ZION WILLIAMSON,

v.

PRIME SPORTS MARKETING, LLC, ET AL.,

Third District Court of Appeal State of Florida

Opinion filed December², 2020. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-0197 Lower Tribunal No. 19-18705 ________________

Zion Williamson, Appellant,

vs.

Prime Sports Marketing, LLC, et al., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Weil, Gotshal & Manges LLP, and Edward Soto, Corey Berman, and Pravin Patel, and Jeffrey S. Klein, Gregory Silbert, and Robert B. Niles-Weed (New York, NY), and Zachary D. Tripp (Washington, DC), for appellant.

Eaton & Wolk, P.L., and Douglas F. Eaton, for appellees.

Before LOGUE, SCALES, and LINDSEY, JJ.

LINDSEY, J.

2 Appellant Zion Williamson (Defendant below) appeals from a non-final order denying his motion to dismiss for lack of personal jurisdiction.¹ Because Appellee Prime Sports Marketing, LLC (Plaintiff below) failed to allege sufficient jurisdictional facts in its Complaint to bring its action within the ambit of Florida’s long-arm statute, we reverse the denial of Williamson’s motion to dismiss for lack of personal jurisdiction and remand without prejudice to amend.

I.

BACKGROUND

Zion Williamson was a successful student athlete at Duke University during the 2018-19 basketball season. In early 2019, Gina Ford, the owner of Prime Sports, went to North Carolina on multiple occasions to discuss the possibility of Prime Sports becoming Williamson’s agent for branding and marketing. Williamson declared for the NBA Draft on April 15, 2019.2 Five days later, Williamson entered into a Marketing and Branding Agreement (the “Agreement”) with Prime Sports at his home in North Carolina.

The parties’ contractual relationship was short-lived. On May 31, 2019, Williamson formally terminated his relationship with Prime Sports. Creative Artist Agency, LLC (“CAA”), Williamson’s NBA agent, replaced Prime Sports as

Despite the pending lawsuit in North Carolina, Prime Sports brought this breach of contract and tort action against Williamson in Florida.³ Williamson moved to dismiss for lack of personal jurisdiction, arguing that the Complaint failed to allege sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute or satisfy the constitutional minimum contacts requirement. In support of his motion, Williamson submitted an affidavit reiterating that he is not a Florida resident and that “[n]one of [his] interactions with [Prime Sports] occurred in or related to Florida.” Ford submitted an Affidavit in opposition to Williamson’s motion, which emphasized Prime Sports’ connections to Florida and Williamson’s alleged communications with Prime Sports.

At the hearing on Williamson’s motion, Prime Sports primarily focused on its undisputed contacts with Florida and Williamson’s communications with Prime Sports. Williamson argued that the focus should be on his contacts with Florida and

3 Prime Sports also sued CAA and other individuals associated with CCA, but Williamson is the only defendant who is a party to this appeal.

II.

ANALYSIS

We review the trial court’s order denying Williamson’s motion to dismiss for lack of jurisdiction de novo. See Phelan v. Lawhon, 229 So. 3d 853, 857 (Fla. 3d DCA 2017) (citing Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla. 2002)). The issue in this case is governed by the two-pronged jurisdictional analysis set forth in Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). The first step in this analysis, the statutory prong, is to determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes (2020). Id. at 502. If so, the next inquiry, the constitutional prong, “is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Id. (quoting Unger v. Publisher Entry Servs., Inc., 513 So. 2d 674, 675 (Fla. 5th DCA 1987)). As this Court explained in Fincantieri-Cantieri Navali Italiani S.P.A. v. Yuzwa, 241 So. 3d 938, 941–42 (Fla. 3d DCA 2018): A key component of the Venetian Salami analysis is its allocation of the burden of proof. Initially, the plaintiff bears the burden of pleading sufficient jurisdictional facts to fall within the long-arm statute. [Venetian Salami, 554 So. 2d at 502]. “If the allegations in the complaint sufficiently establish long-arm jurisdiction, then the burden shifts to the defendant to contest the jurisdictional allegations in the complaint, or to claim that the federal

(Citations and footnotes omitted).

Though lengthy, Prime Sports’ Complaint contains few jurisdictional allegations. According to the Complaint, Williamson is a resident of South Carolina. There are no allegations that directly state the trial court has jurisdiction over Williamson. The only explicit jurisdictional allegation applicable to Williamson relies on the Agreement’s choice of law provision: “[t]his Court further has jurisdiction over the within matter as the contract given rise to the dispute herein by its terms, conditions which were agreed upon by all parties to the contract herein, is to be governed, interpreted and construed by the applicable laws of the State of Florida.” It is undisputed on appeal that a choice of law provision alone is insufficient to subject a nonresident defendant to personal jurisdiction.⁴

4 Section 685.102(1), Florida Statutes (2020), authorizes a party, “to the extent permitted under the United States Constitution, [to] maintain in this state an action or proceeding against any person . . . located outside this state, if the action or proceeding arises out of or relates to any contract . . . for which a choice of the law of this state . . . has been made . . . and which contains a provision by which such person . . . located outside this state agrees to submit to the jurisdiction of the courts of this state.” (Emphasis added).

2. “Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.” § 48.193(1)(a)(1), Fla. Stat.

3. “Committing a tortious act within this state.” § 48.193(1)(a)(2), Fla. Stat.

We address Prime Sports’ arguments with respect to each of these acts in turn.

1. Breach of Contract Allegations

Prime Sports argues that its allegation that Williamson breached the express terms of the Agreement by failing to pay Prime Sports compensation is sufficient to subject Williamson to jurisdiction for breaching a contract in Florida. The allegation appears in the Complaint as follows: That at all relevant times herein mentioned, [Williamson] breached express terms of the [Agreement] with Plaintiffs and did so with the intent for Defendants to usurp and

5 In addition to the acts specified in the statute, which give rise to specific jurisdiction, “[a] defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” § 48.193(2), Fla. Stat. This is known as general jurisdiction. It is undisputed that Prime Sports did not seek to establish general jurisdiction over Williamson.

For jurisdiction to lie pursuant to section 48.193(1)(a)(7), the breaching conduct must be a failure “to perform acts required by the contract to be performed in [Florida].” (Emphasis added). Here, the allegation, which says nothing about jurisdiction or Florida’s long-arm statute, is silent as to whether the breaching conduct occurred in Florida or whether performance was required in Florida. Moreover, the Agreement itself does not require any acts to be performed in Florida. Prime Sports contends that even though the Agreement is silent as to where payment was to be made, the legal presumption is that a debt is to be paid at the creditor’s place of business. See Unger, 513 So. 2d at 676. While it is true that there is a legal presumption that debt is to be paid at the creditor’s place of business— even in the absence of an agreement to do so—the allegations in the Complaint say

6 Ford’s Affidavit states that Williamson breached the Agreement when he signed a contract with CAA to be his exclusive marketing agent. The Affidavit is also silent as to any breach of contract for failure to pay a debt in Florida.

2. Business Allegations

Prime Sports also argues that “the allegations of the complaint and the evidence in the affidavit demonstrate clearly that Williamson is subject to long-arm jurisdiction because he was ‘operating, conducting, engaging in, or carrying on a business or business venture in this state.’” Prime Sports fails to cite the specific allegations or evidence it is referring to. Moreover, Prime Sports actually admits in its Answer Brief that this specific argument was not raised below. Prime Sports primarily relies on three cases in support of its argument that Williamson, despite not having a local presence in Florida, was engaged in sufficient business activities in Florida: Bank of Wessington v. Winters Government Securities Corp., 361 So. 2d 757 (Fla. 4th DCA 1978); American Financial Trading Corp. v. Bauer, 828 So. 2d 1071 (Fla. 4th DCA 2002); and Gray v. ACT Holdings, Inc., 05- 21987-CIV, 2006 WL 8433399 (S.D. Fla. June¹, 2006). However, these cases are readily distinguishable. In Bank of Wessington, the Fourth District considered the “collective activities” of a nonresident bank, which included ten separate oral contracts with a

3. Tort Allegations

According to the allegations in the Complaint, in May 2019, Ford met Williamson in California and provided him with an “extensive and comprehensive” marketing plan, which included numerous multi-million-dollar opportunities that Prime Sports had obtained for Williamson. The Complaint further alleges that Williamson represented he was requesting the marketing plan to facilitate a direct working relationship between CAA, Williamson’s NBA Agent, and Prime Sports and that Williamson knew “the stated reason/intent . . . was false, misleading and untrue . . . .” According to Prime Sports, these allegations establish long-arm jurisdiction over Williamson under section 48.193.(1)(a)(2) (“Committing a tortious act within this state.”).

Id. at 735.

III.

CONCLUSION

Because Prime Sports has failed to allege sufficient jurisdictional facts to bring its action within the ambit of Florida’s long-arm statute, we reverse the denial

7 The allegations seem to undermine Prime Sports’ position. According to the Complaint, “on or about May 23, 2019,” Williamson met with Ford in California. Moreover, on that same day, “[Williamson], and/or his parents, requested that [Ford] provide them with a copy of Plaintiff’s extensive and comprehensive marketing plan . . . .”

8 Because the statutory prong of Venetian Salami has not been satisfied, it is unnecessary to address the more demanding constitutional inquiry.