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The Florida Bar
www.floridabar.org
The Florida Bar Journal
November, 2013 Volume 87, No. 9
A Wrinkle in Time: Personal Jurisdiction’s Evolution -- Pleading, Proving, and Defending Personal Jurisdiction Issues

by Mark A. Sessums and Brian M. Monk

Page 16

When filing a Florida lawsuit against a nonresident person or entity, it is incumbent upon the practitioner to be knowledgeable about how to state the allegations of jurisdiction to properly perfect the jurisdictional claims. It is axiomatic that for a Florida court to have jurisdiction to grant relief, the court must first have both subject matter jurisdiction over the cause and personal jurisdiction over all parties to the lawsuit.1 Subject matter jurisdiction is defined as the Florida court’s authority to adjudicate a particular class or type of case.2 Personal jurisdiction is defined as the court’s power to address the rights of a party to a lawsuit.3 Personal jurisdiction must be properly alleged by stating the litigant’s actual or constructive presence in the state of Florida.4 This article addresses the concepts of personal jurisdiction as these concepts have evolved and gives an overview of the evolutionary changes to the concepts of personal jurisdiction as affected by new technologies.

A litigant who wishes to properly perfect personal jurisdiction in Florida over a nonresident must properly plead and establish personal jurisdiction over that nonresident. This proper pleading is accomplished via allegations that satisfy the statutory requirements of Florida’s long-arm statute that is contained in F.S. §48.193 (2012). The litigant initiating the action must plead the specific acts or conduct that form the bases for subjecting the responding litigant to Florida’s jurisdiction in the initial complaint.5 Obtaining personal jurisdiction over a nonresident requires a statutory long-arm basis to assert jurisdiction, along with satisfaction of constitutional requirements of due process.6

In the seminal case of Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), the Florida Supreme Court set forth a two-step process to determine if personal jurisdiction exists over a nonresident responding litigant. The first step in the analysis is whether sufficient facts have been alleged to bring the action within the ambit of Florida’s long-arm statute.7 The second step, if the long-arm statute applies, requires the court to conduct a due process analysis, a component of which is the “minimum contacts” analysis.8

Specific Jurisdiction Due Process
Once the practitioner includes sufficient allegations within the pleading to bring the action within Florida’s long-arm statute, he or she should next make sure to include allegations that state the due process facts purported to connect the responding litigant to Florida. Personal jurisdiction can exist in two forms: Specific, in which the alleged activities or actions of the responding litigant that form the underlying operative facts of the claim are directly connected to Florida; and general, in which the responding litigant’s connection with Florida is so substantial that no specific or enumerated relationship between the alleged wrongful actions and Florida is necessary.9

Pursuant to Florida’s long-arm statute, F.S. §48.193(1), a nonresident responding litigant may be subject to specific personal jurisdiction when the responding litigant committed any of the acts enumerated in the subsection within Florida and the cause of action arose from the act.10 F.S. §48.193(1) articulates when specific jurisdiction applies, and provides:

Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts. (Emphasis added).

The statutory list of F.S. §48.193(1) consists of specific acts that serve as a predicate for the exercise of specific personal jurisdiction over a nonresident. When the petitioning litigant alleges that the cause of action arose from the responding litigant’s specific acts as enumerated in F.S. §48.193(1) (specific jurisdiction), the due process inquiry involves the trial court’s review of specific facts on a case-by-case basis to determine if due process is satisfied. The U.S. Supreme Court has issued several cases that set forth the proper specific jurisdiction due process analysis for practitioners to model when pleading and proving their case. These factors for specific jurisdiction due process analysis have evolved over the years.

Substantive due process traces back to the U.S. Supreme Court decision in International Shoe Co. v. Washington, 326 U.S. 310 (1945), in which the Court held that for purposes of preserving “traditional notions of fair play and substantial justice,” a state court may exercise personal jurisdiction over a nonresident responding litigant only so long as there exist “minimum contacts” between the responding litigant and the forum state.11 In 1958, the Supreme Court further clarified that the minimum contacts analysis only applies to situations in which the responding litigant has “purposefully avail[ed]” themselves of the privilege of conducting activities within the forum state, thus, invoking the benefits and protections of the laws of that state.12 In 1980, the U.S. Supreme Court, in World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), further explained the purpose of the minimum contacts requirement:

The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the [s]tates through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.

World–Wide Volkswagen also detailed the “reasonableness” and “fairness” protections against inconvenient litigation, stating:

We have said that the defendant’s contacts with the forum [s]tate must be such that maintenance of the suit “does not offend ‘traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington, supra, at 316, 66 S. Ct., at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 342, 85 L. Ed. 278 (1940). The relationship between the defendant and the forum must be such that it is “reasonable …to require the corporation to defend the particular suit which is brought there.” 326 U.S. at 317, 66 S. Ct. at 158. Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum [s]tate’s interest in adjudicating the dispute, see McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 201, 2 L. Ed. 2d 223 (1957); the plaintiff’s interest in obtaining convenient and effective relief, see Kulko v. California Superior Court, supra, 436 U.S. at 92, 98 S. Ct. at 1697, at least when that interest is not adequately protected by the plaintiff’s power to choose the forum, cf. Shaffer v. Heitner, 433 U.S. 186, 211, n. 37, 97 S. Ct. 2569, 2583, n. 37, 53 L. Ed. 2d 683 (1977); the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several [s]tates in furthering fundamental substantive social policies, see Kulko v. California Superior Court, supra, 436 U.S. at 93, 98, 98 S. Ct. at 1697, 1700.13

The Court also noted that “foreseeability” is relevant, and the concept is satisfied when “the defendant’s conduct and connection to the forum [s]tate are such that he should reasonably anticipate being haled into court there.”14

Thus, today’s practitioner should plead, and be prepared to prove, the responding litigant’s minimum contacts with Florida as established by F.S. §48.193(1). Generally, there are three things today’s practitioner should plead and be prepared to prove. First, all facts that give context to how the responding litigant purposefully availed themselves of the privilege of conducting activity within Florida, thereby, invoking the protections of Florida. Second, any other relevant factors that show why it is reasonable and fair to conduct the litigation in Florida (given the responding litigant’s connection to Florida, and the location of the parties, the evidence, and the witnesses). Lastly, any other arguments explaining why litigating in Florida is judicially efficient, reasonable, and fair.

Examples of Minimum Contacts
Determining whether a nonresident responding litigant has sufficient minimum contacts with Florida to justify exercise of personal jurisdiction over the litigant requires examination of the quality and nature of the responding litigant’s activity.15 Sufficient minimum contacts can include telephonic, electronic, or written communications to Florida from an outside state without the need for the responding litigant to have been physically present in the state if the alleged cause of action arises from the specific communications.16 For example, a California resident’s numerous telephone interviews with a Florida journalist established sufficient minimum contacts such that the California resident could reasonably anticipate being haled into court in Florida for allegedly defamatory statements he made for a story the California resident knew would be published in Florida.17 Of note, even a single act connecting the responding litigant with Florida may justify long-arm personal jurisdiction when the single act creates a substantial connection to Florida.18

Thus, in a recent Florida case, the Florida court held that a litigant could assert personal jurisdiction over a nonresident former wife who allegedly violated Florida’s Security of Communications Act based on her alleged illegal recording of telephone calls in North Carolina placed by her former husband in Florida.19 The former husband’s pleading, which alleged the intentional tort of a violation of Florida’s Security of Communications Act, was held to properly allege sufficient jurisdictional facts required under Florida’s long-arm jurisdiction statute because the illegal interception occurred where the intercepted statement was made. In reaching its holding, the court noted that the responding litigant’s actions were not the “random, fortuitous or attenuated actions that courts seek to avoid pinning jurisdiction upon.”20 Thus, the practitioner will seek to establish the relevant actions as specific, intentional, and substantive.

General Jurisdiction Due Process
A nonresident responding litigant may be subject to general personal jurisdiction, pursuant to F.S. §48.193(2) as follows: “A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” (Emphasis added).

When the petitioning litigant alleges that the responding litigant is subject to general personal jurisdiction in Florida, pursuant to F.S. §48.193(2), the due process inquiry involves a review of three primary questions:

1) Has the responding litigant engaged in activities that are “sufficiently substantial” and of such a nature as to permit the Florida court to entertain a cause of action against the nonresident where the cause of action arose from activities entirely distinct from its activities in Florida?21

2) Has the responding litigant engaged in “continuous and systematic general contacts” necessary to satisfy due process?22

3) Overall, is the exercise of the court’s jurisdiction “reasonable?”23

The “reasonableness” test found in World–Wide Volkswagen Corp. and Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102 (1987), applies to both the specific jurisdiction due process analysis and the general jurisdiction due process analysis.24 A showing of substantial, continuous, and systematic contacts must be made to support general jurisdiction.25 The reasonableness determination will rarely prevent a court from exercising general jurisdiction over a responding litigant because the general jurisdiction inquiry is so demanding.26 The practitioner should plead, and be prepared to prove, the responding litigant’s substantial continuous and systematic contact with Florida, along with the relevant factors that show why it is reasonable and fair to conduct the litigation in Florida.

For purposes of the exercise of general personal jurisdiction under Florida’s long-arm statute, the nonresident responding litigant’s contacts with Florida must be so extensive to be tantamount to a defendant being constructively present in the state to such a degree that it would be fundamentally fair to require it to answer in the state’s courts in any litigation arising out of any transaction or occurrence taking place anywhere in the world.27 When a responding litigant’s actions meet the general jurisdiction requirements under F.S. §48.193(2) and related case law, the “minimum contacts” due process analysis under a F.S. §48.193(1) specific jurisdiction inquiry will also be satisfied. However, the reverse is not true — meeting the “minimum contacts” due process inquiry for specific jurisdiction will not necessarily be sufficient to prove general jurisdiction.28

Practitioners should take care not to overlook the fact that the required due process review in the two-step personal jurisdiction analysis differs depending on whether specific jurisdiction or general jurisdiction is asserted.29 Although the factors listed herein will provide a solid basis for proper pleading, note that courts have provided that “the facts of each case must always be weighed in determining whether personal jurisdiction would comport with fair play and substantial justice,” and “any talismanic jurisdictional formulas” are expressly rejected.30 If jurisdiction is contested, the trial court will ultimately make a fact-specific determination regarding jurisdiction after an evidentiary hearing. Sufficiently detailed pleadings that squarely address the principles raised by the U.S. Supreme Court cases cited herein will provide today’s practitioner with a solid foundation for pleading and proving jurisdiction. If Florida’s long-arm statute applies, the trial court must then ultimately determine whether there are sufficient contacts on the part of the defendant to satisfy due process requirements “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”31 The rules and procedures for alleging and proving (or disproving) long-arm jurisdiction in Florida must be strictly followed.32 Unless the bases for claiming long-arm service are specifically alleged in the petition, any service on a responding litigant outside of Florida is subject to dismissal, as described herein.

Personal Jurisdiction and the Internet
The Internet has bred complex personal jurisdiction issues, which have resulted in a further evolution of personal jurisdiction jurisprudence. In Hanson v. Denckla, 357 U.S. 235 (1958), the Supreme Court noted that “[a]s technological progress has increased the flow of commerce between [s]tates, the need for jurisdiction has undergone a similar increase.” The Supreme Court also observed that jurisdiction cannot be avoided “merely because the defendant did not physically enter the forum state.”33 The seminal federal case addressing the Internet’s impact on the jurisdictional due process analysis is Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).

In Zippo, the manufacturer of “Zippo” tobacco lighters brought suit in Pennsylvania against Zippo Dot Com, Inc., for trademark dilution, infringement, and false designation under the Lanham Act due to Zippo Dot Com, Inc.’s, use of the Internet domain names “zippo.com,” “zippo.net,” and “zipponews.com.”34 The defendant sought to dismiss the complaint for lack of long-arm personal jurisdiction on the basis that its contacts with the state of Pennsylvania were almost exclusively via the Internet through the use of a company website.35 The court, in Zippo, noted, “the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.”36 In Zippo, the court outlined a sliding scale test to determine whether to assert jurisdiction over a nonresident defendant in an Internet context.37 This sliding scale test looks to a website’s characteristics to place the website on a spectrum of interactivity.38 On one end of the spectrum is a “passive” website in which “a defendant has simply posted information on an Internet [website] which is accessible to users in foreign jurisdictions.”39 Such a passive website is not grounds for exercise of personal jurisdiction over the nonresident owner or operator of the website.40 On the other end of the spectrum are active “situations where a defendant clearly does business over the Internet.”41 When a responding litigant purposefully avails itself of doing business in a state by doing business over the Internet and into that state, that responding litigant can be subject to personal jurisdiction in that state.42 Finally, in the middle is the grey area where “a user can exchange information with the host computer,” which requires an examination of “the level of interactivity and commercial nature of the exchange of information that occurs on the Web site” prior to reaching a conclusion of whether personal jurisdiction is satisfied.43

Florida courts have not wholly adopted the federal Zippo sliding scale framework; however, Florida courts have used the Zippo sliding scale as a part of their personal jurisdiction analysis.44 The Florida cases that address personal jurisdiction in the context of the Internet often cite to the Florida Supreme Court case of Wendt v. Horowitz, 822 So. 2d 1252 (Fla. 2002), as a starting point for analysis. In Wendt, the Florida Supreme Court provided that “in order to commit a tortious act in Florida, a defendant’s physical presence is not required.”45 The Wendt court further expressly held that “telephonic, electronic, or written communications into Florida may form the basis of personal jurisdiction under section 48.193(1)(b), if the alleged cause of action arises from the communications.”46 Similarly, Florida courts have held that emails into Florida give rise to personal jurisdiction under F.S. §48.193(1)(b).47

Likewise, allegedly defamatory comments posted in an Internet chat room accessed by Florida residents also can give rise to personal jurisdiction in a defamation action.48 In Internet Solutions Corporation v. Marshall, 39 So. 3d 1201 (Fla. 2010), the Florida Supreme Court stated that “relevant case law reveals that courts interpreting Florida law in the context of the Web have applied differing approaches.”49 The Florida Supreme Court has declined to adopt as a bright line test the active/passive distinction of Zippo.50 As a Florida court recently noted, “the U.S. Supreme Court created the minimum contacts test to determine if jurisdiction is constitutionally proper and no exception to this doctrine has been carved out for situations in which Internet activity is part of the fact pattern.”51

Going back to the U.S. Supreme Court case of Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), “the facts of each case must always be weighed in determining whether personal jurisdiction would comport with fair play and substantial justice,” and “any talismanic jurisdictional formulas” were expressly rejected.52

Other courts have found that a rigid adherence to the Zippo test is likely to lead to erroneous results, and Florida courts have agreed.53 The Florida Supreme Court, in Internet Solutions, allows for the “active” and “passive” analysis of Zippo, to be a part of the analysis, but not all of the analysis, stating, in a specific jurisdiction case, that “the issues of whether [the defendant] targeted a Florida resident, whether [the defendant] purposefully directed her post at Florida, or whether [the defendant’s] website is ‘active’ or ‘passive’ could be properly considered in the due process analysis.”54 Thus far, Florida courts have adopted the view that traditional personal jurisdiction analysis (as described hereinabove), whether general or specific, does not fundamentally change when the Internet is involved in the controversy.55

Personal Jurisdiction and the Corporate Shield Doctrine
The recent Florida Supreme Court case Kitroser v. Hurt, 85 So. 3d 1084 (Fla. 2012), examines jurisdiction principles involving employees of a foreign corporation who committed tortious acts in Florida. Employees of the company Airgas Carbonic, Inc. (Airgas) allegedly negligently trained a fellow employee in Florida, who then negligently operated an Airgas truck that struck the decedent’s automobile, causing her death.56 The plaintiffs argued that if individuals commit tortious acts while present in the state of Florida, then Florida has personal jurisdiction over those individuals and those individuals may be sued in a Florida court regardless of employment status.57 The nonresident employees attempted to invoke the corporate shield doctrine. These nonresident employees argued that because the alleged actions occurred within the scope of their employment, the Florida court could not exercise personal jurisdiction over them.58 The “corporate shield” doctrine, also referred to as the “fiduciary shield” doctrine, provides that acts performed by a person exclusively in his corporate capacity in a foreign state may not form the predicate for the exercise of personal jurisdiction over the employee in Florida.59 The rationale behind the corporate shield doctrine is that it is unfair to force an individual to defend an action filed against him or her personally in Florida when the individual’s only relevant contacts are acts performed totally outside the forum state and for the exclusive benefit of his employer.60 The Florida Supreme Court resolved this question, and held:

Where an individual, nonresident defendant commits negligent acts in Florida, whether on behalf of a corporate employer or not, the corporate shield doctrine does not operate as a bar to personal jurisdiction in Florida over the individual defendant. Jurisdiction properly applies to “any person” who commits torts “within this state.” §48.193, Fla. Stat. (2011).61

Defending a Suit Involving Long-arm Personal Jurisdiction
How can a nonresident responding litigant defeat an allegation in a pleading alleging the Florida court’s personal jurisdiction over him or her? To avoid any personal jurisdiction resulting through submission to the court’s jurisdiction, while at the same time contesting the lack of jurisdiction, the initial burden (practically speaking)62 rests on the responding litigant first to make only a special appearance and then to raise an objection to personal jurisdiction.63 An objection to personal jurisdiction may be made either in an initial pleading or by a motion to dismiss.64 If not raised by pleading or motion, with a special appearance, the objection is waived.65 If the responding litigant in this circumstance files a pleading or a motion without asserting the court’s lack of personal jurisdiction, the responding litigant will be deemed to have made a general appearance before the court and to have waived any objection to personal jurisdiction.66

Additionally, the responding litigant should be careful not to seek any affirmative relief that could operate to waive his or her objection to personal jurisdiction.67 A responding litigant may manifest consent to a court’s in personam jurisdiction in any number of ways: failure to interpose a jurisdictional defense; acquiescence in the prosecution of a cause in a given forum; or submission implied from conduct.68

The Florida Supreme Court has held, “a defendant waives a challenge to personal jurisdiction by seeking affirmative relief — such requests are logically inconsistent with an initial defense of lack of jurisdiction.”69 For purposes of a waiver of a personal jurisdiction defense, “affirmative relief” is relief through which a responding litigant maintains an action independently of the petitioning litigant’s claim which the litigant seeks a recovery.70 However, a party may take defensive actions so long as such requests are consistent with the initial defense of lack of jurisdiction and do not constitute “affirmative relief.”71 Permissible defensive actions include a request for attorneys’ fees necessary to prosecute a motion to dismiss for lack of jurisdiction;72 a motion to dismiss for forum non conveniens;73 a request for a stay;74 and a request for production of documents related only to the issue of jurisdiction.75 Consequently, a practitioner representing a responding litigant who contests personal jurisdiction should file a special appearance, a motion to quash service of process, and a motion to dismiss for lack of jurisdiction prior to any further pleadings or motions.

Florida’s long-arm statute is to be strictly construed by trial courts when hearing a motion to dismiss for lack of personal jurisdiction.76 If the petitioning litigant fails to allege any basis for long-arm jurisdiction, then the responding litigant’s motion to dismiss should be granted without hearing.77 In this circumstance, it may be unnecessary for the responding litigant to do anything more than file an unsworn motion stating that the allegations of the petitioning litigant’s complaint are legally insufficient.78 Note that the petitioning litigant who seeks to obtain jurisdiction over a responding litigant under Florida’s long-arm statute may meet the initial burden of showing a jurisdictional basis by pleading the statutory basis for service without pleading supporting facts.79 When the petitioning litigant pleads a prima facie case establishing long-arm jurisdiction, a motion to dismiss for lack of jurisdiction is insufficient unless it establishes a factual basis to dispute the petitioning litigant’s allegations.80 To adequately contest a basis for jurisdiction, the responding litigant in filing the motion to dismiss should establish in the record via an affidavit, deposition, or other sworn proof the facts relied upon by the responding litigant to contest jurisdiction.81

Once the responding litigant files a motion to dismiss and supporting proof, the burden shifts back to the petitioning litigant to file affidavits, depositions, or other proof in support of the position that long-arm jurisdiction exists.82 The Florida Supreme Court has indicated that in such circumstances, the petitioning litigant can then conduct discovery to establish the facts necessary to file an opposing affidavit in response to the responding litigant’s affidavit challenging long-arm jurisdiction.83 At this juncture, if the petitioning litigant fails to respond to the burden that has now shifted to the petitioning litigant, the court may grant the responding litigant’s motion to dismiss.84 Once the burden shifts back to the petitioning litigant, the petitioning litigant must show by competent proof that the facts justify application of the long-arm statute.85 The parties each bear the ultimate burden of proof to offer competent evidence concerning jurisdiction. If affidavits in support of and contesting long-arm jurisdiction are factually reconcilable, the court can resolve the issue at that time without a hearing.86 Once both parties offer factually irreconcilable competent facts relative to jurisdiction, the court must then hold an evidentiary hearing to resolve the jurisdiction question.87 The hearing to address the applicability of the long-arm statute is in the nature of a “mini-trial” at which time the issue of the applicability of the long-arm statute is decided.88 Knowledge of the statutes and case law cited herein will assist today’s practitioners to effectively plead, prove, and defend cases with long-arm personal jurisdiction issues, especially when noted technologies are involved.

Conclusion
Long-arm personal jurisdiction jurisprudence continues to evolve factually in light of new technologies. In the context of personal jurisdiction and the Internet, and the World Wide Web, Florida courts have generally remained true to the two-pronged jurisdictional analysis first enunciated in Venetian Salami Company v. Parthenais and the underlying U.S. Supreme Court cases addressing the due process component of the analysis. When prosecuting a civil action against a nonresident responding litigant, the petitioning litigant must allege a statutory basis for long-arm jurisdiction. When the petitioning litigant files a complaint that simply pleads the language of the statute, this is minimally sufficient for an initial pleading. If challenged, the long-arm allegations must be proven using the procedures and principles of law described herein. Failure to properly plead and prove long-arm jurisdiction relative to a nonresident responding litigant subjects any resulting judgment to collateral attack at any time.89q

1 State ex rel. Clark v. Clark, 4 So. 2d 517, 517-18 (Fla. 1941).

2 Lovett v. Lovett, 112 So. 768, 775 (1927).

3 Borden v. East-European Ins. Co., 921 So. 2d 587, 591 (Fla. 2006).

4 Post v. Adams, 22 So. 652, 652 (Fla. 1897).

5 Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989); see also Mowrey Elevator Co. of Florida, Inc. v. Automated Integration, Inc., 745 So. 2d 1046, 1047 (Fla. 1st DCA 1999).

6 Ford Motor Co. v. Atwood Vacuum Mach. Co., 392 So. 2d 1305, 1307 (Fla. 1981); Fla. Stat. §48.193 (2012).

7 Id.

8 Id.

9 Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011).

10 Id. at 256.

11 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (the minimum contacts rule is the constitutional touchstone for specific long-arm personal jurisdiction).

12 Hanson v. Denckla, 357 U.S. 235, 253 (1958); see also Burger King, 471 U.S. at 474-75; World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

13 World–Wide Volkswagen, 444 U.S. 286 (1980). See also Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102, 113 (1987) (a court must consider the burden on the defendant, the interests of the forum state, the plaintiff’s interest in obtaining relief, as well as the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies).

14 Woodson, 444 U.S. at 297 (1980); Law Offices of Sybil Shainwald v. Barro, 817 So. 2d 873 (Fla. 5th DCA 2002); Radcliffe v. Gyves, 902 So. 2d 968 (Fla. 4th DCA 2005) (“[T]he minimum contacts test for establishing personal jurisdiction over a nonresident defendant is not formulaic or talismanic; on the contrary, at the focus of its inquiry is foreseeability.”).

15 L.O.T.I. Group Productions v. Lund, 907 F. Supp. 1528, 1533 (S.D. Fla. 1995).

16 Wendt v. Horowitz, 822 So. 2d 1252, 1257-58 (Fla. 2002) (providing that physical presence is not necessary to establish minimum contacts and can occur through the nonresident responding litigant’s telephonic, electronic, or written communications into Florida).

17 Emerson v. Cole, 847 So. 2d 606 (Fla. 2d DCA 2003).

18 Burger King, 471 U.S. at 476 n. 18 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 318 (1945)) (The Supreme Court recognized that even a single act can support jurisdiction when it creates a substantial connection to the forum, but “‘some single or occasional acts’ ... may not be sufficient to establish jurisdiction if ‘their nature and quality and the circumstances of their commission’ create only an ‘attenuated’ affiliation with the forum.”); Ileyac Shipping, Ltd. v. Riera-Gomez, 899 So. 2d 1230, 1232 (Fla. 3d DCA 2005) (although only a single act, the alleged commission of tortious act by nonresident ship owner in a Florida port, causing injury to worker who was servicing the ship, constituted sufficient minimum contacts with Florida to support exercise of personal jurisdiction over ship owner in worker’s tort action).

19 France v. France, 90 So. 3d 860, 862 (Fla. 5th DCA 2012). Note: The act of surreptitiously recording such a conversation is not illegal in North Carolina, where the former wife allegedly was at the time of the recording. It is illegal in Florida. See Fla. Stat. §934.03 (2012).

20 Id.

21 Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 447 (1952).

22 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984).

23 Woodson, 444 U.S. at 292; Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102 (1987).

24 Asahi Metal Indus., 480 U.S. at 113.

25 Caiazzo, 73 So. 3d at 252.

26 Id. at 259; Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567-68 (2d Cir. 1996).

27 Exhibit Icons, LLC v. XP Companies, LLC, 609 F. Supp. 2d 1282, 1295 (S.D. Fla. 2009).

28 Woods v. Nova Companies Belize Ltd., 739 So. 2d 617, 620 (Fla. 4th DCA 1999).

29 Caiazzo, 73 So. 3d 245, 249-50 (Fla. 4th DCA 2011).

30 Burger King, 471 U.S. at 485-86.

31 Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla.1989) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

32 Keston v. FirstCollect, Inc., 523 F. Supp. 2d 1348, 1352 (S.D. Fla. 2007).

33 Burger King, 471 U.S. at 463 (It is an inescapable fact of modern commercial life that a substantial amount of commercial business is transacted solely by mail and wire communications across state lines, thus, obviating the need for physical presence within a state in which business is conducted.).

34 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).

35 Id.

36 Id.

37 Id.

38 Id.

39 Id.

40 Id.

41 Id.

42 Id.

43 Id.

44 Renaissance Health Publishing, LLC v. Resveratrol Partners, LLC, 982 So. 2d 739, 742 (Fla. 4th DCA 2008) (The court did not stop the analysis after determining whether the Internet presence allowed the responding litigant to enter into contracts to sell products to Florida residence (the Zippo analysis), but rather, further analyzed the level of sales the responding litigant made to Florida residents and the nature of the alleged wrongful acts and their link to Florida to determine if minimum contacts existed).

45 Wendt v. Horowitz, 822 So. 2d 1252 (Fla. 2002).

46 Id. at 1260.

47 Price v. Kronenberger, 24 So. 3d 775, 776 (Fla. 5th DCA 2009) (petitioning litigant’s complaint for defamation survives a motion to dismiss for lack of jurisdiction when the complaint alleges the nonresident responding litigant sent an email to various members of a group, some of whom live in Florida).

48 Becker v. Hooshmand, 841 So. 2d 561, 562-63 (Fla. 4th DCA 2003).

49 Internet Solutions Corporation v. Marshall, 39 So. 3d 1201 (Fla. 2010). The Court reviewed the type of Internet activity that falls under the “tortious act” section of Florida’s long-arm statute and addressed the question of whether a posting on a website on the Internet accessible from any state constitutes electronic communications into Florida for a personal jurisdiction analysis. The Court held that a nonresident responding litigant commits the tortious act of defamation in Florida for purposes of Florida’s long-arm statute when the nonresident makes allegedly defamatory statements about a Florida resident by posting those statements on a website, provided that the website posts containing the statements are accessible in Florida and accessed in Florida.

50 Id. at 1214-15.

51 Caiazzo, 73 So. 3d 245, 255 (Fla. 4th DCA 2011) (emphasis added).

52 Id., citing Burger King, 471 U.S. at 485.

53 Hy Cite Corp. v. Badbusinessbureau.com, LLC, 297 F. Supp. 2d 1154, 1160 (W.D. Wis. 2004); Caiazzo, 73 So. 3d 245, 255 (Fla. 4th DCA 2011) (“[D]ue to both the inappropriateness of permitting Zippo to replace traditional minimum contacts and Zippo’s practical limitations, we choose to continue to apply a traditional minimum contacts analysis in personal jurisdiction questions, whether or not the Internet is involved.”).

54 Internet Solutions Corporation v. Marshall, 39 So. 3d 1201, 1216 n. 11 (Fla. 2010) (Allegedly defamatory material about a Florida resident placed on the Web and accessible in Florida constitutes an “electronic communication into Florida” when the material is accessed (or “published”) in Florida. A nonresident responding litigant commits the tortious act of defamation in Florida for purposes of Florida’s long-arm statute when the nonresident makes allegedly defamatory statements about a Florida resident by posting those statements on a website, provided that the website posts containing the statements are accessible in Florida and accessed in Florida). Id. at 1216.

55 Caiazzo, 73 So. 3d 245, 255 (Fla. 4th DCA 2011) (the traditional minimum contacts analysis applies in personal jurisdiction questions, whether or not the Internet is involved); Internet Solutions Corporation v. Marshall, 39 So. 3d 1201, 1216 (Fla. 2010); Renaissance Health Publishing, LLC v. Resveratrol Partners, LLC, 982 So. 2d 739, 741 (Fla. 4th DCA 2008) (The responding litigant’s physical presence in the state is not required to commit a tortious act under the long-arm statute and the exercise of long-arm jurisdiction satisfies due process when the responding litigant purposefully directs activities to Florida and litigation arises from those activities or if the responding litigant purposefully avails himself or herself of the privilege of conducting activities in Florida.).

56 Kitroser v. Hurt, 85 So. 3d 1084, 1086-87 (Fla. 2012).

57 Id. at 1088.

58 Id.

59 Doe v. Thompson, 620 So. 2d 1004, 1005 (Fla. 1993) (a nonresident corporate employee cannot be sued in a Florida court by virtue of his or her position when that individual has not acted in Florida); see also Marine Midland Bank v. Miller, 664 F.2d 899, 902 (2d Cir. 1981).

60 See Kitroser v. Hurt, 85 So. 3d 1084, 1088 (Fla. 2012); Marine Midland, 664 F.2d at 902; see also Doe, 620 So. 2d at 1006; Rensin v. State, 18 So. 3d 572, 574 (Fla. 1st DCA 2009); Frohnhoefer v. Pontin, 958 So. 2d 420, 422 (Fla. 3d DCA 2007).

61 Kitroser, 85 So. 3d 1084, 1089 (Fla. 2012) (emphasis added) (“[O}ur precedent and the statutory language of section 48.193 have never suggested that an actor who is present in Florida and commits tortious acts in-state is excepted from personal jurisdiction because he or she works on behalf of a corporation. Rather, our case law holds that a nonresident employee who works only outside of Florida, commits no acts in Florida, and has no personal connection with Florida will not be subject to the personal jurisdiction of Florida courts simply because he or she is a corporate officer or employee. The explicit language of section 48.193(1)(b) clearly establishes that if one is personally present in Florida and commits a tort in Florida, one is subject to the personal jurisdiction of Florida courts”).

62 Legally speaking, the burden of proving facts that allow for jurisdiction under Florida’s long-arm statute is on the petitioning litigant. Elite Aluminum Corp. v. Trout, 451 F. Supp. 2d 1311, 1314 (S.D. Fla. 2006).

63 Coyne v. Coyne, 325 So. 2d 407, 407 (Fla. 3d DCA 1976).

64 See Fla. R. Civ. P. 1.140(b) (2013).

65 Id.

66 See Fla. R. Civ. P. 1.140(b) (2013); Coto-Ojeda v. Samuel, 642 So. 2d 587, 588 (Fla. 3d DCA 1994); Coyne v. Coyne, 325 So. 2d 407, 407 (Fla. 3d DCA 1976).

67 See Babcock v. Whatmore, 707 So. 2d 702, 704 (Fla. 1998) (by filing a responsive pleading going beyond matters of defense and seeking affirmative relief or material benefit, a party waives the objection even if the objection were properly made prior to the action seeking affirmative relief; this does not include a request for attorneys’ fees incurred while asserting defenses).

68 Id.

69 Id.

70 Faller v. Faller, 51 So. 3d 1235, 1236 (Fla. 2d DCA 2011).

71 Cumberland Software, Inc. v. Great American Mortgage Corp., 507 So. 2d 794, 795 (Fla. 4th DCA 1987); see also Kimbrough v. Rowe, 479 So. 2d 867 (Fla. 5th DCA 1985) (If a party takes some step in proceedings that amounts to a submission to the court’s jurisdiction, then it is deemed that the party waived his or her right to challenge the court’s jurisdiction regardless of the party’s intent not to concede jurisdiction but defensive actions taken by a party do not constitute requests for affirmative relief inconsistent with the party’s initial defense of lack of jurisdiction).

72 Heineken v. Heineken, 683 So. 2d 194, 198 (Fla. 1st DCA 1996) (request for attorneys’ fees related to the defense of personal jurisdiction does not constitute a request for affirmative relief which would waive the defense).

73 Wedge Hotel Management, (Bahamas), Ltd. v. Meier, 868 So. 2d 552, 553 (Fla. 3d DCA 2004) (responding litigant should file the alternative motion to dismiss for forum non conveniens contemporaneously with the filing of a motion to quash service of process or, at a minimum, not later than 60 days from the date of service contested in the motion to quash).

74 Faller v. Faller, 51 So. 3d 1235, 1237 (Fla. 2d DCA 2011).

75 Mason v. Hunton, 816 So. 2d 234, 235 (Fla. 5th DCA 2002) (parties defending breach of contract suit did not waive their challenge to personal jurisdiction by filing pleadings that included a request for production of documents).

76 Crowe v. Paragon Relocation Resources, Inc., 506 F. Supp. 2d 1113, 1119 (N.D. Fla. 2007).

77 Fishman v. Fishman, 657 So. 2d 44, 45 (Fla. 4th DCA 1995) (where petitioning litigant has not first pled legally sufficient basis for long-arm jurisdiction, responding litigant need not come forward with affidavits to prove that there is no jurisdiction).

78 Elmex Corp. v. Atlantic Federal Savings and Loan Ass’n of Fort Lauderdale, 325 So. 2d 58, 61-62 (Fla. 4th DCA 1976).

79 Morgan v. Morgan, 679 So. 2d 342, 346 (Fla. 2d DCA 1996).

80 Id.

81 Elmex, 325 So. 2d at 62.

82 Id.

83 Gleneagle Ship Management Co. v. Leondakas, 602 So. 2d 1282, 1284 (Fla. 1992).

84 Morgan, 679 So. 2d at 346.

85 Elmex, 325 So. 2d at 62.

86 See Morgan, 679 So. 2d at 346; cf. Venetian Salami Company v. Parthenais, 554 So. 2d 499 (Fla. 1989).

87 Morgan, 679 So. 2d at 346.

88 Elmex, 325 So. 2d at 62.

89 Tucker v. Dianne Elec., Inc., 389 So. 2d 683, 684 (Fla. 5th DCA 1980) (judgment which is entered against a party without personal jurisdiction over that party can be collaterally attacked at any time).


Mark A. Sessums and Brian M. Monk have successfully handled numerous civil matters involving complex and unusual jurisdiction issues. Sessums has been board certified by The Florida Bar Board of Legal Specialization in civil trial law since 2010 and in marital and family law since 1997. Sessums Law Group, P.A., has offices in Lakeland, Sebring, and Tampa.

[Revised: 10-28-2013]