Long-Arm Jurisdiction: Specific or General?

By Michael P. Sampson (part 5 of 8)

Arrow on Target

Long arm jurisdiction over a foreign corporation or entity a spouse names in a family law matter may be specific or general jurisdiction. 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. General jurisdiction under section 48.193(2), Florida Statutes lies where the defendant entity is “engaged in substantial and not isolated activity.”

Specific Jurisdiction

Florida law provides that 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). Breaching a contract in Florida by failing to perform acts required by the contract to be performed in Florida (48.193(1)(a)7). See also Olson v. Robbie, 141 So. 3d 636 (Fla. 4th DCA 2014) (the contract itself must requireperformance in Florida to invoke long arm jurisdiction under section 48.193(1)(a) 7 (formerly 48.193(1)(g)).

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

The absence of sufficient jurisdictional facts alleged by the suing party against an entity gives grounds for dismissal for lack of jurisdiction. See Fishman, Inc. v. Fishman, 657 So. 2d 44 (Fla. 4th DCA 1995) (trial court should have dismissed wife’s claims against husband’s three out-of-state corporations, because the allegations in her petition failed to demonstrate a legally sufficient basis for Florida to exercise long-arm jurisdiction over them); Rollet v. de Bizemont, 159 So. 3d 351, 355 (Fla. 3d DCA 2015) (reversing denial of nonresident husband’s motion to dismiss for lack of personal jurisdiction); Reynolds American, Inc. v. Gero, 56 So. 3d 117, 119-20 (Fla. 3d DCA 2011) (reversing denial of nonresident parent and subsidiary’s motion to dismiss because insufficient jurisdictional facts existed to confer personal jurisdiction over them under Florida’s long arm statute); Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103 (Fla. 4th DCA 2014) (reversing denial of motion to dismiss, where contacts were random, attenuated, minimal, or de minimus, but were not “minimum.”)

Multiple Arrows

General jurisdiction

Florida courts have jurisdiction over a foreign entity when engaged in “substantial and not isolated activity” within Florida, whether such activity is wholly interstate, intrastate, or otherwise, and whether or not the claim arises from that activity. Florida courts have construed “substantial and not isolated” to mean “continuous and systematic general business contact” with Florida. Caiazzo, 73 So. 3d at 250. See also Olson v. Robbie, 141 So. 3d 636 (Fla. 4th DCA 2014); Vos, B.V. v. Payen, 15 So. 3d 734, 736 (Fla. 3d DCA 2009)Gadea v. Star Cruises, Ltd., 949 So. 2d 1143, 1145 (Fla. 3d DCA 2007)

The “continuous and systematic” standard for establishing general personal jurisdiction is more demanding than the standard for establishing specific personal jurisdiction. See Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414Daimler AG v. Bauman, 134 S. Ct. 746, 761, 187 L. Ed. 2d 624 (2014) (the corporation’s affiliations with the state must be so continuous and systematic as to render it “essentially at home in the forum state”); Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1205 (11th Cir. 2015) (“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”); Biloki v. Majestic Greeting Card Co., Inc., 33 So.3d 815, 820 (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); Canale v. Rubin, 20 So. 3d 463, 467 (Fla. 2d DCA 2009) (“General jurisdiction requires far more wide-ranging contacts with the forum state than specific jurisdiction, and it is thus more difficult to establish”).

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). Showing continuous and systematic contacts is more demanding than what must be shown to establish specific jurisdiction because 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, 736 (Fla. 3d DCA 2009)

By itself, ownership of property cannot 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, 393 n. 5 (Fla. 5th DCA 1995)Forrest v. Forrest, 839 So. 2d 839, 841 (Fla. 4th DCA 2003)(the parties lived together as husband and wife in Singapore, not Florida, and husband’s mere ownership of property in Florida not the subject of the petition for support unconnected with dissolution of marriage could not subject him to jurisdiction in Florida). Likewise, an out-of-state party’s contract with a Florida resident alone cannot establish minimum contacts. See SDM Corp. v. Kevco Fin. Corp., 540 So.2d 931, 932 (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, 640-41 (Fla. 4th DCA 2014). 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 insufficient 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.

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, 255-56 (Fla. 4th DCA 2011)See also Magwitch, LLC v. Pusser’s West Indies Limited, 200 So. 3d 217, 220  (Fla. 2d DCA 2016)(Internet sales to Florida were insufficient in themselves to establish general personal jurisdiction); Internet Solutions Corp. v. Marshall, 39 So.3d 1201, 1207 (Fla. 2010)(addressing the narrow question of the Internet activity that will fall under the tortious acts section of the long arm statute, 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); Carmel & Co v. Silverfish, LLC, No. 1:12-cv-21328-KMM (S.D. Fla. March 21,  2013) (entity purposefully availed itself of Florida forum through website sales and advertising to Florida consumers, and such availing related to cause of action for trademark infringement).

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

Second prong: Constitutional Due Process

After the first determination regarding a basis for long arm jurisdiction is made, the second inquiry a court must make involves constitutional analysis controlled by United States Supreme Court precedent interpreting the Due Process Clause. 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 to meet federal requirements of fair play and substantial justice. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985).

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, 255-56 (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).  

The nonresident entity or trust must have “fair warning” a particular activity may subject the nonresident to Florida jurisdiction. See Madara v. Hall, 916 F.2d 1510, 1516 (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” 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, 297(1980). The paramount question is, “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. 

Read More

Part 1: Florida Family Law 2021: Corporate and Trust Challenges to Service of Process and Jurisdiction

Part 2: Challenge to Personal Jurisdiction: Service of Process

Part 3: Family Law Pleadings Must Allege Basis for Personal Jurisdiction Over the Entity

Part 4: Personal Jurisdiction – Long-Arm Statute or Alter-Ego Theory?

Part 6: Alter Ego Basis for Jurisdiction in Florida Family Law Action

Part 7: Jurisdiction Over Property At Issue in Florida Divorce

Part 8: Challenges to Jurisdiction in Florida Family Law Action: Affidavits

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