Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 1 of 19

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MICHAEL KAPLANIS, Plaintiff, v. JBI, INC., a Nevada Corporation, and JOHN BORDYNUIK, an Individual, Defendants. ___________________________________/ PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS AND CROSSMOTION FOR LEAVE TO CONDUCT DISCOVERY ON PERSONAL JURISDICTION AND FOR LEAVE TO AMEND THE COMPLAINT Plaintiff, MICHAEL KAPLANIS, by and through his undersigned counsel, files this Response to Defendants, JBI, INC. and JOHN BORDYNUIK, Motion to Dismiss. Plaintiff also, in the alternative, cross-moves for leave to conduct discovery as to personal jurisdiction of JOHN BORDYNUIK and for leave to amend the Complaint. MEMORANDUM OF LAW AND DISCUSSION Plaintiff will not restate the well-known Fed. R. Civ. P. 12(b)(6) standards here. As to the Fed. R. Civ. P. 12(b)(2) Motion, Section 48.193 is Florida's long-arm statute. The statute states in relevant part as follows: Acts subjecting person to jurisdiction of courts of state (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts: Case No.: 8:10-cv-02140-EAK-AEP

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 2 of 19

(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state. (b) Committing a tortious act within this state. (f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either: 1. The defendant was engaged in solicitation or service activities within this state . . . (g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state . . . (2) 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 ... F.S.A. 48.193 (West, 2010). Therefore, the statute allows for personal jurisdiction to be conferred in two ways. Per sub-section (1), Florida can exercise "specific" jurisdiction over a defendant relating to the specific transaction(s) at issue in the underlying claim. Per sub-section (2), Florida can exercise "general" jurisdiction over a defendant whose activity in Florida reaches a certain level, whether or not those activities relate to the transaction(s) alleged in the lawsuit. Here, Plaintiff submits that this Court has both specific and general personal jurisdiction over Mr. Bordynuik. Pursuant to 48.193(1)(a), Mr. Bordynuik has conducted a business activity in this state by serving as a promoter of JBI stock, separate and apart from his official JBI duties. Pursuant to Section 1(b), Mr. Bordynuik has committed at least one tortious act in Florida by making certain misrepresentations to Plaintiff. Pursuant to Section 1(f)(1), Mr. Bordynuik

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 3 of 19

solicited Plaintiff to work for JBI by in part offering to Plaintiff Mr. Bordynuik's personal stock. 1 Pursuant to 48.193(f), pleading in the alternative, Mr. Bordynuik has breached an oral promise to Plaintiff to devise him his personal stock. As to general jurisdiction, pursuant to 48.193(2), Mr. Bordynuik's contacts with the State of Florida, even outside the scope of his official duties with JBI, have been extensive enough for this Court to confer personal jurisdiction over him. The corporate shield doctrine does not insulate Mr. Bordynuik because the aforementioned contacts were outside the scope of his employment with JBI, and also constituted fraud or intentional misconduct. Plaintiff is not confined to the allegations of the pleadings in responding to Mr. Bordynuik's personal jurisdiction defense. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (a motion to dismiss for lack of personal jurisdiction may require looking outside the complaint to make a meaningful ruling). Accordingly, this Response will rely not only on the allegations of the Complaint, but also evidence outside of the Complaint. Additionally, Mr. Bordynuik's Rule 12(b)(2) Motion is procedurally deficient as he has failed to attach any affidavit or other verification to his motion, including his own. Accordingly, the evidence set forth in this Response, which are established by affidavit, must be accepted as true for purposes of the motion. A. This Court Exercises Personal Jurisdiction Over Mr. Bordynuik As the Defendants agree, the proper exercise of personal jurisdiction over a non-resident defendant involves a two-part inquiry, including a determination of personal jurisdiction under Floridas long-arm statute and under the minimum contacts analysis. Plaintiff can meet both elements here.

Plaintiff seeks leave to amend his complaint to add counts for intentional misrepresentation (fraud) and breach of oral contract as described in Section E below.

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 4 of 19

1. The Allegations Of The Complaint Establish Specific Personal Jurisdiction. As acknowledged by the Defendants, a plaintiff may satisfy its burden to plead the basis for long-arm jurisdiction by either alleging the language of the long-arm statute without pleading supporting facts, or by alleging facts that indicate that the defendants actions fit within one of the sections of the statute. Beck v. Hooshmand, 841 So.2d 561 (Fla. 2003). As to Section 48.193(1)(a), Plaintiff has alleged that Mr. Bordynuik is conducting a business or business venture in Florida. Plaintiff alleges that Kaplanis signed the contract at issue in Pinellas County, Florida, the contract called for work to be performed in Pinellas County, Florida, and said work was performed in Pinellas County, Florida. See Complaint, 6. Furthermore, Mr. Kaplanis pled that Mr. Bordynuik was the CEO and President of JBI, and he had authority to act on behalf of JBI. See Complaint, 11. Moreover, Mr. Kaplanis pled that Mr. Bordynuik informed [him] that his job duties were to assist JBIs CFO Ron Baldwin in timely filing the quarterly report and to prepare a term sheet to assist in the launch of Plastic2Oil. See Complaint, 17. As to Section 1(b), Plaintiff has alleged that Mr. Bordynuik committed the tortious act of negligent misrepresentation within Florida. For example, Mr. Kaplanis pled that the negligent misrepresentations by Mr. Bordynuik were made for purpose of inducing [him] to rely or act upon in executing the Agreement and performing his job duties under the Agreement. See Complaint, 47. Mr. Kaplanis has shown that the basis for the claim for negligent

misrepresentation against Mr. Bordynuik is due to negligent statements being made to induce Mr. Kaplanis to continue working for JBI, Inc. in Florida. More proof of Mr. Bordynuiks contacts with Florida is provided in the sections below.

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 5 of 19

As to Section 1(f)(1), Mr. Bordynuik solicited Plaintiff's employment in Florida, and therefore "engaged in solicitation . . . services" pursuant to that sub-section. See Complaint, 45. 2. Evidence Outside The Complaint Further Establishes This Court's Specific Jurisdiction Over Mr. Bordynuik. Attached as Exhibit "A" is Plaintiff's declaration authenticating the evidence referenced in this section. a. Mr. Bordynuik's Securities Promotion

Mr. Bordynuik offered Plaintiff his own "personal stock" in JBI to induce him to work for the company. (See Ex. "A" at 3). In doing so, Mr. Bordynuik was acting outside of his corporate capacity. Mr. Bordynuik's January 28-31, 2010 emails with Plaintiff state in relevant part as follows:

From: John Bordynuik [mailto:john@johnbordynuik.com] Sent: Sunday, January 31, 2010 11:58 AM To: Michael Kaplanis Cc: Geoffrey C. Weber Subject: Re: Follow up ... Please don't trade the stock during the next 3 weeks -- you can expect FINRA to pull all the transactions after this massacre. Power Plays: There have been a few between Steve Seneca (PakIt) and others who wish control. I know you are moving to Florida but JBI Admin and Executive are being scattered all over North America. I don't believe we need a centralized office other than Accounting Controls (limited to compliance and reporting only -- Florida). . . -------------------------------------------------------------------------------------------------On Sat, 2010-01-30 at 18:33 -0600, Michael Kaplanis wrote: Hi John,

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 6 of 19

I was thinking we call it Executive Vice President of Mergers, Acquisitions and Strategy. ... Best, Michael -------------------------------------------------------------------------------------------------------------------On Sat, Jan 30, 2010 at 3:45 PM, John Bordynuik <john@johnbordynuik.com> wrote: We are a go. $120k & I'll issue 100k shares from my stock. You'll have an agreement this weekend. Please execute and we proceed. I'll send the job description with it. Gregg has helped on this... Your title should be: VP Mergers & Acquisitions or VP ?? --------------------------------------------------------------------------------------------------

On Thu, 2010-01-28 at 17:57 -0600, Michael Kaplanis wrote: Hi John, I hope you are well. Geoff gave me your cell and I left a message. I think Geoff's advice to both of us is to keep it simple. I agree with him. You and I have agreed to the terms, and think we are very close to making this finalized. I'd like to hit the ground running with you and making myself helpful ASAP. I'm available anytime tonight. My cell is 312-497-9665. Talk to you soon, Michael

(See Ex. "A" at 3) (redacted above for the sake of brevity) (emphasis added). Therefore, Mr. Bordynuik offered "my stock" to Plaintiff to induce him to work for the company. (Id.). This means that Mr. Bordynuik was stepping outside of his official duties to engage in his own 6

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 7 of 19

individual offering of securities. Mr. Bordynuik was serving as a promoter of stock. Clearly, this is the type of activity that is not protected by the corporate shield doctrine, putting aside for the moment federal securities regulations relating to the promotion of stock. See Estate of Canavan v. Natl Healthcare Corp., 889 So.2d 825 (Fla. 2d DCA 2004) (finding that negligence by an officer, even if performed in the capacity as a corporate officer, constitutes tortuous conduct that is not shielded from personal liability). Similarly, other Florida case law holds that officers of a corporation may be held liable for their own torts even if such acts are performed as corporate officers); McElveen v. Peeler, 544 So. 2d 270 (Fla. 1st DCA 1989); Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981).

Mr. Bordynuik's above-cited email came two days after another email he wrote to Plaintiff on this same subject which makes it even clearer that Mr. Bordynuik acted beyond the scope of his duties in personally soliciting Plaintiff's employment:

---------- Forwarded message ---------From: John Bordynuik <john@johnbordynuik.com> Date: Thu, Jan 28, 2010 at 11:52 AM Subject: Re: Contract To: Michael Kaplanis <michael.kaplanis@gmail.com> Cc: Geoff Weber <gweber@bayshorebroadway.com>

Hello Mike, ... I will provide the agreement I used for Jacob and Ron Kurp. The stock is coming from my holdings so the exchanges can't get funny about it. It is 500k out of my pocket so I am dealing with Gregg on the agreement. My concern is how to deal with the employee stock option plan and salary. Cash salaries hit the bottom line hard and don't look like value-based management. The SEC created S-8 stock (or options) stock to allow a growth company to grow without having to pay exec salaries because the S-8 stock can be sold into the market as cash.They are securities registered for sale the moment I file it. They have been abused

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 8 of 19

in the past so the SEC looks at these closely which will then in turn cause a greater flurry of requests to come from FINRA and the SEC. Our problem at this time is how implement a stock option plan without creating precedents I can't support. Baldwin is a prime example with "salary in escrow". He has no stock though... I appreciate your research on the matter and I am looking into how we can compensate everyone and include room for new execs. If we can hammer a plan out then I believe it will work. Do you have time this afternoon do discuss how we can accomplish this with you & everyone else? I would like to bring you on board ASAP.

(See, Ex. "A" at 4) (redacted above for the sake of brevity) (emphasis added).

As evidenced by the above, Mr. Bordynuik engaged in the business of stock promotion in Florida pursuant to Section 48.193(1)(a). He basically offered to devise his own personal stock in order to induce Plaintiff to work for the company. Further, because the Plaintiff did not receive the promised stock from Mr. Bordynuik, Mr. Bordynuik's representations regarding the same constitute fraud or another tortious act pursuant to Section 48.193(1)(b). Additionally, pleading in the alternative, Mr. Bordynuik's breach of his oral promise to devise his personal stock to the Plaintiff constitutes breach of contract pursuant to Section 48.193(1)(g).

b.

Mr. Bordynuik's Other Inducement Of Plaintiff

Geoff Weber was formerly the Assistant Secretary for JBI and was engaged by JBI as a consultant to launch the "Plastic2Oil" ("P2O") concept. (Ex. "A" at 5). Mr. Weber is based in Florida and worked extensively with Mr. Bordynuik. (Id.). Mr. Bordynuik clearly availed

himself of Florida and its benefits through this relationship. For example, a January 31, 2010 email chain includes emails authored by Plaintiff, Mr. Weber and Mr. Bordynuik which extensively discusses the work that Plaintiff was to do in Florida. (Ex. "A" at 6).

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 9 of 19

As stated, Mr. Bordynuik wrote another email to Plaintiff where he stated that I know you are moving to Florida but JBI Admin and Executive are being scattered all over North America. I dont believe we need a centralized office other than Accounting Controls (limited to compliance and reporting only -- Florida). (Ex. "A" 7). Mr. Bordynuik went on to state that Linda Burr can support you in FL. (Id.). Clearly, Mr. Bordynuik was aware that Mr. Kaplanis is working for him out of Florida, he wants him to work there, and knows Mr. Kaplanis is moving there at Mr. Bordynuiks direction to complete the goals of the company due to Mr. Bordynuiks negligent misrepresentations about the work. Further, Mr. Bordynuik has sent hundreds of emails directed to the Plaintiff and to the Florida based Plastic2Oil Consulting Team regarding work for a global launch of the Plastic2Oil concept. (Ex. "A" 8). Mr. Bordynuik induced Plaintiff to work for JBI in Florida based on representations that Plaintiff would be working closely with JBI's "Florida Team," which consisted primarily of Florida-based consultants. (Id. at 9). Separately, JBI entered into an Area Development Agreement with AS PTO, LLC with the purpose of establishing forty-five Plastic2Oil sites to be located within Florida. (Id. at 10). The signed letter of intent of the establishment of the Area Development Agreement was announced by the company on December 22, 2010, and the contact person on the press release is John Bordynuik. (Id.). The company stated that Mr. Sousas company will begin to quickly cultivate supply chains and sites for installation of P2O sites throughout Florida concentrating first on large metropolitan areas and expanding outwards. (Id.). Clearly, Mr. Bordynuik initiated a global launch of his flagship business venture known as Plastic2Oil from Florida. (Id.). In a press release, the company said that it is pleased to announce that on February 12, 2010, JBI consummated an Area Development Agreement (ADA for 45 P2O sites in the State of Florida with a newly

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 10 of 19

formed entity (AS PTO, LLC) controlled by Al Sousa of Largo, Florida. (Id.). Mr. Bordynuik signed this agreement (Id.). This evidence further establishes contacts sufficient for this Court to exercise personal jurisdiction over Mr. Bordynuik pursuant to Section 48.193(1)(b) and 1(f)(1). This evidence corroborates that Mr. Bordynuik fraudulently induced Plaintiff to work for the company pursuant to sub-section 1(b), and also engaged in the business of soliciting Plaintiff pursuant to subsection 1(f)(1). c. Mr. Bordynuik's Other Extensive Contacts With Florida

When assessing personal jurisdiction over a nonresident corporate officer, Florida courts do not totally ignore acts that the defendant may have undertaken in his or her corporate capacity. See e.g., Mehlenbacher v. Jitaru, 6:04-c-1118-ORL-22KRS (M.D. Fla. June 6, 2005). In Mehlenbacher, a shareholder of a publicly-traded company brought a derivative suit against one of the company's nonresident officers personally in a Florida court. Id. at *3. In exercising personal jurisdiction pursuant to the Florida Long-Arm Statute, the Middle District noted that the nonresident officer was "no ordinary (alleged) third party tortfeasor." Id. at *14. "He is a corporate director and audit-committee member of a Florida-based company." Id. The Court went onto note that because of these positions the officer could not claim surprise at being hauled into a Florida court. Id. See also, West Coast Life Ins. Co. v. Ruth Secaul 2007-1 Ins. Trust, Case No. 09-81049-CIV (S.D. Fla., Jan. 5, 2010) (holding that individual officers and agents of a corporation may be held personally liable for their tortious acts, even if such acts were committed within the scope of their employment or as corporate officers when they are acting as the alter-ego of the corporation).

10

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 11 of 19

Likewise, Mr. Bordynuik is no ordinary third party. Mr. Bordynuik's co-Defendant, JBI, does not contest that this Court can exercise personal jurisdiction over it. According to the companys 10-K/A filed with the SEC on July 9, 2010, JBI, Inc. was originally incorporated on April 20, 2006 in the State of Nevada as 310 Holdings Inc. (310), and 310 had no significant activity from inception through March 2009 except for a planned merger with G&G Mining Corp., a Florida Corporation, which was never completed. (Ex. A 11). In April 2009, John Bordynuik purchased 63% of the issued and outstanding shares of 310, and was subsequently appointed President and CEO of the Company. (Id.). During June, 2009, the Company

purchased certain assets of John Bordynuik, Inc., a Delaware corporation. (Id.). JBI, Inc. is the successor to John Bordynuik, Inc. (Id.). In a sense, therefore, JBI is the alter-ego for Mr. Bordynuik himself, and if this Court has personal jurisdiction over "JBI," it is not much of stretch, even setting aside all other evidence presented to demonstrate personal jurisdiction, to assert that this Court also has personal jurisdiction over its controlling shareholder, chairman, director, executive and namesake. See e.g., West Coast Life Ins. Co., at *7 (indicating that alterego theory may be another exception to corporate shield doctrine). Mr. Bordynuik also owns interests in several related entities that are doing business and even based in Florida. (Ex. A 12). JBI itself has several affiliates, including Pak-It, LLC, a Florida limited liability company (Pak-It). (Id.). This testimony is further supported by the information found at the following Internet links: http://www.jbiglobal.com/products-and-

services/Plastic2Oil.aspx (showing Pak-It on the JBI "products and services" page) and http://www.pakit.com/ (identifying Pak-It as "a JBI, Inc. company"). (Id.). Pak-It was formed in Florida and, as of this date, public records show its principle place of business to be 311 Park Place, #190, Clearwater, FL 33759 (Id. at 13). Indeed, when Mr. Bordynuik provided Mr.

11

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 12 of 19

Kaplanis with his notice of termination without cause letter informing him of his termination in sixty (60) days, Mr. Bordynuik directed Mr. Kaplanis to work for him out of this Clearwater, Florida office. (Id.). Additionally, when Mr. Bordynuik provided Mr. Kaplanis with a

termination for cause letter, the basis for the termination as described in said letter was due to purported failure to appear at this Clearwater office for his work. (Id.). Further, public records indicate that Mr. Bordynuik is the Manager of Pak-It, LLC, which is a Florida Limited Liability Company. (Id. at 14). The Florida Department of State, Division of Corporations website verifies this information, and notes that Mr. Bordynuik can be reached in his capacity as the manager of Pak-It, LLC through the same Clearwater, Florida exact address down to the suite number where he directed Mr. Kaplanis to report for work in his sixty day notice of termination letter. See http://www.sunbiz.org/scripts/cordet.exe?action=DETFIL&inq_ doc_number=L07000058980&inq_came_from=NAMFWD&cor_web_names_seq_number=000 0&names_name_ind=N&names_cor_number=&names_name_seq=&names_name_ind=&names _comp_name=PAKIT&names_filing_type=. This means that Mr. Bordynuik is also representing to the Florida Department of State that he has a Florida address where he is available to be reached. Pursuant to Florida law, managers (or managing members) of a Florida LLC owe certain fiduciary duties. See e.g., F.S.A. 608.4225. Accordingly, Mr. Bordynuik has personally interjected himself into a relationship which mandates that he adhere to fiduciary duties as defined by Florida law. Additionally, Pak-It owns Dickler Chemical Laboratories, Inc., another Florida corporation and public records list Jacob Smith as a Director and Dr. Smith is the Chief Operating Officer of JBI, Inc. (Ex. A 14).

12

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 13 of 19

Also, Mr. Bordynuik has regularly traveled to Florida to promote and operate JBI and its various subsidiaries. (Id. at 15). For example, Plaintiff knows that Mr. Bordynuik has travelled to Florida on at least two occasions during recruitment trips to engage JBI employees and consultants, including a meeting with Plaintiff personally. (Id. at 15). Along those lines, multiple SEC filings (including but not limited to 10-K, 10-K/A, 10-Q, 10-Q/A, 8-K, and 8-K/A all of which are available to the public through the SECs website) filed by JBI, include many references to Florida. (Id. at 16). Specifically, for example, in an 8-K/A dated January 27, 2010, there were 26 references to Florida and in a 10-K dated March 31, 2010, there were 33 references to Florida. (Id.). Mr. Bordynuik has also interacted with his various companies' accountants and other professionals located in Florida. (Id. at 17). Mr. Bordynuik also presented at the Annual Shareholders Meeting in April 2010 that there would be a twoprocessor parallel site in the Tampa Bay area of Florida and had several Florida residents answer questions from shareholders including Ronald Baldwin (CFO of JBI), Geoffrey C. Weber (Former Assistant Secretary of JBI and was a Business Consultant for JBI), Al Sousa (Area Developer for Florida Plastic2Oil sites and Manager of AS PTO, LLC, a Florida entity). (Id. at 18). d. Evidence Outside The Complaint Establishes This Court's General Jurisdiction Over Mr. Bordynuik In addition to the evidence set forth in the remainder of Section 2 above showing Mr. Bordynuik's contacts with Florida, Mr. Bordynuik is the registrant, administrative contact and technical contact of an internet domain name, www.heatherbordynuik.com, and he has held that status since 2004. (Ex. "A" 19). The address that Mr. Bordynuik listed is "John Bordynuik, 1901 60th Place, Suite L9181, Bradenton, Florida 34203." Overall, the evidence shows Mr. Bordynuik's repetitive and extensive contacts with Florida. 13

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 14 of 19

3. The exercise of personal jurisdiction over Mr. Bordynuik does not comport with traditional notions of fair play and substantial justice Given these contacts with Florida outside of those specifically provided in the Complaint, the minimum contact analysis has been satisfied. The minimum contacts requirements of due process are satisfied in this case, as (1) there was purposeful availment of the forum state, (2) the alleged contacts gives rise to the alleged cause of action, and (3) Mr. Bordynuik should reasonably anticipate being hauled into court in a forum state, as required under Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). A review of Mr. Bordynuiks contacts with the forum state, as the Defendants purport is required under Consolidated Energy, Inc. v. Strumor, 920 So.2d 829, 832 (Fla. 4th DCA 2006), clearly demonstrates satisfaction of all three prongs of the minimum contacts requirements. The exercise of personal jurisdiction over Mr. Bordynuik comports with the traditional notions of fair play and substantial justice. As has been

demonstrated in Section 2 above, Mr. Bordynuik was conducting a great amount of business in and reaching out to Florida that relates to the claims against him in this lawsuit. As such, the fairness concern is not disturbed by bringing suit against him individually in Florida. B. Plaintiff has stated a claim against JBI and Mr. Bordynuik for an Equitable Accounting (Count II). Factual statements to support the properly asserted language have been provided. Specifically, Mr. Kaplanis has pled that he was entitled to be compensated in the form of incentives and/or stock options under the terms of the Agreement, and the Defendants failed to pay all incentives and/or stock options due. See Complaint, 41. Such incentives and stock options are going to be difficult to determine, and are not specifically defined or calculated under the Agreement, such that a legal remedy is not going to be sufficient. As such, an equitable remedy is appropriate and has been specifically requested in Count II.

14

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 15 of 19

Moreover, the elements for a claim of equitable accounting have been asserted. As is well known, the Court must accept as true the allegations in the complaint in reviewing a motion to dismiss. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). Thus, the count for equitable accounting is proper. Finally, to the extent the Court agrees with the Defendants position that a claim for equitable accounting is precluded by a count for breach of contract, the claim for equitable accounting should only be dismissed as to JBI. The breach of contract claim is only based on a breach by JBI. Thus, the equitable accounting claim may be precluded as to JBI. However, the only other count against Mr. Bordynuik is for negligent misrepresentation in Count III, not the count for breach of contract. Thus, the claim for equitable accounting must remain as to Mr. Bordynuik, minimally, if not for both Defendants. C. Plaintiffs Claims Against Mr. Bordynuik in Count II and III of the Complaint Should Not Be Dismissed Under the Corporate Shield Doctrine. 1. Mr. Bordynuik's Motion Is Unsupported By Any Affidavit And Therefore Is Procedurally Deficient Mr. Bordynuik contests the Plaintiff's allegations establishing that this Court has personal jurisdiction over him. Florida courts generally require defendants in Mr. Bordynuik's position to file an affidavit in support of his or her position. See e.g., Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502-503 (Fla. 1989). When the defendant does so, it is incumbent on the plaintiff to submit a counter-affidavit, and the court should hold an evidentiary hearing as to the limited issue of jurisdiction if there is a conflict in the relevant jurisdictional facts. Id. Here, Mr. Bordynuik has not submitted any affidavit to support his motion, yet he contests this Court's personal jurisdiction over him. The Complaint, as set forth above, alleges facts establishing this Court's personal jurisdiction over Mr. Bordynuik. Mr. Bordynuik could

15

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 16 of 19

have easily proffered an affidavit specifying his lack of contacts with Florida if he possessed such facts. Aside from the intent of Venetian Salami the fact that Mr. Bordynuik did not submit an affidavit speaks volumes as to his ability to deny his extensive contacts with Florida. 2. Regardless of the Failure to Comply with the Requirement to File an Affidavit, the Corporate Shield Doctrine Does Not Apply "It is true that the so-called 'corporate shield' doctrine immunizes from suit a corporate employee acting in his corporate capacity.'" Byron v. Marine Carriers (USA), Inc., 668 So. 2d 273, 274 (Fla. 1996). "However, the corporate shield doctrine has no application when the corporate officer commits an intentional tort." Id. See also, Allterton v. State Dept. of Insur., 635 So. 2d 36, 39 (Fla. 1994) (doctrine did not protect nonresident investment advisor engaged in various schemes performed on behalf of Florida insurance company because that defendant's conduct was calculated to cause injury to plaintiff in Florida); Koch v. Kimball, 710 So. 2d 5, 7 (Fla. 1998) (doctrine inapplicable because defendant's conduct was calculated to cause injury to a plaintiff "here in Florida"); State v. Wyndham Int'l, Inc., 869 So. 2d 592, 595-96 (Fla. 2004) (Florida had personal jurisdiction over nonresident defendants because they were the "primary participants" in an alleged, fraudulent hotel surcharge scheme); see also Estate of Canavan, 889 So.2d at 827. Here, the doctrine does not immunize Mr. Bordynuik because he was acting beyond his "corporate capacity" as to the alleged misconduct. Mr. Bordynuik, as stated, served as a promoter of his own personal stock in inducing the Plaintiff to work for the company. Mr. Bordynuik also acted outside the scope of his employment in forming an oral contract between Plaintiff and Mr. Bordynuik personally (as to Mr. Bordynuik's personal stock).

16

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 17 of 19

Further, the Complaint and the attached evidence establish that Mr. Bordynuik committed fraud or intentional misconduct against the Plaintiff, a Florida resident. Plaintiff also seeks leave to amend his Complaint to further allege such misconduct, as explained in more detail below. D. PLAINTIFFS ALTERNATIVE CROSS-MOTION SEEKING LEAVE TO CONDUCT DISCOVERY ON PERSONAL JURISDICTION While Plaintiff believes that Mr. Bordynuik has sufficient contacts with Florida to establish personal jurisdiction, should this Court find that the pleadings and the briefing on Defendants' motions do not clearly establish personal jurisdiction, Plaintiff requests leave to conduct limited discovery on the issue of personal jurisdiction. A plaintiff faced with a motion to dismiss for lack of personal jurisdiction is entitled to reasonable discovery, lest the defendant defeat the jurisdiction of a federal court by withholding information on its contacts with the forum." Exhibit Icons, LLC v. XP Cos., LLC, 2008 U.S. Dist. LEXIS 15971 (S.D. Fla. March 3, 2008) (quoting El-Fadl v. Cent. Bank of Jordan, 316 U.S. App. D.C. 86, 75 F.3d 668, 676 (D.C. Cir.1996). Notably, Plaintiffs are not privy to the information that relates to any other contacts Mr. Bordynuik has had with Florida. Eleventh Circuit precedent indicates that jurisdictional discovery is highly favored before resolving Federal Rule of Civil Procedure 12(b)(2) motions to dismiss for want of personal jurisdiction. See Eaton v. Dorchester Development, Inc., 692 F.2d 727, 731 (11th Cir. 1982); see also Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (a motion to dismiss for lack of personal jurisdiction may require limited discovery so that a meaningful ruling can be made); Majd-Pour v. Georgiana Community Hosp., Inc., 724 F.2d 901, 903 (11th Cir. 1984) ("[a]lthough the plaintiff bears the burden of proving the court's jurisdiction, the plaintiff should be given the opportunity to discover facts that would support his allegations of jurisdiction"); Blanco v. Carigulf Lines, 632 F.2d 656, 657 (5th Cir. 17

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 18 of 19

1980) (dismissal

was

error

where

defendants

had

not

responded

to

plaintiff's

interrogatories); Skidmore v. Syntex Laboratories, Inc., 529 F.2d 1244, 1248-49 (5th Cir. 1976) (held "that the district court acted too drastically in entering its order of dismissal without giving plaintiff a further opportunity for discovery" even though defendants had answered 184 interrogatories). Many of the documents possessed by Plaintiff that have been attached hereto as Exhibits demonstrate a basis for personal jurisdiction and could allow for discovery requests that would likely establish a greater connection to the forum state of Florida. Accordingly, Plaintiff requests leave to conduct discovery on the issue of personal jurisdiction, so as to obtain information to which Mr. Bordynuik has access in the event that the Court does not deny the Defendants' Motion outright. E. PLAINTIFFS MOTION FOR LEAVE TO AMEND THE COMPLAINT TO ADD COUNTS FOR NEGLIGENT MISREPRESENTATION, INTENTIONAL MISREPRESENTATIONS AND FRAUD AGAINST DEFENDANTS Plaintiff requests this Court allow leave to file an Amended Complaint to add counts against JBI for negligent misrepresentation, intentional misrepresentation and fraud relating to Mr. Bordynuiks actions to induce Mr. Kaplanis to invest in JBI. To the extent these actions were seemingly not done in Mr. Bordynuiks capacity as a corporate officer, Plaintiff also requests leave to amend the Complaint to add counts against Mr. Bordynuik for intentional misrepresentation and fraud. Plaintiff also requests leave to amend to add a count for breach of an oral agreement by Mr. Bordynuik relating to his promise of stock ownership, as detailed above. Upon information and belief through the investigation of this matter in reviewing

documents in the preparation of this pleading, Plaintiffs counsel believes these counts are appropriate to supplement in an Amended Complaint in this matter.

18

Case 8:10-cv-02140-EAK-AEP Document 15

Filed 11/23/10 Page 19 of 19

WHEREFORE, Plaintiff respectfully requests this Court enter an Order denying Defendants Motion to Dismiss, grant leave, in the alternative to denial of Defendants Motion to Dismiss, to conduct discovery on the personal jurisdiction of this Court over the Defendants, to amend his Complaint, and award such other and further relief that this Court deems just and appropriate.

Dated: November 23, 2010

/s/ Jonathan T. Gilbert____________ JONATHAN T. GILBERT, ESQ. Florida Bar No. 0064823 FELDMAN, FOX & MORGADO, P.A. 2701 N. Rocky Point Dr., Suite 1000 Tampa, FL 33607 Phone: (813) 639-9366 Fax: (813) 639-9376 Email: jgilbert@ffmlawgroup.com Attorney for Plaintiff

CERTIFICATE OF SERVICE I HEREBY CERTIFY on this 23rd day of November, 2010, I filed the foregoing with

the clerk of the court by using the CMIECF system. I FURTHER CERTIFY that the foregoing document is being served this day on all counsel of record via transmission of Notices
of Electronic Filing generated by CM/EFC, as follows: Cathy Beveridge, Esq. Fowler White Boggs 501 E. Kennedy Boulevard Suite 1700 Tampa, FL 33602

/s/ Jonathan T. Gilbert____________ JONATHAN T. GILBERT, ESQ. 19