further, Network
Freight contends that Star Investment’s conduct satisfies due process. 	Id. at 6–9.
Finally, Network Freight argues that Star Investment failed to meet its burden to
challenge personal jurisdiction. 	Id. at 9–10. 	In the alternative, Network Freight
requests that the Court grant it leave to conduct jurisdictional discovery. Id. at 10.
II. 	ANALYSIS
“A court without personal jurisdiction is powerless to take further action.”
Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999). To
determine whether personal jurisdiction exists,
“[a] federal court . . . undertakes a two-step inquiry . . . : the
exercise of jurisdiction must (1) be appropriate under the state
long-arm statute, and (2) not violate the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.”
United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). Under Florida’s
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long-arm statute, “a defendant can be subject to either specific personal jurisdiction
(jurisdiction in suits arising out of or relating to the defendant’s contacts with
Florida) or general personal jurisdiction (jurisdiction over any claims against a
defendant, notwithstanding any connection vel non with Florida . . . .).” McCullough
v. Royal Caribbean Cruises, Ltd., 268 F. Supp. 3d 1336, 1343 (S.D. Fla. 2017).
“Irrespective of the method, ‘Florida’s long-arm statute is to be strictly construed ...
[and] federal courts are required to construe it as would the Florida Supreme
Court.’” Serra-Cruz v. Carnival Corp., 400 F. Supp. 3d 1354, 1358 (S.D. Fla. 2019)
(quoting Carmouche v. Carnival Corp., 36 F. Supp. 3d 1335, 1340 (S.D. Fla. 2014)).
“A plaintiff seeking to establish personal jurisdiction over a non-resident
defendant ‘bears the initial burden of alleging in the complaint sufficient facts to
make out a prima facie case of jurisdiction.’” Louis Vuitton Malletier, S.A. v.
Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (quoting United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1274 (11 th Cir. 2009)). 	“Vague and conclusory allegations do
not satisfy this burden.” 	Catalyst Pharm., Inc. v. Fullerton, 748 F. App’x 944, 946
(11th Cir. 2018) (citation omitted). If the plaintiff fails to allege a prima facie case of
personal jurisdiction, “the burden does not shift to defendant to disprove personal
jurisdiction and dismissal is appropriate.” 	Ivanovic v. Overseas Mgmt. Co., No. 11-
cv-80726, 2011 WL 5508824, at * 2 (S.D. Fla. Nov. 9, 2011) (citation omitted); see
also Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th
Cir. 2000) (“First, the plaintiff must allege sufficient facts in his complaint to
initially support long arm jurisdiction before the burden shifts to the defendant to
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make a prima facie showing of the inapplicability of the statute.”).
As explained below, Network Freight has failed to meet its initial burden to
allege a prima facie case because the Second Amended Third-Party Complaint
alleges no facts that support long-arm jurisdiction.
A. Network Freight Does Not Allege Facts That Bring Star
Investment Within the Purview of Fla. Stat. 48.193(1)(a)(2).
Network Freight first argues that it has alleged sufficient facts to show that
Star Investment is subject to personal jurisdiction under Section 48.193(1)(a)(2) of
Florida’s long-arm statute. ECF No. [90] at 4. Section 48.193(1)(a)(2) provides that
specific personal jurisdiction exists over any person who “commit[s] a tortious act
within this state.” 	Fla. Stat. § 48.193(1)(a)(2). 	Network Freight asserts that Star
Investment’s actions in “direct[ing] wire transfers to [Network Freight],” “sen[ding]
correspondence 	directly 	to 	NFL 	in 	Miami 	Beach 	demanding 	a 	refund,” 	and
“engaging in text message communications with Plaintiff Egenberg regarding this
Florida litigation” are tortious acts which caused injury to Network Freight in
Florida, thereby giving rise to personal jurisdiction. 	ECF No. [90] at 4. 	This
argument runs counter to the allegations of the Second Amended Complaint and
the relevant law.
The Second Amended Third-Party Complaint alleges that “[t]his Court has
personal jurisdiction over Star because Star orchestrated the Jet Fuel Deal and
obtained invoices from 2BestConnect that designated NFL — a Florida limited
liability company located in Miami Beach — as the payment beneficiary.” 	ECF No.
[82] ¶ 3. This allegation does not support personal jurisdiction under section
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48.193(1)(a)(2). 	First, the facts alleged reflect that any actions Star Investment
took in “orchestrat[ing] the Jet Fuel Deal” were directed to Plaintiff Egenberg, who
is a citizen of New York. 	Id. ¶ 9 (“Star pitched the Jet Fuel Deal to Plaintiff
Egenberg, explaining that Star needed working capital to complete the transaction,
particularly for costs related to fuel storage and transfer.”) (emphasis added); ¶ 10
(“Star’s attorney, Joshua Koch, introduced Plaintiff Egenberg to the investment
opportunity, identifying invoices that needed payment, including a November 2,
2022 invoice from 2BestConnect, a Dutch company, for $222,300.00 for alleged
storage services.”) (emphasis added). 	These alleged contacts do not help satisfy
Network Freight’s burden because “contact with out-of-state [persons] does not
constitute conduct ‘within this state.’” Dvoinik v. Rabl, No. 22-cv-24226, 2024 WL
923917, at * 10 (S.D. Fla. Jan. 30, 2024), report and recommendation adopted by
2024 WL 655936, at * 2 (S.D. Fla. Feb. 16, 2024); see also Rautenberg v. Falz, 193
So. 3d 924, 930 (Fla. 2d DCA 2016) (“A complaint is not legally sufficient to allege
personal jurisdiction based on tortious acts when the complaint fails to allege that
the acts were committed within Florida.”). 	There are no factual allegations that
Star Investment took actions directed to Network Freight, or anyone else in Florida,
in connection with allegedly orchestrating the Jet Fuel Deal.
Next, Network Freight’s allegation reflects that Star Investment did not
designate Network Freight as payment beneficiary in connection with the Jet Fuel
Deal—nonparty 2BestConnect did so. 	In particular, Network Freight alleges that
Star Investment obtained invoices from 2BestConnect and those invoices designated
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Network Freight as payment beneficiary. 	ECF No. [82] ¶ 3 (“Star orchestrated the
Jet Fuel Deal and obtained invoices from 2BestConnect that designated NFL — a
Florida limited liability company located in Miami 	Beach — 	as 	the payment
beneficiary).1 	Network Freight attaches correspondence to its Second Amended
Third-Party Complaint which confirms that Star Investment did not designate
Network Freight as payment beneficiary. 	Specifically, Network Freight attaches a
demand letter from Star Investment’s attorney which seeks a refund of monies
which were paid to Network Freight “at the instructions of 2BestConnect[.]” 	ECF
No. [82-1] at 2. This letter, which is considered part of the Second Amended Third-
Party 	Complaint, 	contradicts 	Network 	Freight’s 	current 	argument 	that 	Star
Investment directed wire transfers to Network Freight. See Fed. R. Civ. P. 10(c) (“A
copy of a written instrument that is an exhibit to a pleading is a part of the pleading
for all purposes.”); see also Williams v. Capital One Bank (USA) N.A., 785 F. App’x
741, 745 (11th Cir. 2019) (“[W]hen documents attached as exhibits in support of a
complaint contradict the factual allegations in the pleading, the exhibits control.”)
(citation omitted).
Network Freight also relies on this demand letter to argue that it has
1 Notably, 	co-Defendant 	Gabi 	Fish, 	who 	is 	the 	sole 	member 	and 	manager 	of
Network Freight, filed a Motion for Summary Judgement wherein he identifies, as
undisputed facts, that the invoices at issue in this action—which were issued by
2BestConnect—designated Network Freight as payment beneficiary. See ECF No.
[54] ¶ 3 (“On September 30, 2022, non-party 2BestConnect B.V. issued an invoice
for $294,000.00. The payment instructions on this invoice specifically directed
payment to: “Network Freight and Logistics LLC, Account No: XXXXXX6176.”); ¶ 4
(“On November 2, 2022, 2BestConnect B.V. issued a second invoice for $222,300.00.
The payment instructions were identical: “Network Freight and Logistics LLC…
account No: XXXXXX6176.”).
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sufficiently alleged a prima facie case of personal jurisdiction. See ECF No. [90] at 4
(arguing that personal jurisdiction exits under section 148.193(1)(a)(2) because
“[w]hen the transaction failed due to Star’s arrangements with 2BestConnect, Star’s
attorney 	sent 	correspondence 	directly 	to 	NFL 	in 	Miami 	Beach 	demanding 	a
refund.”). Network Freight’s reliance is misplaced. The demand letter is unavailing
because it did not give rise to Network Freight’s claims in its Second Amended
Third-Party 	Complaint. 	Network 	Freight 	alleges 	two 	causes 	of 	action:
indemnification and contribution. 	Network Freight alleges that it is entitled to
indemnification because “Star is the party primarily at fault in this matter. Star
orchestrated the Jet Fuel Deal, pitched it to Plaintiffs, and was responsible for the
arrangements with 2BestConnect that fell through.” ECF No. [82] ¶ 24. This claim
is not based on Star Investment’s demand for a refund.
The same is true for Network Freight’s claim for contribution. 	Network
Freight alleges that it is entitled to contribution on the basis that:
if NFL is found liable to Plaintiffs under any of these claims,
Star would share in this liability as a joint tortfeasor for the
same injuries alleged by Plaintiff. 	Star would be jointly liable
because: a. Star orchestrated the Jet Fuel Deal; b. Star pitched
the Jet Fuel Deal to Plaintiffs; c. Star’s attorney introduced
Plaintiffs to the transaction; d. Star was responsible for the
arrangements with 2BestConnect that fell through; and e. If the
transaction is deemed fraudulent, Star would be jointly liable as
the party that orchestrated the deal.
Id. ¶¶ 33–34. 	Again, this claim is not based on Star Investment’s demand for a
refund.
“Specific jurisdiction only exists if the cause of action arises from the tortious
act or the injury within the state.” Radiation Shield Tech., Inc. v. NATS, Inc., No.
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22-+cv-23669, 2023 WL 399863, at * 2 (S.D. Fla. Jan. 25, 2023). 	Importantly,
specific personal jurisdiction “concerns a nonresident defendant's contacts with
Florida only as those contacts relate[ ] to the plaintiff's cause of action.” Louis
Vuitton Malletier, S.A., 736 F.3d at 1352 (citing Oldfield v. Pueblo de Bahia Lora,
S.A., 558 F.3d 1210, 1220 n.27 (11th Cir. 2009)) (emphasis supplied). 	Given that
Network Freight’s claims do not arise from Star Investment’s refund request, its
assertion that Star is subject to personal jurisdiction under section 148.193(1)(a)(2)
because it sent the demand letter is without merit.2
Network Freight’s remaining argument is likewise without merit. 	Network
Freight 	argues 	that 	text 	messages 	between 	Star 	Investment’s 	principal 	and
Plaintiff 	Egenberg 	regarding 	the 	status 	of 	this 	litigation, 	and 	emails 	they
exchanged 	regarding 	an 	affidavit 	that 	Star 	Investment’s 	principal 	signed 	for
Plaintiffs’ use in this case, constitute tortious acts that injured Network Freight in
Florida. ECF No. [90] at 4. This argument fails for several reasons. First, Network
Freight 	offers 	no 	explanation 	how 	those 	communications, 	such 	as 	“[w]hat 	is
happening with the filing against Fish” or “How is it going with the filing. I haven’t
heard about this side at all. 	What did judge do?, ECF No. [82] ¶ 17, constitute
2 The 	only 	case 	that 	Network 	Freight 	cites 	in 	support 	of 	its 	position 	is
distinguishable. In SkyHop Tech., Inc. v. Narra, the Eleventh Circuit held that the
plaintiff sufficiently alleged that the nonresident defendant was subject to personal
jurisdiction for committing a tortious act in Florida based upon emails it sent to the
plaintiff demanding payment. 	58 F.4th 1211, 1225 (11th Cir. 2023). 	The Eleventh
Circuit reasoned that the emails gave rise to specific jurisdiction because the
plaintiff asserted claims under the Computer Fraud and Abuse Act on the basis
that the emails constituted threats. 	Id. at 1224-25. 	By contrast here, Network
Freight’s claims for indemnification and contribution are not based upon Star
Investment’s demand letter.
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tortious acts or caused injury to Network Freight. 	Mere curiosity is not tortious.
The same deficiencies lie with respect to the affidavit from Star Investment’s
principal. Network Freight makes no showing that the act of signing an affidavit for
use in Florida litigation is tortious conduct or resulted in harm to Network Freight.
Further, Star Investment’s principal directed those communications to Egenberg
who is in New York, not to Network Freight (or anyone else) in Florida. 	Finally,
those 	communications 	did 	not 	give 	rise 	to 	Network 	Freight’s 	claims 	for
indemnification or contribution.
For all these reasons, the Court concludes that Network Freight has failed to
allege a prima facie case that Star Investment is subject to personal jurisdiction
under section 48.193(1)(a)(2).
B. Network 	Freight 	Does 	Not 	Allege 	Facts 	That 	Bring 	Star
Investment Within the Purview of Fla. Stat. 48.193(1)(a)(1).
Network Freight also argues that it has alleged sufficient facts to show that
Star Investment is subject to personal jurisdiction under section 48.193(1)(a)(1) of
Florida’s long-arm statute. 	ECF No. [90] at 5–6. 	Section 48.193(1)(a)(1) provides
that specific personal jurisdiction exists over any person “[o]perating, conducting,
engaging in, or carrying on a business or business venture in this state or having an
office or agency in this state.” 	Fla. Stat. § 48.193(1)(a)(1). 	Network Freight’s only
argument is that Star Investment “engaged in a business venture in Florida by
deliberately routing its transaction through a Florida intermediary for profit.” ECF
No. [90] at 5. However, as explained above, the Second Amended Complaint reflects
that Star Investment did not choose Network Freight as payment beneficiary,
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2BestConnect did so. 	In other words, Network Freight’s own pleading refutes its
contention that Star Investment “deliberately rout[ed] its transaction through a
Florida intermediary.” 	Network Freight further asserts that “engaging NFL was
integral to Star’s business scheme.” 	Id. 	But again, this contention is contrary the
Second 	Amended 	Complaint 	which 	confirms 	that 	2BestConnect—not 	Star
Investment —“engaged NFL.”
A nonresident defendant also carries on a business venture in Florida only
when its collective activities “show a general course of business activity in the State
for pecuniary benefit.” Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th
Cir. 1996) (citing Dinsmore v. Martin Blumenthal Assocs., Inc., 314 So. 2d 561, 564
(Fla. 1975)). Even if the Second Amended Third-Party Complaint showed that Star
Investment “deliberately routed” the Jet Fuel Deal through Network Freight, such
allegations would still be insufficient. “Florida courts have declined to exercise long
arm jurisdiction [under § 48.193(1)(a)(1)] where the transaction in question was
isolated and did not involve any continued activity.” RMS Titanic, Inc. v. Kingsmen
Creatives, 	Ltd., 	579 	F. 	App’x 	779, 	786 	(11th 	Cir. 	2014) 	(collecting 	cases).
Accordingly, the Court concludes that Network Freight has failed to allege a prima
facie case that Star Investment is subject to personal jurisdiction under section
48.193(1)(a)(1).
Given that Network Freight has failed to plead a prima facie case of personal
jurisdiction, it is unnecessary to determine whether Star Investment has sufficient
minimum contacts with Florida to satisfy due process concerns. 	See Madara v.
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Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (“Only if both prongs of the analysis are
satisfied 	may 	a 	federal 	or 	state 	court 	exercise 	personal 	jurisdiction 	over 	a
nonresident defendant.”); Goldberg v. United States, 2014 WL 2573060, *6 (S.D. Fla.
June 9, 2014) (“Because the Court determines that [plaintiff] failed to allege
sufficient facts to satisfy Florida's long-arm statute, it is unnecessary to address
whether minimum contacts exist.”).
C. Network Freight is Not Entitled to Jurisdictional Discovery or
Leave to Amend.
In the alternative, Network Freight requests leave to conduct jurisdictional
discovery. 	ECF 	No. 	[90] 	at 	10. 	In 	any 	event, 	“a 	party 	is 	not 	entitled 	to
jurisdictional 	discovery 	solely 	to 	remedy 	a 	lack 	of 	jurisdictional 	facts 	or 	an
insufficient pre-filing investigation.” 	In re Zantac, 706 F. Supp. 3d 1363, 1367-68
(S.D. Fla. 2020). 	Given that Network Freight’s allegations of personal jurisdiction
are facially insufficient, it cannot use jurisdictional discovery to cure this defect
The Court notes that Network Freight does not request leave to further
amend 	its 	Second 	Amended 	Third-Party 	Complaint 	should 	the
Court grants Star Investment’s Motion to Dismiss. 	See generally, ECF No. [90].
For the sake of completeness, the Court considers whether leave to amend is
warranted. 	This is the second time that Star Investment has moved to dismiss for
failure to sufficiently allege personal jurisdiction. The Court held oral argument on
Star Investment’s initial motion to dismiss at which it explained its reasons for
concluding that Network Freight did not adequately plead personal jurisdiction.
ECF Nos. [80], [81]. 	Network Freight was given an opportunity to amend, which
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resulted in the Second Amended Third-Party Complaint. 	ECF No. [81]. 	In any
event, 	for 	the 	reasons 	explained 	above, 	Network 	Freight 	has 	again 	failed 	to
sufficiently allege personal jurisdiction.
The Court is not required to give a counseled plaintiff like Network Freight
more than one opportunity to amend. 	See Eiber Radiology, Inc. v. Toshiba Am.
Med. Sys., Inc., 673 F. App'x 925, 930 (11th Cir. 2016) (“We have never required
district courts to grant counseled plaintiffs more than one opportunity to amend a
deficient complaint . . . .”). 	Accordingly, in the exercise of its discretion, the Court
concludes that dismissal without leave to amend is proper.
III. 	CONCLUSION
For all these reasons, it is hereby ORDERED AND ADUDGED that Third-
Party Defendant’s Motion to Dismiss Second Amended Third-Party Complaint, ECF
No. [85], is GRANTED. 	The Second Amended Third-Party Complaint, ECF No.
[82], is DISMISSED WITHOUT PREJUDICE.
DONE AND ORDERED in Chambers in Miami, Florida, this 13th day of
April, 2026.
______________________________________
JACQUELINE BECERRA
UNITED STATES DISTRICT JUDGE
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