Brown v. Seebach

• Decision Date: 12 April 1991
• Docket Number: No. 90-10085-Civ.,90-10085-Civ.
• Citation: 763 F. Supp. 574
• Parties: David BROWN, etc., et al., Plaintiffs, v. Henry F. SEEBACH III, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

763 F. Supp. 574

David BROWN, etc., et al., Plaintiffs, v. Henry F. SEEBACH III, et al., Defendants.

No. 90-10085-Civ.

United States District Court, S.D. Florida.

April 12, 1991.

COPYRIGHT MATERIAL OMITTED

Martin Raskin, Miami, Fla., for plaintiffs Nancy, Peter and David Brown.

John Wylie, Miami, Fla., for defendants Seebach.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' 12(b)(2), 12(b)(6), and 12(f) MOTIONS

JAMES LAWRENCE KING, Chief Judge.

This cause is before the court upon motions by defendants Henry F. Seebach III, Eyelematic Manufacturing Company, Inc., Henry F. Seebach, Jr., and Laurie Seebach to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). In the alternative, defendants Eyelematic Manufacturing Company, Inc., Henry F. Seebach, Jr., and Laurie Seebach further request the court to strike certain portions of the complaint pursuant to F.R. Civ.P. 12(f).

FACTS

On the night of December 22, 1989, the defendant Henry Seebach III, the decedent Eric Brown, and Leigh Otzen attended a party at Ocean Reef Club in Key Largo, Florida. During the evening, defendant Seebach III decided to drive to the Circle K store located in Key Largo. The sixteen-year-old defendant convinced Eric and Leigh, ages fourteen years, to accompany him. The convenience store was located approximately nine miles from the Club. Defendant Seebach drove a BMW automobile which was owned by his father's company, defendant Eyelematic Corporation. Upon arrival at the Circle K, Seebach III bought three cases of beer, opened and drank the contents of one can, and proceeded to drive back to Ocean Reef. Eric Brown was in the front seat while Leigh sat in the back seat. Somewhere along the way, the defendant accelerated to speeds in excess of 100 miles per hour, lost control, and crashed into a tree. Otzen escaped through the left rear window of the car and began running along county road 905 looking for help. Seebach escaped through the driver's side. Eric Brown, unable to escape, died in the crash and resulting fire.

Plaintiff David Brown is the uncle of the decedent Eric Brown. David Brown is the administrator ad prosequendum for the estate and survivors of Eric Brown. Eric's mother and father, Peter and Nancy Brown, are also named individually as plaintiffs. The complaint alleges a variety of causes of action against the various defendants named in the complaint. Specifically, the plaintiffs allege a cause of action for the wrongful death of Eric Brown, brought pursuant to Fla.Stat. § 768.16.

The plaintiffs maintain that subject matter jurisdiction is founded in diversity as all the plaintiffs are citizens of New Jersey and all the defendants being citizens of a different state. The amount in controversy exceeds $50,000, and the cause of action arose in Florida within the district of this court. Certain defendants reside here as well.

The defendants move the court to dismiss the complaint, dismiss certain counts of the complaint or, in the alternative, to strike various claims pursuant to F.R. Civ.P. 12(b) and 12(f). Rule 12(b) F.R. Civ.P., provides for seven grounds on which to predicate a motion to dismiss prior to filing an answer. Defendants have pled two of the seven grounds. The grounds include: (1) lack of jurisdiction over the person (Rule 12(b)(2)); and (2) failure to state a claim (Rule 12(b)(6)).

As a general rule, the court will pass on the jurisdictional issues before considering whether a claim was stated by the complaint or the alternative motions.

I. Rule 12(b)(2) Motion of Henry Seebach III

As is the case in all diversity actions, the court must look to state law for a basis on which it may assert personal jurisdiction over defendants. See Gordon v. John Deere Company, 466 F.2d 1200 (5th Cir. 1972); Bloom v. A.H. Pond Co., Inc., 519 F.Supp. 1162 (S.D.Fla.1981). In a diversity action, a federal court "may exercise personal jurisdiction over a nonresident defendant only to the extent permitted by the long-arm statute of the forum state." Oriental Imports & Exports v. Maduro & Cariel's Bank, 701 F.2d 889, 890 (11th Cir.1983). Once the defendant is found to fall within the provisions of the long-arm statute, the court must determine whether subjecting the defendant to the jurisdiction of the court is constitutionally permissible. Rebozo v. Washington Post Co., 515 F.2d 1208, 1211 (5th Cir.1975). The reach of the state's long-arm statute is not unbounded, but rather is limited by the due process clause of the fourteenth amendment. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 470 n. 12, 105 S.Ct. 2174, 2181 n. 12, 85 L.Ed.2d 528 (1985). Thus, the court proceeds to a two-part inquiry to determine whether jurisdiction is proper under the long-arm statute.

A. Long-Arm Statute

The plaintiff invokes the jurisdiction of the court on the basis that the defendant, while present in the forum, allegedly committed various torts actionable under the law of the state. Florida's long-arm statute provides in relevant part:

(1) Any person, whether or not a citizen or resident of the 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.

Fla.Stat.Ann. § 48.193(1)(b) (West Supp. 1989).

Under the Florida long-arm statute, the person invoking the jurisdiction of the Florida courts carries the burden of proving facts showing jurisdiction to be proper. Oriental Imports & Exports, 701 F.2d at 891. The plaintiff here alleges that the defendant committed several torts within the state, making personal jurisdiction proper under subsection 48.193(1)(b). As pleaded by the plaintiff, defendant Seebach III's allegedly tortious conduct was his wrongful, wanton and reckless acts that caused the BMW car to swerve, spin, and crash into a tree along the side of County Road 905 in Key Largo, Florida, resulting in the death of Eric Brown.

In International Harvester Co. v. Mann, 460 So.2d 580, 582 (Fla. 1st D.C.A. 1984), the court stated that "a plaintiff seeking to assert long-arm jurisdiction over a non-resident must allege in his complaint sufficient facts to fall within the language of § 48.193 Fla.Stat." The court can find no support for the defendant's contention that the failure to identify the particular long-arm statute by number renders the complaint "fatally defective." Nor can the court find merit in defendant's argument that the jurisdictional allegations are "conclusionary."

The court holds that the plaintiff has clearly established a basis to invoke long-arm jurisdiction in this action. The allegations in the complaint indicate the various torts allegedly committed by Seebach III. Moreover, the alleged tortious conduct as set forth in the complaint fulfill the necessary elements required to fall within the language of § 48.161 Fla.Stat. The plaintiff has met the burden by pleading sufficient facts to justify an application of the long-arm statute. Chase Manhattan Bank, N.A. v. Banco del Atlantico, 343 So.2d 936 (Fla. 3d D.C.A.1977).

B. Due Process Analysis

To determine whether assertion of that jurisdiction is constitutionally permissible, the court must consider whether asserting jurisdiction offends the due process clause of the fourteenth amendment. The issue is whether the nonresident defendant has sufficient minimum contacts with the state so as not to offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The nature and quality of the contacts are to be considered in applying the minimum contacts test. Rebozo, 515 F.2d at 1214. Even the commission of a single tortious act may be held to provide a basis for personal jurisdiction. Id. Nevertheless, the court must still determine "whether the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court here." World Wide Volkswagen v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490 (1980). An assertion of specific jurisdiction over an out-of-state defendant, as is sought here under § 48.193(1)(b), requires that the defendant have "fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign." Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683 (1977). (Stevens, J. concurring in judgment.) This requirement is met if the defendant "`purposefully directed' his activities at residents of the forum," Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984), and the litigation results from alleged injuries that "arise out of or relate to' those activities." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). Burger King, 471 U.S. at 472, 105 S.Ct. at 2182.

Applying these principles to the matter at hand, the court concludes that the jurisdictional test is satisfied. The Supreme Court of this state has held that "by committing a tort in Florida a nonresident establishes sufficient minimum contacts with Florida to justify the acquisition of in-personam jurisdiction over him by personally serving him outside the state." Godfrey v. Neumann, 373 So.2d 920 (Fla. 1979). Furthermore, taking the facts alleged by the plaintiff in his response to the defendant's motion to dismiss as true, the court can conclusively find that the alleged injury arose out of or was related to the activities of the defendant motorist. The connection between a nonresident motorist and his activities while driving on the streets and highways of this state is not too remote to give the defendant fair warning that h...