Milberg Factors, Inc. v. Greenbaum

• Decision Date: 10 September 1991
• Docket Number: No. 91-513,91-513
• Citation: 585 So.2d 1089
• Parties: 16 Fla. L. Weekly D2364 MILBERG FACTORS, INC., a foreign corporation, Appellant, v. Pauline GREENBAUM, an individual f/k/a Pauline Rosen, Appellee.
• Court: Florida District Court of Appeals

Page 1089

585 So.2d 1089

16 Fla. L. Weekly D2364

MILBERG FACTORS, INC., a foreign corporation, Appellant, v. Pauline GREENBAUM, an individual f/k/a Pauline Rosen, Appellee.

No. 91-513.

District Court of Appeal of Florida Third District.

Sept. 10, 1991.

Proskauer Rose Goetz & Mendelsohn, Steven J. Stein, Donn A. Beloff and Howard K. Coates, Jr., Boca Raton, for appellant.

Levine & Geiger, P.A., and Robert J. Levine, Miami, for appellee.

Before JORGENSON, LEVY and GODERICH, JJ.

JORGENSON, Judge.

Milberg Factors, Inc., appeals from a nonfinal order denying its motion to dismiss for lack of in personam jurisdiction. For the following reason, we reverse.

Milberg, a factoring and commercial financing institution, is a Delaware corporation with its principal place of business in New York City. It is not licensed to do business in Florida, has no offices in Florida, and owns no real property in Florida. In 1968, Milberg's corporate predecessor and Pennshire Shirt Corporation, a New York textile manufacturer, entered into a factoring agreement. The agreement was signed in New York and was to be governed by New York law. In 1982, Pennshire's president died. His widow, Pauline Rosen (now Pauline Greenbaum), a corporate officer, executed a personal guaranty expressly guaranteeing all of Pennshire's debts and obligations to Milberg, whether arising out of the factoring agreement or otherwise. There is a factual dispute over whether the guaranty was signed in Florida or New York. The guaranty was to be governed by and construed according to New York law. Appellee's signature on a consent of stockholders agreement, however, was notarized in New York three days after she signed the guaranty.

Pennshire defaulted on its debts to Milberg in November, 1989. The guarantor brought this declaratory judgment action in Florida, her current residence, seeking a determination that her liability was confined to debts incurred by Pennshire pursuant to the factoring agreement. Milberg moved to dismiss on the ground that it was not subject to the jurisdiction of a Florida court. In support of its motion, Milberg argued that out of approximately 332 factoring agreements executed by Milberg in the past ten years, only five were with Florida-based clients and that the combined revenues from those clients represent less than 2% of Milberg's revenues. In response, the guarantor submitted 14 pages of U.C.C. financing statements filed by Milberg in Florida over the past sixteen years. Evidence was also presented that Milberg had obtained and recorded in Florida at least nine judgments in the past ten years. The court denied the motion to dismiss. On a motion for rehearing, Milberg argued that the financing statements evinced the existence of only three of five Florida companies that Milberg had done business with over the past ten years; only two of those five companies were current Milberg clients. Another debtor is a Florida company that executed a factoring agreement with Milberg but did no subsequent business with it. The remaining debtors identified in the U.C.C. financing statements were either trade styles or affiliates of other debtors that appeared because of Milberg's policy of filing U.C.C. financing statements against every trade style, affiliate or other name used by its clients for billing purposes. The trial court denied Milberg's motion to dismiss for lack of personal jurisdiction.

Appellee asserts that jurisdiction lies over Milberg under sections 48.193(1)(a) and (2) of Florida's long-arm statute. ¹ In order to invoke long-arm jurisdiction over a foreign corporation under section 48.193(1)(a), the "activities of [the] corporation ... must be considered collectively and show a general course of business activity in the state for pecuniary benefit." April Indus., Inc. v. Levy, 411 So.2d 303, 305 (Fla. 3d DCA 1982). Under subsection (2), the activities of the foreign corporation must be continuous and systematic. Ranger Nationwide, Inc. v. Cook, 519 So.2d 1087 (Fla. 3d DCA), rev. denied sub nom., Cook v. Dewline, Inc., 531 So.2d 167 (Fla.1988).

The record fails to establish that Milberg had any contacts with Florida that meet the requirements of either of these sections. Milberg is a foreign corporation which does not maintain an office, agent, employee, or telephone listing in Florida. Milberg does not solicit any business in Florida. The factoring agreement between Milberg and the appellee's New York...