KAPLANIS v. JBI, INC. JOHN BORDYNUIK

Full title: MICHAEL KAPLANIS, Plaintiff, v. JBI, INC. and JOHN BORDYNUIK, Defendants

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Feb 18, 2011

Case No. 8:10-cv-2140-EAK-AEP (M.D. Fla. Feb. 18, 2011)

Opinion

Case No. 8:10-cv-2140-EAK-AEP.

February 18, 2011

ORDER

ELIZABETH KOVACHEVICH, District Judge

This cause comes before the court on Defendants' Motion to Dismiss Counts II and III of the Complaint (Doc. 10), Plaintiff's Motion to Amend/Correct Complaint and for Limited Discovery (Doc. 16) and Defendants' Response to Amend/Correct Complaint and for Limited Discovery (Doc. 25).

The primary cause of action alleged in the complaint is breach of contract (Docs. 1 and 16). Both parties in their pleadings, motions, and responses have cited Florida law (Docs. 1, 9, 10, 16, and 25). This is appropriate regarding the dispute on personal jurisdiction as Federal Rule of Civil Procedure 4(k)(1)(A) requires that the Court apply the law of the state in which the Court sits. However, the parties have not indicated to the Court that they have waived the choiceof-law provision in their contract which requires this Court to apply Nevada substantive law unless the parties consent otherwise (Doc. 10, ¶ 14), Mazzoni Farms Inc. v. E.I. DuPont De Nemours and Co., 761 So. 2d 306, 311 (Fla. 2000). Nothing before the Court indicates that the parties have elected to waive the choice-of-law provision. In light of the express nature of the provision and without express consent from the parties, the Court is loathe to avoid it. The parties will have an opportunity to jointly move the Court to waive the choice-of-law provision should they choose to do so. ORDERED that Plaintiff's motion to amend and for leave for discovery (Doc. 16) is granted in part, in that Mr. Kaplanis may refile his complaint using Nevada substantive law and may attempt to cure any alleged jurisdictional defects. However, the motion for limited discovery is denied. Defendant's motion to dismiss (Doc. 10) is denied as moot because there will be an amended complaint pled. The plaintiff has five (5) days to file the amended complaint. The parties have five (5) days to file a joint motion to the Court stipulating to waiver of the choice-of-law provision should they choose.

DONE and ORDERED in Chambers in Tampa, Florida, this 18th day of February, 2011.