Long-Arm Jurisdiction: Specific or General?

By Michael P. Sampson (part 5 of 8)

Long Arm Jurisdiction Specific or General. Dart through two rings. Image by Ramiz Dedakovic (Unsplash)

First Prong: Is Personal Jurisdiction Over the Corporation or Entity Appropriate Under Florida’s Long Arm Statute?

The first prong of the two-pronged test for bringing a foreign corporation or trust into a Florida family law action is establishing long-arm personal jurisdiction. Does the family law pleading allege specific or general jurisdiction?

Long-arm jurisdiction over a foreign corporation or entity a spouse names in a family law matter may be specific or general.

Jurisdiction – Specific or General?

First, specific jurisdiction under sections 48.193(1)(a)-(h), Florida Statutes attaches where the defendant entity either “personally or through an agent does any of the acts” enumerated in those subsections. See also Murphy v. Murphy, Case No. 1D20-1117 (Fla. 1st DCA Jul 6, 2022) (dismissing ex-wife’s action to domesticate and enforce Hawaiian divorce decree against nonresident ex-husband, for failure to establish specific or general personal jurisdiction).

In contrast, general jurisdiction under section 48.193(2), Florida Statutes lies where the nonresident is “engaged in substantial and not isolated activity.” Such activity must be present activity, not past or speculative activity. See Murphy v. Murphy.

Specific Jurisdiction: Acts Subjecting Entity to Florida’s Jurisdiction

An entity that personally or through an agent does certain acts submits itself to the jurisdiction of the courts of Florida for any action arising from the acts. Fla. Stat. §§48.193(1)(a) 1-9. These acts include:

  • Operating, conducting, engaging in, or carrying on a business or business venture in Florida (48.193(1)(a)1);
  • Having an office or agency in Florida (48.193(1)(a)1); 
  • Committing a tortious act in Florida (48.193(1)(a)2);
  • Maintaining a matrimonial domicile in Florida (48.193(1)(a)5);
  • Injuring persons or property within Florida arising out of an act or omission by the entity outside this state, if, at or about the time of the injury, either: 

(a) The entity was engaged in solicitation or service activities within Florida (48.193(1)(a)6.a); or

(b) Products, materials, or things processed, serviced, or manufactured by the entity anywhere were used or consumed within Florida in the ordinary course of commerce, trade, or use (48.193(1)(a)6.b).

Seek Dismissal If Suing Spouse Fails to Allege Sufficient Facts to Support Specific Jurisdiction

Insufficiently alleging jurisdictional facts against an entity gives grounds for dismissal in the family action. See Fishman, Inc. v. Fishman, 657 So. 2d 44 (Fla. 4th DCA 1995).

In Fishman, the trial court should have dismissed wife’s claims against husband’s three out-of-state corporations. Her petition failed to allege a legally sufficient basis for Florida to exercise long-arm jurisdiction over the corporations.

Dismissal When Pleadings Allege No Sufficient Basis for Personal Jurisdiction

Other cases support dismissal when a party fails to allege a sufficient basis for jurisdiction. For example, see Murphy v. Murphy, Case No. 1D20-1117 (Fla. 1st DCA Jul 6, 2022) (ex-wife alleged no basis for long-arm jurisdiction over nonresident ex-husband).

Likewise, in Rollet v. de Bizemont, 159 So. 3d 351 (Fla. 3d DCA 2015), the court reversed denial of nonresident husband’s motion to dismiss for lack of personal jurisdiction. The pleadings insufficiently alleged a basis for personal jurisdiction over him.

Multiple Arrows. Long Arm Jurisdiction.

General jurisdiction: What is Substantial and Not Isolated Activity?

Florida courts have jurisdiction over a foreign entity engaged in “substantial and not isolated activity” within Florida. It doesn’t matter if the activity is interstate, intrastate, or otherwise. Moreover, it doesn’t matter if the claim arises from that activity. 

In Florida, substantial and not isolated activity means “continuous and systematic general business contact” with Florida. Caiazzo v. American Royal Arts, Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011). See also Olson v. Robbie, 141 So. 3d 636 (Fla. 4th DCA 2014); Vos, B.V. v. Payen, 15 So. 3d 734 (Fla. 3d DCA 2009)Gadea v. Star Cruises, Ltd., 949 So. 2d 1143 (Fla. 3d DCA 2007)

Standard for Establishing General Jurisdiction is More Demanding Than Specific Jurisdiction

The standard for establishing general personal jurisdiction is more demanding than the standard for establishing specific personal jurisdiction. 

“General jurisdiction requires far more wide-ranging contacts with the forum state than specific jurisdiction, and it is thus more difficult to establish”

Canale v. Rubin, 20 So. 3d 463, 467 (Fla. 2d DCA 2009).

If a plaintiff fails to meet the due process test for specific jurisdiction, the test for general jurisdiction will rarely be met. Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103 (Fla. 4th DCA 2014). Section 48.193(2), Florida Statutes requires no connection between a petitioner’s claim and the foreign defendant’s Florida activities. Vos, B.V. v. Payen, 15 So. 3d 734 (Fla. 3d DCA 2009)

General Jurisdiction under Long-Arm Statute: Extensive and Pervasive Current Substantial and Not Isolated Activity

For general jurisdiction, Florida’s long-arm statute requires it be based on current (not exclusively past) substantial and not isolated activity. Murphy v. Murphy, Case No. 1D20-1117 (Fla. 1st DCA Jul 6, 2022); Heineken v. Heineken, 683 So. 2d 194 (Fla. 1st DCA 1996)Gibbons v. Brown, 716 So. 2d 868 (Fla. 1st DCA 1998).

Grammar Rules – General Long-Arm Jurisdiction – Defendant Is Engaged in Substantial, Not Isolated Activity in Florida

Following grammar rules, the Murphy court read the long-arm statute as requiring jurisdiction to be based on current (not exclusively past) substantial and not isolated activity. Section 48.193(2), Florida Statutes says general jurisdiction lies over a defendant “who is engaged in substantial and not isolated activity within this state.” (Emphasis added).

There, the former wife failed to establish not only her nonresident former husband’s “extensive and pervasive” contacts with Florida, but also that he currently maintained those contacts with Florida at the time she filed suit.

We say this because the linking verb in the statutory provision that we highlighted in the prior paragraph (viz.: “is engaged”) is in the present tense. It is part of an adjective clause that begins with the relative pronoun serving as the subject of the clause—“who.” That clause altogether modifies the antecedent of “who,” which is “a defendant.” This adjective clause, stated in the present tense, thereby describes the type of defendant subject to general jurisdiction in subsection (2). That is to say, because the verb “is” links the past participle “engaged”—operating here as a subject complement—to the relative pronoun it modifies—“who”—the clause effectively links “engaged” (in the present tense) to the defendant being described. This means, in turn, that jurisdiction must be based on current (not exclusively past) “substantial and not isolated activity” within Florida.

Murphy v. Murphy, Case No. 1D20-1117 (Fla. 1st DCA Jul 6, 2022)

General Jurisdiction: Other Cases on Continuous, Systematic Activity

Many cases discuss general long-arm jurisdiction. What level of activity is sufficient for general jurisdiction to lie?

In Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984), general jurisdiction did not lie because the company had no continuous and systematic contacts with the State of Texas.

Later, in Daimler AG v. Bauman, 571 U.S. 117, 133, n. 11 (2014), the US Supreme Court held a corporation’s affiliations with the state must be so continuous and systematic as to render it “essentially at home in the forum state.”

The Eleventh Circuit, finding no general personal jurisdiction to allow a Florida action to proceed against a Panamanian corporation that provided shore excursions for tourists in Belize, held:

“A foreign corporation cannot be subject to general jurisdiction in a forum unless the corporation’s activities in the forum closely approximate the activities that ordinarily characterize a corporation’s place of incorporation or principal place of business.”

Carmouche v. Tamborlee Mgmt., Inc., 789 F. 3d 1201, 1205 (11th Cir. 2015)

 See also Biloki v. Majestic Greeting Card Co., Inc., 33 So. 3d 815 (Fla. 4th DCA 2010) (general personal jurisdiction may lie when a nonresident defendant’s activities are extensive and pervasive, with significant business operations or revenue derived from established commercial relationships in the state). 

Mere Ownership of Property Doesn’t Subject a Nonresident to Personal Jurisdiction

By itself, ownership of property can’t subject a nonresident defendant to jurisdiction of the courts, unless the cause of action asserted arises out of such ownership. See Fla. Stat. §48.193(1)(c)Nichols v. Paulucci, 652 So. 2d 389 (Fla. 5th DCA 1995)Forrest v. Forrest, 839 So. 2d 839 (Fla. 4th DCA 2003).

In Forrest, the parties lived together as husband and wife in Singapore, not Florida. He owned property in Florida. But the property wasn’t the subject of the petition for support unconnected with dissolution of marriage. This ownership alone couldn’t subject him to jurisdiction in Florida.

Suit Among Miami Dolphins Robbie Family

Likewise, an out-of-state party’s merely contracting with a Florida resident, cannot establish minimum contacts. See SDM Corp. v. Kevco Fin. Corp., 540 So. 2d 931 (Fla. 2d DCA 1989). The sons of Miami Dolphins’ founder and owner, the late Joe Robbie, who sued their sister, a co-trustee and shareholder under a shareholders’ agreement, faced these principles in Olson v. Robbie, 141 So. 3d 636 (Fla. 4th DCA 2014).

In Robbie, the court reversed the trial court’s denial of the Minnesota sister’s motion to dismiss for lack of personal jurisdiction in Florida. The place where the parties’ shareholder agreement required performance, and not the familial relationship between the parties, determined if Florida had jurisdiction over the nonresident sister. Her handful of visits to see friends in Florida, filing of annual reports, and status as co-trustee of a Florida trust until its termination were not enough for general jurisdiction.

An Entity’s Internet and Web Activity

Florida courts consider an entity’s internet and web activity in resolving jurisdictional questions, but such activity, standing alone, may not be enough to subject the entity to jurisdiction under Florida’s Long-Arm Statute. If a spouse seeking to pull a corporation or trust into a Florida divorce action points only to its internet or website activity, that may fall short of the “continuous and systematic” standard for general jurisdiction and create grounds for dismissal.

Targeting A Florida Resident Through Website Activity

Whether an entity has targeted a Florida resident through website activity or has operated an active or passive website may be part of determining minimum contacts and due process. See Caiazzo v. American Royal Arts Corp., 73 So. 3d 245 (Fla. 4th DCA 2011)

Internet sales to Florida are insufficient in themselves to establish general personal jurisdiction. Magwitch, LLC v. Pusser’s West Indies Limited, 200 So. 3d 217 (Fla. 2d DCA 2016).

However, in Internet Solutions Corp. v. Marshall, 39 So. 3d 1201 (Fla. 2010), the Supreme Court of Florida addressed the narrow question of Internet activity that will fall under the tortious acts section of the long arm statute. The court concluded that posting allegedly defamatory web statements about a Florida resident directed to potential readers within Florida and accessing of such statements in Florida were sufficient facts to constitute committing a tortious act within Florida.

Likewise, in Carmel & Co v. Silverfish, LLC, No. 1:12-cv-21328-KMM (S.D. Fla. March 21, 2013), an entity purposefully availed itself of Florida forum through website sales and advertising to Florida consumers. Such availing related to cause of action for trademark infringement.

Second Prong for Jurisdiction: Establishing Minimum Contacts

The analysis doesn’t end if a spouse meets the first prong – establishing a basis for specific or general long-arm jurisdiction. The spouse must also establish the corporation or trust named in the family action has sufficient “minimum contacts” with Florida for it to be fair and just to defend claims the spouse brings against it.

Outstretched Arm Hand. Long Arm Jurisdiction

Second Prong: Satisfying Constitutional Due Process

So, the Court has determined there’s a basis for long arm jurisdiction. What’s next? Next, the court must perform constitutional analysis, controlled by United States Supreme Court precedent interpreting the Due Process Clause.

Does the Corporation or Trust Have Sufficient Minimum Contacts With Florida?

This second inquiry requires a spouse attempting to bring a business entity or trust into a Florida family law action to establish that the entity or trust has sufficient minimum contacts with Florida. When it does, requiring the defendant to defend the case in Florida meets federal requirements of fair play and substantial justice. See Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).

But contacts must be enough for the entity or trust reasonably to anticipate being brought into court in Florida to defend the claims brought against it. Id. at 475-76. Caiazzo v. American Royal Arts Corp., 73 So. 3d 245 (Fla. 4th DCA 2011) (defendant could reasonably anticipate being sued in Florida based on the extent of its website business originating in Florida, and posting on its website of allegedly defamatory statements targeted into Florida at a competitor’s business headquartered in Florida, to damage the competitor’s reputation).  

Fair Warning Activity May Subject the Nonresident to Specific or General Jurisdiction

Further, the nonresident must have “fair warning” a particular activity may subject it to Florida jurisdiction. See Madara v. Hall, 916 F. 2d 1510 (11th Cir. 1990)Potoczek v. Patrick, Case No. 3:19-cv-03452-TKW-HTC (ND Fla. February 25, 2020)(by advertising the aircraft to a Florida resident, negotiating the sale of the aircraft with him, and delivering the aircraft to him in Florida, non-Floridian spouses had “fair warning” their activity would subject them to long-arm jurisdiction in Florida” and the injury to Plaintiff arose from the activities between the plaintiff and defendants in the state of Florida).

The Test for “Minimum Contacts”

The test for “minimum contacts” depends on whether the entity’s “conduct and connection” with Florida are such that the entity should reasonably anticipate being haled into court in Florida. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286(1980). Under this test, ask “Has the entity purposefully established minimum contacts in Florida to anticipate being haled into the family court in Florida?”

In sum, if a spouse successfully alleges sufficient jurisdictional facts to bring the entity into the family lawsuit, under the specific jurisdiction or general jurisdiction bases under the Long-Arm Statute, the exercise of jurisdiction over the entity must still respect due process principles. 

Exception to Long-Arm Statute: Contracting Parties Submit to Florida Jurisdiction

Under sections 685.101 and 685.102, Florida Statutes and Corporate Creations Enterprises LLC v. Brian R. Fons Attorney at Law P.C., 225 So. 3d 296 (Fla. 4th DCA 2017), contracting nonresidents may submit to personal jurisdiction in Florida for disputes arising from their contract.  

For this exception to apply, their contract must:

  1. Include a choice of law provision that designates Florida law governs in whole or in part;
  2. Provide the nonresident agrees to submit to jurisdiction of Florida courts;
  3. Involves consideration of at least $250,000 or relate to an obligation arising from a transaction involving at least $250,000;
  4. Not violate the US Constitution; and
  5. Either bear a substantial or reasonable relation to Florida or have at least 1 party who is a resident of Florida or is incorporated under Florida law.

For example, in Bach v. Vladigor Investments, Inc., 325 So. 3d 41 (Fla. 4th DCA Jul 7, 2021), the basis for a lawsuit by a decedent’s estate against a California borrower was stock pledge agreements. The agreements specified Florida law would govern and a forum selection clause stating the parties consented to state or federal court in Boca Raton, Florida as the “sole and exclusive forum for the resolution of any dispute between the parties hereto arising out of or in connection with this Agreement or any subsequent transaction contemplated hereby.” 

The defendants challenged personal jurisdiction. In support of their challenge, they claimed, and supported their claims with affidavits, they had insufficient minimum contacts with Florida to enforce the forum selection clauses in the stock pledge agreements.  But the appellate court applied the exception under sections 685.101 and 685.102, Florida Statutes, under which Florida courts may exercise personal jurisdiction over nonresidents even when Florida’s Long Arm Statute wouldn’t provide a basis for jurisdiction.  Once the plaintiff satisfied the statute, the trial court should have dispensed with minimum contacts analysis. 

Questions About Corporations and Trust in Florida Divorce?

For questions about personal jurisdiction over foreign corporations and trusts and opportunities in Florida Collaborative Divorce to resolve issues globally, contact Michael P. Sampson of Sampson Collaborative Law.


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