Green v. USF & G CORP.

• Decision Date: 23 July 1991
• Docket Number: No. 91-10045-CIV.,91-10045-CIV.
• Citation: 772 F. Supp. 1258
• Parties: Harry Christian GREEN, Plaintiff, v. USF & G CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

772 F. Supp. 1258

Harry Christian GREEN, Plaintiff, v. USF & G CORPORATION, et al., Defendants.

No. 91-10045-CIV.

United States District Court, S.D. Florida.

July 23, 1991.

Militana, Militana, Militana & Lumley, P.A., Justin R. Lumley, Tierra Verde, Fla., for plaintiff.

Martin Leonard Steinberg, Holland & Knight, Miami, Fla., for defendants.

ORDER GRANTING DEFENDANTS HAFETS AND LEBAU'S MOTION TO DISMISS AND TO QUASH SERVICE

JAMES LAWRENCE KING, Chief Judge.

This cause comes before the Court upon motion of defendants Hafets and Lebau to quash service and to dismiss the Complaint for lack of personal jurisdiction, under Rule 12(b)(2) of the Federal Rules of Civil Procedure. Defendants Hafets and Lebau also move for dismissal for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Because it is jurisdictional, this Court must rule on 12(b)(2) motion first. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990).

I. FACTS

On May 13, 1991, plaintiff Harry Christian Green filed a complaint against USF & G Corporation, various subsidiaries and officers, and the corporation's attorneys, Richard Hafets and Stephen Lebau (working for the law firm of Piper & Marbury in Baltimore, Maryland). Most of the Counts in the Complaint are breach of contract and related claims arising out of the allegedly wrongful discharge of plaintiff. The sole Count against defendants Hafets and Lebau is Count VIII, alleging slander. Plaintiff alleges that on December 21, 1990, one of the officers of USF & G directed Donald P. Davis, a former employee of a USF & G subsidiary, to call defendant Hafets. When Davis called, defendant Hafets allegedly brought defendant Lebau in on a conference call with Davis. During the course of the conversation, defendants Hafets and Lebau allegedly attempted to solicit from Davis what they allegedly described as "dirty activities" by plaintiff to effect a more convenient settlement of the wrongful discharge claim. Plaintiff also alleges that defendant Hafets initiated a second phone call on December 27 and advised Davis that he had received information that Davis had been hired by plaintiff to follow plaintiff's wife and to wiretap the offices of another USF & G subsidiary. Plaintiff alleges the slanderous statements were published by word of mouth and were intended to mean that plaintiff had committed a crime, an illegal wiretap, and was engaged in other illegal or immoral activities.

On June 18, 1991, defendants Hafets and Lebau filed this motion to dismiss and to quash service, along with a memorandum of law and the affidavits of Hafets and Lebau. Both defendants Hafets and Lebau state that they practice law and reside in Maryland and have no ties to the state of Florida. Neither has an office, agents, or assets in Florida; nor has either been physically present in Florida; nor has either conducted business in Florida.¹ They state that they were investigating for USF & G possible improprieties by certain officers and employees, one of whom was plaintiff. In his affidavit, defendant Lebau states that he believes he said nothing during the conversation of December 21, except perhaps "hello" on the speaker-phone.

On July 11, 1991, plaintiff filed a memorandum in opposition, as well as the affidavits of Donald P. Davis and plaintiff's counsel Richard Militana. Davis' affidavit in essence verifies plaintiff's allegations concerning the phone calls. Davis refers to the attorneys collectively, never explicitly refuting that defendant Lebau did not speak. The purpose of the Militana affidavit is apparently to inform the Court that it was Piper & Marbury rather than the defendants Hafets and Lebau who were representing USF & G, and that Piper & Marbury may have a member on USF & G's Board of Directors.

Neither party has argued the 12(b)(6) motion in these pleadings.

II. RULE 12(b)(2) MOTION

Determining whether a court has jurisdiction over the person involves a two-part analysis. First, the court must consider the jurisdictional question under the state long-arm statute, in this case Fla.Stat. § 48.193. Second, the court must determine whether there are sufficient minimum contacts to satisfy the Due Process Clause of the Fourteenth Amendment so that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Madara, 916 F.2d at 1514 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).

(A) THE FLORIDA LONG-ARM STATUTE

Since plaintiff alleges that defendants Hafets and Lebau slandered plaintiff, plaintiff asserts that this Court has personal jurisdiction over the defendants pursuant to the Florida long-arm statute because they committed a tort within the state. Defendants' arguments are mainly directed at whether their contacts with the state are substantial enough to warrant the exercise of jurisdiction, apparently unaware that plaintiff is invoking the tort portion of the Florida long-arm statute. The Florida long-arm statute, § 48.193, provides, in pertinent part:

(1) 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 and, if he is a natural person, his 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:

. . . . .

(b) Committing a tortious act within this state.

The plaintiff has the burden of sustaining an assertion of personal jurisdiction against a challenge. However, in deciding the motion, the court must consider the pleadings and affidavits in the light most favorable to the plaintiff. When a district court does not conduct a discretionary evidentiary hearing on a motion to dismiss for lack of personal jurisdiction, the plaintiff must establish a prima facie case of personal jurisdiction over a nonresident defendant. Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir.1988); Poston v. American President Lines, Ltd., 452 F.Supp. 568, 571 (S.D.Fla.1978). "In ruling on a motion to dismiss for lack of personal jurisdiction, the allegations of the complaint, except insofar as controverted by the defendant's affidavit, must be taken as true." Black v. Acme Markets, Inc., 564 F.2d 681 (5th Cir.1977).²

The Florida long-arm statute is to be strictly construed to guarantee compliance with due process requirements. Cosmopolitan Health Spa v. Health Industries, Inc., 362 So.2d 367 (Fla. 4th DCA 1978); Oriental Imports and Exports, Inc. v. Maduro and Curiel's Bank, N.V., 701 F.2d 889 (11th Cir.1983). The reach of the Florida long-arm statute is a question of Florida law, so a federal court is required to construe it as would the Florida Supreme Court. Madara, 916 F.2d at 1514. However, federal court construction of state law may be relied upon in the absence of supervening state court interpretations. Spencer Boat Co. v. Liutermoza, 498 F.2d 332 (5th Cir.), reh'g denied, 503 F.2d 568 (5th Cir.1974).

The question, then, is whether the allegedly slanderous statement that defendant Hafets made from his office in Maryland, with defendant Lebau present on a conference call, to Davis in Florida constitutes a tort committed within the state under Florida law. The cases on the issue of slander, defined as spoken defamatory words, 19 Fla.Jur.2d Defamation § 2 (1980), are not entirely clear.

In Carida v. Holy Cross Hosp., Inc., 424 So.2d 849 (Fla. 4th DCA 1982), the court exercised jurisdiction over a nonresident defendant who made allegedly defamatory remarks over the telephone and the publication of the defaming statement occurred in Florida. The court noted that due process was not offended there because there was not simply one isolated conversation in a vacuum; instead, the defendant participated in a series of conversations during which defendant had to know that his allegedly false statements were adversely affecting plaintiff in his professional medical endeavors in Florida. Id. at 852.

In Madara v. Hall, the district court found that it could exercise jurisdiction over a nonresident defendant in an action for libel, where the published statement was made by telephone in another state and the allegedly false material was circulated within Florida, if consistent with due process. 717 F.Supp. 812 (S.D.Fla.1989), aff'd in part and vacated in part on other grounds, 916 F.2d 1510 (11th Cir.1990). There, however, the court found that due process requirements did not permit jurisdiction over the defendant.

Similarly, in Stepanian v. Addis, 782 F.2d 902, 903 (11th Cir.1986), the Eleventh Circuit, deciding where the cause of action arose for purposes of statute of limitations, said that although the cases are not clear, where a person informs a news reporter, the tort of libel and slander can occur where the material is circulated.

Finally, § 48.193(1)(b) was held to apply to fraudulent representations which allegedly occurred during telephone conversations between plaintiff, a Florida investor, and defendants, Missouri sellers of stock. Groome v. Feyh, 651 F.Supp. 249, 251 (S.D.Fla.1986). However, the court there found that exercise of such jurisdiction did not comport with due process. Id. at 256.

Here the statements were never written down and distributed within the state of Florida as they were in the above libel cases. However, it seems reasonable to infer that the slander equivalent of publication, the transmittal of the words to a third party in Florida, brings the action within the reach of the statute. The fact that fraudulent representations uttered over the telephone from Missouri were held to constitute a tort committed within the state of Florida in Groome strengthens this inference. 651 F.Supp. at 251. Therefore, this Court finds that the allegedly slanderous remarks constitute a tort committed within the state of Florida.

Before moving to the due process...