govinfo:USCOURTS-flsd-1_25-cv-23322-1

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 

 
 
MOSSE SECURITY CONSULTING 
& INSTITUTE (GOVERNMENT) LLC, 
 
 Plaintiff, 
 
v. 
 
BENJAMIN MOSSE, et al. , 
 
 Defendants. 
______________________________________/ 
 
ORDER ADOPTING 
REPORT AND RECOMMENDATION 
 
THIS CAUSE is before the Court upon United States Magistrate Judge Panayotta Augustin-
Birch’s Report and Recommendation on Defendants’ Motion to Dismiss for Lack of Jurisdiction (the 
“R&R”) [ECF No. 23], entered on March 4, 2026, recommending the denial of Defendants’ Motion 
to Dismiss for Lack of Jurisdiction [ECF No. 16]. The undersigned referred the matter to Magistrate 
Judge Augustin-Birch pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 72 of the Federal Rules of Civil 
Procedure, and Rule 1(d) of the Local Magistrate Judge Rules. [ See ECF No. 21]. Objections were 
timely filed by Defendants [ECF No. 24], which the Court has reviewed de novo. Having reviewed and 
considered the R&R in light of the Objections, the parties’ papers, the relevant portions of the record, 
and the applicable law, the Court concludes that there is personal jurisdiction over Defendants . 
Accordingly, the Court hereby ADOPTS Judge Augustin-Birch’s R&R [ECF No. 23]. Defendants’ 
Objections [ECF No. 24] to the R&R are OVERRULED for the reasons discussed below. 
STANDARD OF REVIEW 
 In reviewing a Report and Recommendation, the district court “shall make a de novo 
determination of those portions of the report or specified proposed findings or recommendations to 
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which objection is made.” 28 U.S.C. § 636(b)(1)(C). “Parties filing objections to a magistrate’s report 
and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or 
general objections need not be considered by the district court.” United States v. Schultz, 565 F.3d 1353, 
1361 (11th Cir. 2009) (quoting Marsden v. Moore , 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal 
quotation marks omitted). Absent objection, the district judge “may accept, reject, or modify, in whole 
or in part, the findings and recommendations made by the magistrate judge,” 28 U.S.C. § 636(b)(1), 
and “need only satisfy itself that there is no clear error on the face of the r ecord” to accept the 
recommendation. Fed. R. Civ. P. 72 advisory committee’s note to 1983 amendment, subdivision (b). 
 District courts retain broad “discretion to decline to consider a party’s argument when that 
argument was not first presented to the magistrate judge.” Club Madonna Inc. v. City of Miami Beach, 42 
F.4th 1231, 1259 (11th Cir. 2022) (quoting Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)). 
RULING ON OBJECTIONS 
 Defendants make three principal objections. First, Defendants object to Judge Augustin-
Birch’s finding that they consented to personal jurisdiction in Florida by operation of the forum 
selection clause in Plaintiff’s operating agreement. [ECF No. 24 at 2 –6]. Second, Defendants argue 
that Judge Augustin- Birch erred in extending the forum selection clause to Defendant Benjamin 
Mosse Consulting Pty Ltd. (“Deveillance”), a non-signatory to the operating agreement. [Id. at 6–8]. 
Finally, Defendants maintain that should this Court agree with their objections regarding the scope of 
the forum selection clause, a minimum contacts analysis must be conducted. [Id. at 8]. 
 Let’s begin with the first objection. Defendants say that the forum selection clause is limited 
in scope and that the R&R overlooked that important fact. [ECF No. 24 at 2 –3]. Specifically, 
Defendants claim that the forum selection clause is cabined to two narrow categories of proceedings: 
(1) those involving provisional or injunctive relief “related to the failure by a party to the Agreement 
to perform in accordance with the terms of the Agreement”; and (2) those where a party seeks to 
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enforce an arbitration clause or an award in arbitration. [ECF No. 24 at 3 (emphasis removed)]. The 
Court disagrees. 
 For starters, this is the first time Defendants chose to lodge this specific argument . Plaintiff 
raised this precise issue concerning the forum selection clause in its opposition to Defendants’ Motion 
to Dismiss for Lack of Jurisdiction [ECF No. 19 at 6–9], but Defendant s failed to file a reply. By so 
doing, Defendants failed to state their position on the record before Judge Augustin-Birch. The Court, 
therefore, overrules this objection that was not raised before Her Honor. See Club Madonna, 42 F.4th 
at 1259. 
 But even on its merits, this objection fails. The first category Defendants point to in § 12.4(c) 
of the operating agreement contains disjunctive language. [See ECF No. 1 at 45 (“Each party agrees 
and consents to personal jurisdiction, service of process and venue in any federal or state court within 
the State of Florida, County of Miami -Dade, in connection with any action brought in connection 
with a request for any such provisional or injunctive relief . . . .” (emphasis added))]. So, even assuming 
Defendants are right that some causes of actions pled in the Complaint do not seek provisional 
damages, at least three seek injunctive relief. [See id. at 11–16]. In addition, these three counts of the 
Complaint (Violations of the Computer Fraud and Abuse Act, Florida Uniform Trade Secrets Act, 
and Violation of the Florida Deceptive and Unfair Trade Practices Act) are certainly “in connection 
with” Plaintiff’s other claims , such as the breach of contract claim, that relate directly to the 
performance of the operating agreement. [Compare e.g., id. ¶ 29, with id. ¶ 49]. 
 Defendants then posit that the forum selection clause is preceded by a broad arbitration clause. 
[ECF No. 24 at 4]. That clause reads that, “The exclusive remedy for determining any and all disputes, 
claims or causes of action arising out of or related to this Agreement . . . be determined by final, 
binding and confidential arbitration in Miami, Florida . . . .” [ECF No. 1 at 45]. Defendants seem to 
suggest that this dispute should be arbitrated. [See ECF No. 24 at 4]. But Defendants have not moved 
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to compel arbitration, yet they recognize that the second category in § 12.4(c) of the operating 
agreement clearly confers personal jurisdiction where a party seeks to enforce an arbitration clause. 
[See id. at 3]. They cannot have it both ways. The first objection is OVERRULED. 
 Moving to the second objection, Defendants contend that Judge Augustin-Birch erroneously 
extended the forum selection clause to Deveillance, a non-signatory to the operating agreement. [See 
id. at 6–8]. Again, this is the first time Defendants raise this issue. Th eir decision to do so alone 
warrants overruling the objection. See Club Madonna, 42 F.4th at 1259. 
 In any event, on the merits Defendants are wrong. They disagree with Her Honor’s 
application of the test from Carlyle Inv. Mgmt. LLC v. Moonmouth Co. SA, 779 F.3d 214 (3d Cir. 2015),1 
in determining whether a forum selection clause binds a non-signatory. In Delaware, a non-signatory 
is bound by a forum selection clause if: (1) the clause is valid; (2) the non- signatory is a third- party 
beneficiary of the agreement or is “closely related to the agreement”; and (3) the claim at hand arises 
from the non-signatory’s “status related to the agreement[.]” Id. at 218. 
 Defendants do no contest the first element of the Carlyle test. On the second element, though, 
Defendants argue that the R&R erred by finding that Deveillance is “closely related” to the operating 
agreement simply because Defendant Mosse—a signatory to the operating agreement —is the owner 
and Chief Executive Officer of Deveillance. [ECF No. 24 at 7]. Defendants claim t hat holding a 
mere officer-level position in a non-signatory entity is insufficient to satisfy the second element. [Id.]. 
Tellingly, Defendants do not cite any authority supporting this proposition. [ See id. ]. Indeed, 
governing law weighs against them. 
 
1 This test applies here because it is undisputed that Delaware law governs. [See generally ECF 
Nos. 24, 30; see also ECF No. 1 at 44 (“This Agreement, and any matter or dispute arising out of or 
related to this Agreement, shall be construed by, subject to and governed in accordance with the 
internal laws of the State of Delaware without giving effect to conflict of laws or other principles 
which may result in the application of laws other than the internal laws of the State of Delaware.”)]. 
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 “ In determining whether a non- signatory is closely related to a contract, courts consider the 
non-signatory’s ownership of the signatory, its involvement in the negotiations, the relationship 
between the two parties and whether the non-signatory received a direct benefit from the agreement.” 
Carlyle, 779 F.3d at 219 (first citing Weygandt v. Weco, LLC, No. 4056–VCS, 2009 WL 1351808, at *4–
5 (Del. Ch. May 14, 2009) ; then citing Capital Grp. Cos. v. Armour , No. CIV. A. 422–N, 2004 WL 
2521295, at *6–7 (Del. Ch. Oct. 29, 2004)). Other than the “direct benefit” test, Delaware courts find 
the “closely related” prong met where it is “foreseeable” that the non-signatory “would be bound by 
the agreement.” Imodules Software, Inc. v. Essenza Software, Inc., No. 0733-JTL, 2017 WL 6596880, at *3 
(Del. Ch. Dec. 22, 2017). This “foreseeability” concept applies either where the non -signatory 
defendants “seek to enforce a forum selection clause against signatory plaintiffs” or when the signatory 
“controls” the non-signatory. BuzzFeed, Inc. v. Anderson , No. 0357-MTZ, 2022 WL 15627216, at *12 
(Del. Ch. Oct. 28, 2022). 
 This case falls into the latter category. As alleged in the Complaint, Mosse is the Chief 
Executive Officer of Deveillance. [ECF No. 1 ¶ 10]. Plaintiff avers that both Defendant Mosse and 
Deveillance engaged in civil conspiracy to harass and undermine Plaintiff. [ Id. ¶¶ 83–85]. Plaintiff 
also alleges that Deveillance aided and abetted Mosse’s breach of fiduciary duty. [Id. ¶¶ 76–81]. This 
is sufficient to establish a “closely related” relationship for purposes of the second Carlyle factor. 
 Defendants also challenge Judge Augustin-Birch’s conclusion on the third Carlyle factor, which 
speaks to the relationship between the claims at hand and the non- signatory’s status related to the 
agreement. See Carlyle, 779 F.3d at 218. Defendants criticize Her Honor’s finding that merely because 
“the forum-selection clause applies to this dispute” [ECF No. 23 at 4], the third factor is met. They 
complain that Judge Augustin-Birch should have conducted a specific analysis as to Deveillance and 
its status to the operating agreement. [See ECF No. 24 at 7 –8]. But Defendants turn a blind eye to 
Carlyle’s holding that the inquiry for this third factor “is very similar to the question of whether the 
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forum selection clause applies to this dispute.” 779 F.3d at 220. And t he forum selection clause, as 
Her Honor made abundantly clear, applies here. 
 Undeterred, Defendants maintain that the claims lodged against Deveillance are non -
contractual tort claims so it bears no relation to the agreement. [See ECF No. 24 at 7–8]. Defendants 
again overlook what Carlyle said. There, the Third Circuit reiterated that “[c]ourts generally interpret 
language in a forum clause encompassing any claims ‘ with respect to’ an agreement broadly to mean 
‘connected by reason of an established or discoverable relation. ’ An action need not even allege contract -
based claims in order for a forum selection clause in a contract to be enforced.” Carlyle, 779 F.3d at 220 (emphasis 
added) (citations omitted). That no contract claims are pled against Deveillance is of no moment here. 
This objection is OVERRULED. 
Finally, as to the third objection, the Court declines to conduct a minimum contacts analysis 
because it disagrees with Defendants’ objections on the scope of the forum selection clause. One is 
simply unnecessary where, as here, the forum selection clause confers personal jurisdiction. See AFC 
Franchising, LLC v. Purugganan, 43 F.4th 1285, 1291 (11th Cir. 2022) (“ [T]he normal due process 
analysis is unnecessary where a nonresident defendant has consented to suit in a forum.” (internal 
quotation marks omitted)). The third objection is OVERRULED. 
CONCLUSION 
 Accordingly, in view of the foregoing and upon due consideration, it is hereby ORDERED 
AND ADJUDGED as follows: 
1. The R &R [ECF No. 23 ] is AFFIRMED and made a part of this Order for all 
purposes. 
2. The Motion to Dismiss for Lack of Jurisdiction [ ECF No. 16] is DENIED. 
 3. Defendants’ Objections [ ECF No. 24] are OVERRULED. 
4. Defendants shall file an Answer to the Complaint no later than June 10, 2026. 
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DONE AND ORDERED in the Southern District of Florida on May 20, 2026. 
 
 
 
 
cc: couns el of record 
 
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