Micro Finance Advisors, Inc. v. Claudio Matus Coloumb

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11062
Non-Argument Calendar
____________________
MICRO FINANCE ADVISORS, INC.,
a Florida corporation,
Plaintiff-Appellant,
versus
CLAUDIO MATUS COLOUMB,
an individual residing in Guatemala,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 23-11062
D.C. Docket No. 1:21-cv-22303-JLK
____________________
Before J ORDAN, BRANCH , and ABUDU, Circuit Judges.
PER CURIAM:
Micro Finance Advisors, Inc. appeals the dismissal of its
amended complaint for lack of personal jurisdiction over the sole
defendant, Claudio Matus Coloumb. After review of the parties’
briefs and the record, we affirm in part, vacate in part, and remand
in part.
I
A1
Micro is a Florida corporation that “provides financial man-
agement” for several companies (“Related Companies”) in Latin
America, including Banco Solidario, Sociedad Anonima, in Ecua-
dor (“Banco Solidario”), and Banco de Antigua, Sociedad Anonima,
in Guatemala (“Banco de Antigua”). On behalf of the Related
Companies, Micro may (1) authorize payments, (2) negotiate
agreements, and (3) hire and fire top level executives. Fernando
Bueno, who will soon become relevant, is vice President of Micro
and operates out of its headquarters in Miami, Florida. Mr. Bueno
is also chairman of the board of directors of Banco de Antigua,
1 The facts herein are taken from Micro’s amended complaint and its attach-
ments.
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23-11062 Opinion of the Court 3
although he does not have any day-to-day responsibilities for the
institution.
Prior to 2014, Mr. Matus served as general manager and
commercial vice president to a predecessor of Banco Solidario in
Ecuador. In 2014, he moved to Guatemala to serve as the vice pres-
ident of sales and vice-chairman of the board of directors for Banco
de Antigua. Mr. Matus is a citizen of Chile.
In March of 2016, Micro decided to fire Mr. Matus from
Banco de Antigua. Mr. Matus in turn requested to negotiate his
severance with Mr. Bueno. Mr. Bueno negotiated on behalf of Mi-
cro, Banco de Antigua, and other Related Companies. At all times
relevant, Mr. Matus was aware of Mr. Bueno’s whereabouts and his
responsibilities at Micro and Banco de Antigua. The two ex-
changed several calls and emails, with Mr. Matus in Guatemala and
Mr. Bueno in Florida. In one such email, Mr. Matus told Mr. Bueno
that he was “willing to give up an important part of my income . .
. and thus close tightly this chapter of my professional life.”
The parties reached an agreement in April of 2016. Micro
paid Mr. Matus $200,000 by depositing the money in his Panama-
nian bank account, as requested by Mr. Matus. Micro transferred
the money from its Bank of America account in the United States,
which it had previously used to pay Mr. Matus bonuses. In addi-
tion, Banco Solidario signed over a life insurance policy, allowing
Mr. Matus to collect over $100,000 in surrender value; Banco de
Antigua paid Mr. Matus $58,000; and Banco de Antigua continued
to cover Mr. Matus’ rent and private security for some time. In
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4 Opinion of the Court 23-11062
exchange, Mr. Matus agreed to release Micro and Banco de Antigua
(and the other Related Companies) of any further liability.
In May of 2018, Mr. Matus filed a civil suit against Banco de
Antigua and Micro in Guatemala seeking damages related to his
termination. The next month, Mr. Matus filed a “criminal action”
against Mr. Bueno and an officer of Banco de Antigua in Guate-
mala, accusing Mr. Bueno of the Guatemalan equivalents to fraud,
conversion, and unjust enrichment.
B
Micro sued Mr. Matus in Florida state court in March of
2020, alleging fraudulent misrepresentation, breach of contract,
negligent misrepresentation, and unjust enrichment. The crux of
Micro’s lawsuit is that Mr. Matus never truly intended on abiding
by the settlement agreement and thus obtained it by fraud.
Mr. Matus removed the case to the Southern District of Flor-
ida three months later and shortly thereafter moved to dismiss for
lack of personal jurisdiction or, in the alternative, forum non conven-
iens. In October of 2021, the district court granted the motion to
dismiss on personal jurisdiction grounds (“October Order”).
In its October Order, the district court reasoned that Mr.
Matus was subject to personal jurisdiction under Florida’s long-arm
statute, Fla. Stat. § 48.193.(1)(a)(2), for allegedly committing a tor-
tious act within Florida (i.e., sending and making allegedly fraudu-
lent emails and calls into Florida). The district court held, however,
that the exercise of personal jurisdiction would not comport with
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23-11062 Opinion of the Court 5
due process because Micro was the “only link between the defend-
ant and the forum . . . . ” D.E. 14 at 7 (quoting Walden v. Fiore, 571
U.S. 277, 285 (2014)). Mainly, the district court reasoned that Micro
sending money from the United States and Mr. Bueno being in Mi-
ami were all of Micro’s choosing. The district court found the ef-
fects test inapt because of Mr. Bueno’s double role as chairman of
the board of directors of Banco de Antigua. The district court did
not give weight to a 2014 trip by Mr. Matus to Florida because it
was too far removed from and unrelated to Micro’s claims.
In December of 2021, the district court reconsidered its Oc-
tober Order based on Mr. Bueno’s representation that Mr. Matus
specifically requested to be paid the settlement money from Micro’s
Florida bank account to his account in Panama. In response, Mr.
Matus moved the district court to again reconsider its exercise of
personal jurisdiction following an evidentiary hearing. The district
court agreed and referred the matter to a magistrate judge.
In June of 2022, the magistrate judge held an evidentiary
hearing at which Mr. Matus and Mr. Bueno testified. magistrate
judge limited her review to whether Mr. Matus requested to be paid
the settlement money from Micro’s Florida bank account. Alt-
hough the magistrate judge found both witnesses to be credible,
she concluded that “although Mr. Bueno had a basis to believe that
[Mr. Matus] wanted him to use the Bank of America account, that
impression was not created by any direction or statement that was
made by [Mr. Matus]. Rather, he drew that conclusion because he
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6 Opinion of the Court 23-11062
knew that the previous payments to [Mr. Matus] made to his Pana-
manian account came from Bank of America.” D.E. 46 at 12. The
magistrate judge further explained that “[a]lthough [Mr. Matus]
knew that [Micro] was in Florida, there is nothing in the record to
support the allegation that he directed that a Florida or American
bank pay his settlement.” Id. at 13.
On that basis, the magistrate judge recommended that Mr.
Matus’ motion for reconsideration be granted and that the district
court dismiss the case for lack of personal jurisdiction. In doing so,
the magistrate judge noted that “[Micro], of course, is free to
amend the complaint . . . . ” Id. at 14. Micro failed to object to the
magistrate’s report and recommendation. In August of 2022, the
district court adopted the report, dismissed the case without preju-
dice for lack of personal jurisdiction, and closed the case. That
same day, Micro moved to have the district court reopen the case
and allow it to file an amended complaint within ten days. district
court granted Micro’s motion.
On August 19, 2022, Micro filed its amended complaint—the
complaint at issue in this appeal. Mr. Matus again moved to dismiss
the amended complaint for lack of personal jurisdiction. The dis-
trict court dismissed the case with prejudice because the amended
complaint did not add anything new.
II
We review de novo a dismissal for lack of personal jurisdic-
tion. See SkyHop Techs., Inc. v. Narra, 58 F.4th 1211, 1222 (11th Cir.
2023). Factual allegations in the complaint are accepted as true to
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23-11062 Opinion of the Court 7
the extent that they are uncontroverted and all reasonable infer-
ences are construed in the plaintiff’s favor. See Fraser v. Smith, 594
F.3d 842, 846 (11th Cir. 2009).
Under Eleventh Circuit Rule 3-1, however, a party waives
the ability to appeal a district court’s order relying on unobjected
to factual and legal conclusions in a magistrate judge’s report. In
such cases, we review waived objections for plain error “if neces-
sary in the interests of justice.” 11th Cir. R. 3-1. See Harrigan v.
Metro Dade Police Dept. Station #4, 977 F.3d 1185, 1191 (11th Cir.
2020).
A
There are two steps for a federal court to determine whether
it has personal jurisdiction over a nonresident defendant. See
Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir.
1996). First, “we must determine whether the Florida long-arm
statute provides a basis for personal jurisdiction.” Id. If the answer
is yes, “then we must determine whether sufficient minimum con-
tacts exist between the defendants and the forum state so as to sat-
isfy ‘traditional notions of fair play and substantial justice’ under
the Due Process Clause of the Fourteenth Amendment.” Id. (quot-
ing Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253,256 (11th Cir.
1996)).
We discuss only the second step because Mr. Matus does not
challenge that Florida’s long-arm statute, Fla. Stat. §
48.193.(1)(a)(2), applies. Micro, in turn, has not argued for any
other provision of the long-arm statute. In reference to §
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8 Opinion of the Court 23-11062
48.193.(1)(a)(2), we have acknowledged that the due process anal-
ysis is the “more restrictive” step. See Internet Solutions Corp. v. Mar-
shall, 611 F.3d 1368, 1371 n.1 (11th Cir. 2010 (remanding for district
court to consider the “more restrictive” step of whether the exer-
cise of jurisdiction would violate due process)).
B
In specific jurisdiction cases, we examine “(1) whether the
plaintiff’s claims ‘arise out of or relate to’ at least one of the defend-
ant’s contacts with the forum; (2) whether the nonresident defend-
ant ‘purposefully availed’ himself of the privilege of conducting ac-
tivities within the forum state, thus invoking the benefit of the fo-
rum state’s laws; and (3) whether the exercise of personal jurisdic-
tion comports with ‘traditional notions of fair play and substantial
justice.’” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355
(11th Cir. 2013) (citation omitted). The plaintiff bears the burden
of establishing the first two requirements. See id. If it carries that
burden, Mr. Matus must then make a “‘compelling case’ that the
exercise of jurisdiction would violate traditional notions of fair play
and substantial justice.” Id. (quoting Diamond Crystal Brands, Inc. v.
Food Movers Int’l, Inc., 593 F.3d 1249, 1267 (11th Cir. 2010)).
Mr. Matus’ only contacts with Florida are his allegedly tor-
tious emails and calls to Mr. Bueno in Florida to induce Micro into
settlement. Micro does not appear to be challenging the magistrate
judge’s unobjected to finding, and the district court’s reliance on
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the same, that Mr. Matus did not intend for Micro to wire the set-
tlement money from a Florida or even U.S. bank account. And in
any event, we do not find any error.
Under the first prong, Mr. Matus’ communications into
Florida are certainly related to Micro’s claims in that without them
there would be no contract or fraud.
Where Micro runs into trouble is the second prong. Plain-
tiffs suing nonresident defendants can establish purposeful avail-
ment under the effects test and the minimum contacts test. See Del
Valle v. Trivago GMBH, 56 F.4th 1265, 1275–76 (11th Cir. 2022). Mi-
cro relies exclusively on the effects test. This test is met when the
tort was intentional, aimed at the forum state, and caused harm
that the defendant should have anticipated would be suffered in the
forum state. See id. at 1276.2
In SkyHop Techs., Inc. v. Narra 58 F.4th 1211, 1230–31 (11th
Cir. 2023)—a case Micro calls “directly on point”—we held that
California residents satisfied the effects test when they extorted a
Florida company they were in business with via emails sent into
Florida. In contrast, this litigation’s connection to Florida is much
more attenuated. This is an employment dispute between a Chil-
ean citizen residing in Guatemala and a Guatemalan bank. The
alleged breach of contract took place in Guatemala when Mr.
2 In some ways, this is an awkward fit. This is more of a breach of contract
case than a tort case. Given that Mr. Matus has not raised this issue, we none-
theless proceed with our analysis.
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10 Opinion of the Court 23-11062
Matus initiated legal proceedings in Guatemala. Mr. Matus last vis-
ited Florida in 2014, two years before his termination. Mr. Bueno
serves as the chairman of the board of directors of the Guatemalan
bank and as vice president of Micro. In negotiating with Mr. Matus,
Mr. Bueno did so on behalf of both entities.3
So, how is Florida, and not Guatemala, the “focal point” of
the harm? See Calder v. Jones, 465 U.S. 783, 789 (1984). The reality
is that Florida’s tangential connection to this litigation is driven pri-
marily by Micro’s presence in Florida and not, as it must be, Mr.
Matus’ actions. See Walden v. Fiore, 571 U.S. 277, 284–85 (2014).
III
We affirm the district court’s order granting Mr. Matus’s
motion to dismiss Micro’s amended complaint. We vacate the op-
erative order of dismissal, however, and remand for the district
court to correct the dismissal into one without prejudice. See Posner
v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1221 (11th Cir. 1999) (affirming
dismissal of claims for lack of personal jurisdiction but “in-
struct[ing] the district court to dismiss these claims without preju-
dice”).
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED IN PART.
3 Micro calls this a “highly disputed characterization,” but its own amended
complaint alleges that “Mr. Bueno made it clear that he was negotiating on
behalf of Plaintiff, in addition to the Related Companies that, as Defendant
knew, Plaintiff has managerial control over.” D.E. 50 ¶ 8 (emphasis added).
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