Contractual waiver of personal jurisdiction under F.S. § 685.102: the long-arm statute's little-known cousin.

• Author: Mullins, Edward M.

To most practitioners in Florida, F.S. [section] 48.193, more commonly known as the "long-arm statute," is second nature. After all, conventional wisdom says that [section] 48.193 is the only way for out-of-state persons and corporations to be subject to personal jurisdiction in Florida. Or is it? Another Florida statute, [section] 685.102, confers upon Florida courts jurisdiction over persons who contractually submit to such jurisdiction in certain types of transactions. One would think that with its potential usefulness for Florida residents who enter into contractual relationships with out-of-state persons or corporations, [section] 685.102 would be used often. Yet, the statute remains surprisingly untested, with not a single reported decision applying or even mentioning it. This article sheds some light on [section] 685.102, the little-known cousin of the much more familiar long-arm statute.

Section 685.102, which was first enacted in 1989, states in its entirety: 685.102. Jurisdiction

(1) Notwithstanding any law that limits the right of a person to maintain an action or proceeding, any person may, to the extent permitted under the United States Constitution, maintain in this state an action or proceeding against any person or other entity residing or located outside this state, if the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of the law of this state, in whole or in part, has been made pursuant to s. 685.101 and which contains a provision by which such person or other entity residing or located outside this state agrees to submit to the jurisdiction of the courts of this state.

(2) This section does not affect the jurisdiction of the courts of this state over any action or proceeding arising out of or relating to any other contract, agreement, or undertaking.

(3) This section applies to:

(a) Contracts entered into on or after June 27, 1989; and

(b) Contracts entered into prior to June 27, 1989, if an action or proceeding relating to such contract is commenced on or after June 27, 1989.

Section 685.101, in turn, provides in relevant part:

685.101. Choice of Law

(1) The parties to any contract, agreement, or undertaking, contingent or otherwise, in consideration of or relating to any obligation arising out of a transaction involving in the aggregate not less than $250,000, the equivalent thereof in any foreign currency, or services or tangible or intangible property, or both, of equivalent value, including a transaction otherwise covered by s. 671.105(1), may, to the extent permitted under the United States Constitution, agree that the law of this state will govern such contract, agreement, or undertaking, the effect thereof and their rights and duties thereunder, in whole or in part, whether or not such contract, agreement, or undertaking bears any relation to this state.

Section 685.102(a), then, when read in conjunction with [section] 685.101(1), indicates that a person may bring an action in a Florida court against another person, regardless of whether the second person resides outside of Florida, provided that 1) the action "arises out of or relates to" any contract, agreement, or undertaking;(1) 2) the contract contains a choice-of-law provision specifying that Florida law will apply; 3) the second person has agreed to submit to the jurisdiction of Florida courts in that same contract; and 4) the contract falls within the scope of [section] 685.101.

In order for the contract to fall within [section] 685.101, subsection (1) specifies that the contract must "involve consideration" or "relate to an obligation" worth $250,000 or more. Assuming this threshold is met, [section] 685.101(1) allows parties "to the extent permitted under the United States Constitution" to specify that Florida law will govern the contract, regardless of whether the contract bears any relation to Florida. (2)

This is qualified by [section] 685.101(2), however, which excludes several types of transactions from application of the rule in subsection (1). Of these exceptions, the one that is of most general relevance is [section] 685.101(2)(a)...