Mr. Parthenais must have been furious! How could there even be a misunderstanding when everything seemed to clear to him?

According to Parthenais, a principal of the Canadian-based Venetian Salami Company contacted him at his business in Florida and engaged his services to investigate the collectibility of a large delinquent receivable. After performing as agreed and incurring expenses in Florida, Canada, and New York, Venetian refused to reimburse Parthenais. Sure, it was only an oral agreement, but Parthenais was certain that he remembered the terms of the deal, including Venetian’s promise to pay him in Florida.

Determined to set the record straight, Venetian’s president, Antoine Bertrand stated that Venetian never reached an agreement with Parthenais, let alone an agreement to pay him money in Florida. And while there were in fact discussions concerning the delinquent account, they all took place in New York and Montreal, not in Florida. And since Venetian did not even do business in Florida, no Florida court could exercise jurisdiction over Venetian in order to resolve the dispute.

This simple set of facts set the stage for the Florida Supreme Court’s seminal decision in Venetian Salami Company v. J.S. Parthenais, 544 So. 3d 499 (Fla. 1989).

Why did the Florida Supreme Court need to weigh in on the Venetian Salami case?

Although it had nearly been 50 years since the U.S. Supreme Court set forth the minimum contacts test in International Shoe Co. v. Washington and the Florida long-arm statute was being widely used to assert personal jurisdiction over nonresidents, when Venetian Salami was decided, there was a conflict among the Florida District Court’s of Appeal regarding their interplay. The 2nd DCA (in Osborn v. University Society, Inc., 378 So.2d 873 (Fla.2d DCA 1979), the 4th DCA (in Scordilis v. Drobnicki, 443 So.2d 411 (Fla. 4th DCA 1984), and the 5th DCA (in Unger v. Publisher Entry Service, Inc., 513 So.2d 674 (Fla. 5th DCA 1987) all held that in order for the Court to acquire personal jurisdiction over a nonresident, the Court would have to separately determine both that the plaintiff’s complaint alleged sufficient jurisdictional facts to satisfy the scope of Florida’s long-arm statute and that sufficient minimum contacts were demonstrated to satisfy due process requirements. However, the 1st DCA, in reversing the Venetian Salami trial court’s finding the Mr. Parthenais failed to establish minimum contacts held that jurisdiction may be obtained by simply meeting the statutory requirements of Florida’s long-arm statute; in short, that the requisite minimum contacts were already built into the long-arm statute.

How did the Florida Supreme Court resolve the conflict between the DCA’s?

In short, the Court reversed the 1st DCA and upheld the analysis set forth in Osborn, Scordilis, and Unger, thus requiring Florida trial courts to make an independent determination that the long-arm statute has been properly invoked and that sufficient minimum contacts have been demonstrated before exercising personal jurisdiction over a nonresident defendant. From a federalism standpoint, this was an elegant result because it preserved both the federal interest ensuring due process rights and expectations of nonresidents while simultaneously allowing the Florida legislature to enact a long-arm statute which, as the Court noted, “extends only to the limits of the due process clause.” The Court’s decision was also firmly grounded in the principles which had been laid out by the U.S. Supreme Court in International Shoe, World-Wide Volkswagen Corp. v. Woodson, and Burger King Corp. v. Rudzewicz where the U.S. Supreme Court emphasized, among other things, that a determination of minimum contacts would have to depend upon the facts of each case, not on the outcome of a mechanical test. Thus, as a practical (and legal) matter, Florida’s long-arm statute could not include an implied finding that minimum contacts are presumed or have already been established, as the trial court will always be tasked with the responsibility of sorting through the unique facts of each case and making a determination that is consistent with decisional precedent.

Why was the Court’s decision in Venetian Salami a game-changer?

First, the Court approved of the two-part analysis which was already the majority rule among the DCA’s in Florida requiring the trial court to determine: (1) whether the plaintiff’s complaint alleged sufficient jurisdictional facts to satisfy the scope of Florida’s long-arm statute; and (2) whether the plaintiff demonstrated that the defendant had sufficient minimum contacts with Florida to satisfy due process requirements.

The Court also approved of the procedure (also outlined in previous decisions of the DCAs) to be followed in cases where a nonresident defendant contests a plaintiff’s assertion of long-arm jurisdiction under Section 48.193:

  • In addition to filing a motion to dismiss, challenging the legal sufficiency of the plaintiff’s complaint, the defendant must file affidavits in support of his opposition to the plaintiff’s assertion of personal jurisdiction.
  • If the defendant moves to dismiss and files affidavits in opposition, the burden then shifts to the plaintiff to prove by affidavit the basis upon which personal jurisdiction may be obtained.

This procedure was all fine and good, as long as the affidavits could be harmonized and the court could make a decision based on facts which were essentially undisputed.  But what about cases where the relevant facts set forth in the affidavits were in direct conflict? This is where the Florida Supreme Court’s decision in Venetian Salami made new law.  In such a case, the Court held that the trial court must hold a limited evidentiary hearing in order to resolve the jurisdictional issue.  This provides the trial court with an opportunity to resolve the factual disputes necessary to determine jurisdiction pursuant to section 48.193 and to determine whether minimum contacts exist to satisfy due process concerns.

What is the take-away of the Venetian Salami ruling?

Parties litigating over issues involving Florida personal jurisdiction have an important procedural due process right to be heard and to present evidence regarding the Court’s exercise of jurisdiction over the nonresident defendant.  On the one extreme, nonresident defendants who have little to no contacts with Florida have a very strong interest in not being forced to litigate and defend themselves in a Florida court; on the other, Florida residents have a very strong interest in being able to pursue nonresidents who have clearly caused damage or injury to a person or property within the state, even though the nonresident may have never even set foot in Florida or has already left the territorial boundaries of the state.  The Venetian Salami evidentiary hearing rule provides both parties with an opportunity to be heard and, assuming that both parties follow the relevant procedure, forces the court to go beyond the “four corners” of the complaint and to take other facts and factors into consideration before issuing a ruling on the personal jurisdiction issue.  These procedural due process rights even extend to allowing a party, with the Court’s permission, to conduct limited jurisdictional discovery in order to prepare for and advance their arguments at the evidentiary hearing.  Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So.2d 1282 (Fla. 1992).  And finally, a trial court’s failure to hold an evidentiary hearing to resolve the jurisdictional dispute has been held to constitute reversible error. Greenspire Glob., Inc. v. Sarasota Green Grp. (Fla. App. 2020).

Following the U.S. Supreme Court’s landmark decision in International Shoe v. Washington, Florida enacted its first long-arm statute, currently found in Section 48.193.  This section, aptly titled “Acts subjecting person to jurisdiction of courts of state,” provides two different options for plaintiffs who are seeking to invoke the long arm of the law and bring non-resident defendants within the jurisdiction of the Florida courts.

First, a plaintiff can invoke the specific jurisdiction of the court by alleging a cause of action “arising from” a defendant’s commission of one of the nine generic acts listed under subsection (1)(a) of section 48.193.  Alternatively, a plaintiff can invoke the general jurisdiction of the court under subsection (2) by alleging that the defendant engaged in “substantial and not isolated” activity within the state of Florida.  Whether a plaintiff elects to invoke the court’s specific or general jurisdiction, or both, will depend upon a host of different factors, including but not limited to the cause of action asserted by the plaintiff, the nature of the non-resident defendants’ contacts with Florida and their connection with the activities that form the basis for the cause of action, and whether the non-resident defendant is an individual or business entity.

Specific Jurisdiction.  The “specific” part about specific jurisdiction is in both the requirement that the defendant is alleged to have committed one of the specific acts set forth in the statute AND that the cause of action itself specifically arose out of the commission of the act.  For example, if Nancy the non-resident drove her car from Nebraska to Florida and, upon crossing the state line, caused an accident which injured Paul, Nancy would have arguably submitted herself to the jurisdiction of the courts of the State of Florida in that very instant.  This is because a “tortious act” is one of the nine “Acts” listed under section 48.193(1)(a) AND because Paul’s injury claim against Nancy arose from Nancy’s negligence in causing the accident.  In this hypothetical, the Florida court’s jurisdiction over Nancy would only extend to Paul’s injury claim and not to other claims, unless other facts and factors were present which would authorize the Florida court to exercise jurisdiction over those claims as well.

According to the reported appellate opinions, Florida plaintiffs appear to consistently rely on one of four different grounds of specific jurisdiction found in section 48.193 (bolding is mine):

(1)(a)(1) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.

(1)(a)(2) Committing a tortious act within this state.

(1)(a)(6) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either: The defendant was engaged in solicitation or service activities within this state; or Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.

(1)(a)(7)   Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

In sum, the causes of action against non-residents is mainly centered around defendants who are alleged to have breached contracts or committed torts (or caused injury to persons or property) in Florida.  And if I had to nominate one section or category for generating the most specific jurisdiction litigation, it would have to be (1)(a)(7) … breaching a contract in Florida, with the (1)(a)(2) committing a tortious act in Florida claims being a close runner up.

General Jurisdiction.  The “general” part of general jurisdiction refers to the fact that once acquired over a non-resident defendant, general jurisdiction allows the Florida court to adjudicate ANY claim that the plaintiff may have against the defendant, even if the claims do not arise out of the defendant’s activities in or connections with Florida.  Most often, a plaintiff would seek to invoke the general jurisdiction of the court against a non-resident corporate defendant or business entity that is based in Florida and conducting a substantial amount of business within the state.  The U.S. Supreme Court set the standard for establishing general jurisdiction in Daimler AG v. Bauman, 571 U.S. 117 (2014) by requiring a plaintiff to show that a non-resident defendant’s affiliations with the state are so continuous and systematic as to render it essentially “at home” in the forum state.  Thus, while the standard for establishing general jurisdiction over a defendant is much higher than the standard for establishing specific jurisdiction, the benefit of general jurisdiction, from the plaintiff’s point of view, is that it essentially opens the door to allow the plaintiff to pursue any claim against that defendant in Florida, even if the claim arose from the defendant’s international activities having nothing to do with Florida.

Pleading Specific or General Jurisdiction.  Under Florida law, the plaintiff bears the initial burden of pleading sufficient jurisdictional facts to fall within the long-arm statute. In order to satisfy this requirement, the plaintiff may plead jurisdiction either by tracking the statutory language, without supporting facts OR by alleging specific facts to show that the defendant’s actions fall within at least one of the subsections of section 48.193.

Based on my review of a significant number of reported appellate opinions in Florida which involve the application or interpretation of section 48.193, most plaintiffs seem to get this pleading part right.  In other words, District Courts of Appeal are rarely in the position of having to affirm the dismissal of a complaint because the plaintiff failed to adequately allege sufficient facts which fall within the ambit of 48.193.  This is probably due to the fact that even if a plaintiff gets it wrong the first time around, the defendant’s initial motion to dismiss will usually educate the defendant’s counsel on the pleading requirements, which would then be corrected in an amended complaint.

Instead, as you will in my future blog posts, most of the reported section 48.193 litigation is focused around the application of the next part of the analysis (the “second prong”), which focuses on whether the plaintiff has pleaded sufficient minimum contacts and whether the parties (and the trial judge) followed the sequential burden-shifting procedure set forth in Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989).  I will cover this in detail in my next blog post.

Up until the later part of the nineteenth century, personal jurisdiction was tied to a state’s territorial jurisdiction. In those days, personal jurisdiction over a defendant was established either by serving a defendant with process within the boundaries of the state, attaching land owned by the defendant within the state, or through the defendant’s consent or agreement to submit to the court’s jurisdiction. These traditional basis of jurisdiction were grounded upon the defendant’s physical presence within the forum state or jurisdiction.  This is one of the most firmly established principles of personal jurisdiction in the United States and can be traced back to English common law.

In fact, if you go back far enough into the history of personal jurisdiction, you will find that at common law, English sheriffs were authorized to physically arrest a civil defendant pursuant to a court issued writ. What would obviously be regarded as an outrageous restraint on our physical liberty today was, back then, a gentle reminder of the state’s ability to exercise control over every individual who was present within its territorial borders, whether they were residents or merely just passing through. And it did not end there.  Under the law then in place, the Sheriff would continue to detain and jail the defendant while he or she waited for a disposition of the law suit.

Thankfully for all of us, in the mid-eighteenth century, this procedure was replaced by the Summons and the concept of service of process which was designed to provide formal notice to a civil defendant that suit had been initiated in the court and a legal requirement to appear and defend, or face the consequences of a default. The Summons introduced an element of trust and personal agency into the system, as it allowed the civil defendant the ability to remain free of the court’s physical control while the case was pending, and return to court to answer the for the claim on his or her own recognizance.

Historically, federal and state courts exercised personal jurisdiction over a defendant with reference to state law only. As such, the laws of the forum state were the primary source of the court’s jurisdictional authority. However, in 1878, the U.S. Supreme Court constitutionalized this process in Pennoyer v. Neff, 95 U.S. 714 (1878), by firmly tying the requirement of notice to a court’s power to exercise personal jurisdiction over a civil defendant.

In Pennoyer, the Court held that service of process by publication on a non-resident defendant violated the due process clause of the 14th Amendment because the defendant was not provided with adequate notice under the law and was thus unable to properly defend himself. In this holding, the Court (perhaps unintentionally) set the stage for the expansion of the concept of notice as interpreted by what it meant to be accorded due process of law under the 14th amendment.

What I find so fascinating about this case, which I couldn’t begin to appreciate in law school, was the actual effect that this holding had on the parties.  Because the defendant, Neff, was not provided adequate notice in accordance with Constitutional due process principles, that meant that the trial court never acquired jurisdiction over him in the first instance.  This led to the invalidation of the sale and transfer of Neff’s property to Pennoyer, many years later, which was acquired in connection with Neff’s former attorney’s levy on a judgment against Neff for unpaid legal fees. Pennoyer, who was apparently a good faith purchaser for value and without notice or reason to know that Neff could even challenge his purchase, had to deal with the fallout and aftermath of a judicial finding that he was not the owner of the property after all and that the transaction needed to be unwound and set aside. Based on my research, Pennoyer owned the property for about 8 years before Neff took action in federal court to set aside the sale. That’s a lot of time for Pennoyer to lay the seeds of detrimental reliance, among other things, and grow some pretty deep roots on the property. One can only imagine the litigation that followed and how that dispute was resolved among the parties.

At that point in the late nineteenth century, since the car had not yet been invented, people and things were more likely to stay put; thus giving rise to fewer jurisdictional disputes.  As a result, the traditional basis of jurisdiction (presence, consent, and ownership of property) were, more often than not, sufficient to provide a Plaintiff with a remedy and a fairly easy means of acquiring jurisdiction over civil defendants. However, all of that radically changed in the twentieth century with the invention of the airplane, the expanded use of cars, and other technological advances that both allowed individuals (and companies) to travel around more easily, and act remotely from greater distances than ever before. This all culminated with the U.S. Supreme Court’s decision in International Shoe Co. v. Washington, 326 U.S. 310 (1945).

In International Shoe, the Court continued to build upon the process of constitutionalizing the notice requirement (announced in Pennoyer v. Neff) by introducing the “minimum contacts” test. Under this test, a state court could only exercise personal jurisdiction over a non-resident defendant if that defendant had certain minimum contacts with the foreign state such that the exercise of jurisdiction did “not offend traditional notions of fair play and substantial justice.” However, the Court went even further by requiring state courts to also have a statutory basis for personal jurisdiction which also comported with federal due process requirements. While State courts were slow to catch on and adopt what we now know as “long arm” statutes, today every State in the U.S. has enacted some form of a statute or a court rule which effectively serves to satisfy the rule announced by the Court in International Shoe, thus giving the State a legal mechanism to effectively expand its jurisdiction beyond its physical borders based upon a civil defendant’s interaction with the State or its residents.

International Shoe was followed by several important precedent cases from the U.S. Supreme Court which served to develop the scope and limits of a state court’s exercise of personal jurisdiction over non-resident defendants, including:

  • Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952) (the Court began to refine the concept of “general” personal jurisdiction, opening the door to allow a [forum] state to exercise personal jurisdiction over a non-resident [corporate] defendant that engaged in sufficiently substantial activities within the forum state, even though the cause of action arose from activities entirely distinct from those activites).
  • Hanson v. Denckla, 357 U.S. 235 (1958) (the minimum contacts analysis only applies to situations in which a non-resident defendant has purposefully availed himself or herself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of the laws of that state)
  • World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (simply being able to foresee a product’s arrival in the forum state will never by itself establish minimum contacts over a non-resident seller of that product. Instead, foreseeability is relevant only when the non-resident defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there).
  • Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) (“continuous and systematic general business contacts” are necessary to satisfy due process minimum contacts under a general jurisdiction analysis).
  • Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (exercise of jurisdiction did not violate due process where non-resident defendant established a substantial and continuing relationship with plaintiff in the forum state, received fair notice from the contract documents and the course of dealing with plaintiff that he might be subjected to suit in the forum state, and failed to demonstrate how jurisdiction in that forum would otherwise be fundamentally unfair)
  • Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102 (1987) (exercise of personal jurisdiction over non-resident must be “reasonable” in order to satisfy due process concerns. To determine whether an exercise of jurisdiction is reasonable, a court must consider: (i) the burden on the defendant; (ii) the interests of the forum State; (iii) the plaintiff’s interest in obtaining relief; (iv) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (v) the shared interest of the several States in furthering fundamental substantive social policies).
  • Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) (forum state may not exercise general personal jurisdiction over a foreign subsidiary of a U.S. corporation if the subsidiary does not have continuous and systematic business contacts with the forum state)
  • Daimler AG v. Bauman, 571 U.S. 117 (2014) (the Supreme Court limited general jurisdiction by only allowing the court of a forum state to exercise personal jurisdiction over a non-resident defendant if he or she was domiciled in the forum state or, in the case of a corporation, if the corporation’s connection with the forum state is “so continuous and systematic” that it could be fairly regarded as being “at home” in the forum state.  Having a branch office or license in the forum state does not, in itself, expose the corporation to personal jurisdiction in the forum state, particularly where the corporation’s activities in the forum are unrelated to the plaintiff’s claims. Daimler can also be viewed as expanding jurisdictional possibilities by allowing a forum state to exercise jurisdiction over a corporation that is “at home” in its state – due to its systematic and continuous contacts – even though it is incorporated or principally based in another state).

While each of these cases is worthy of individual treatment and a separate blog post, in sum, they elaborated primarily on more discrete circumstances that warrant the exercise of personal jurisdiction, particularly fact patterns involving “single or occasional acts” occurring or having their impact within the forum State.  Broadly speaking, the Supreme Court continued to refine what it meant for a non-resident defendant to have minimum contacts with the forum state and inquired into whether there was some act by which the non-resident defendant purposefully availed itself of the privilege of conducting activities within the forum State, thereby invoking the benefits and protections of its laws.

A court’s decision to exercise jurisdiction over the parties in a civil action is probably the most consequential aspect of any civil proceeding.  Whether the court even has jurisdiction over a defendant is one of the first questions that a defense attorney must ask when evaluating a new claim and developing a strategy. The three pillars that support every civil claim are: (1) subject matter jurisdiction; (2) personal jurisdiction; and the related concept of (3) venue.  While all three of these will be covered in this blog, I will focus mostly on issues and cases relating to personal jurisdiction.

I had my first real-world encounter with a case involving personal jurisdiction in the early 90’s when I was fresh out of law school. The plaintiff was a passenger on a charter boat who was seriously injured when the boat was hit by a rogue wave off the coast of Ft. Lauderdale. The lawsuit was filed against everyone who had anything to do with the ownership or operation of the boat, including my client who happened to be a deckhand on the boat that day; a textbook case of being in the wrong place at the right time.

Fast forward many months later, the plaintiff obtained default judgments against all of the defendants, having perfected substituted service by serving the Secretary of State for Florida. A jury trial followed on the issue of damages and the jury returned a verdict for the Plaintiff in the amount of $2,394,000.00, with 12% statutory interest!

Shortly thereafter, I was retained by the deckhand, who was in an obvious state of panic after having been notified that she was on the wrong side of a massive civil judgment that was entered against her by default. Around the same time, the holder of a first preferred ship’s mortgage on the vessel, who was also judgment debtor in the case, retained separate counsel, and we coordinated a joint effort to each move to quash service and set aside the default judgments entered against our respective clients based upon insufficiency of service of process owing to a lack of minimum contacts with Florida. In short, our argument was that the Court did not have personal jurisdiction over our clients, and thus the default judgment was void as applied to them.  After a limited evidentiary hearing on the Motions to Vacate, the circuit court judge denied the Motions, finding that the defendants were properly served and that the Plaintiff had adequately established that both defendants had the required minimum contacts with the State of Florida.

My client, the deckhand, lacking sufficient financial resources (or any real assets against which a judgment of that size could even begin to be applied in satisfaction), accepted the ruling and vanished off into the seafarer’s realm from where she came. But our co-defendant, the holder of the first preferred ship’s mortgage, filed an appeal with the Fourth District Court of Appeal challenging the Judge’s ruling.  Even though my client’s interests were no longer implicated and would remain unaffected by the disposition on appeal, since I was on the service list, I followed the appeal very carefully and waited in anticipation to see how it would resolve.

On review, the Fourth DCA reversed the order denying the appellant’s Motion to Vacate. In a published opinion, the Court held that it was not so much that the appellant lacked minimum contacts with Florida as that he lacked any contact with Florida whatsoever. Of course, the appellate Mandate was limited to our co-defendant in the case and did not apply to my client, who did not appeal the ruling. But that result on appeal, building upon what I had learned in law school – starting with Pennoyer v. Neff , 95 U.S. 714 (1878) – planted the seed of the idea that grew into my decision to launch this blog on Florida Personal Jurisdiction.
As a young lawyer, it absolutely blew my mind that the first preferred mortgage holder was able to completely avoid liability for a 2.3 million dollar judgment, regardless of fault, simply based upon not having the requisite contacts with the State of Florida. It was one thing to read about the minimum contacts test announced in International Shoe v. Washington, 326 U.S. 310 (1945), when I was in my second year of law school, but to see it in technicolor, on that scale, was a real treat … from the defense perspective, of course.

And taking it another step further, I also came to appreciate the broader implications of making a Rule 1.540(b)(4) motion seeking relief from a void judgment.  A judgment of a court without personal jurisdiction is void and it violates the due process clause of the U.S. Constitution.  Thus, if a judgment (or order) is void, in addition to the obvious fact that any further actions or orders that are based upon that judgment (such as writs of execution or orders of contempt) are also void, it also means that the judgment debtor may file the motion at any time, with or without a showing of due diligence or excusable neglect, and regardless of whether a meritorious defense exists. And to top it off, I wondered how the trial judge could be so completely wrong. I mean, I understand how reasonable minds could differ about the quantity or quality of the contacts and whether they were sufficient to satisfy federal due process concerns. But the trial judge in my boat case was reversed on appeal because there were no contacts at all. None whatsoever, according to the 4th DCA. Surely, I thought, the trial judge must have misunderstood the facts. How could the judge forget to properly apply the minimum contacts test? Maybe it was just obvious to me because I was so fresh out of law school.

If a civil judgment is in fact void, then there is nothing anyone can do, or fail to do, from that day forward to breath life into it and make it un-void. A void judgment is a void judgment. It never existed in the first place. Lack of personal jurisdiction, I reasoned, is the ultimate end-all tactical tool that defense attorneys have in their arsenal; and, ironically, the first thing that every defense attorney must consider before filing the first pleading in any civil case.