United States District Court, W.D. Missouri, Western Division
ORDER GRANTING DEFENDANT CARMINE AMELIO'S MOTION
KAYS, JUDGE UNITED STATES DISTRICT COURT
case arises from an alleged scheme to defraud a group of
investors. Plaintiffs, a limited liability company and eight
individual investors based in Kansas City,  allege the
Defendants, who are based in the New York area, engaged in
fraud, misrepresentation, breach of fiduciary duty, and
breach of contract by failing to disclose crucial
information, embezzling from the company, and providing
before the Court is pro se Defendant Carmine Amelio's
(“Amelio”) Motion to Dismiss (Doc. 34), which is
almost identical to pro se Defendant David Katz's Motion
to Dismiss (Doc. 33). Amelio, who is the brother of Defendant
Paul Amelio,  moves to dismiss on three independent
grounds: improper service of process, lack of personal
jurisdiction, and failure to state a claim. The Court rules
only on that portion of the motion concerning personal
jurisdiction, because it is dispositive.
jurisdiction concerns “whether the controversy or the
defendant has sufficient contracts, ties, or relationships
with the forum to give the court the right to exercise
judicial power over the defendant . . . .” 5B Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1351 (3d ed. 2004). Personal jurisdiction
can be specific or general. Viasystems, Inc. v. EBM-Pabst
St. Georgen GmbH & Co., KG, 646 F.3d 589, 593 (8th
Cir. 2011). Plaintiffs allege the Court possesses specific
jurisdiction over Amelio and the other individual Defendants.
diversity case such as this one, personal jurisdiction exists
only to the extent permitted by the forum state's
“long-arm statute” and the Due Process Clause of
the Fourteenth Amendment. Myers v. Casino Queen,
Inc., 689 F.3d 904, 909 (8th Cir. 2012); see
Fed. R. Civ. P. 4(k)(1)(A). Missouri's long-arm statute
authorizes personal jurisdiction over defendants who transact
business, contract, or commit a tort within the state.
Viasystems, 646 F.3d at 593; Mo. Rev. Stat. §
506.500. These categories are construed broadly, and the
statute provides jurisdiction to the full extent permitted by
the Due Process Clause. Id.
the Missouri long-arm statute authorizes the exercise of
jurisdiction over nonresidents to the extent permissible
under the due process clause, ” a federal court need
only consider “whether the assertion of personal
jurisdiction would violate” due process. Aly v.
Hanzada for Import & Export Co., LTD, 864 F.3d 844,
849 (8th Cir. 2017) (quotations and citations
omitted).The court considers whether there is
“sufficient minimum contacts between a defendant and
the forum state so that jurisdiction over a defendant with
such contacts may not offend traditional notions of fair play
and substantial justice.” Id. (quotations and
citations omitted). This decision is made by weighing five
factors: “(1) the nature and quality of the contacts
with the forum state; (2) the quantity of those contacts; (3)
the relationship of those contacts with the cause of action;
(4) Missouri's interest in providing a forum for its
residents; and (5) the convenience or inconvenience to the
parties, ” with the court giving “significant
weight” to the first three factors. Id.
survive a motion to dismiss for lack of personal
jurisdiction, a plaintiff must plead sufficient facts to
support a reasonable inference that the defendant is subject
to jurisdiction within the state. Creative Calling Sols.,
Inc. v. LF Beauty Ltd., 799 F.3d 975, 979 (8th Cir.
2015). Once a motion has been filed, the parties may submit
evidence, such as affidavits, to bolster their positions.
Id. The plaintiff bears the burden of proof and must
make a prima facie showing that personal jurisdiction exists.
Fastpath, Inc. v. Arbela Tech. Corp., 760 F.3d 816,
820 (8th Cir. 2014). The plaintiff must establish personal
jurisdiction by a preponderance of the evidence at trial or
when the court holds an evidentiary hearing. Id.
Where, as here, the case is at the motion stage, the court
may not dismiss for lack of personal jurisdiction if the
evidence, viewed in the light most favorable to the
plaintiff, is sufficient to support a conclusion that the
exercise over the defendant is proper. Id.
case, the Court finds Plaintiffs have not carried their
burden. Neither the Second Amended Complaint (“the
Complaint”) (Doc. 52) nor the additional evidence
Plaintiffs have placed in the record is sufficient to
establish that the exercise of personal jurisdiction over
Amelio is proper. The Second Amended Complaint alleges
relatively few specifics with respect to Amelio. It claims he
was secretly added to N2 Global's Board of Directors in
2015, and that in October of 2017, Defendants Paul Amelio and
David Katz directed all future communications from Plaintiffs
be routed to him. Second Am. Compl. ¶¶ 39, 60. When
Plaintiffs demanded accountability for the spending of their
investment, Amelio met with them in New York on November 12,
2017, introducing himself as the new CEO of N2 Global.
Id. ¶ 61. During that meeting, Amelio did not
address the misuse of Plaintiffs investment, but did brag
that he had a great history of evading lawsuits. Id.
It also alleges that from 2015 through 2017, Amelio and his
brother Paul used Plaintiffs' investment to purchase a
number of distressed real estate properties. While the Second
Amended Complaint makes numerous boilerplate allegations that
he and the other Defendants knew or should have known that
false representations were made to Plaintiffs and that
relevant information was not disclosed to them, none of these
allegations relate specifically to Amelio or have any
connection to Missouri.
have failed to not place any evidence in the record
demonstrating any link between Amelio and Missouri. In fact,
Amelio is mentioned only once in passing in one affidavit
submitted by Plaintiffs; it states that Amelio was named in a
shareholder derivative action along with Paul Amelio, David
Katz, Joe Daniels, and others. Decl. of Douglas L. Beam at
¶ 17 (Doc. 19-2). The affidavit makes no connection
between Amelio and Missouri.
the five-factor test used to analyze personal jurisdiction
tilts heavily towards finding that exercising personal
jurisdiction over Amelio would violate due process. First,
with respect to the nature and quality of his contacts, any
contacts he had were minor and meaningless in the grand
scheme of things. Certainly nothing he is alleged to have
done was sufficient to put him on notice that he should
“reasonably anticipate being haled into court” in
Missouri. WorldWide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980); see Wessels, Arnold & Henderson
v. Nat'l Med. Waste, Inc., 65 F.3d 1427, 1432 (8th
Cir. 1995) (observing unilateral actions of a party claiming
a relationship with a nonresident defendant does not create
personal jurisdiction). Second, the number of contacts with
Missouri is very small; based on this record, zero. Third,
the relationship of these contacts to the causes of action
against him is nonexistent. While he allegedly played a role
in defrauded Plaintiffs, his role was played exclusively in
New York. And specific jurisdiction is based on the
defendant's contacts with the forum state itself, not the
defendant's relationship with the plaintiffs.
last two factors, Missouri's interest in providing a
forum for its residents and the relative convenience to the
parties, weigh in favor of personal jurisdiction. Missouri
has a strong interest in preventing its citizens from being
defrauded. And given the number of human parties who reside
in Missouri, eight, versus the number of human parties who
reside in the New York area, four, it is relatively more
convenient for the parties to litigate this case in Missouri.
These two factors, however, do not outweigh the first three
factors, to which the Court attributes “significant
conclusion, the Court holds Plaintiffs have failed to carry
their burden of making a prima facie showing that personal
jurisdiction over Amelio exists.
reasons discussed above, Defendant Carmine Amelio's
motion to dismiss (Doc. 34) is GRANTED. All claims against