Stubbs v. Wyndham Nassau Resort and Crystal Palace

• Decision Date: 05 May 2006
• Docket Number: No. 04-16733.,04-16733.
• Citation: 447 F.3d 1357
• Parties: Howard Cameron STUBBS, Plaintiff-Appellant, v. WYNDHAM NASSAU RESORT AND CRYSTAL PALACE CASINO, a Bahamian company, WHC Franchise Corporation, Crystal Palace U.S. Inc., Defendants-Appellees, Wyndham International, Inc., a foreign company, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

447 F.3d 1357

Howard Cameron STUBBS, Plaintiff-Appellant, v. WYNDHAM NASSAU RESORT AND CRYSTAL PALACE CASINO, a Bahamian company, WHC Franchise Corporation, Crystal Palace U.S. Inc., Defendants-Appellees Wyndham International, Inc., a foreign company, Defendant.

No. 04-16733.

United States Court of Appeals, Eleventh Circuit.

May 5, 2006.

COPYRIGHT MATERIAL OMITTED

Joel S. Perwin, Miami, FL, for Stubbs.

Maritza Pena, Alejandro Suarez, Marlow, Connell, Valerius, Abrams, Lowe & Adler, Paul H. Field, Parenti, Falk, Waas, Hernandez & Cortina, Coral Gables, FL, Beverly D. Eisenstadt, Mase & Lara, P.A., Miami, FL, for Defendants-Appellees.

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

Before BLACK, BARKETT and COX, Circuit Judges.

BARKETT, Circuit Judge:

Howard Stubbs appeals the dismissal of his complaint against Wyndham Nassau Resort and Crystal Palace Casino ("Nassau Resort") and WHC Franchise Corporation ("WHC") (collectively, "Defendants"). The district court dismissed the complaint on the grounds that the Defendants did not have sufficient contacts with the state of Florida to assert personal jurisdiction over them.

The complaint arises out of a diving accident in which Howard Stubbs, a resident of Mississippi, was severely injured when he dove into the shallow end of a swimming pool at the Nassau Resort, located in Nassau, Bahamas. Stubbs sued Nassau Resort, a Bahamian company, and WHC, Nassau Resort's franchisor and a Delaware Corporation with its principal place of business in Texas,¹ claiming they were negligent for installing poor lighting, having poor safety markings, improperly inspecting and repairing defective conditions, and failing to provide a lifeguard. The complaint asserted original subject matter jurisdiction through diversity of citizenship pursuant to 28 U.S.C. § 1332. The complaint asserted general personal jurisdiction over the Defendants under Florida's long-arm statute, Fla. Stat. § 48.193(2), on the basis that they engaged in "substantial and not isolated interstate and intrastate activity in Florida."

The Defendants jointly moved to dismiss the complaint. In the motion, Nassau Resort contested personal jurisdiction, alleging that it had insufficient contacts with Florida, and also asserted improper venue and forum non conveniens. WHC moved to dismiss on the sole basis that it was an improper party because it exercised no control over and held no interest in Nassau Resort.² In support of the motion to dismiss, Nassau Resort filed several affidavits, including those of Robert Sands, General Manager of Nassau Resort, and Michael Pramshafer, Vice President of Crystal Palace U.S., Inc., a corporation marketing Nassau Resort. Stubbs responded with affidavits and a series of documents, including a list of Nassau Resort's Florida-based vendors (hundreds of pages long), invoices, checks, advertisements, and bank account statements. The district court did not hold a hearing, but considered the affidavits and documents presented by both parties. The court dismissed the complaint against the Defendants on the grounds that personal jurisdiction could not be obtained against either defendant because they lacked sufficient contacts with the state of Florida. The court did not address any other issue.

STANDARD OF REVIEW AND BURDEN OF PROOF

We review the district court's dismissal for lack of personal jurisdiction de novo, Olivier v. Merritt Dredging Co., 979 F.2d 827, 830 (11th Cir.1992), and we accept as true the allegations in the complaint. Long v. Satz, 181 F.3d 1275, 1278 (11th Cir.1999); Cable/Home Communication v. Network Prod's, 902 F.2d 829, 855 (11th Cir.1990). Stubbs, as the plaintiff, has the burden of establishing a prima facie case of personal jurisdiction. Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir.2002). "`A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed verdict.'" Id. at 1269 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)).

Where, as here, the defendant submits affidavits contrary to the allegations in the complaint, the burden shifts back to the plaintiff to produce evidence supporting personal jurisdiction, unless the defendant's affidavits contain only conclusory assertions that the defendant is not subject to jurisdiction. Id. Where Stubbs' complaint and supporting affidavits and documents conflict with the Defendants' affidavits, we must construe all reasonable inferences in favor of the plaintiff, Stubbs. Id.

DISCUSSION

We review personal jurisdiction as it relates to each defendant separately.

I. Nassau Resort

A federal district court sitting in diversity may exercise personal jurisdiction to the extent authorized by the law of the state in which it sits and to the extent allowed under the Constitution. Id. at 1269. Thus, we must determine whether Nassau Resort's activities and contacts in Florida satisfy Florida's long-arm statute to obtain personal jurisdiction, id.; Cable/Home Communication, 902 F.2d at 855, and also whether sufficient "minimum contacts" existed between Nassau Resort and Florida so as to satisfy "traditional notions of fair play and substantial justice" under the Due Process Clause of the Fourteenth Amendment. Id. at 855.

Stubbs argues that Nassau Resort is subject to personal jurisdiction under the general jurisdiction provision of Florida's long-arm statute.³ Florida's general jurisdiction provision states:

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.

Fla. Stat. § 48.193(2). This provision allows the district court to assert general personal jurisdiction over a nonresident defendant, who has "substantial and not isolated activity within" Florida, even when that activity is unrelated to the cause of action being litigated. Consolidated Development Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292 (11th Cir.2000).

Because the long-arm statute is governed by Florida law, we are required to construe it as would the Florida Supreme Court. Cable/Home Communication, 902 F.2d at 856. In order to establish that Nassau Resort was engaged in substantial and not isolated activity in Florida, the activities of Nassau Resort must be "`considered collectively and show a general course of business activity in the State for pecuniary benefit.'" Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir.1996) (quoting Dinsmore v. Martin Blumenthal Assocs., Inc., 314 So.2d 561, 564 (Fla.1975)); April Indus., Inc. v. Levy, 411 So.2d 303, 305 (Fla.Dist. Ct.App.1982) (holding that § 48.193(2) requires "a general course of business activity in the state for pecuniary benefit").

In this case, Stubbs asserts that the requisite contacts for general personal jurisdiction existed by virtue of both direct contacts between Nassau Resort and Florida, and indirect contacts between Nassau Resort and Florida through Crystal Palace U.S., Inc., a Florida corporation. We have held that a parent and subsidiary are separate and distinct corporate entities, and the presence of one in a forum state may not necessarily be attributed to the other. Consolidated Development Corp., 216 F.3d at 1292. However, "if the subsidiary is merely an agent through which the parent company conducts business in a particular jurisdiction or its separate corporate status is formal only and without any semblance of individual identity, then the subsidiary's business will be viewed as that of the parent and the latter will be said to be doing business in the jurisdiction through the subsidiary for purposes of asserting personal jurisdiction." Meier, 288 F.3d at 1272 (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1069.4 (3d ed.2002)). Moreover, our precedent concerning parents and subsidiaries has been extended to other principal-agent relationships, when the resident corporation acts on behalf of its foreign affiliates. Id. at 1273.

We find that this case is controlled by Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir. 2002). In Meier, the plaintiff, an out of state resident, was struck by a commercial motorboat while snorkeling in the Bahamas. He brought an action against several Bahamian corporations affiliated with a hotel where the motorboat owner conducted business. The plaintiff argued that the United States District Court for the Southern District of Florida had general personal jurisdiction over the nonresident corporations, as the corporations conducted substantial business activity directly and indirectly through Florida subsidiaries. Id. at 1272. The plaintiff submitted affidavits claiming that the hotels listed a Florida telephone number on advertisements, held several bank accounts in Florida, and maintained an attorney agent in Florida. Moreover, the plaintiff submitted evidence that the Florida subsidiaries solicited and coordinated reservations for the nonresident corporations, including the hotel responsible for the motorboat. The Florida subsidiaries also coordinated over fifty percent of all guests at the hotel in 1999, the majority of whom were from the United States.

In reversing the district court, we held that the financial ties between the nonresident corporations and the Florida subsidiaries suggested a relationship, in which the Florida subsidiaries were "mere instrumentalities" of the nonresident defendant. Id. at 1273-75. Specifically, we ruled that "[t]he court may extend jurisdiction to any foreign corporation where the affiliated domestic corporation `manifests no separate corporate interests of its own and functions solely to achieve the purpose of the dominant corporation.'" Id. at 1273 (quoting State v. Am. Tobacco Co., ...