Banco De Los Trabajadores v. Moreno

• Decision Date: 24 January 2018
• Docket Number: No. 3D17–730,3D17–730
• Citation: 237 So.3d 1127
• Parties: BANCO DE LOS TRABAJADORES, Appellant, v. Ricardo Rene CORTEZ MORENO, Appellee.
• Court: Florida District Court of Appeals

237 So.3d 1127

BANCO DE LOS TRABAJADORES, Appellant,

v.Ricardo Rene CORTEZ MORENO, Appellee.

No. 3D17–730

District Court of Appeal of Florida, Third District.

Opinion filed January 24, 2018.

Dorta & Ortega, P.A., and Omar Ortega, Rey Dorta and Rosdaisy Rodriguez ; Williams & Connolly LLP, and Peter J. Kahn, Jonathan M. Landy and Matthew H. Jasilli (Washington, D.C.), for appellant.

Brill & Rinaldi, The Law Firm, and David W. Brill, Joseph J. Rinaldi and Michelle Y. Medina–Fonseca (Weston); The McKee Law Group, LLC, and Robert J. McKee (Davie); Joel S. Perwin, P.A., and Joel S. Perwin, for appellee.

Before EMAS, LOGUE and SCALES, JJ.

PER CURIAM.

I. Introduction

Appellant Banco de los Trabajadores ("Bantrab"), the defendant below, was sued by Appellee Ricardo Rene Cortez Moreno ("Cortez"). In this non-final appeal, Bantrab seeks review of the trial court's order denying its motion to dismiss two counts of Cortez's complaint for lack of personal jurisdiction. For the reasons that follow, we reverse the trial court's order denying Bantrab's motion to dismiss.

In November of 2015, Cortez filed a complaint against Bantrab, a Guatemalan bank, and against seven individual directors of Bantrab (the "Directors"). Cortez later filed an amended (and second amended) complaint that alleged the following twenty claims:

Counts I–VII: Assault and Battery (against the Directors);

Count VIII: Assault and Battery (against Bantrab);

Counts IX–XV: Florida RICO (against the Directors);

Count XVI: Florida RICO (against Bantrab);

Count XVII: Breach of Contract (against Bantrab);

Counts XVIII–XX: Tortious Interference with Contract (against three of the Directors)

(The counts relevant to this appeal are in bold. )

This appeal addresses only the portion of the trial court's March 14, 2017 order that found personal jurisdiction as to Bantrab,¹ and only as to Counts VIII (assault and battery) and XVI (Florida RICO violations).²

II. Background Facts

The second amended complaint contains the following allegations:

Bantrab is a Guatemalan corporation, with its principal place of business in Guatemala. Cortez was a citizen of Guatemala but has been a resident of Miami–Dade County since 2008, and is now a United States citizen.

In 2008, Bantrab entered into a written professional services agreement with Cortez, under which Cortez would assist in promoting and increasing Bantrab's business and business presence in Florida and the United States. Both parties further agreed to submit any type of dispute relating to the contract to the jurisdiction of the courts of Miami–Dade County.

The complaint alleges that Bantrab launched a "Bancarization project" that sought the business of Guatemalan residents who worked and lived in Florida and who sent money to their families in Guatemala. To help create and operate this business, Bantrab entered into a contract with Cortez's company, Union Expresso. To promote the Bancarization project, Bantrab sent officers and staff to Florida, set up small banking facilities ("mini-consulates") in Florida, advertised in Florida, contracted with money transfer companies based in Florida, and worked with several associate banks in Florida. Cortez acknowledged in his complaint that Bantrab's formal banking activities take place in Guatemala.

At some point, the President of the Republic of Guatemala became aware that Bantrab was allegedly involved in money laundering. He contacted Cortez and asked Cortez to investigate Bantrab's suspected money-laundering activities in Florida and elsewhere in the United States. From this point onward, as he acted upon the President's request, Cortez allegedly became a target of Bantrab and the Directors. Cortez alleges he discovered evidence that Bantrab and the Directors were participating in a large-scale conspiracy. Relevant to the jurisdictional issue presented, Cortez alleges he discovered that Bantrab and the Directors were aiding and abetting drug traffickers by laundering the proceeds of narcotics trafficking and transferring these proceeds to Florida through Bantrab. Further, Cortez alleges that the Directors were traveling to Florida to meet with members and representatives of drug cartels in furtherance of this unlawful activity.

When the Directors learned of Cortez's investigation, the Directors threatened Cortez that if he did not stop his investigation, leave Florida and come to Guatemala, they would ruin his substantial business in Guatemala. The Directors went to Florida to meet with Cortez in a further attempt to convince Cortez to halt his investigation and to bury his findings. When Cortez refused, Bantrab canceled its contract with Cortez's company, Union Expresso.

At that point, Cortez decided to travel to Guatemala in an attempt to reach some acceptable resolution with Bantrab. On August 20, 2009, Cortez met with the Directors but no real progress was made at that meeting. Two days later, while still in Guatemala and on his way to the airport to return to Florida, the vehicle Cortez was riding in was fired upon forty-two times, and Cortez was struck by two of the bullets. One bullet traveled through Cortez's right arm and into his chest and torso. The second bullet entered his lower back. Cortez alleges that the Directors, as agents or employees of Bantrab, hired a hitman to carry out this attack on Cortez because of Cortez's investigation into Bantrab's (and the Directors') conspiracy and money-laundering activities allegedly occurring in Florida. This attempted murder formed the basis for Cortez's assault and battery claims.

III. Procedural Background

In addition to pleading these case-specific facts, Cortez's second amended complaint also tracked the statutory language of the relevant portions of Florida's long-arm jurisdiction statute ( section 48.193 of the Florida Statutes (2015) ). Cortez alleged that Bantrab was subject to the jurisdiction of the courts of Florida for causes of action arising from Bantrab's alleged: (i) operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state; (ii) committing a tortious act within this state; or (iii) engaging in substantial and not isolated activity within this state.

After the second amended complaint was filed, Bantrab filed a motion to dismiss, contending that, even accepting all of the complaint's allegations as true, those allegations, as a matter of law, fail to establish personal jurisdiction over Bantrab for the assault and battery claim and the Florida RICO claim. Bantrab opposed all jurisdictional discovery and the trial court permitted no discovery on this issue. The trial court held a non-evidentiary hearing³ on Bantrab's motion and, on March 14, 2017, entered the order on appeal that denied Bantrab's motion to dismiss, concluding that the allegations of Cortez's second amended complaint established both general and specific personal jurisdiction over Bantrab. The trial court's order, though, did dismiss, without prejudice, Cortez's Florida RICO claim against Bantrab (Count XVI), requiring Cortez to file a more definite statement. Bantrab timely appealed the jurisdictional determinations in the trial court's March 14, 2017 non-final order. We have jurisdiction. See rule 9.130(a)(3)(C)(i).⁴

IV. Analysis⁵

On appeal, Bantrab contends that Cortez failed to allege sufficient jurisdictional facts to establish either general or specific jurisdiction over Bantrab, a non-resident defendant, as to the assault and battery and Florida RICO counts. Bantrab also contends that the trial court applied the incorrect standard in making its determination as to general jurisdiction.

In Florida, the appropriateness of exercising personal jurisdiction over a nonresident defendant involves a two-part inquiry. The court must:

first determine whether sufficient jurisdictional facts exist to bring the action within the ambit of Florida's long-arm statute ( section 48.193 ), and then [it must] determine whether the foreign corporation possesses sufficient "minimum contacts" with Florida to satisfy federal constitutional due process requirements.

Reynolds Am., Inc. v. Gero, 56 So.3d 117, 119 (Fla. 3d DCA 2011) (citing Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989) ). Florida courts undertake the Venetian Salami inquiry by first determining whether the complaint's allegations are sufficient to bring the action within the ambit of Florida's long-arm statute. If the allegations are sufficient, the burden then shifts to the defendant to contest, via affidavit or other sworn proof, the jurisdictional allegations or whether sufficient minimum contacts exist; if properly contested, the burden then returns to the plaintiff to refute the defendant's evidence with similar sworn proof. Belz Investco Ltd. P'ship v. Groupo Immobiliano Cababie, S.A., 721 So.2d 787, 789 (Fla. 3d DCA 1998) (citations omitted).

First, we provide an overview of "general" and "specific" jurisdiction provided for in Florida's long-arm statute; then, we discuss whether Cortez's general jurisdictional allegations are sufficient under the statute as informed by recent United States Supreme Court precedent; and finally, we evaluate whether Cortez's specific jurisdictional allegations are sufficient under the statute.

A. "General" and "Specific" Jurisdiction under Florida's Long–Arm Statute

Cortez bears the initial burden of alleging sufficient allegations to bring the action within the ambit of Florida's long-arm statute, section 48.193 of the Florida Statutes. Id. at 789 ; see also Casita, L.P. v. Maplewood Equity Partners L.P., 960 So.2d 854, 856 (Fla. 3d DCA 2007). Long–arm jurisdiction under section 48.193 may be established in one of two ways: "general" jurisdiction or "specific" jurisdiction. Rautenberg v. Falz, 193 So.3d 924, 928 (Fla. 2d DCA 2016). A Florida court has "general" jurisdiction over a nonresident defendant when the defendant has "engaged in substantial and not isolated activity...