Opinions and documents
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DAVID SCHLESSINGER, )
Plaintiff, )
)
v. ) Case No. 3:25-cv-01251
) Judge Trauger/Frensley
SAFE STEP WALK IN TUB, LLC, )
& FRANK GIALKETIS, individually. )
and in his official capacity )
Defendants. )
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff David Schlessinger brought this action against Defendants Safe Step Walk in Tub,
LLC (“Safe Step”) and Frank Gialketsis (collectively, “Defendants”) alleging fraud in the
inducement and negligent misrepresentation, both arising out of the conversations related to
Plaintiff’s employment with Safe Step. Docket No. 40. This case, originally filed in the Southern
District of Florida, was transferred to this Court pursuant to a forum selection clause designating
Tennessee as the proper forum. Docket No. 20.
This matter is now before the Court upon a Motion to Dismiss filed by Mr. Gialketsis, who
argues that this Court does not have personal jurisdiction over him. Docket No. 47. Mr. Gialketsis
has also filed a Supporting Memorandum. Docket No. 48. Plaintiff has filed a Response in
Opposition and Mr. Gialketsis has filed a Reply. Docket Nos. 49, 50.
For the reasons set forth below, the undersigned recommends that Mr. Gialketsis’ Motion
to Dismiss (Docket No. 47) be GRANTED.
II. LAW AND ANALYSIS
A. Motions to Dismiss for Lack of Personal Jurisdiction
When deciding a motion to dismiss for lack of personal jurisdiction, a court may “rule on
the motions on the basis of affidavits alone, permit discovery in aid of the motion, or conduct an
evidentiary hearing on the merits of the motion,” and the party asserting personal jurisdiction bears
the burden of establishing that jurisdiction exists. Kerns v. Caterpillar, Inc., 583 F. Supp. 2d 885,
891 (M.D. Tenn. May 1, 2008). When the motion is decided without conducting an evidentiary
hearing, the party asserting jurisdiction “need only make a prima facie showing of jurisdiction to
defeat the motion,” and the Court must consider the facts in the light most favorable to the
nonmoving party while declining to weigh conflicting facts offered by the defendant. Id. The party
asserting jurisdiction can meet this prima facie burden by “establishing with reasonable
particularity sufficient contacts between the defendant and the forum state to support jurisdiction.”
Id. (internal quotation marks omitted).
There are two forms of personal jurisdiction: general and specific. General jurisdiction
exists when “a defendant’s contacts with the forum state are of such a continuous and systematic
nature that the state may exercise personal jurisdiction over the defendant even if the action is
unrelated to the defendant’s contacts with the state.” Third Nat'l Bank in Nashville v. WEDGE
Group Inc., 882 F.2d 1087, 1089 (6th Cir. 1989) (internal quotation marks omitted). See also,
Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014); Goodyear Dunlop Tires Operations, S.A. v.
Brown, 131 S. Ct. 2846, 2851 (2011). Specific jurisdiction exists when “a state exercises personal
jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the
forum.” Cumberland & Ohio Co. v. Coffman, 719 F. Supp. 2d 884, 888 (M.D. Tenn. 2010). In the
Sixth Circuit, specific jurisdiction exists when: (1) the defendant purposefully avails himself of
the privilege of acting in the forum state or causing a consequence in the forum state; (2) the cause
of action arises from the defendant’s activities there; and (3) the acts of the defendant or
consequences caused by the defendant must have a substantial enough connection with the forum
state to make the exercise of jurisdiction over the defendant reasonable. See, e.g., Southern Mach.
Co. v. Mohasco Industries Inc., 401 F.2d 374, 381 (6th Cir. 1968).
B. Mr. Gialketsis’s Motion to Dismiss for Lack of Personal Jurisdiction
Mr. Gialketsis argues that he did not negotiate the direct seller agreement central to this
litigation, as evidenced by his lack of a signature on the document and his declaration that he “did
not negotiate, draft, or sign the operative Direct Seller Agreement” and had “no knowledge of the
forum selection clause.” Docket No. 47-1, p. 2. Mr. Gialketsis emphasizes that Plaintiff advanced
substantially the same arguments regarding personal jurisdiction in both Florida and Tennessee
and thereby undermined the credibility of his factual allegations, which he argues lack supporting
evidence and are instead “contradicted by clear extrinsic evidence in this matter.” Id. at 3-4. Mr.
Gialketsis further contends that the First Amended Complaint does not allege that any of the
communications regarding Plaintiff’s hiring for the Direct Seller position “originated from
Tennessee, were made while Mr. Gialketsis was physically present in Tennessee, or were uniquely
directed toward Tennessee as a forum.” Id. at 5. Mr. Gialketsis also argues that the Direct Seller
Agreement governing Plaintiff’s hiring “governs disputes between Plaintiff and Safe Step” and
does not create personal jurisdiction in Tennessee over Mr. Gialketsis as a non-signatory employee
“based on the same pre-contract conduct previously alleged in Florida.” Id.
Additionally, Mr. Gialketsis maintains that personal jurisdiction does not exist because he
is a non-resident defendant and his contacts with Tennessee were minimal and indirect. Id. at 6.
Mr. Gialketsis asserts that he “ is a resident of California, was served in California, only
communicated with Plaintiff through electronic and telephonic means, never met Plaintiff in
person, much less in Tennessee, and did not visit Tennessee in conjunction with Plaintiff to avail
himself of this action.” Id. at 7. Mr. Gialketsis argues that just as the Southern District Court of
Florida already dismissed the case against him for lack of personal jurisdiction, Plaintiff’s attempts
to assert jurisdiction in Tennessee by repackaging the same allegations do not create personal
jurisdiction. Id. at 9. He points to the Florida Court’s conclusion that “the only remaining
Defendant in the action is Safe Step, with whom Plaintiff has a contract, arguing that it is
unnecessary to hale “an individual into a distant forum where the corporate defendant is already
fully capable of answering the claims asserted” and through that corporate defendant, “Plaintiff
can obtain complete relief on his claims.” Id. (citation modified). Mr. Gialketsis emphasizes that
jurisdiction must be based on a defendant’s personal choice to avail himself of the forum, not on
his employer corporation’s affiliation with the forum, because otherwise the Court would
improperly extend personal jurisdiction over an individual in a manner that violates the Due
Process Clause. Id. at 10.
Plaintiff responds that Mr. Gialketsis purposefully availed himself of Tennessee because
he negotiated the contract between Plaintiff and Safe Step, which contained a forum selection
clause designating Tennessee as the forum for litigation. Docket No. 49, p. 4-5. Plaintiff
acknowledges that Mr. Gialketsis did not sign the agreement but argues that personal jurisdiction
nevertheless exists because he helped negotiate the contract containing the forum selection clause.
Id. Further, Plaintiff contends that Mr. Gialketsis purposefully availed himself of Tennessee
because he “hired Plaintiff, directed Plaintiff to travel to Tennessee for training, and participated
in video conferences with Plaintiff and other employees in Tennessee.” Id. at 5.
Plaintiff additionally argues that his claims arise from Mr. Gialketsis’s forum-related
activities because the alleged misrepresentations involve Plaintiff’s employment and training in
Tennessee. Id. at 6. Plaintiff avers that Mr. Gialketsis’s contacts with Tennessee are substantial
such that the exercise of personal jurisdiction is reasonable because he negotiated Plaintiff’s
employment agreement and participated in Plaintiff’s training in Tennessee. Id. Accordingly,
Plaintiff argues that Mr. Gialketsis should have reasonably anticipated being haled into a Tennessee
Court. Id.
Mr. Gialketsis replies that the cases the Plaintiff cites do not support the exercise of
personal jurisdiction because it is “undisputed that Mr. Gialketsis is not a Tennessee citizen and
Plaintiff has offered no facts establishing the requisite continuous and systematic contacts.” Docket
No. 50, p. 1. Mr. Gialketsis notes that “Plaintiff is not a Tennessee citizen” and asserts that
Plaintiff’s alleged injuries “did not arise out of activities in Tennessee.” Id. at 1-2.
Mr. Gialketsis avers that the cases Plaintiff cites “each involved some combination of a
Tennessee resident, Tennessee-based business activity, monetary damages tied to the state, or
forum-related conduct giving rise to the alleged injury,” whereas here, Mr. Gialketsis is a
California resident who interviewed a Florida resident (Plaintiff) for a Florida-based position and
whose alleged injuries occurred in Florida. Id. at 3, 5. Mr. Gialketsis emphasizes that Plaintiff’s
employment agreement was only with Safe Step and that Mr. Gialketsis’s name does not appear
on the agreement, which, he argues contradicts Plaintiff’s assertion that it was Mr. Gialketsis who
hired him. Id. at 4. Mr. Gialketsis contends that “Plaintiff cannot salvage jurisdiction by relying on
contract negotiations alone—particularly where Mr. Gialketsis did not sign the Agreement and
performed no acts related to the alleged harm in Tennessee.” Id. at 5.
In the case at bar, Mr. Gialketsis is a resident of California; there has been no suggestion
that he is a citizen of Tennessee. His contacts within Tennessee, as presented by Plaintiff, are not
continuous or systematic enough to establish general personal jurisdiction. See Third Nat’l Bank,
882 F. 2d at 1089. Therefore, specific jurisdiction is the only manner by which Plaintiff may
establish personal jurisdiction. Plaintiff does not dispute Mr. Gialketsis’s assertions that he did not
own property in Tennessee and did not work in Tennessee. To the extent that, as Plaintiff contends
(and Mr. Gialketsis denies) Mr. Gialketsis negotiated a contract for Plaintiff’s employment, it was
a contract for employment to be carried out in Florida. Docket No. 40-2. Thus, it appears that he
did not purposefully avail himself of the privilege of acting in Tennessee. See S. Mach. Co., 401
F.2d at 381. Plaintiff alleges that Mr. Gialketsis’s forum-related activities include directing Plaintiff
to travel to Tennessee for training and participating remotely by video from outside Tennessee to
conduct part of the training. Docket No. 49, p. 5. However, the cause of action asserted by Plaintiff
does not “aris[e] out of” or relate to Mr. Gialketsis’s participation in training conducted in
Tennessee or his direction that Plaintiff attend training there. Receiver of Assets, 719 F. Supp. 2d
at 888.
Moreover, Plaintiff attempts to establish personal jurisdiction through the employment
contract, which Plaintiff alleges Mr. Gialketsis helped negotiate, and which included a forum
selection clause designating Tennessee as the chosen forum. Docket No. 49, p. 4-5; Docket No.
40-2, p. 11. Yet, Sixth Circuit precedent establishes that “when a signatory plaintiff invokes the
[forum selection] clause against a non-signatory defendant and uses it to establish personal
jurisdiction in the contractually chosen forum, enforcement of the clause creates a constitutional
due-process problem by circumventing the basic minimum-contacts requirement.” Firexo, Inc. v.
Firexo Grp. Ltd., 99 F. 4th 304, 318 (6th Cir. 2024). “To conclude that a court has personal
jurisdiction over a defendant based solely on that defendant’s connection to a contract is to
fundamentally misunderstand the Supreme Court’s recent caselaw in this area.” Id. (citation
modified). Therefore, Mr. Gialketsis cannot be haled into a Tennessee court based on a forum
selection clause in a contract to which he was not a party and which both parties acknowledge he
did not sign. See Docket Nos. 48, 49.
There is simply not enough of a connection between Mr. Gialketsis and Tennessee to make
the exercise of either general or specific personal jurisdiction over Mr. Gialketsis reasonable.
Although “in Tennessee, even a defendant’s single act, if it is deliberately directed toward a State
resident and gives rise to the cause of action, can support a finding of purposeful availment and
therefore meet the due process requirement of minimum contacts,” Plaintiff is not a Tennessee
resident, and as discussed above, Mr. Gialketsis’s contacts with Tennessee do not give rise to
Plaintiff’s cause of action. Erwin v. Piscitello, 627 F. Supp. 2d 855, 859 (E.D. Tenn. 2007) (citation
modified). Plaintiff has failed to establish “with reasonable particularity sufficient contacts
between the defendant and the forum state to support jurisdiction” and, therefore, has failed to
make the prima facie showing of jurisdiction necessary to defeat the motion to dismiss. Kerns, 583
F. Supp. 2d at 891.
III. RECOMMENDATION
For the reasons set forth below, the undersigned recommends that Mr. Gialketsis’ Motion
to Dismiss (Docket No. 47) be GRANTED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days
after service of this Report and Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said objections shall have fourteen
(14) days after service of any objections filed to this Report in which to file any response to said
objections. Failure to file specific objections within fourteen (14) days of service of this Report
and Recommendation can constitute a waiver of further appeal of this Recommendation. See
Thomas y. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985), reh’g denied, 474 US.
1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
JEFFERY S. FRENSLEY
United States Magistrate Judge
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