Achievers Unlimited, Inc. v. Nutri Herb, Inc.

• Decision Date: 13 May 1998
• Docket Number: No. 97-1353,97-1353
• Parties: 23 Fla. L. Weekly D1179 ACHIEVERS UNLIMITED, INC., a Nevada corporation, Appellant, v. NUTRI HERB, INC., a Florida corporation, Michael Connelly, Ted Keys, Toby Widett, Michael Richter and Maxine Zitlin, Appellees.
• Court: Florida District Court of Appeals

Page 716

710 So.2d 716

23 Fla. L. Weekly D1179

ACHIEVERS UNLIMITED, INC., a Nevada corporation, Appellant, v. NUTRI HERB, INC., a Florida corporation, Michael Connelly, Ted Keys, Toby Widett, Michael Richter and Maxine Zitlin, Appellees.

No. 97-1353.

District Court of Appeal of Florida,

Fourth District.

May 13, 1998.

Mark S. Sussman, North Miami Beach and Mark L. Pomeranz of Pomeranz & Landsman, P.A., North Miami Beach, for appellant.

Alvin D. Lodish and Sherril M. Colombo of Rubin, Baum, Levin, Constant, Friedman & Bilzin, Miami, for appellee.

PER CURIAM.

This is an appeal from the trial court's dismissal of appellant's complaint as to appellees Michael Richter and Maxine Zitlin for lack of personal jurisdiction. We reverse and remand.

The Florida Supreme Court held that In determining whether long-arm jurisdiction is appropriate in a given case, two inquiries must be made. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient "minimum contacts" are demonstrated to satisfy due process requirements.

...

Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts. By itself, the filing of a motion to dismiss on grounds of lack of jurisdiction does nothing more than raise the legal sufficiency of the pleadings. A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then on the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained. In most cases, the affidavits can be harmonized, and the court will be in a position to make a decision based upon facts which are essentially undisputed.

Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989) (citations omitted).

Here, appellant is a multi-level marketing company with its principal place of business in West Palm Beach, Florida, and distributors all over the country. Richter and Zitlin were former distributors for appellant. In relevant part, the third amended complaint alleged counts of defamation and conspiracy to tortiously interfere with the appellant's contractual and business relationships with its distributors. ¹ The defamation count alleged generally:

Commencing as of May 1995, Defendants have engaged in an organized campaign to defame and disparage Plaintiff and injure Plaintiff's business relationship with its distributors. This campaign includes the dissemination of false, misleading and/or disparaging information to distributors of Nutri Herb, Inc., with the express intent that the information be used to harm the business relationship between Plaintiff and its distributors.

Specifically as to Richter, it alleged that:

Michael Richter has made statements to distributors in Palm Beach County and elsewhere that Achievers is not a good company and that Achievers has been selling products on the side directly to retailers.

The affidavit of Richter that was filed with his motion to dismiss does not contest that he made the statements to distributors in Palm Beach County, or that the statements, if made, would establish the tort of defamation. Making a defamatory statement to a listener in Florida, even via telephone, constitutes the commission of a tort in Florida within the meaning of Florida's long-arm statute. § 48.193(1)(b) Fla. Stat., (1995), Green v. USF & G Corp., 772 F.Supp. 1258, 1261 (S.D.Fla.1991). Therefore, appellant sufficiently pled unrefuted jurisdictional facts to bring Richter within the ambit of the long arm statute based on the commission of a tort within Florida.

However, Richter's affidavit clearly raises a contention of insufficient minimum contacts to comport with due process. "[D]ue process requires that the defendant have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice ... the test is whether the defendant's conduct is 'such that he should reasonably anticipate being haled into court there'." Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500 (Fla.1989), citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The requirement is satisfied if the defendant purposefully directs activities at Florida and litigation arises out of those activities, or the defendant purposefully avails himself of the privilege of conducting activities within the forum state. Green v. USF & G Corp., at 1262, citing, Burger King v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

Richter did not refute the allegations that he was a distributor for appellant, and purchased products from appellant for distribution. Richter acknowledged in his affidavit that he communicated with appellant in Florida via telephone, telefax, and mail. Appellant filed several affidavits with the trial court in support of its position. The undisputed portions of the affidavits established that Richter had called a distributor for appellant at his home in Broward County and told him that Achievers was not a good company, that Achievers had been selling product on the side directly to retailers, and that the amount of checks to distributors were going down.

Further, five letters were sent to distributors for Achievers at various states outside of Florida which contained brochures about Nutri Herb and encouraged the distributors to get involved with Nutri Herb. The letters indicated they were from Richter and bore his return address in Minnesota. However, the letters were postmarked in West Palm Beach. Richter also received compensation from transactions conducted by members of his "downline" in Florida.

This court has held that a non-resident defendant who sent an allegedly defamatory letter to six Broward County residents could have reasonably anticipated being haled into a Florida court. Silver v. Levinson, 648 So.2d 240 (Fla. 4th DCA 1994). In Silver, this court stated:

Defendant in this case committed an intentional act directly aimed at Florida and made accusations targeted at a Florida resident. He "purposefully directed" his activities at Florida.

Id. at 243.

Here, Richter similarly committed an intentional act directly aimed at Florida and made accusations targeted at a corporation that has its principal place of business in Florida. In addition, Richter had additional contacts with the state including his position as a distributor for appellant which resulted in Richter purchasing products from appellant in Florida and communicating with appellant in Florida by telephone, telefax, and mail. Accordingly, we find Richter had sufficient minimum contacts...