When a defendant is sued in a State that he or she does not live, one of the first questions asked is whether he or she can legally or constitutionally be required to appear and defend a lawsuit in that state. The answer depends on whether the out-of-state court has personal jurisdiction over the nonresident defendant.
Personal jurisdiction is a court’s power to require a defendant to come into the state to defend a lawsuit there. For residents of the state, personal jurisdiction usually is not an issue. For example, a Florida court has personal jurisdiction over Florida residents. See Patten v. Mokher, 184 So. 29, 30 (Fla. 1938). For nonresident defendants, a court can have personal jurisdiction in several scenarios.
However, these are not the only ways out-of-state residents can be subject to personal jurisdiction in a foreign state. Personal jurisdiction over nonresident defendants can also be established through the state’s “long-arm statute.” First the constitutional issues implicated by personal jurisdiction should be discussed.
A state’s exercise of personal jurisdiction implicates the due process clause of the Fourteenth Amendment. “The Due Process Clause of the Fourteenth Amendment … protects a person’s liberty interest from being subject to the binding judgments of a forum with which the person has established no meaningful ‘contacts, ties, or relations.’” PVC Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 811 (11th Cir. 2010).
In a series of decisions, the U.S. Supreme Court established the limits due process places on a state’s ability to subject out-of-state residents to its personal jurisdiction. “Due process requires that a non-resident defendant have certain minimum contacts with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.” Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1274 (11th Cir. 2002) (citing Int’l Shoe v. Washington, 326 U.S. 310, 316 (1945)).
“The Constitution prohibits the exercise of personal jurisdiction over a nonresident unless his contact with the state is such that he has ‘fair warning’ that he may be subject to suit there.” PVC Windoors, Inc., 598 F.3d at 811 (quoting Shaffer v. Heitner, 433 U.S. 186, 218 (1977)). “A defendant has such ‘fair warning’ if he ‘purposefully directed’ his activities at residents of the forum and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). “In this way, the defendant could have reasonably anticipated being sued in the forum’s courts in connection with his activities there.” Id.
Following these decisions, every state in the country has enacted their own long-arm statute, which allows the state to exercise jurisdiction over nonresidents under certain circumstances. Florida’s long-arm statute, discussed next, is found at Fla. Stat. § 48.193.
Under Florida’s long-arm statute, personal jurisdiction is established through a two-step process. One of the statute’s provisions must provide a basis for jurisdiction and the exercise of jurisdiction over the particular defendant must meet the constitutional requirement of due process. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989).
Before going further it is important to note that there are two types of personal jurisdiction, specific and general. Specific jurisdiction refers to “jurisdiction over causes of action that arise from or are related to the party’s actions within the forum.” PVC, 598 F.3d at 808. “General jurisdiction arises from defendant’s contacts with [the] forum that are not directly related to cause of action being litigated.” Meier, 288 F.3d at 1269 n.5.
This distinction is important. If a defendant is subject to specific personal jurisdiction in Florida, the defendant can only be sued within Florida for a claim that relates to or arises from the defendant’s activities in Florida. If a defendant is subject to general personal jurisdiction in Florida, the defendant can be sued within Florida for any claim, whether or not the plaintiff’s claims are related to the defendant’s connections with Florida.
Florida’s long-arm statute enumerates nine specific acts that subject a defendant to specific personal jurisdiction in Florida’s courts. See Fla. Stat. § 48.193(1)(a). These actions include:
See Fla. Stat. § 48.193(1)(a)(1)–(9). “A fundamental element of Florida’s specific jurisdiction calculus is that plaintiff’s claim must arise out of or relate to at least one of the defendant’s contacts with the forum.” Fraser v. Smith, 594 F.3d 842, 850 (11th Cir. 2010) (quotation omitted).
Florida’s long-arm statute provides Florida’s courts with general jurisdiction over a nonresident defendant if the defendant engages in “substantial and not isolated” activities within Florida. See Fla. Stat. § 48.193(2). “In order to establish that [defendant] was engaged in substantial and not isolated activity in Florida, the activities of [defendant] must be considered collectively and show a general course of business activity in the State for pecuniary benefit.” Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1361 (11th Cir. 2006) (quotation omitted).
Florida courts have held that “substantial and not isolated” means “continuous and systematic general business contact,” which simply mirrors the language used in the U.S. Supreme Court decisions mentioned above. See Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So. 2d 716, 720 (Fla. 4th DCA 1998). For example, a corporation has continuous and systematic general business contact with Florida if it is incorporated in Florida or if it has its principal place of business in Florida. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
If Florida’s long-arm statute provides the court with specific jurisdiction, the court must next determine if exercising jurisdiction satisfies due process. See Meier, 288 F.3d at 1274 (“In addition to satisfying the Florida long-arm statute, a … court … must insure that jurisdiction comports with the due process requirements of the Fourteenth Amendment.”).
If Florida’s long-arm statute provides the court with general jurisdiction, the two-part analysis essentially collapses into one: If a defendant meets the “continuous and systematic” standard, then the court also has the constitutional power to assert personal jurisdiction. See Am. Fin. Trading Corp. v. Bauer, 828 So. 2d 1071, 1075 (Fla. 4th DCA 2002) (“If a defendant’s actions meet the requirements of [Fla. Stat. §] 48.193(2), then the test of minimum contacts is also satisfied.”).
In either event, due process is satisfied so that a Florida court may constitutionally exercise personal jurisdiction over a nonresident defendant if there are sufficient “minimum contacts” between the defendant and Florida such that maintaining the suit in Florida “does not offend traditional notions of fair play and substantial justice.” Ga. Insurers Insolvency Pool v. Brewer, 602 So. 2d 1264, 1268 (Fla. 1992). “The amount of minimum contacts required to support specific jurisdiction occurs when a defendant ‘purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’” Organic Mattresses, Inc. v. Enviro. Res. Outlet, Inc., No. 17-21905-civ, 2017 WL 5665354, at *2 (S.D. Fla. Oct. 6, 2017) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
“In determining whether jurisdiction would comport with traditional notions of fair play and substantial justice, the court looks at: (a) the burden on the defendant, (b) the forum State’s interest in adjudicating the dispute, (c) the plaintiff’s interest in obtaining convenient and effective relief, (d) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (e) the shared interest of the several States in furthering fundamental substantive social policies.” Meier, 288 F.3d at 1276 (citations omitted).
White v. Pepsico, Inc., 568 So. 2d 886, 889 (Fla. 1990) (by formally qualifying to do business in Florida and registering an agent, a foreign corporation submits itself to the jurisdiction of Florida courts).
U.S. S.E.C. v. Carrillo, 115 F.3d 1540, 1545 (11th Cir. 1997) (“It is well settled that advertising that is reasonably calculated to reach the forum may constitute purposeful availment of the privileges of doing business in the forum.”).
Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1357 (11th Cir. 2013) (finding purposeful availment from the solicitation of business from Florida residents through a defendant’s website).
Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 631 (11th Cir. 1996) (finding that a Canadian chair manufacturer purposefully availed itself of the privilege of conducting business in Florida by marketing its products in Florida).
Even if a defendant’s complained of conduct occurred outside of Florida, if those actions cause injury in Florida, the defendant can be subject to personal jurisdiction in Florida. See Brennan v. Roman Catholic Diocese of Syracuse New York, Inc., 322 Fed. Appx. 852, 854 (11th Cir. 2009) (internal citations omitted) (under the “committing a tortious act” prong, a court may assert jurisdiction over a “nonresident defendant who commits a tort outside of the state that causes injury inside the state,” meaning “[t]he defendant’s physical presence is not required if the tort causes an injury in Florida.”).
Since minimum contacts can include telephonic, electronic, or written communications to Florida from an outside state, provided the plaintiff’s cause of action arises from those specific communications, a nonresident defendant who has never set foot in Florida can be subject to a Florida court’s jurisdiction. See Wendt v. Horowitz, 822 So. 2d 1252, 1257–58 (Fla. 2002).
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