A wrinkle in time: personal jurisdiction's evolution: pleading, proving, and defending personal jurisdiction issues.

• Author: Sessums, Mark A.
• Position: Florida

When filing a Florida lawsuit against a nonresident person or entity, it is incumbent upon the practitioner to be knowledgeable about how to state the allegations of jurisdiction to properly perfect the jurisdictional claims. It is axiomatic that for a Florida court to have jurisdiction to grant relief, the court must first have 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 particular class or type of case. (2) Personal jurisdiction is defined as the court's power to address the rights of a party to a lawsuit. (3) Personal jurisdiction must be properly alleged by stating the litigant's actual or constructive presence in the state of Florida. (4) 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 as affected by new technologies.

A litigant who wishes to properly perfect personal jurisdiction in Florida over a nonresident must properly plead and establish 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.S. [section] 48.193 (2012). The litigant initiating the action must plead the specific acts or conduct that form the bases for subjecting the responding litigant to Florida's jurisdiction in the initial complaint. (5) Obtaining personal jurisdiction over a nonresident requires a statutory long-arm basis to assert jurisdiction, along with satisfaction of constitutional requirements of due process. (6)

In the seminal case of Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), the Florida Supreme Court set forth a two-step process to determine if personal jurisdiction exists over a nonresident responding litigant. The first step in the analysis is whether sufficient facts have been alleged to bring the action within the ambit of Florida's long-arm statute. (7) The second step, if the long-arm statute applies, requires the court to conduct a due process analysis, a component of which is the "minimum contacts" analysis. (8)

Specific Jurisdiction Due Process

Once the practitioner includes sufficient allegations within the pleading to bring the action within Florida's long-arm statute, he or she should next make sure to include allegations that state the due process facts purported to connect the responding litigant to Florida. Personal jurisdiction can exist in two forms: Specific, in which the alleged activities or actions of the responding litigant that form the underlying operative facts of the claim are directly connected to Florida; and general, in which the responding litigant's connection with Florida is so substantial that no specific or enumerated relationship between the alleged wrongful actions and Florida is necessary. (9)

Pursuant to Florida's long-arm statute, F.S. [section] 48.193(1), a nonresident responding litigant may be 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. [section] 48.193(1) articulates when specific jurisdiction applies, and provides:

Any person, whether or not a citizen or resident of this state, 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.S. [section] 48.193(1) consists of specific acts that serve as a predicate for the exercise of specific personal jurisdiction over a nonresident. When the petitioning litigant alleges that the cause of action arose from the responding litigant's specific acts as enumerated in F.S. [section] 48.193(1) (specific jurisdiction), the due process inquiry involves the trial court's review of specific facts on a case-by-case basis to determine if due process is satisfied. The U.S. Supreme Court has issued several cases that set forth the proper specific jurisdiction due process analysis for practitioners to model when pleading and proving their case. These factors for specific jurisdiction due process analysis have evolved over the years.

Substantive due process traces back to the U.S. Supreme Court decision in International Shoe Co. v. 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 only so long as there exist "minimum contacts" between the responding litigant and the forum state. (11) In 1958, the Supreme Court further clarified that the minimum contacts analysis only 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 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), further 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 it acts to ensure that the [s]tates through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.

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

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

The Court also noted that "foresee-ability" is relevant, and the concept is satisfied when "the defendant's 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 prove, the responding litigant's minimum contacts with Florida as established by F.S. [section] 48.193(1). Generally, there are three things today's practitioner should plead and be prepared to prove. First, all facts that give 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 show why it is reasonable and fair to conduct the litigation in Florida (given the responding litigant's connection to Florida, and the location of the parties, the evidence, 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's activity. (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 alleged cause of action arises from the specific communications. (16) For example, a California resident's numerous telephone interviews with a Florida journalist established sufficient minimum contacts such that the California resident could reasonably anticipate being haled into court in Florida for allegedly defamatory statements he made for a story the California resident knew would be published in Florida. (17) Of note, 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. (18)

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...