MIAMI BUSINESS LITIGATION: DEFENDING AGAINST IMPROPER ASSERTION OF PERSONAL JURISDICTION

It is important in business litigation to carefully review the forum of the lawsuit to determine whether it is proper. The Supreme Court of Florida in Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), created a two-step analysis governing whether a Florida court may exercise personal jurisdiction over a non-resident defendant. “First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193.” Balboa v. Assante, 958 So. 2d 573 (Fla. 4th DCA 2007). “If so, the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Balboa v. Assante, 958 So. 2d 573 (Fla. 4th DCA 2007). “Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Am. Fin. Trading Corp. v. Bauer, 828 So. 2d 1071 (Fla. 4th DCA 2002). Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Under Florida law, there are established steps to to successfully dispute the existence of personal jurisdiction. “Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts.” Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). “By itself, the filing of a motion to dismiss on grounds of lack of personal jurisdiction over the person does nothing more than raise the legal sufficiency of the pleadings.” Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). “A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position.” Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). “To be legally sufficient, the defendant’s affidavit must contain factual allegations which, if taken as true, show that the defendant’s conduct does not subject him to jurisdiction.” Hilltopper Holding Corp. v. Estate of Cutchin ex rel. Engle, 955 So. 2d 598 (Fla. 2d DCA 2007).

If a business litigation defendant disputes personal jurisdiction, the company should timely file with the court a legally sufficient affidavit showing the company is not subject to the court’s jurisdiction, the burden then shifts back to the plaintiff to “prove by affidavit the basis upon which jurisdiction may be obtained.” Peznell v. Doolan, 722 So. 2d 881 (Fla. 2d DCA 1998). Where the plaintiff files a counter affidavit that raises conflicting facts, the trial court will hold a limited evidentiary hearing to resolve any disputed facts relating to jurisdiction. Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989).

Where the plaintiff fails to come forward with sworn proof to refute the allegations in the defendant’s affidavit and to prove jurisdiction, the case must be dismissed as to the defendant. Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). For example, in Tobacco Merchants Ass’n of U.S. v. Broin, 657 So. 2d 939 (Fla. 3d DCA 1995), the defendant filed a motion to dismiss for lack of personal jurisdiction with a supporting affidavit stating that it had no officers, employees, agents, or real property in Florida and did not conduct any business in Florida. The plaintiff failed to respond with a counter-affidavit or other sworn proof establishing the basis for the exercise of personal jurisdiction. Tobacco Merchants Ass’n of U.S. v. Broin, 657 So. 2d 939 (Fla. 3d DCA 1995). Thus, the court held that it could not exercise long-arm jurisdiction over the defendant. Tobacco Merchants Ass’n of U.S. v. Broin, 657 So. 2d 939 (Fla. 3d DCA 1995). When, as in Tobacco Merchants Ass’n of U.S. v. Broin, 657 So. 2d 939 (Fla. 3d DCA 1995), the plaintiff fails to allege sufficient facts to bring the defendant within the ambit of Florida’s long-arm statute, the court will not address the issue of whether the defendant has sufficient minimum contacts with Florida to satisfy federal constitutional due process requirements. Milberg Factors, Inc. v. Greenbaum, 585 So. 2d 1089 (Fla. 3d DCA 1991).

By contrast, where the plaintiff satisfies the first inquiry, the court will move to the second inquiry, which is whether sufficient minimum contacts exist. “The assessment of minimum contacts is fact-specific and must necessarily be tailored to the circumstances of each case.” Ferguson v. Estate of Campana, 47 So. 3d 838 (Fla. 3d DCA 2010). “The defendant’s conduct and connection with the forum state must be such that it should reasonably anticipate being hauled into court there.” Blumberg v. State Weiss & Co., Inc., 922 So. 2d 361 (Fla. 3d DCA 2006). “In order for a non-resident defendant to reasonably anticipate such litigation in the forum state, it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” deMco Techs., Inc. v. C.S. Engineered Casting, Inc., 769 So. 2d 1128 (Fla. 3d DCA 2000).

In short, Florida courts assess whether the business litigation defendant deliberately engaged in significant activities within Florida or created continuing obligations with Florida residents. Biloki v. Majestic Greeting Card Co., Inc., 33 So. 3d 815 (Fla. 4th DCA 2010). Random, fortuitous, or attenuated contacts, or contacts produced by the unilateral activity of another party or a third person, are insufficient to subject a nonresident to jurisdiction in Florida. Volkswagen Aktiengesellschaft v. Jones, 227 So. 3d 150 (Fla. 2d DCA 2017). For example, mere purchases of goods by the defendant in the forum state, even if accompanied by occasion visits to the form in connection with the purchases, are not sufficient minimum contacts to satisfy the test of due process. Aluminator Trailers, LLC v. Loadmaster Aluminum Boat Trailers, Inc., 832 So. 2d 822 (Fla. 2d DCA 2002). On the other hand, an interactive website which allows a nonresident defendant to enter into contracts to sell products to residents of the forum state, and which involves the knowing and repeated transmission of computer files over the Internet, may support a finding of minimum contacts. Renaissance Health Pub., LLC v. Resveratrol Partners, LLC, 982 So. 2d 739 (Fla. 4th DCA 2008).

Peter Mavrick is a Miami business litigation lawyer, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.