Fraser v. Smith

• Decision Date: 21 January 2010
• Docket Number: No. 08-10680.,No. 08-11417.,08-10680.,08-11417.
• Citation: 594 F.3d 842
• Parties: Charles E. FRASER, Estate of Charles E. Fraser, deceased, by and through its co-personal representatives Laura Lawton Stone Fraser and Charles A. Scarminach and Mary Wyman Stone Fraser, individually, Lawton Stone Fraser, individually and on behalf of her minor child, Samuel Arnal, Plaintiffs-Appellants, v. Jerry SMITH, individually, a.k.a. Reliable Salvage and Towing, Inc., d.b.a. Wayward Boats, a.k.a. Wayward Marine, a.k.a. Wayward Vessels, a.k.a. New River Industries, a.k.a. New River Transport, a.k.a. Tow Boat US, Denys W. Bradley, Jr., individually, d.b.a. Belize Fiberglass Products, Defendants, J&B Tours, Ltd., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

594 F.3d 842

Charles E. FRASER, Estate of Charles E. Fraser, deceased, by and through its co-personal representatives Laura Lawton Stone Fraser and Charles A. Scarminach and Mary Wyman Stone Fraser, individually, Lawton Stone Fraser, individually and on behalf of her minor child, Samuel Arnal, Plaintiffs-Appellants, v. Jerry SMITH, individually, a.k.a. Reliable Salvage and Towing, Inc., d.b.a. Wayward Boats, a.k.a. Wayward Marine, a.k.a. Wayward Vessels, a.k.a. New River Industries, a.k.a. New River Transport, a.k.a. Tow Boat US, Denys W. Bradley, Jr., individually, d.b.a. Belize Fiberglass Products, Defendants, J&B Tours, Ltd., Defendant-Appellee.

No. 08-10680.

No. 08-11417 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

January 21, 2010.

Sarah M. Shalf, Bondurant, Mixson & Elmore, LLP, Atlanta, GA, for Plaintiffs-Appellants.

Steven E. Goldman, Goldman & Hellman, Ft. Lauderdale, FL, for Defendant-Appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before EDMONDSON, BIRCH and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Charles Fraser died, and several of his family members suffered injuries, in a tragic explosion aboard the Sundance, a boat operated by J&B Tours in the Turks and Caicos Islands. Charles's estate and his injured relatives sued J&B Tours and several other defendants in the Southern District of Florida,¹ asserting various common-law claims and a federal statutory claim under the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 30301-08. The Frasers appeal from the district court's order dismissing their claims against J&B Tours for lack of personal jurisdiction.

I. BACKGROUND

J&B Tours is a commercial tour operator, organized under the laws of the Turks and Caicos Islands (TCI), that specializes in providing boat charters and recreational water-sports services to foreign visitors. It is owned and operated by two full-time TCI residents and maintains its only offices in that territory. Although the company has no property or official presence in the United States, many of its customers are American tourists. To attract business from the United States and elsewhere, J&B Tours maintains a publicly accessible website (originally designed by a former customer in Pennsylvania) with local contact information and descriptions of its services.

In its efforts to draw customers over the years, J&B Tours has advertised in several publications with circulation in the United States. It once placed an advertisement in Bridal Magazine, an American publication. It also placed a joint advertisement, with local hotels and the TCI Tourist Board, in the Miami Herald, and it has paid for advertising in a magazine distributed on commercial flights from the United States to the Islands. In addition, the company has appeared on an American television show and allowed itself to be listed in travel guides and directories available on the U.S. market.

J&B Tours has also established a number of business relationships with companies based in the United States. For example, it procured liability insurance through an insurance agent in Florida and has occasionally hired U.S. businesses to provide miscellaneous services to the company and its owners. It is the preferred services provider in the Turks and Caicos Islands for Maritz Company, a St. Louis-based travel company, and it maintains local relationships with TCI hotels owned by American companies. Furthermore, J&B Tours receives a commission for referring its customers to either of two American-owned car-rental companies. Finally, since its founding in 1993, J&B Tours has purchased about half of its boats in Florida.²

Although J&B Tours has no employees in the United States, its owners have traveled here frequently, for both business (to arrange company purchases) and pleasure. One of the owners, in fact, is a U.S. citizen with a U.S. passport. In addition, the company once sent a maintenance supervisor to attend a five-month course on mechanical repairs in Florida. And on three occasions, J&B Tours sent representatives to the United States to promote its services: first, at a Delta Airlines promotion of the Turks and Caicos Islands in Atlanta, Georgia; second, in St. Louis to establish its relationship with Maritz Company; and third, at a trade show for the tourism industry in Florida. J&B Tours also had a brief promotional agreement with an individual in the Washington, D.C. area, but the arrangement failed to yield any business.

The Sundance was one of five boats J&B Tours had purchased in Florida from Jerry Smith, a co-defendant in this litigation. The Frasers allege that Smith's defective design and construction of the Sundance, along with J&B Tours' negligent maintenance thereof, allowed a spark inside the hull of the vessel to ignite fumes surrounding the fuel tank.³ The resulting explosion formed the basis for the Frasers' claims.

J&B Tours filed a motion to dismiss for, among other things, lack of personal jurisdiction. Following oral argument, the district court concluded that it lacked jurisdiction over J&B Tours and granted the motion. The Frasers appeal, arguing that the district court had both general and specific jurisdiction over J&B Tours pursuant to Florida's long-arm statute and Federal Rule of Civil Procedure 4(k)(2).⁴

II. DISCUSSION

We review the district court's dismissal for lack of personal jurisdiction de novo. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir.1996). We accept factual allegations in the complaint as true to the extent that they are uncontested and, in cases of conflict, construe all reasonable inferences in the plaintiffs' favor. SEC v. Carrillo, 115 F.3d 1540, 1542 (11th Cir.1997). The Frasers assert four bases for personal jurisdiction over J&B Tours, and we address them in turn.

A. Florida's Long-Arm Statute

"A federal district court in Florida may exercise personal jurisdiction over a nonresident defendant to the same extent that a Florida court may, so long as the exercise is consistent with federal due process requirements." Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir.2008). We therefore turn to Florida's long-arm statute to determine whether a Florida court could exercise jurisdiction over J&B Tours in this case. Sculptchair, 94 F.3d at 626-27. The Frasers argue that J&B Tours was subject to the district court's general jurisdiction pursuant to Fla. Stat. § 48.193(2) and, in the alternative, that the court had specific jurisdiction to adjudicate their claims against J&B Tours under Fla. Stat. § 48.193(1)(a).

1. General Jurisdiction Under Section 48.193(2)

Section 48.193(2) of Florida's long-arm statute provides: "A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity." The reach of this provision extends to the limits on personal jurisdiction imposed by the Due Process Clause of the Fourteenth Amendment. Woods v. Nova Cos. Belize, 739 So.2d 617, 620 (Fla.Dist.Ct.App.1999). With respect to general jurisdiction under Florida's long-arm statute, therefore, we need only determine whether the district court's exercise of jurisdiction over J&B Tours would exceed constitutional bounds.

"The exercise of personal jurisdiction comports with due process if the non-resident defendant has established `certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1220 (11th Cir.2009) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). The defendant's contacts with the forum must be "continuous and systematic" to support the exercise of general jurisdiction. Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868. We conclude that J&B Tours' contacts with Florida do not meet this standard.

Many of J&B Tours' contacts with the forum in this case were also present in Helicopteros, in which the Supreme Court held that general jurisdiction over the defendant would not lie. In that case, the defendant had purchased eighty percent of its helicopter fleet in the forum and sent its employees there for training. But as the Supreme Court explained, "purchases and related trips, standing alone, are not a sufficient basis for a State's assertion of jurisdiction." Id. at 417, 104 S.Ct. 1868; accord Consolidated Dev. Corp. v. Sherritt Inc., 216 F.3d 1286, 1292 (11th Cir.2000) ("[M]erely purchasing materials, even if done regularly, is not contact sufficient to support personal jurisdiction.").⁵ Nor is an employee's temporary presence in the forum for training purposes sufficient. Id. at 418, 104 S.Ct. 1868.

Unlike the defendant in Helicopteros, however, J&B Tours solicited business in Florida as part of its general effort to attract customers from the United States. Nevertheless, "[p]lacing advertisements in a newspaper is not a sufficient connection to the forum for in personam jurisdiction," Sherritt, 216 F.3d at 1292, and we see nothing continuous or systematic about J&B Tours' limited advertising in Florida. A defendant does not confer general jurisdiction on the courts of Florida by occasionally soliciting business there. Price v. Point Marine, Inc., 610 So.2d 1339, 1342 (Fla.Dist.Ct.App.1992).

With respect to J&B Tours' website, although we have not established a firm rule for personal jurisdiction in the Internet context, Licciardello, 544 F.3d at 1288 n. 8, other courts have recognized that "the mere existence of a website that is visible in a forum and that gives information about a company and its products is not enough, by itself, to subject a defendant to personal jurisdiction in that forum." McBee v....