By Michael P. Sampson (part 3 of 8)
If service of process on an entity is sufficient in the family law case, is there personal jurisdiction for the family law party to proceed against the entity? The family law pleading asserting claims against the corporation or trust must allege a basis for personal jurisdiction over the entity.
A court has no jurisdiction over foreign entity named in the family law action when the petition fails to allege the entity has minimum contacts with Florida or is subject to long arm jurisdiction. See Fishman, Inc. v. Fishman, 657 So. 2d 44, 45-46 (Fla. 4th DCA 1995) (if a petitioner fails to plead a legally sufficient basis for long-arm jurisdiction, the respondent “need not come forward with affidavits to prove a negative — that is, that there is no jurisdiction.”)
In Rollet v. de Bizemont, 159 So. 3d 351, 355 (Fla. 3d DCA 2015), the court dismissed a divorcing French wife’s complaint that failed to allege sufficient long-arm jurisdictional facts against a nonresident foreign entity and her nonresident husband, whom she alleged fraudulently or under undue influence assigned a contract to buy a South Beach condo without her consent and to divest her of her property rights. See also Morgan v. Morgan, 679 So.2d 342, 346 (Fla. 2d DCA 1996) (mother’s unsworn pleading alleging nonresident father failed to provide child support to children in Florida was deficient because she failed to allege a proper basis for jurisdiction under the Long Arm Statute).
A spouse’s claims that an entity must be brought in because of either spouse’s marital contributions of marital funds or effort do not constitute allegations sufficient to bring the entity within the jurisdictional reach of the circuit court in which the Florida divorce action is pending. See Fishman, 657 So. 2d at 46; Manus v. Manus, 193 So. 2d 236, 237-38 (Fla. 4th DCA 1966) (affirming order quashing service of process on the president of a foreign corporation, while he was in Florida en route to the Bahamas, where it was not shown a wife’s alleged cause of action arose out of an obligation or cause connected with the corporation’s activities in Florida, but was merely based on the husband’s majority ownership of stock in the corporation and alleged threats to remove his assets from the state and country).
Operating a business in Florida, owning real property in Florida, committing a tortious act in Florida, breaching a contract in Florida, or engaging in substantial business activity in Florida may give rise to long arm jurisdiction. Section 48.193, Florida Statutes. For example, jurisdiction was extended to a foreign corporation in a marriage dissolution case because the suing spouse alleged that marital assets were unlawfully removed from the state or improperly encumbered within the state by the foreign corporation – the predicate for jurisdiction was the alleged commission of a tortious act within Florida. Lee B. Stern & Co., Ltd. v. Green, 398 So. 2d 918, 919 (Fla. 3d DCA 1981).
One spouse might assert the other spouse and a nonresident corporation or person engaged in civil conspiracy to commit a tort – for example, fraud, a breach of fiduciary duty, a trespass to property, or some other tort. If a plaintiff successfully alleges a conspirator committed tortious acts in Florida to further the conspiracy, all coconspirators are subject to personal jurisdiction under Florida’s long-arm statute. NHB Advisors, Inc. v. Czyzyk, 95 So. 3d 444 (Fla. 4th DCA 2012); section 48.193(1)(a)2., Fla. Stat.
General allegations of conspiracy are not enough; a claim for civil conspiracy must include clear, positive, and specific allegations, including how the entity conspired with the other defendants to facilitate the tortious conduct. See Parisi v. Quadri de Kingston, Case No. 3D20-811 (Fla. 3d DCA January 13, 2021); Abdo v. Abdo, 263 So. 3d 141 (Fla. 2d DCA 2018) (trial court lacked personal jurisdiction over two business entities to whom siblings transferred websites, where plaintiffs failed to make any specific allegations the entities breached a fiduciary duty, aided and abetted such a breach, or conspired to facilitate one).
Checklist for challenges to personal jurisdiction:
- Has the family law pleading alleged a basis for personal jurisdiction over the entity?
- Is there a proper basis to proceed against the entity in Florida state court?
- Corporations: look to the state of incorporation and principal place of business.
- Partnerships/LLCs: look to the residence of the partners/members.
- Trusts: look to the situs of the trust.
- What is the conduct or asset at issue in the family law proceeding?
- What does the party specifically allege the entity allegedly did to bring it into the family law action?
- Does the alleged basis for the cause of action arise out of the entity’s conduct in or directed to Florida?
- Has the spouse controlled and operated the entity and its assets and debts and, if so, how?
- Issues can be tricky where declaratory or injunctive relief or sequestration of assets is sought.