Internet Solutions Corp. v. Marshall

• Decision Date: 10 February 2009
• Docket Number: No. 08-12328.,08-12328.
• Parties: INTERNET SOLUTIONS CORPORATION, Plaintiff-Appellant, v. Tabatha MARSHALL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

557 F.3d 1293

INTERNET SOLUTIONS CORPORATION, Plaintiff-Appellant, v. Tabatha MARSHALL, Defendant-Appellee.

No. 08-12328.

United States Court of Appeals, Eleventh Circuit.

February 10, 2009.

Keith E. Kress, Chesapeake of Virginia, Inc., Orlando, FL, for Appellant.

Marc John Randazza, Weston, Garrou, Walters & Mooney, Lawrence G. Walters, Weston, Garrou & De Witt, Altamonte SPG, FL, for Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BIRCH and BARKETT, Circuit Judges, and KORMAN,^* District Judge.

PER CURIAM:

Plaintiff-Appellant Internet Solutions Corporation ("ISC") appeals the district court's dismissal for lack of personal jurisdiction of its claim against Defendant-Appellee Tabatha Marshall involving allegedly defamatory postings on Marshall's website. The district court dismissed the claim because ISC failed to show that Marshall had sufficient contacts with the forum state, Florida, and because exercising personal jurisdiction over the claim would be at odds with due process. Since there is no controlling Florida precedent regarding the application of the state long-arm statute to internet websites, we certify the question to the Florida Supreme Court and defer our decision pending this certification.

I. BACKGROUND

ISC, a Nevada corporation with its principal place of business in Orlando, Florida, operates a number of internet websites that deal with employment recruiting and internet advertising. Marshall, a Washington resident, owns and operates a website, http://www.tabathamarshall.com, on which she posts information about various consumer-related issues regarding different companies. The site permits third parties to comment on all of Marshall's entries, with these comments appearing on the same webpage as the original post. In August 2007, Marshall put up a post about VeriResume, one of the websites operated by ISC. It appears that contact information for VeriResume and other ISC affiliates also was listed on a separate part of the website.

In November 2007, ISC filed a diversity action against Marshall in the United States District Court for the Middle District of Florida. ISC brought claims of defamation, trade libel, and injurious falsehood, and sought injunctive relief. It also contended that venue was proper in the Middle District because a substantial part of the circumstances which gave rise to its claims occurred in that district. The court had jurisdiction, ISC asserted, because Marshall had entered into Florida to commit a tortious act and reasonably should have known that her statements could have subjected her to litigation in Florida.

Marshall subsequently moved to dismiss the complaint for lack of jurisdiction. She contended that the court had no personal jurisdiction under Florida's long-arm statute Fla. Stat. § 48.193, because she did not have sufficient Florida-related contacts and had not committed a tortious act in that state.¹ She also asserted that the exercise of personal jurisdiction by the court would violate federal due process. As part of this motion, Marshall filed a declaration in which she detailed her lack of contacts with Florida. In this declaration, she stated that she had been a resident of Washington since 2000, owned no property in Florida, had no investments in Florida businesses, held no bank accounts in that state, and had visited it on only one occasion—a three-day work-related trip in 2004 which was unconnected to her website. She also declared that she received no income for her website, did not sell any products or services through her website, had not solicited or received any business or donations from Florida for her website, and had not sent any business-related communications into Florida tied to her website. In addition, she stated that she never provided on her website any mechanism to identify Florida companies discussed therein.

The district court granted Marshall's motion and dismissed ISC's claim based on lack of personal jurisdiction. The court first found that the exercise of jurisdiction was appropriate under Florida's long-arm statute because ISC had made out a prima facie case for jurisdiction, which Marshall failed to rebut. The court then addressed whether the exercise of jurisdiction would violate federal due process. It determined that Marshall's declaration adequately rebutted ISC's prima facie showing of jurisdiction and that ISC failed to refute Marshall's contention that she did not have the requisite minimum contacts. As a result, the court found that it lacked personal jurisdiction over the claim since Marshall did not have the minimum contacts with Florida that would be necessary to exercise jurisdiction in a manner that would mesh with traditional concepts of fairness and justice. ISC now appeals the district court's dismissal.

II. DISCUSSION

We review a district court's dismissal for lack of personal jurisdiction de novo. See Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir.2008). The plaintiff bears the burden of making out a prima facie case for personal jurisdiction by presenting sufficient evidence to withstand a directed verdict motion. See Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir.2006). The defendant then must "raise[ ], through affidavits, documents or testimony, a meritorious challenge to personal jurisdiction." Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir.1996) (quotation marks omitted). If the defendant does so, "the burden shifts to the plaintiff to prove jurisdiction by affidavits, testimony or documents." Id. (quotation marks omitted).

We use a two-step inquiry in determining whether the exercise of personal jurisdiction of a non-resident defendant is proper. See Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir.2005). First, we examine whether the exercise of jurisdiction would be appropriate under that state's long-arm statute. See id. "Second, we examine whether the exercise of personal jurisdiction over the defendant would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution." Id. (quotation marks and citation omitted). The due process inquiry requires us to determine whether "the defendant ha[s] minimum contacts with the forum state" and if the district court's exercising of jurisdiction over that defendant would "offend traditional notions of fair play and substantial justice." Id. (quotation marks and citation omitted).

Florida's long-arm statute permits state courts to exercise jurisdiction over a cause of action arising out of a tortious act committed within Florida. Fla. Stat. § 48.193(1)(b) (2008). For the purposes of the statute, the defendant does not have to be physically present in Florida for the tortious act to occur within that state. See Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla.2002). Additionally, a defendant can commit a tortious act within Florida via her "telephonic, electronic, or written communications into Florida" so long as the cause of...