Woods v. Nova Companies Belize Ltd.

• Decision Date: 02 June 1999
• Docket Number: No. 97-0492.,97-0492.
• Citation: 739 So.2d 617
• Parties: Francis WOODS and Jacqueline Woods, his wife, Appellants, v. NOVA COMPANIES BELIZE LTD., a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

739 So.2d 617

Francis WOODS and Jacqueline Woods, his wife, Appellants, v. NOVA COMPANIES BELIZE LTD., a foreign corporation, Appellee.

No. 97-0492.

District Court of Appeal of Florida, Fourth District.

June 2, 1999.

Rehearing Denied October 5, 1999.

Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, and Haggard & Parks, P.A., Coral Gables, for appellants.

Carlos M. Sires and Steven R. Weinstein of Kirkpatrick & Lockhart LLP, Miami, for appellee.

PARIENTE, BARBARA J., Associate Judge.

Appellants, Francis and Jacqueline Woods (plaintiffs), appeal the trial court's dismissal of their negligence action based on lack of personal jurisdiction and forum non conveniens. For the reasons stated in this opinion, we reverse.

I. FACTS

Francis Woods, a resident of Belize,¹ was injured in an aircraft accident in Costa Rica in 1994 while a passenger on an aircraft owned by appellee, Nova Companies Belize, Ltd. (defendant). He sustained multiple serious injuries, including burns to 65% of his body. Francis and his wife Jacqueline brought suit against defendant in Broward County Circuit Court, seeking recovery for damages resulting from Francis's injuries.

Defendant is a Belizean corporation² engaged in the business of shrimp farming. Beginning in late 1991, defendant began to export its shrimp to the United States. Eighteen percent of its worldwide shrimp sales are made to Florida importers, and ninety percent of its total shrimp sales are to the United States, with almost one hundred percent of its shipments traveling through Florida either by air or by boat. Defendant has utilized the services of a Florida broker to arrange for customs and FDA approval of the shrimp shipments, has purchased containers from Florida through a corporation which brings them to Belize for defendant's use, has utilized storage facilities in Florida when necessary, and has purchased a variety of equipment and supplies from Florida sellers for its use in Belize. Defendant, however, does not own property in Florida, is not registered to do business in Florida, has never advertised to do business in Florida, and does not maintain a mailing address, telephone listing or bank account in Florida.

II. PERSONAL JURISDICTION

The trial court dismissed the plaintiffs' complaint for lack of personal jurisdiction, as well as on grounds of forum non conveniens. Generally, when performing a jurisdictional analysis pursuant to a longarm statute, Florida courts must engage in a two-part analysis. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989)

. The court must first determine whether the party has alleged facts sufficient to fall within the scope of Florida's long arm statute, section 48.193, and if so, whether the federal constitutional due process requirements of minimum contacts have been met. See id.

When seeking to establish jurisdiction over a nonresident defendant, the plaintiff need only plead "the basis for service in the language of the statute without pleading the supporting facts." Id. at 502. Filing a motion to dismiss merely raises the legal sufficiency of the pleadings. To contest jurisdiction, a defendant must file affidavits in support of his position. The burden is then placed on the plaintiff to prove by affidavit the basis for jurisdiction. See id. at 502-503. "In most cases, the affidavits can be harmonized, and the court will be in a position to make a decision based upon facts which are essentially undisputed." Id. at 503.

The trial court's conclusory order dismissing the case contains no factual findings on the jurisdictional issue. The record before the trial court in this case consisted of affidavits, discovery documents and deposition testimony in support of the parties' respective positions. The trial court did not hold an evidentiary hearing to consider live testimony where credibility was an issue. Therefore, the trial court occupied no better position than this Court to resolve the issue of whether personal jurisdiction exists under Florida's long arm statute and whether minimum contacts are satisfied. Cf. Ciba-Geigy Ltd. v. The Fish Peddler, Inc., 691 So.2d 1111, 1118 (Fla. 4th DCA),

review denied, 699 So.2d 1372 (Fla.1997).

Plaintiffs assert that the trial court had personal jurisdiction over defendant based on the general jurisdiction statute, section 48.193(2), Florida Statutes (1995), which provides:

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.

(Emphasis supplied.) The general jurisdiction statute does not require connexity between a defendant's activities and the cause of action. See Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)

; Universal Caribbean Establishment v. Bard, 543 So.2d 447, 448 (Fla. 4th DCA 1989); Nichols v. Paulucci, 652 So.2d 389, 391 (Fla. 5th DCA 1995); American Overseas Marine Corp. v. Patterson, 632 So.2d 1124, 1128 (Fla. 1st DCA 1994).

"Substantial and not isolated activity" has been found to mean "continuous and systematic general business contact" with Florida. See Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 720 (Fla. 4th DCA 1998)

(quoting American Overseas, 632 So.2d at 1128). This "continuous and systematic" contacts standard was the standard enunciated by the Supreme Court in Helicopteros as sufficient to fulfill the due process requirements of minimum contacts when asserting general jurisdiction. 466 U.S. at 415,

104 S.Ct. 1868. Because section 48.193(2) requires this high threshold, if the defendant's activities meet the requirements of section 48.193(2), minimum contacts is also satisfied. See Universal Caribbean, 543 So.2d at 448; Nichols, 652 So.2d at 391; American Overseas, 632 So.2d at 1127-28; see also Venetian Salami, 554 So.2d at 502 (recognizing that some bases of jurisdiction found in section 48.193 would satisfy minimum contacts concerns).

The record demonstrates that defendant engaged in continuous and systematic business activities with Florida and derived great pecuniary benefit from its transactions here. By selling approximately eighteen percent of its product to Florida importers, moving nearly all of its product through the state, purchasing equipment and supplies from Florida suppliers, utilizing storage facilities in Florida, and establishing essential business relationships in this state, all within its ongoing commercial relationship with Florida, defendant "engaged in substantial and not isolated activity within the state" as is required to establish general jurisdiction pursuant to section 48.193(2). See Achievers, 710 So.2d at 720

; Pafco Gen'l Ins. Co. v. Wah-Wai Furniture Co., 701 So.2d 902, 903-04 (Fla. 3d DCA 1997).

Although defendant maintains that some of these business contacts took place after the accident in this case, that fact is not dispositive. "[C]ontacts are commonly assessed over a period of years prior to the plaintiffs filing of the complaint." Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir.1996); see also Helicopteros, 466 U.S. at 409-411,

104 S.Ct. 1868 (examining contacts over a seven-year-period, up to the time the lawsuit was filed).

The activities cannot be described as either haphazard or fortuitous. See, e.g., Rafal v. Mesick, 661 So.2d 79, 81 (Fla. 2d DCA 1995)

; American Overseas, 632 So.2d at 1130; Price v. Point Marine, Inc., 610 So.2d 1339, 1341-42 (Fla. 1st DCA 1992). While any one of these activities alone may not be deemed sufficient, considered collectively, they establish personal jurisdiction. See Nichols, 652 So.2d at 392-93.

Based on the foregoing, we conclude that the trial court erred in not finding personal jurisdiction over defendant pursuant to section 48.193(2). Thus, the constitutional requirements of minimum contacts have been satisfied.

III. Forum Non Conveniens

Having determined that personal jurisdiction exists, we next address the question of forum non conveniens. "Forum non conveniens is a common law doctrine addressing the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere." Kinney Sys. Inc. v. Continental Ins. Co., 674 So.2d 86, 87 (Fla.1996) (emphasis supplied) (footnote omitted).

The trial court's decision to grant or deny a motion to dismiss on grounds of forum non conveniens is subject to an abuse of discretion standard of review. See Fla. R. Civ. P. 1.061(a). However, where, as here, the trial court's decision is not based on live testimony, "[t]he presumption of correctness given to a trial court's rulings ... is lessened, because the appellate court has everything the trial court had before it." Ciba-Geigy, 691 So.2d at 1118.

In Kinney, the Florida Supreme Court adopted the federal four-part analysis for forum non conveniens:

As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs' initial forum choice.³ [3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

674 So.2d at 90 (quoting Pain v. United Technologies Corp., 637 F.2d 775, 784-85 (D.C.Cir.1980)) (brackets in original). The goal of adopting...