Fru Veg Marketing, Inc. v. Vegfruitworld Corp.

Citations: 896 F. Supp. 2d 1175; 2012 U.S. Dist. LEXIS 146963; 2012 WL 4760800Docket: Case No. 1:12-cv-21262-UU

Court: District Court, S.D. Florida; September 20, 2012; Federal District Court

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The Court is addressing two motions: the Plaintiff's request for alternative service of process and the Defendants' renewed motion to dismiss and quash service. The Plaintiff, Fru Veg Marketing, Inc., filed an amended complaint alleging violations of federal and state statutes by multiple Defendants, including various corporations and individuals associated with the FRUVEG brand. The Plaintiff claims to have owned the trademark rights to FRU VEG and FRU VEG MARKETING since 1988 and asserts continuous use in the wholesale distribution of produce, establishing significant goodwill in the industry.

The Defendants include FRUVEG USA, a Florida corporation, along with foreign corporations from Colombia, Peru, and Guatemala, and several individual officers. The Plaintiff alleges that the Defendants began using the infringing trademark "FRUVEG" in late 2011, prompting the Plaintiff to issue cease and desist letters. The complaint details how the Defendants' actions have harmed the Plaintiff's business, including substandard quality of products linked to FRUVEG Peru and instances of customer confusion due to the similarity of names, impacting the Plaintiff's reputation and operations.

Plaintiff alleges that Defendants' willful actions have harmed its business, prompting the current lawsuit. Defendants seek dismissal of the Amended Complaint based on Fed. R. Civ. P. 12(b)(1), 12(b)(2), and 12(b)(5). In contrast, Plaintiff requests an Alternative Service of Process. Under Rule 12(b)(1), Defendants challenge the court's subject-matter jurisdiction, which can be attacked either facially or factually. A facial attack requires the court to accept the Plaintiff’s allegations as true, while a factual attack allows the court to consider evidence beyond the pleadings.

Defendants' challenge is deemed a facial attack, which obliges the court to regard Plaintiff's claims as true. They argue that the Plaintiff improperly seeks extraterritorial application of the Lanham Act; however, Plaintiff asserts that the alleged violations occurred within the U.S., specifically when foreign corporations imported goods into Florida. This establishes subject-matter jurisdiction under 28 U.S.C. 1331 and 28 U.S.C. 1338. 

Even if Defendants’ motion were considered a factual attack, the evidence, including invoices indicating shipments to Florida, supports Plaintiff's claims against the foreign corporations, contradicting their affidavits denying U.S. imports. Consequently, Defendants’ Motion to Dismiss under Rule 12(b)(1) is denied.

A party may seek dismissal under Rule 12(b)(2) for lack of personal jurisdiction, with the plaintiff responsible for proving jurisdiction over the defendant. Allegations in the complaint are accepted as true unless contradicted by the defendant's non-conclusory affidavits or deposition testimony, with reasonable inferences drawn in favor of the plaintiff when conflicts arise. 

In the case at hand, the defendants argue for dismissal based on the plaintiff's use of the term "importer." The plaintiff claims personal jurisdiction due to the defendants operating a business in Florida by importing produce into the state. The definition of "importer" is clarified as a U.S. agent or representative of a foreign owner at the time of entry into the U.S. Although the plaintiff does not specifically state the use of an agent in the U.S., this does not conclusively negate personal jurisdiction.

The Eleventh Circuit employs a two-pronged test for personal jurisdiction: first, the Florida long arm statute must provide a basis for jurisdiction; second, there must be sufficient minimum contacts with the forum state to satisfy due process. Jurisdiction can be established through a "substantial connection" created by the defendant's purposeful conduct, and even a single act may suffice.

In this instance, the plaintiff's allegations meet both prongs of the test. The long arm statute supports personal jurisdiction based on the defendants conducting business in Florida and causing injury within the state. The plaintiff's claims of numerous shipments of produce to the Southern District of Florida establish sufficient minimum contacts. Therefore, the defendants' Motion to Dismiss under Rule 12(b)(2) is denied.

Under Rule 12(b)(5), a dismissal for insufficient service of process requires the defendant to specifically challenge the sufficiency of the service and identify how it failed to meet the procedural requirements outlined in Fed. R.Civ. P. 4.

The excerpt outlines the procedural framework for serving process on defendants located outside the U.S., specifically under Federal Rule of Civil Procedure 4(f)(3). Initially, the defendant must demonstrate a lack of proper service, after which the burden shifts to the plaintiff to establish a prima facie case of proper service. If the plaintiff succeeds, the defendant must then provide convincing evidence of insufficient process. The court may rely on various forms of evidence, including affidavits and testimony.

The plaintiff seeks court permission to serve four foreign defendants (Coral, Zapata, Hernandez, and Saco) via international courier, email, and U.S. mail to their counsel, as allowed by Rule 4(f)(3), which permits service not prohibited by international agreements. The countries involved—Peru, Guatemala, and Colombia—are part of the Inter-American Service Convention, which does not restrict such service methods. 

Citing the Ninth Circuit, the document notes that service under Rule 4(f)(3) is a valid method and not merely a last resort, emphasizing that service must provide adequate notice to allow defendants to respond. The excerpt references several case precedents supporting service on foreign defendants through their attorneys, highlighting that such practices align with due process requirements. Consequently, the court grants the plaintiff's motion for alternative service and denies the defendants' motion to dismiss based on improper service.

Plaintiff's Motion for Court-Directed Alternative Service of Process is granted, allowing service to be executed within 15 days on Foreign Individual Defendants as follows: 

- Defendant CORAL: served via international courier or Federal Express to the specified address, and also on counsel J. Michael Wermuth, Esq., via email and U.S. mail.
- Defendant ZAPATA: served at the principal business address of FRUVEG Colombia, and also on counsel via email and U.S. mail.
- Defendant HERNANDEZ: served at the principal business address of FRUVEG Guatemala, and also on counsel via email and U.S. mail.
- Defendant SACO: served at the principal business address of FRUVEG Peru, and also on counsel via email and U.S. mail.

Plaintiff must file a Notice of Compliance within 20 days of this order to confirm service has been completed. The Defendants’ Renewed Motion to Dismiss and to Quash Service of Process is denied, and Plaintiff's Motion for Leave to File Sur-Reply is denied as moot. The Plaintiff alleges multiple claims against the defendants, including federal trademark infringement, unfair competition, and violations of various Florida trademark and trade practices statutes. Additionally, the document outlines conditions under which individuals or entities submit to the jurisdiction of Florida courts based on their business activities, tortious acts, or other specified actions within the state.