Trustees of Columbia v. Ocean World, S.A., 4D08-4374.

• Decision Date: 06 May 2009
• Docket Number: No. 4D08-4374.,4D08-4374.
• Parties: The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK d/b/a Columbia University, Appellant, v. OCEAN WORLD, S.A., Richard O'Barry a/k/a Ric O'Barry, Earth Island Institute, Inc., a foreign corporation, Diana Reiss, Ph.D., Emory University and Lori Marino, Appellees.
• Court: Florida District Court of Appeals

12 So.3d 788

The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK d/b/a Columbia University, Appellant, v. OCEAN WORLD, S.A., Richard O'Barry a/k/a Ric O'Barry, Earth Island Institute, Inc., a foreign corporation, Diana Reiss, Ph.D., Emory University and Lori Marino, Appellees.

No. 4D08-4374.

District Court of Appeal of Florida, Fourth District.

May 6, 2009.

Rehearing Denied July 10, 2009.

Matthew Triggs, Gary W. Kovacs and Ronald J. Tomassi, Jr., Proskauer Rose LLP, Boca Raton, and Steven E. Obus, Proskauer Rose LLP, New York, NY, for appellant.

Alexander Penalta and Colleen M. Stiger of Penalta & Stiger, P.A., Boca Raton, for appellee Ocean World, S.A.

GROSS, C.J.

We reverse the circuit court's order denying defendant Columbia University's motion to dismiss for lack of personal jurisdiction. We hold that there is not personal jurisdiction under either subsections 48.193(1)(c) or (2), Florida Statutes (2007).

Ocean World, S.A., a foreign corporation, operates Ocean World Adventure Park in the Dominican Republic. In 2006, Ocean World contracted with Michael Briggs to purchase 12 dolphins from Taiji, Japan, for delivery in the Dominican Republic. Later, Ocean World entered into a "letter of intent" with the Taiji Whale Museum under which both agreed to "cooperate in a friendly exchange to study and conserve [dolphins]." Nothing in the contracts contemplated payment or performance in Florida. Florida is mentioned nowhere in the contracts.

After the Dominican Republic denied a permit to import the dolphins, Ocean World filed a lawsuit against multiple defendants, alleging intentional interference with a contractual or business relationship. Among these defendants were Diana Reiss and the Trustees of Columbia University.

The second amended complaint alleged that Columbia was "doing business" in Broward County, Florida through its alumni association, interactive internet classrooms, and an interactive website providing online courses that allow students to obtain graduate degrees and professional certificates. Also, the pleading alleged that Columbia "has owned, owns and/or has an interest in property rights" in various parcels of real estate in Palm Beach County. The complaint pointed to lawsuits filed by Columbia in Florida where the Trustees had "availed themselves of the benefits offered by the Florida judicial system." In Count VIII, Ocean World attempted to pin liability on Columbia by painting Diana Reiss as the university's "apparent agent" who was "authorized ... to interfere" with Ocean World's contract and business relationship. Count IX alleged that Columbia had damaged Ocean World by negligently hiring or retaining Reiss, that if Columbia had better investigated Reiss before appointing her to her unpaid research position, then Columbia would have discovered that she was "unsuitable" due to her "activist activities and associations."¹

Many exhibits were attached to the second amended complaint. Among these were printouts of the University's interactive internet website and its alumni association online application. Neither contains the word "Florida"; neither is specifically directed at Florida. The website provides online education through downloadable lectures "anytime, anywhere." Other exhibits showed Columbia's various interests in real property in Florida. For example, the university held a mortgage on the Colony Hotel which was satisfied in 1971 and holds a vested remainder interest in another property.

Columbia moved to dismiss the case for lack of personal jurisdiction. The University's supporting affidavits established the following facts:

1. Columbia does not have an office in Florida, maintains no bank accounts in Florida, and is not registered to conduct business in Florida.

2. Only 10 of Columbia's 14,000 employees have Florida addresses. Eight of these employees have part-time or zero salary appointments. The remaining two employees are post-doctoral research scientists who temporarily located in Florida while doing work at laboratories with equipment not available at Columbia.

3. The Columbia Alumni Association, part of the university, is an association of all of Columbia's alumni. Columbia has over 250,000 alumni living in the United States, its territories, and 184 countries. The goal of the Association is "to strengthen the bonds between Columbia University graduates worldwide through events, programs, and online resources." The Association has 37 associations in the United States, "of which five are in Florida." Each local association is permitted to have a website hosted on Columbia's servers. "The websites provide information such as member requirements, leadership contacts, news, and events. The associations do not have a designated alumni office or phone number. Individual associations can only be contacted by emailing or mailing the officers at their respective addresses, or via telephone."

4. Regarding the Columbia's interactive website, Columbia offered some online graduate level courses. As of 2007, of 457 students enrolled on the website, only two of the students had Florida addresses. The lectures for students sitting in Florida originate in New York.

5. The majority of the lawsuits Columbia filed in Florida were to enforce foreign judgments. All of the previous lawsuits were unrelated to the subject matter of this case.

6. During the time covered by the second amended complaint, Diana Reiss was the Director of Marine Mammal Research Science Laboratory at marine science laboratory at the New York Aquarium in Brooklyn, New York. She lived in Connecticut and worked in New York. She has never been a Florida resident. She has never maintained a place of business or office in Florida.

The circuit court denied Columbia's motion to dismiss without explanation.

To evaluate the issue of personal jurisdiction under the long-arm statute, section 48.193, Florida Statutes (2007), Florida courts must engage in the two-part analysis set forth in Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989).

First, there must be sufficient facts to bring the action within the ambit of the long-arm statute; if the statute applies, the next inquiry is whether there are sufficient "minimum contacts" to satisfy due process requirements. "Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant." Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002). Because we have concluded that there are insufficient facts to create long-arm jurisdiction, we do not reach the issue of Columbia's minimum contacts with Florida.

Ocean World asserts two statutory bases for jurisdiction. First, that Columbia "personally or through an agent" committed a "tortious act within this state" under section 48.193(1)(b). Second, that Columbia is subject to general jurisdiction because it is "engaged in substantial and not isolated activity within this state" under section 48.193(2).

For specific jurisdiction over Columbia to exist under section 48.193(1)(b), the University, through an agent, must have committed a tortious act in Florida. There must be a causal connection between the university's Florida actions and the plaintiff's cause of action. See Am. Overseas Marine Corp. v. Patterson, 632 So.2d 1124, 1127 (Fla. 1st DCA 1994). Ocean World's case against Columbia turns on the school's relationship to Diana Reiss and her conduct. Another panel of this court has held that there is no long-arm jurisdiction over Reiss because the second amended complaint failed to demonstrate that she engaged in any tortious conduct within Florida. Reiss v. Ocean World, S.A., 11 So.3d 404 (Fla. 4th DCA 2009). Rather, the tort occurred in the countries where the contracts at issue were to be performed. Id. That case also held that Reiss did not have those minimum contacts with Florida necessary to support personal jurisdiction. If there is no jurisdiction over Reiss, the purported tortfeasor, there can be no jurisdiction under section 48.193(1)(b) over Columbia, which supposedly acted through Reiss.

We next consider the issue of general jurisdiction under section 48.193(2). That statute provides that "[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." An assertion of general jurisdiction under section 48.193(2) requires a "showing of `continuous and systematic general business contacts'" with this state. Carib-USA Ship Lines Bahamas Ltd. v. Dorsett, 935 So.2d 1272, 1275 (Fla. 4th DCA 2006) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)); Philip J. Padovano, Florida Civil Practice § 8.7 (2007 ed.); Seabra v. Int'l Specialty Imports, Inc., 869 So.2d 732, 734 (Fla. 4th DCA 2004). The continuous and systematic general business contacts sufficient to confer general jurisdiction present a "much higher threshold" than those contacts necessary to support specific jurisdiction under section 48.193(1). See Seabra, 869 So.2d at 734. One reason for requiring a more rigorous showing to establish general jurisdiction is because jurisdiction under section 48.193(2) does not require that a lawsuit's cause of action arise from activity within Florida, or that there be any connection between the claim and the defendant's Florida activities. See, e.g., Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80, 85 (Fla. 2d DCA 2003) ("This section [48.193(2) ] `does not require connexity between a defendant's activities and the cause of action.'") (quoting Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 620 (Fla. 4th DCA 1999)); Burger King Corp v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ("Jurisdiction in [certain] circumstances may not be...