Jet Charter Service, Inc. v. Koeck

• Decision Date: 03 August 1990
• Docket Number: No. 89-5516,89-5516
• Citation: 907 F.2d 1110
• Parties: JET CHARTER SERVICE, INC., Plaintiff-Appellant, v. W. KOECK, Progress Aviation (U.S.A.), Inc., Progress Aviation, S.A., Jean Caillet, Defendants, Banque Paribas (Suisse), S.A., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1110

907 F.2d 1110

JET CHARTER SERVICE, INC., Plaintiff-Appellant, v. W. KOECK, Progress Aviation (U.S.A.), Inc., Progress Aviation, S.A., Jean Caillet, Defendants Banque Paribas (Suisse), S.A., Defendant-Appellee.

No. 89-5516.

United States Court of Appeals Eleventh Circuit.

Aug. 3, 1990.

Stanley J. Bartel, Miami, Fla., for plaintiff-appellant.

David S. Patterson, Breed, Abbott & Morgan, New York City, for defendant-appellee.

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

Before CLARK, Circuit Judge, MORGAN and RONEY ^*, Senior Circuit Judges.

CLARK, Circuit Judge:

Plaintiff Jet Charter Service, Inc. ("Jet Charter") appeals the district court's grant of defendant Banque Paribas (Suisse) S.A.'s ("Paribas") motion to dismiss for lack of personal jurisdiction. We affirm.

In July of 1986, Jet Charter filed a multiple count complaint against five defendants, including defendant Paribas. The charges in the complaint arise from Jet Charter's sale of two DC 10-40 aircraft to defendant Progress Aviation, S.A. ("Progress"), a Swiss corporation, in November of 1985. Under the purchase agreement, the sale price of $26,473,500 was to be distributed as follows: $23,000,000 paid at closing to Boeing, the manufacturer, $673,500 paid at closing to Northwest Airlines to release its mechanic's lien for previous repairs done on the aircraft, $1,000,000 paid at closing to Jet Charter, and $500,000 paid to Jet Charter upon delivery of the aircraft to Progress. The remaining $1.3 million of the purchase price was to be retained by Progress to be applied to make repairs necessary to bring the aircraft up to the condition Jet Charter had agreed they would be in at the time of delivery. After the necessary repairs were made, the remaining money would be paid to Jet Charter.

The purchase agreement required Progress to open a letter of credit in favor of Jet Charter to secure Progress's obligation to pay the $500,000 upon delivery and the remaining balance of $1.3 million. The terms of the letter of credit were to provide that Progress could first draw on the credit to pay for the necessary repairs, and then the remaining balance could be drawn on by Jet Charter. Progress contracted with defendant Paribas, a Swiss bank, to open the letter of credit required by the purchase agreement.

On the day of closing, defendant Jean Caillet, an officer of defendant Paribas, attended the closing in Miami, Florida. When Jet Charter asked whether the letter of credit had been opened, Caillet produced a letter purporting to confirm "the opening of an irrevocable Letter of Credit in the amount of US $1,800,000 ... in accordance with the terms of the Restated Purchase Agreement of 13th November 1985 between Jet Charter Services, Inc. and Progress Aviation S.A., as amended by the first amendment thereto." R5-129, Exh. B. Jet Charter was not satisfied with this letter, and asked that another letter be drafted by Caillet. Caillet obliged by drafting a letter that represented that Paribas had opened an irrevocable letter of credit in the amount of U.S. $1,800,000 in favor of Jet Charter, that an amended letter of credit would be delivered to Jet Charter in Miami, Florida by 5:00 p.m. EST on November 26, 1985 and that the letter of credit would be payable upon presentation to "Banque Paribas in Miami, Florida." ¹ The letter further represented that the letter of credit would "be a clean letter of credit other than specifically reciting terms and conditions from that certain restated amended purchase agreement of November 13, 1985 between Jet Charter Services, Inc. and Progress Aviation S.A. as amended by the first amendment thereto." R5-129, Exh. C.

On the basis of these assurances, Jet Charter assigned its interest in the aircraft to Progress. The aircraft were delivered to Progress as anticipated in the purchase agreement, and a letter of credit was issued, although Jet Charter rejected it as not conforming to the terms of the purchase agreement. Progress had numerous repairs made to the aircraft, and the main dispute in this case revolves around Jet Charter's contention that Progress made more repairs than were authorized by the purchase agreement, thus reducing Jet Charter's net profit from the sale in violation of the purchase agreement.

Count One of the complaint alleges that defendant W. Koeck dominates and controls defendants Progress and its related domestic corporation, Progress Aviation (U.S.A.), Inc. (referred to collectively as "the Progress defendants"), and that these defendants breached the purchase agreement by charging repairs that were not required under the purchase agreement against the $1.3 million portion of the purchase price. Counts Two and Three allege that the Progress defendants are obligated to repay Jet Charter for certain insurance premiums and for conversion of certain aircraft baggage containers and other equipment. Liberally construed, Count Four alleges that the letters provided by Caillet at the closing comprise a contract between Paribas and Jet Charter, and that Paribas breached that contract by failing to deliver the letter of credit by the stated deadline, and by delivering a letter that did not conform to the terms of the purchase agreement or the terms of the letter contract. Count Five alleges that the Progress defendants and defendant Caillet created a scheme to defraud Jet Charter by falsely leading Jet Charter to believe a letter of credit had been opened so that Jet Charter would complete the sale.

Over two years after the complaint was filed, on September 9, 1988, the district court sua sponte dismissed without prejudice Jet Charter's claims against defendant Koeck because Jet Charter had been unable to serve him with process. R5-121. On December 21, 1988, the court granted defendant Progress's motion to dismiss for failure to effect service of process. In that same order, the district court granted defendant Paribas's motion to dismiss for lack of personal jurisdiction, while denying defendant Caillet's motion to dismiss. R5-134. On April 26, 1989, the court dismissed the claims against the two remaining defendants, Caillet and Progress Aviation (U.S.A.), Inc., based on joint stipulations for voluntary dismissal without prejudice. R5-144, 145. As a result, the driving issue behind this litigation, whether Progress breached the purchase agreement by making excessive repairs to the aircraft, was never adjudicated by the district court.

In the present case, Jet Charter appeals only the portion of the district court's order of December 21, 1988 dismissing defendant Paribas. ² Jet Charter argues on appeal that the district court has personal jurisdiction over defendant Paribas under subsections (1)(a), (1)(b), (1)(f), and (1)(g) of the Florida long-arm statute, Fla.Stat.Ann. Sec. 48.193 (West Supp.1989). Paribas claims that Jet Charter has failed to provide sufficient facts to prove the existence of jurisdiction under any of these subsections.

Our review of a district court's determination of the existence or non-existence of personal jurisdiction involves evaluating the same documentary evidence relied on by the district court, and therefore we review such determinations de novo. Alexander Proudfoot Co. World Headquarters L.P. v. Thayer, 877 F.2d 912, 916 (11th Cir.1989). In a diversity action, a federal court may exercise personal jurisdiction over non-resident defendants only to the extent permitted by the forum state's long-arm statute. Oriental Imports & Exports, Inc. v. Maduro & Curiel's Bank, N.V., 701 F.2d 889, 890 (11th Cir.1983).

Under Florida law, a plaintiff seeking to subject a nonresident defendant to jurisdiction of the court through the long-arm statute must do more than allege facts that show a possibility of jurisdiction. When a defendant raises through affidavits, documents or testimony a meritorious challenge to personal jurisdiction, the burden shifts to the plaintiff to prove jurisdiction by affidavits, testimony or documents. Sims v. Sutton, 451 So.2d 931 (Fla.Dist.Ct.App.1984); accord Norwest Bank Minneapolis, N.A. v. American Centennial Ins. Co., 493 So.2d 101 (Fla.Dist.Ct.App.1986); Polskie Linie Oceaniczne v. Seasafe Transport A/S, 795 F.2d 968 (11th Cir.1986). Our review of the record in this case reveals no basis for finding that the district court had jurisdiction over defendant Paribas.

Even if the requirements of a state long-arm statute are met, personal jurisdiction cannot be exercised over a defendant that does not have sufficient "minimum contacts" with the forum state to satisfy the requirements of due process. ³ Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); accord Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989) (Holding that "mere proof of any one of the several circumstances enumerated in [Florida's long-arm statute] ... does not automatically satisfy the due process requirement of minimum contacts.").

The existence of a contractual relationship between a nonresident defendant and a Florida resident is not sufficient in itself to meet the requirements of due process. Burger King, 471 U.S. at 462, 105 S.Ct. at 2174, 85 L.Ed.2d at 528. Due process requires that the defendant's conduct and connection with the forum state be such that the defendant should reasonably anticipate being called into court there. Random, fortuitous or attenuated contacts, or contacts produced through the unilateral activity of a third person are insufficient to reasonably indicate to the defendant that he should anticipate being subject to personal jurisdiction of the forum state's courts. Id. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542.

In support of its argument that the district court has jurisdiction over Paribas, Jet Charter alleges in its complaint and through the affidavit of Gabriel D'La Rotta, President of Jet Charter, the following contacts Paribas had with the state...