A Plaintiff Bank Using the Artful Pleading to Avoid Federal Question Juridiction

A Wrinkle in Time: Personal Jurisdiction'south Evolution — Pleading, Proving, and Defending Personal Jurisdiction Issues

Mark A. Sessums and Brian One thousand. Monk Featured Article

When filing a Florida lawsuit against a nonresident person or entity, it is incumbent upon the practitioner to exist knowledgeable about how to state the allegations of jurisdiction to properly perfect the jurisdictional claims. It is evident that for a Florida court to take jurisdiction to grant relief, the court must get-go accept 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 detail class or type of instance.² Personal jurisdiction is defined as the courtroom's ability to address the rights of a party to a lawsuit.³ Personal jurisdiction must be properly alleged by stating the litigant's bodily or effective presence in the state of Florida.^iv 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 every bit affected past new technologies.

A litigant who wishes to properly perfect personal jurisdiction in Florida over a nonresident must properly plead and institute 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.Due south. §48.193 (2012). The litigant initiating the activeness must plead the specific acts or conduct that form the bases for subjecting the responding litigant to Florida'south jurisdiction in the initial complaint.^five Obtaining personal jurisdiction over a nonresident requires a statutory long-arm basis to affirm jurisdiction, along with satisfaction of ramble requirements of due process.⁶

In the seminal example of Venetian Salami Co. 5. Parthenais, 554 So. 2nd 499 (Fla. 1989), the Florida Supreme Court set along a two-step process to determine if personal jurisdiction exists over a nonresident responding litigant. The start step in the assay is whether sufficient facts have been declared to bring the action within the ambit of Florida's long-arm statute.⁷ The 2nd step, if the long-arm statute applies, requires the court to deport a due procedure analysis, a component of which is the "minimum contacts" analysis.⁸

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

Pursuant to Florida'south long-arm statute, F.South. §48.193(1), a nonresident responding litigant may exist 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 land, 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.Southward. §48.193(1) consists of specific acts that serve equally a predicate for the exercise of specific personal jurisdiction over a nonresident. When the petitioning litigant alleges that the cause of activity arose from the responding litigant'southward specific acts as enumerated in F.S. §48.193(one) (specific jurisdiction), the due process inquiry involves the trial court'due south review of specific facts on a case-past-instance basis to determine if due process is satisfied. The U.S. Supreme Courtroom has issued several cases that set forth the proper specific jurisdiction due procedure analysis for practitioners to model when pleading and proving their case. These factors for specific jurisdiction due procedure analysis have evolved over the years.

Substantive due process traces back to the U.S. Supreme Court decision in International Shoe Co. five. 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 merely then long as in that location exist "minimum contacts" betwixt the responding litigant and the forum state.¹¹ In 1958, the Supreme Courtroom further clarified that the minimum contacts analysis simply 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 Earth–Broad Volkswagen Corp. five. Woodson, 444 U.S. 286 (1980), farther 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 information technology acts to ensure that the [s]tates through their courts, practise not reach out across the limits imposed on them by their status as coequal sovereigns in a federal system.

Earth–Wide Volkswagen also detailed the "reasonableness" and "fairness" protections against inconvenient litigation, stating:

We accept said that the defendant'due south contacts with the forum [southward]tate must be such that maintenance of the suit "does not offend 'traditional notions of off-white play and substantial justice.'" International Shoe Co. 5. Washington, supra , at 316, 66 S. Ct., at 158, quoting Milliken v. Meyer , 311 U.Due south. 457, 463, 61 S. Ct. 339, 342, 85 50. Ed. 278 (1940). The relationship betwixt the defendant and the forum must be such that it is "reasonable …to require the corporation to defend the particular suit which is brought in that location." 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 business organization, will in an appropriate case be considered in light of other relevant factors, including the forum [southward]tate's interest in adjudicating the dispute, come across McGee v. International Life Ins. Co. , 355 U.Southward. 220, 223, 78 S. Ct. 199, 201, 2 Fifty. Ed. 2d 223 (1957); the plaintiff's interest in obtaining convenient and constructive relief, see Kulko five. California Superior Court, supra , 436 U.Southward. at 92, 98 Southward. Ct. at 1697, at least when that involvement is not adequately protected past the plaintiff's power to choose the forum, cf . Shaffer v. Heitner , 433 U.Southward. 186, 211, n. 37, 97 Southward. Ct. 2569, 2583, n. 37, 53 Fifty. Ed. second 683 (1977); the interstate judicial system's involvement in obtaining the most efficient resolution of controversies; and the shared involvement of the several [southward]tates in furthering primal substantive social policies, see Kulko five. California Superior Court, supra , 436 U.S. at 93, 98, 98 Southward. Ct. at 1697, 1700. ¹³

The Court also noted that "foreseeability" is relevant, and the concept is satisfied when "the defendant'due south 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 show, the responding litigant's minimum contacts with Florida as established by F.S. §48.193(ane). By and large, there are three things today's practitioner should plead and be prepared to bear witness. Beginning, all facts that requite 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 prove why it is reasonable and fair to conduct the litigation in Florida (given the responding litigant'southward connexion to Florida, and the location of the parties, the show, 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'due south action.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 declared cause of action arises from the specific communications.¹⁶ For example, a California resident'southward numerous telephone interviews with a Florida journalist established sufficient minimum contacts such that the California resident could reasonably anticipate being haled into courtroom in Florida for allegedly defamatory statements he made for a story the California resident knew would exist published in Florida.¹⁷ Of annotation, 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.^eighteen

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 sometime hubby in Florida.^xix The former husband's pleading, which alleged the intentional tort of a violation of Florida'south Security of Communications Human action, was held to properly allege sufficient jurisdictional facts required nether Florida's long-arm jurisdiction statute because the illegal interception occurred where the intercepted statement was made. In reaching its holding, the courtroom noted that the responding litigant'southward actions were not the "random, fortuitous or attenuated actions that courts seek to avoid pinning jurisdiction upon."^twenty Thus, the practitioner will seek to institute the relevant actions as specific, intentional, and noun.

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 non the claim arises from that activity. " (Emphasis added).

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

one) 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 activity 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 constitute in World–Wide Volkswagen Corp. and Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cnty. , 480 U.South. 102 (1987), applies to both the specific jurisdiction due procedure 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 T he reasonableness decision will rarely prevent a court from exercising general jurisdiction over a responding litigant considering the general jurisdiction inquiry is so demanding.²⁶ T he practitioner should plead, and be prepared to prove, the responding litigant'south substantial continuous and systematic contact with Florida, along with the relevant factors that evidence why it is reasonable and off-white to conduct the litigation in Florida.

For purposes of the exercise of full general personal jurisdiction nether Florida's long-arm statute, the nonresident responding litigant's contacts with Florida must be so all-encompassing to exist tantamount to a defendant being constructively present in the state to such a degree that it would exist fundamentally off-white to require it to answer in the country'south courts in any litigation arising out of any transaction or occurrence taking place anywhere in the world.²⁷ W hen a responding litigant's deportment meet the full general jurisdiction requirements under F.S. §48.193(2) and related instance law, the "minimum contacts" due process analysis under a F.Southward. §48.193(1) specific jurisdiction inquiry will also be satisfied. However, the opposite is not true — meeting the "minimum contacts" due procedure 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 procedure 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, notation that courts have provided that "the facts of each case must always exist weighed in determining whether personal jurisdiction would comport with off-white 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 afterwards an evidentiary hearing. Sufficiently detailed pleadings that squarely accost the principles raised past the U.Due south. Supreme Court cases cited herein will provide today's practitioner with a solid foundation for pleading and proving jurisdiction. If Florida'south long-arm statute applies, the trial court must and then ultimately determine whether there are sufficient contacts on the part of the defendant to satisfy due procedure 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 exist strictly followed.³² Unless the bases for challenge 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 accept resulted in a farther development of personal jurisdiction jurisprudence. In Hanson 5. 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 like increase." The Supreme Court also observed that jurisdiction cannot be avoided "merely because the defendant did non physically enter the forum state."³³ The seminal federal case addressing the Internet's touch on the jurisdictional due process analysis is Zippo Mfg. Co. v. Zilch Dot Com, Inc. , 952 F. Supp. 1119 (W.D. Pa. 1997).

In Zippo, the manufacturer of "Zippo" tobacco lighters brought suit in Pennsylvania confronting Zippo Dot Com, Inc., for trademark dilution, infringement, and fake designation under the Lanham Act due to Zippo Dot Com, Inc.'s, use of the Internet domain names "aught.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 land of Pennsylvania were virtually exclusively via the Internet through the apply of a company website.³⁵ The court, in Goose egg, 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 Cyberspace."³⁶ In Nothing, the court outlined a sliding scale exam to determine whether to assert jurisdiction over a nonresident defendant in an Internet context.³⁷ This sliding scale exam 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 data on an Cyberspace [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.^forty On the other stop of the spectrum are active "situations where a defendant conspicuously does business over the Internet."⁴¹ When a responding litigant purposefully assets itself of doing concern in a country by doing business concern over the Cyberspace and into that state, that responding litigant can be subject field to personal jurisdiction in that state.⁴² Finally, in the center is the grey area where "a user can commutation 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 accept not wholly adopted the federal Zippo sliding scale framework; however, Florida courts have used the Zilch sliding scale equally a part of their personal jurisdiction assay.⁴⁴ The Florida cases that address personal jurisdiction in the context of the Net frequently cite to the Florida Supreme Court case of Wendt v. Horowitz, 822 So. 2d 1252 (Fla. 2002), equally a starting point for assay. In Wendt, the Florida Supreme Court provided that "in society to commit a tortious act in Florida, a accused'southward physical presence is not required."⁴⁵ The Wendt court further expressly held that "telephonic, electronic, or written communications into Florida may form the ground of personal jurisdiction under section 48.193(1)(b), if the alleged crusade of action arises from the communications."⁴⁶ Similarly, Florida courts have held that emails into Florida give rise to personal jurisdiction under F.Due south. §48.193(one)(b).⁴⁷

Also, allegedly defamatory comments posted in an Cyberspace conversation room accessed by Florida residents likewise tin can give rise to personal jurisdiction in a defamation action.⁴⁸ In Cyberspace Solutions Corporation v. Marshall, 39 So. 3d 1201 (Fla. 2010), the Florida Supreme Court stated that "relevant case constabulary reveals that courts interpreting Florida police force in the context of the Spider web have applied differing approaches."⁴⁹ The Florida Supreme Courtroom has declined to adopt every bit a brilliant line examination the active/passive stardom of Nada. ⁵⁰ Every bit 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 Cyberspace activity is function 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 example 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 examination is likely to atomic number 82 to erroneous results, and Florida courts have agreed.⁵³ The Florida Supreme Court, in Net Solutions, allows for the "active" and "passive" analysis of Nothing, to be a role of the assay, 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 accused] purposefully directed her mail service at Florida, or whether [the accused'due south] website is 'active' or 'passive' could be properly considered in the due process analysis."⁵⁴ Thus far, Florida courts accept 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 Courtroom example Kitroser v. Hurt, 85 And so. 3d 1084 (Fla. 2012), examines jurisdiction principles involving employees of a strange corporation who committed tortious acts in Florida. Employees of the company Airgas Carbonic, Inc. (Airgas) allegedly negligently trained a boyfriend employee in Florida, who then negligently operated an Airgas truck that struck the decedent's automobile, causing her decease.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 non practise personal jurisdiction over them.⁵⁸ The "corporate shield" doctrine, too referred to equally 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 do of personal jurisdiction over the employee in Florida.⁵⁹ The rationale behind the corporate shield doctrine is that information technology is unfair to force an private to defend an activeness filed against him or her personally in Florida when the private's just relevant contacts are acts performed totally outside the forum state and for the sectional benefit of his employer.⁶⁰ The Florida Supreme Court resolved this question, and held:

Where an private, 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 country." §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 avert whatsoever personal jurisdiction resulting through submission to the courtroom'southward jurisdiction, while at the same time contesting the lack of jurisdiction, the initial burden (practically speaking)⁶² rests on the responding litigant start to make only a special appearance and then to enhance an objection to personal jurisdiction.⁶³ An objection to personal jurisdiction may exist made either in an initial pleading or by a motion to dismiss.⁶⁴ If not raised by pleading or motility, with a special appearance, the objection is waived.⁶⁵ If the responding litigant in this circumstance files a pleading or a move without asserting the court'southward lack of personal jurisdiction, the responding litigant will be deemed to have made a general appearance before the court and to accept waived any objection to personal jurisdiction.⁶⁶

Additionally, the responding litigant should be careful not to seek whatever 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 unsaid from deport.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 defence force of lack of jurisdiction."⁶⁹ For purposes of a waiver of a personal jurisdiction defence force, "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 Still, a political party may take defensive actions so long equally such requests are consistent with the initial defense force of lack of jurisdiction and exercise 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 movement to dismiss for forum non conveniens;⁷³ a request for a stay;⁷⁴ and a request for production of documents related only to the outcome 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 move to dismiss for lack of jurisdiction prior to any further pleadings or motions.

Florida's long-arm statute is to be strictly construed past 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 exist unnecessary for the responding litigant to do anything more than than file an unsworn motion stating that the allegations of the petitioning litigant's complaint are legally insufficient.⁷⁸ Notation that the petitioning litigant who seeks to obtain jurisdiction over a responding litigant under Florida'south long-arm statute may run across 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 instance establishing long-arm jurisdiction, a motion to dismiss for lack of jurisdiction is insufficient unless information technology establishes a factual ground 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 affirmation, degradation, or other sworn proof the facts relied upon by the responding litigant to competition 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 Courtroom has indicated that in such circumstances, the petitioning litigant can and 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 reply to the brunt that has now shifted to the petitioning litigant, the court may grant the responding litigant'southward motility to dismiss.⁸⁴ In one case the burden shifts back to the petitioning litigant, the petitioning litigant must evidence past competent proof that the facts justify awarding of the long-arm statute.⁸⁵ The parties each comport 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 courtroom can resolve the issue at that time without a hearing.⁸⁶ One time both parties offer factually irreconcilable competent facts relative to jurisdiction, the court must then concord an evidentiary hearing to resolve the jurisdiction question.⁸⁷ The hearing to accost the applicability of the long-arm statute is in the nature of a "mini-trial" at which time the upshot of the applicability of the long-arm statute is decided.⁸⁸ Knowledge of the statutes and case law cited herein will assist today'southward 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 Net, 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 Courtroom cases addressing the due process component of the analysis. When prosecuting a civil activity confronting a nonresident responding litigant, the petitioning litigant must criminate a statutory basis for long-arm jurisdiction. When the petitioning litigant files a complaint that but 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 police force described herein. Failure to properly plead and show long-arm jurisdiction relative to a nonresident responding litigant subjects any resulting judgment to collateral set on at whatsoever time.⁸⁹

^one State ex rel. Clark v. Clark, 4 And then. second 517, 517-18 (Fla. 1941).

² Lovett five. Lovett, 112 And then. 768, 775 (1927).

^three Borden v. East-European Ins. Co., 921 And so. 2d 587, 591 (Fla. 2006).

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

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

^half-dozen Ford Motor Co. v. Atwood Vacuum Mach. Co., 392 And so. 2d 1305, 1307 (Fla. 1981); Fla. Stat. §48.193 (2012).

^vii Id.

^viii Id.

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

¹⁰ Id. at 256.

¹¹ Int'fifty Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Burger Male monarch Corp. v. Rudzewicz, 471 U.Due south. 462, 474 (1985) (the minimum contacts dominion is the constitutional touchstone for specific long-arm personal jurisdiction).

¹² Hanson v. Denckla, 357 U.S. 235, 253 (1958); come across also Burger Rex, 471 U.S. at 474-75; Earth–Wide Volkswagen Corp. 5. Woodson, 444 U.S. 286, 297 (1980).

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

¹⁴ Woodson, 444 U.S. at 297 (1980); Law Offices of Sybil Shainwald v. Barro, 817 And 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 opposite, at the focus of its enquiry is foreseeability.").

^fifteen 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 non necessary to constitute minimum contacts and can occur through the nonresident responding litigant'south telephonic, electronic, or written communications into Florida).

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

¹⁸ Burger King, 471 U.Southward. at 476 north. 18 (quoting Int'50 Shoe Co. v. Washington, 326 U.S. 310, 318 (1945)) (The Supreme Court recognized that fifty-fifty a single human activity can support jurisdiction when it creates a substantial connexion to the forum, but "'some single or occasional acts'. .. may non be sufficient to establish jurisdiction if 'their nature and quality and the circumstances of their commission' create just an 'adulterate' amalgamation with the forum."); Ileyac Shipping, Ltd. v. Riera-Gomez, 899 So. 2d 1230, 1232 (Fla. 3d DCA 2005) (although only a single human activity, the alleged committee 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 back up exercise of personal jurisdiction over ship owner in worker's tort action).

¹⁹ French republic 5. France, ninety Then. 3d 860, 862 (Fla. fifth DCA 2012). Annotation: The human action of surreptitiously recording such a conversation is not illegal in North Carolina, where the quondam married woman allegedly was at the time of the recording. Information technology is illegal in Florida. Encounter Fla. Stat. §934.03 (2012).

^xx Id.

²¹ Perkins v. Benguet Consolidated Mining Co. , 342 U.Southward. 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 Metallic Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102 (1987).

²⁴ Asahi Metallic Indus. , 480 U.Due south. at 113.

²⁵ Caiazzo, 73 And 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 five. XP Companies, LLC, 609 F. Supp. 2d 1282, 1295 (S.D. Fla. 2009).

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

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

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

³¹ Venetian Salami Co. five. 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 corporeality of commercial business is transacted solely by mail and wire communications across country lines, thus, obviating the need for physical presence inside a state in which business organisation is conducted.).

³⁴ Zippo Mfg. Co. five. 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 Wellness Publishing, LLC 5. Resveratrol Partners, LLC, 982 So. second 739, 742 (Fla. 4th DCA 2008) (The court did non stop the analysis after determining whether the Internet presence allowed the responding litigant to enter into contracts to sell products to Florida residence (the Goose egg 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 make up one's mind if minimum contacts existed).

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

⁴⁶ Id. at 1260.

⁴⁷ Toll v. Kronenberger, 24 So. 3d 775, 776 (Fla. 5th DCA 2009) (petitioning litigant'southward 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 Then. 3d 1201 (Fla. 2010). The Court reviewed the type of Internet activeness that falls under the "tortious act" section of Florida'due south long-arm statute and addressed the question of whether a posting on a website on the Internet accessible from any land constitutes electronic communications into Florida for a personal jurisdiction assay. The Court held that a nonresident responding litigant commits the tortious act of defamation in Florida for purposes of Florida'due south 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.

^fifty Id. at 1214-15.

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

⁵² Id., citing Burger Male monarch, 471 U.Due south. at 485.

⁵³ Hy Cite Corp. 5. Badbusinessbureau.com, LLC, 297 F. Supp. 2d 1154, 1160 (Westward.D. Wis. 2004); Caiazzo, 73 So. 3d 245, 255 (Fla. quaternary DCA 2011) ("[D]ue to both the inappropriateness of permitting Cypher to supervene upon traditional minimum contacts and Cipher's applied limitations, we choose to continue to apply a traditional minimum contacts analysis in personal jurisdiction questions, whether or not the Internet is involved.").

⁵⁴ Cyberspace Solutions Corporation v. Marshall, 39 So. 3d 1201, 1216 n. xi (Fla. 2010) (Allegedly defamatory cloth about a Florida resident placed on the Spider web and attainable in Florida constitutes an "electronic communication into Florida" when the textile 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 And so. 3d 245, 255 (Fla. fourth 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 5. 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 nether 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 5. Injure, 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 non acted in Florida ); run across also Marine Midland Bank five. Miller, 664 F.second 899, 902 (second Cir. 1981).

^sixty Run across Kitroser 5. Hurt, 85 So. 3d 1084, 1088 (Fla. 2012); Marine Midland, 664 F.2nd at 902; encounter also Doe, 620 So. second at 1006; Rensin 5. State, 18 So. 3d 572, 574 (Fla. 1st DCA 2009); Frohnhoefer five. Pontin, 958 And then. 2nd 420, 422 (Fla. 3d DCA 2007).

⁶¹ Kitroser, 85 And then. 3d 1084, 1089 (Fla. 2012) (emphasis added) ("[O}ur precedent and the statutory linguistic communication of department 48.193 have never suggested that an actor who is present in Florida and commits tortious acts in-land is excepted from personal jurisdiction because he or she works on behalf of a corporation. Rather, our case constabulary holds that a nonresident employee who works merely outside of Florida, commits no acts in Florida, and has no personal connection with Florida volition non exist subject to the personal jurisdiction of Florida courts simply because he or she is a corporate officer or employee. The explicit linguistic communication of section 48.193(1)(b) clearly establishes that if ane is personally nowadays in Florida and commits a tort in Florida, one is subject to the personal jurisdiction of Florida courts").

⁶² 50 egally speaking, the burden of proving facts that let for jurisdiction under Florida's long-arm statute is on the petitioning litigant. Elite Aluminum Corp. 5. Trout, 451 F. Supp. 2nd 1311, 1314 (S.D. Fla. 2006).

⁶³ Coyne 5. Coyne, 325 Then. second 407, 407 (Fla. 3d DCA 1976).

⁶⁴ See Fla. R. Civ. P. i.140(b) (2013).

⁶⁵ Id.

⁶⁶ See Fla. R. Civ. P. i.140(b) (2013); Coto-Ojeda v. Samuel, 642 So. 2d 587, 588 (Fla. 3d DCA 1994); Coyne five. Coyne, 325 So. 2d 407, 407 (Fla. 3d DCA 1976).

⁶⁷ Come across Babcock 5. Whatmore, 707 So. 2d 702, 704 (Fla. 1998) (by filing a responsive pleading going across 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 asking for attorneys' fees incurred while asserting defenses).

⁶⁸ Id.

⁶⁹ Id.

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

⁷¹ Cumberland Software, Inc. v. Nifty American Mortgage Corp., 507 So. second 794, 795 (Fla. 4th DCA 1987); see also Kimbrough v. Rowe, 479 And then. 2d 867 (Fla. 5th DCA 1985) (If a political party takes some footstep in proceedings that amounts to a submission to the court's jurisdiction, then information technology is accounted that the party waived his or her right to challenge the court'south jurisdiction regardless of the party'south intent not to concede jurisdiction simply defensive actions taken past a party do non constitute requests for affirmative relief inconsistent with the party'due south initial defense of lack of jurisdiction).

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

⁷³ Wedge Hotel Management, (Bahamas), Ltd. v. Meier, 868 So. second 552, 553 (Fla. 3d DCA 2004) (responding litigant should file the culling motion to dismiss for forum not 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 move to quash).

⁷⁴ Faller v. Faller, 51 And then. 3d 1235, 1237 (Fla. second DCA 2011).

⁷⁵ Mason v. Hunton, 816 Then. 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 asking for production of documents).

⁷⁶ Crowe v. Paragon Relocation Resources, Inc., 506 F. Supp. second 1113, 1119 (North.D. Fla. 2007).

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

⁷⁸ Elmex Corp. v. Atlantic Federal Savings and Loan Donkey'northward of Fort Lauderdale, 325 And then. 2nd 58, 61-62 (Fla. fourth DCA 1976).

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

^fourscore Id.

⁸¹ Elmex, 325 So. 2d at 62.

⁸² Id.

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

⁸⁴ Morgan, 679 So. 2nd at 346.

⁸⁵ Elmex, 325 And so. 2d at 62.

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

⁸⁷ Morgan, 679 And so. 2d at 346.

⁸⁸ Elmex, 325 So. second at 62.

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

Marker A. Sessums and Brian M. Monk have successfully handled numerous civil matters involving circuitous and unusual jurisdiction issues. Sessums has been lath certified past 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.

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Source: https://www.floridabar.org/the-florida-bar-journal/a-wrinkle-in-time-personal-jurisdictions-evolution-pleading-proving-and-defending-personal-jurisdiction-issues/

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