IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
INTEGO SOFTWARE, LLC NOT FINAL UNTIL TIME EXPIRES TO
d/b/a CRITICAL ALERT, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D15-4082
v.
CONCEPT DEVELOPMENT,
INC.,
Appellee.
_____________________________/
Opinion filed July 25, 2016.
An appeal from the Circuit Court for Duval County.
Karen K. Cole, Judge.
Kirsten L. Doolittle, Jacksonville, for Appellant.
Donald A. Mihokovich and Andrew McBride of Adams and Reese LLP, Tampa,
for Appellee.
KELSEY, J.
Appellant, Plaintiff below, challenges the trial court’s order dismissing with
prejudice its breach of contract complaint against Appellee, Defendant, for lack of
personal jurisdiction. We conclude that the uncontroverted jurisdictional
allegations of Plaintiff’s complaint were sufficient to establish personal jurisdiction
over Defendant, and the trial court abused its discretion in refusing to allow
Plaintiff to amend its complaint or its declarations in opposition to dismissal.
Accordingly, we reverse.
Jurisdictional Allegations.
Plaintiff’s complaint alleged that Plaintiff is a Florida corporation with a
place of business in Jacksonville, Florida. The complaint alleged that Defendant, a
California company, pursued business in Florida through numerous
communications in writing and over the phone, and by its representatives’
traveling to Florida to procure the business. The complaint alleged that the parties
entered, and Defendant committed acts constituting a breach of, a written
agreement for Defendant to engineer and construct water-resistant, two-way-
communication nurse call devices for use in hospitals.
The parties’ agreement was an exhibit to the complaint and thus part of the
complaint for all purposes. Fla. R. Civ. P. 1.130(b) (“Any exhibit attached to a
pleading shall be considered a part thereof for all purposes.”). The parties’
agreement required that all notices to Plaintiff must be made at Plaintiff’s
Jacksonville, Florida address. Under the agreement, Defendant was required to
provide deliverables to Plaintiff in Florida—initially prototypes, and ultimately
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finished, marketable products. Upon termination of the contract, Defendant was
required to deliver to Plaintiff in Florida all records, documentation, plans, tools,
and equipment relating to Plaintiff’s business and the work performed under the
agreement.
The complaint alleged that, although the agreement contemplated Defendant
would deliver final products compliant with Plaintiff’s specifications within 16
weeks, and Plaintiff paid Defendant $110,000, over a year passed without delivery
of satisfactory marketable products. The complaint alleged that the deliverables
Defendant provided to Plaintiff failed to comply with the agreement. When
Plaintiff’s attempts to discuss the problems failed, Plaintiff gave notice of
termination and demanded a refund of its payments, ultimately filing suit seeking
damages for lost profits, delays in marketing its product, injury to its reputation,
and lost revenues.
Defendant’s Challenge To The Jurisdictional Allegations.
Before answering the complaint, Defendant moved to dismiss it for lack of
personal jurisdiction or, alternatively, forum non conveniens. Defendant denied
engaging in business in Florida and denied that the contract was to be performed in
Florida. Defendant asserted that it “only made two trips to Florida to meet with
3
Plaintiff’s employees but performed no services in Florida at those meetings.”
Defendant did not deny the other jurisdictional allegations of the complaint.
In support of its motion to dismiss, Defendant filed the sworn affidavit of its
Chief Executive Officer, denying Defendant had done any of the following in
Florida:
With respect to Florida, [Defendant] does not and has not:
a. Owned any real or personal property in Florida;
b. Have an office or designated agent in Florida;
c. Have a Florida bank account;
d. Have a Florida property tax listing;
e. Registered to do business in Florida;
f. Have any employees in the state of Florida;
g. Carried on any business in Florida;
h. Earned any income performing services in the state of Florida;
i. Committed any tortious action in the state of Florida;
j. Agreed to be subject to the jurisdiction of the state of Florida or
consented to venue in Florida;
k. Breached any contracts or agreements in Florida.
Plaintiff’s Response Supporting Jurisdiction.
Plaintiff filed a response to Defendant’s motion to dismiss, arguing that the
uncontroverted jurisdictional allegations of the complaint were sufficient to
establish jurisdiction and if they were not, the declarations of Plaintiff’s president
and its hardware engineer added facts supporting the exercise of jurisdiction.
Neither of Plaintiff’s two “declarations” was sworn or notarized.
4
In the first declaration, Plaintiff’s president confirmed that Defendant’s
representatives traveled to Jacksonville, Florida, twice to negotiate the agreement
and its terms, including deadline, schedule for deliverables, and cost. After one
meeting, Defendant’s president informed Plaintiff’s president that he (Defendant’s
president) was meeting with another potential customer in the Jacksonville area.
Thereafter, through multiple telephone conferences, Defendant’s representatives
solicited Plaintiff to expand the parties’ contractual relationship to encompass
additional work over a longer term. Defendant and its agents were in “constant
communication . . . via telephone, e-mail, telefax, and regular mail,” including
“well over 100 e-mail communications and scores of phone calls to [Plaintiff’s]
employees in Florida concerning the device.” Defendant delivered to Plaintiff in
Jacksonville, Florida, a list of technical requirements, a 3-D mechanical model, a
plastic model of the circuit boards, and a call unit for testing. Plaintiff’s president
stated that the parties’ agreement was negotiated in Plaintiff’s Florida office and
that he signed it in his Florida office. He asserted that the breach occurred in
Florida “by virtue of Defendant’s tender of totally defective deliverables to my
Florida office.”
The second declaration filed with Plaintiff’s response to Defendant’s motion
to dismiss was that of Plaintiff’s hardware engineer. He repeated that Defendant
and its agents were in constant communication with Plaintiff’s employees during
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the entire 12-month course of performance under the agreement, and mostly with
him as the employee most knowledgeable about the technical requirements of the
project. He quantified the communications as encompassing well over 100 e-mail
communications regarding the call device, many dealing with the engineer’s belief
that the design of the unit was flawed; and he maintained there were scores of
phone calls. He also stated that Defendant delivered to Plaintiff’s Jacksonville,
Florida office “a list of the technical requirements, the 3D mechanical model, a
plastic model of the circuit boards, as well as a unit for testing, all of which were
defective in one way or another.”
The Hearing And The Dismissal With Prejudice.
At the very brief hearing on Defendant’s motion to dismiss, the trial judge
noted that she had not received Plaintiff’s response or declarations. The docket
reflects that they had been filed with the clerk and served on opposing counsel a
week before the hearing. Plaintiff’s counsel stated that she had e-mailed the
judge’s assistant to arrange direct delivery of a copy of the papers but did not hear
back from the assistant. The judge acknowledged that there had been problems
with e-mail delivery to her assistant and suggested counsel communicate by phone
next time.
6
At this hearing, Defendant argued that Plaintiff’s witness “declarations”
were not valid because they were not made under oath or affirmation and therefore
could not be considered at all. Although Plaintiff represented that the declarations
could be refiled promptly in the correct form, and sought leave to amend them,
Defendant argued that no amendment could be allowed because the unsworn
declarations were a legal nullity and therefore Plaintiff had in effect presented no
evidence opposing dismissal, which required the trial court to dismiss without
allowing amendment. Plaintiff’s counsel acknowledged the “procedural
deficiencies” in the declarations, because “they do not include the language, I
declare under penalty of perjury.” Counsel offered to submit amended affidavits
and requested leave to amend the complaint, but the trial court rejected Plaintiff’s
requests:
THE COURT: Your complaint is not a verified complaint, and you
have not submitted any affidavit or declaration to traverse the
allegations of the defendant’s jurisdictional affidavit. The case law is
clear that under the circumstance, I must grant the motion, and I do
grant the motion.
....
[PLAINTIFF’S COUNSEL]: And that’s with leave to amend?
THE COURT: No, ma’am. That is not. It is finding that there is no
jurisdiction here in Florida. Obviously, there may be jurisdiction
elsewhere. Thank you.
7
The trial court entered a final order of dismissal with prejudice, expressly without
leave to amend.
Plaintiff moved for reconsideration, arguing it was an abuse of discretion to
dismiss with prejudice where Plaintiff had demonstrated its ability and desire to
amend to allege additional facts and to cure the technical defects in the
declarations. Plaintiff argued in the alternative that the original complaint alleged
sufficient jurisdictional facts to support the court’s exercise of jurisdiction over
Defendant. The trial court denied the motion for reconsideration.
Preservation And Standard Of Review.
On appeal, Plaintiff argues that the allegations of the complaint were
sufficient to sustain Florida’s exercise of personal jurisdiction over Defendant even
without being amended to include the statements set forth in the unsworn witness
declarations. Plaintiff also argues that it should have been permitted to amend its
complaint as requested below, and the additional facts set forth in its witness
declarations would bolster a finding that Defendant is subject to personal
jurisdiction in Florida. Plaintiff raised the same issues and arguments below. We
therefore find that Plaintiff preserved its arguments for our review.
We review de novo the trial court’s assessment of whether jurisdictional
allegations are legally sufficient. State, Office of Att’y Gen., Dep’t of Legal
8
Affairs v. Wyndham Int’l, Inc., 869 So. 2d 592, 596 (Fla. 1st DCA 2004). We
review for abuse of discretion the trial court’s decision to prohibit amendment of
the complaint. Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-
op. Bank, 592 So. 2d 302, 305 (Fla. 1st DCA 1991) (“[R]efusal to allow
amendment of a pleading constitutes an abuse of discretion unless it clearly
appears that allowing the amendment would prejudice the opposing party; the
privilege to amend has been abused; or amendment would be futile.”).
Plaintiff’s Uncontroverted Original Allegations Were Sufficient.
Plaintiff argued below, and argues here, that the uncontroverted allegations
of its complaint, taken together with the terms of the parties’ agreement attached to
and incorporated in the complaint, were themselves sufficient to satisfy
(1) Florida’s long-arm statute and (2) constitutional considerations of due process.
The Florida Supreme Court established this two-pronged analysis in Venetian
Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). That case required courts to
evaluate both whether the long-arm statute is satisfied, and whether the defendant
has minimum contacts with the forum state such that exercise of jurisdiction would
comport with “traditional notions of fair play and substantial justice” under
International Shoe Co. v. Washington, 326 U.S. 310 (1945). Venetian Salami, 554
So. 2d at 502. This due process analysis asks whether the defendant’s conduct and
9
connection with Florida are such that the defendant should reasonably anticipate
being sued in Florida. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
297 (1980).
Plaintiff argued that its complaint satisfied both the long-arm statute and due
process requirements. The trial court, however, implicitly rejected this argument by
ruling only on the insufficiency of Plaintiff’s unsworn declarations filed in
opposition to Defendant’s motion to dismiss. That is, if the allegations of the
complaint standing alone were sufficient to invoke personal jurisdiction over
Defendant, it becomes irrelevant that Plaintiff’s subsequently-filed witness
declarations were unsworn. We therefore address the threshold sufficiency of
Plaintiff’s complaint first, and then we will address the question of allowing
amendment to cure deficiencies.
We agree with Plaintiff that the facts alleged in the complaint and in the
attached agreement were sufficient to establish personal jurisdiction over
Defendant, and Defendant did not controvert the jurisdictional allegations of the
complaint. The complaint and its exhibits demonstrated that Defendant pursued
business in Florida through numerous communications in writing, electronically,
and by phone; and Defendant’s representatives traveled to Florida to procure the
business. Defendant did not deny any of those allegations, and admitted its
10
representatives traveled to Florida in connection with the agreement giving rise to
the cause of action.
In addition, the parties’ agreement, attached to and part of the complaint,
required that notices and deliveries be sent to Plaintiff in Florida. Defendant did
not deny that. The complaint alleged that Defendant provided deliverables to
Plaintiff, and Defendant did not deny that. The complaint alleged that Plaintiff
demanded a refund of the money Plaintiff had paid Defendant under the agreement
(which would be paid to Plaintiff in Florida), and Defendant did not deny that.
Uncontroverted allegations such as these have been held legally sufficient to create
long-arm jurisdiction in Florida, and we hold that these allegations created
personal jurisdiction over Defendant here, both as to (1) the long-arm statute and
(2) due process requirements.
(1) Long-Arm Jurisdiction. Under two relevant provisions of Florida’s long-
arm statute, personal jurisdiction exists over a non-resident defendant that (a) does
sufficient business in Florida or (b) breaches a contract in Florida:
Acts subjecting person to jurisdiction of courts of state.—
(1)(a) A person, whether or not a citizen or resident of this state,
who personally or through an agent does any of the acts enumerated in
this subsection thereby submits himself or herself and, if he or she is a
natural person, his or her personal representative to the jurisdiction of
the courts of this state for any cause of action arising from any of the
following acts:
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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.
....
7. Breaching a contract in this state by failing to perform acts
required by the contract to be performed in this state.
§ 48.193(1)(a)1, 7, Fla. Stat. (2015).
If a defendant’s affidavits supporting dismissal for lack of personal
jurisdiction merely assert legal conclusions or otherwise fail to controvert the
pertinent factual allegations of a complaint, the burden of proof on the existence or
nonexistence of jurisdiction does not shift back to the plaintiff. Acquadro v.
Bergeron, 851 So. 2d 665, 673 (Fla. 2003) (finding exercise of personal
jurisdiction proper where defendant’s affidavit was conclusory and did not refute
underlying facts giving rise to jurisdiction); see also, e.g., Lampe v. Hoyne, 652
So. 2d 424, 426 (Fla. 2d DCA 1995) (holding burden never shifts back to plaintiff
if “the nonresident defendant's affidavit does not sufficiently refute the
jurisdictional allegations.”). Thus, the determination of whether long-arm
jurisdiction exists does not turn on a defendant’s providing a list of ways it is not
active in Florida, or a list of ways the plaintiff is active in another jurisdiction; but
rather analyzes whether the defendant directly controverts the specific facts alleged
in the complaint as a basis of jurisdiction.
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(a) Doing Business In Florida. We find that Defendant’s business activities
in Florida as alleged in Plaintiff’s complaint were sufficient to satisfy subparagraph
(1)(a)1 of the long-arm statute. Defendant did not controvert the allegations of the
complaint that Defendant engaged in several forms of ongoing, extensive
communications with Plaintiff’s representatives in Florida; traveled to Florida;
entered an agreement requiring Defendant to send deliverables to Florida; and did
send deliverables to Florida. These allegations established engaging in business in
Florida under section 48.193(1)(a)1 of the Florida Statutes. Because Defendant did
not refute these allegations, Plaintiff was not required to file any counter-affidavits
and was entitled to a ruling that long-arm jurisdiction existed. Acquadro, 851 So.
2d at 672-73; Lampe, 652 So. 2d at 426.
Allegations similar to those made in Plaintiff’s complaint appear fairly
regularly in cases involving long-arm jurisdiction, and are sufficient to support
such jurisdiction. We have indicated previously that long-arm jurisdiction will
exist when a non-resident defendant procures business in Florida, even if the
procurement resulted from only sporadic attempts to obtain business in Florida.
Price v. Point Marine, Inc., 610 So. 2d 1339, 1342 (Fla. 1st DCA 1992) (“Absent a
continued and sustained effort to procure business, or actual procurement of
business, these activities are insufficient to constitute substantial activities within
the state of Florida.”) (emphasis added). We have held that personal jurisdiction
13
exists over a non-resident defendant that sent representatives to Florida twice to
solicit business, and sent numerous letters and faxes in connection with that
business. Citicorp Ins. Brokers v. Charman, 635 So. 2d 79, 81 (Fla. 1st DCA
1994).
Likewise, other district courts have concluded that similar activities suffice
to establish long-arm jurisdiction over non-resident defendants. The Fifth District
concluded that a North Carolina company was subject to the jurisdiction of the
Florida court because the defendant company entered into an oral contract with the
Florida plaintiff, its employees communicated telephonically with plaintiff’s
employees in Florida, and it failed to make payments required to be made in
Florida. Aspsoft, Inc. v. WebClay, 983 So. 2d 761, 766 (Fla. 5th DCA 2008). The
Third District has held that a non-resident insurance broker who corresponded
extensively with the Florida plaintiff, and traveled to Florida one time to renew the
resulting insurance policy, was subject to long-arm jurisdiction. Naviera Mayaca
Express S. de R.L. v. Brauer & Assocs., Inc., 559 So. 2d 1230 (Fla. 3d DCA 1990).
The Fourth District has held that the non-resident defendant’s sales of product to a
Florida plaintiff, and its president’s visit to plaintiff in Florida to discuss the
product, satisfies the long-arm statute. Dublin Co. v. Peninsular Supply Co., 309
So. 2d 207, 210 (Fla. 4th DCA 1975).
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Following Florida law on the same question, a federal district court has held
that a non-resident defendant was subject to personal jurisdiction in Florida after
soliciting business in Florida; traveling here to discuss that business and resulting
contract; and “engag[ing] in extensive correspondence, phone conversations, and
telefaxes” with the plaintiff’s representatives in Florida. Future Tech. Int’l, Inc. v.
Tae IL Media, Ltd., 944 F. Supp. 1538, 1556 (S.D. Fla. 1996). Consistent with
these authorities, the uncontroverted factual allegations of Plaintiff’s complaint are
sufficient to establish long-arm jurisdiction over Defendant.
(b) Breaching A Contract In Florida. We also find that the allegations of the
complaint regarding Defendant’s failure to perform required acts in Florida were
sufficient to satisfy the breach of contract provision in subparagraph (1)(a)7 of the
long-arm statute. Although the complaint alleged breach of contract and Defendant
denied having committed such a breach, Defendant’s conclusory denial of the
ultimate legal issue to be resolved in the lawsuit was not controlling and was
ineffective to defeat jurisdiction. Rather, the proper focus is on the facts alleged
that related to Defendant’s “failure to perform acts required by the contract to be
performed in this state.” § 48.193(1)(a)7, Fla. Stat. (emphasis added).
Breach of contract occurs in Florida upon the breaching party’s failure to
perform an act required to be performed in Florida. Lacy v. Force V Corp., 403 So.
2d 1050, 1056 (Fla. 1st DCA 1981). Under this rule, an Ohio company was subject
15
to personal jurisdiction in Florida to defend a complaint alleging breach of
contract, where the parties’ agreement obligated the defendant to provide
equipment to the plaintiff in Florida and the plaintiff alleged both that the
equipment was late and that it did not conform to contract specifications. Lacy, 403
So. 2d at 1052. So too here, the complaint alleges that Defendant was obligated to
provide its prototypes and end product to Plaintiff in Florida, and Defendant failed
to provide products meeting the contractual specifications, thus breaching the
contract. The complaint alleged acts to be performed in Florida and Defendant’s
failure to perform them, and these allegations satisfied the long-arm statute.
(2) Due Process Was Satisfied. In light of the uncontroverted allegations of
Plaintiff’s complaint, we also find that the exercise of personal jurisdiction over
Defendant comports with the requirements of due process. Venetian Salami, 554
So. 2d at 502 (citing Int’l Shoe Co., 326 U.S. at 316). Defendant reasonably should
have anticipated being haled into a Florida court in the event of a legal dispute over
its performance under these parties’ agreement. Our conclusion is supported by
analogous case law. E.g., Future Tech Int’l, 944 F. Supp. at 1560 (finding that due
process was satisfied where defendant traveled to Florida, negotiated with plaintiff
in Florida, and directed correspondence and phone calls to plaintiff in Florida);
Naviera Mayaca, 559 So. 2d at 1231 (concluding due process was satisfied where
16
defendant corresponded extensively with Florida plaintiff regarding their business
relationship and sent a representative to Florida to discuss and renew the contract).
Because the uncontroverted jurisdictional allegations of Plaintiff’s original
complaint satisfied both Florida’s long-arm statute and constitutional requirements
of due process, the trial court should have denied Defendant’s motion to dismiss
and allowed the case to proceed. Even if we had determined that the original
complaint was subject to dismissal, however, we would reverse for further
proceedings because the trial court should have allowed Plaintiff to amend.
Amendment Should Have Been Allowed.
Faced with Defendant’s motion to dismiss and argument that unsworn
declarations were insufficient to avoid dismissal, Plaintiff expressly sought leave to
(1) amend its complaint and (2) cure the deficiencies in the unsworn declarations.
Although we have resolved the appeal on grounds of the sufficiency of Plaintiff’s
uncontroverted jurisdictional allegations, we would also reverse because of the trial
court’s abuse of discretion in denying Plaintiff’s requests to amend the complaint
and declarations. We find that (1) courts should allow plaintiffs to file amended
pleadings under similar circumstances; and (2) the right to amend should extend to
correction of defects in declarations and affidavits.
17
Florida Rule of Civil Procedure 1.190 requires that courts liberally allow
amendments and disregard insubstantial errors or defects:
(a) Amendments. A party may amend a pleading once as a matter of
course at any time before a responsive pleading is served or, if the
pleading is one to which no responsive pleading is permitted and the
action has not been placed on the trial calendar, may so amend it at
any time within 20 days after it is served. Otherwise a party may
amend a pleading only by leave of court or by written consent of the
adverse party. If a party files a motion to amend a pleading, the party
shall attach the proposed amended pleading to the motion. Leave of
court shall be given freely when justice so requires. A party shall
plead in response to an amended pleading within 10 days after service
of the amended pleading unless the court otherwise orders.
...
(e) Amendments Generally. At any time in furtherance of justice,
upon such terms as may be just, the court may permit any process,
proceeding, pleading, or record to be amended or material
supplemental matter to be set forth in an amended or supplemental
pleading. At every stage of the action the court must disregard any
error or defect in the proceedings which does not affect the substantial
rights of the parties.
Fla. R. Civ. P. 1.190(a), (e). This rule applies to Plaintiff’s requested amendment
of both its complaint and its supporting declarations.
(1) Allow Amended Pleadings. Florida courts have long adhered to a strong
public policy of construing Rule 1.190 liberally absent abuse of the privilege,
particularly as to a pre-answer first amendment. Town of Micanopy v. Connell,
304 So. 2d 478, 480 (Fla. 1st DCA 1974) (“[D]oubts should be resolved in favor of
allowing amendments unless and until it appears that the privilege to amend will be
18
abused.”). The policy of liberal amendment applies in the context of a challenge to
personal jurisdiction. Lopez v. La Fuente, 343 So. 2d 930, 931 (Fla. 3d DCA 1977)
(allowing amendment following dismissal for failure to sufficiently allege facts
demonstrating personal jurisdiction).
This policy of liberal amendment was applied with respect to jurisdictional
allegations in DOT (SR), Inc. v. Telesur, 136 So. 3d 1239 (Fla. 2d DCA 2014).
The appellate court had held previously that a complaint should have been
dismissed for lack of personal jurisdiction, but that the dismissal should have been
without prejudice. Due to an apparent scrivener’s error, however, the phrase
“without prejudice” was omitted from the version of the court’s opinion
transmitted to the lower tribunal and the parties. On remand the trial court refused
to accept the plaintiff’s amended complaint, and the plaintiff appealed. In the
second appeal, the court reaffirmed its ruling that even if a complaint is dismissed
for insufficient jurisdictional allegations, the dismissal should be without prejudice
and the plaintiff should be allowed to amend its complaint. The court went on to
note that this right to amend is an “absolute right” under Rule 1.190: “‘The filing
of a motion to dismiss does not end the plaintiff’s absolute right to amend the
complaint once.’” Telesur, 136 So. 3d at 1241 n.2 (emphasis added) (quoting
Williams v. Gaffin Indus. Servs., 88 So. 3d 1027, 1030 (Fla. 2d DCA 2012)); see
also Henderson v. Elias, 56 So. 3d 86, 90 (Fla. 4th DCA 2011) (holding dismissal
19
should be without prejudice where allegations were insufficient to establish long-
arm jurisdiction); Gerber Trade Fin., Inc. v. Bayou Dock Seafood Co., 917 So. 2d
964, 968 (Fla. 3d DCA 2005) (reversing dismissal with prejudice for insufficient
jurisdictional allegations, where right to amend had not been abused, defendant
would not be prejudiced, and amendment would not be futile); World Class
Yachts, Inc. v. Murphy, 731 So. 2d 798, 799-800 (Fla. 4th DCA 1999) (finding it
error to dismiss complaint with prejudice where jurisdictional facts were deficient).
In this case, the question of amendment should not have arisen, because as
we have explained above, the complaint’s uncontroverted jurisdictional allegations
were sufficient to establish personal jurisdiction over Defendant. When the
question nevertheless did arise, the trial court abused its discretion in refusing to
allow Plaintiff to amend its complaint. This was Plaintiff’s first request for leave to
amend, which was not abusive. The amendment would not have been futile
because the additional factual allegations of the witness declarations would have
bolstered the factual basis for finding that personal jurisdiction existed. Defendant
would have had the right to move to dismiss again if it wished to do so, and
therefore would not have been prejudiced. On these facts, the trial court should not
have deemed the defects in the declarations to be fatal flaws prohibiting
amendment of either the complaint or the declarations themselves.
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(2) Allow Correction Of Defects. If Plaintiff had been allowed to amend its
complaint, the question of insufficiency of its declarations opposing dismissal
would have been rendered moot, because the new pleading would require
Defendant to file a new motion and new affidavits if it still wished to contest
jurisdiction. As this case developed below, however, the insufficiency of Plaintiff’s
unsworn declarations was raised for the first time at the hearing on Defendant’s
motion to dismiss. Immediately upon realizing the deficiency in the form of the
unsworn declarations, Plaintiff’s counsel stated that it would be a simple matter to
have the witnesses present the same information under oath, and expressly
requested leave to do so. The trial court’s denial of the opportunity to cure the
defects in the declarations was an abuse of discretion.
We note again Florida’s strong public policy favoring resolution of disputes
on their merits, and its strong policy in favor of allowing amendments and
disregarding technical defects. See Fla. R. Civ. P. 1.190(e) (“At every stage of the
action the court must disregard any error or defect in the proceedings which does
not affect the substantial rights of the parties.”). In the summary judgment context,
which is analogous to the posture of this case, the Florida Supreme Court has held
that it was a departure from the essential requirements of law to deny a party the
opportunity to amend its affidavit opposing summary judgment. Stephens v.
Dichtenmueller, 216 So. 2d 448, 450 (Fla. 1968) (error to deny opportunity to
21
amend affidavit where defects “were largely technical and may have been
amenable to correction”). To support its ruling in Stephens, the supreme court
relied on the seminal case on summary judgment, Holl v. Talcott, 191 So. 2d 40,
(Fla. 1966). The court there held that the trial court should have allowed the party
opposing summary judgment to file amended affidavits to cure defects in the first
one: “[I]t appears that the defects were largely technical and subject to correction.
A liberal treatment of the petitioners' motion should have led to an order giving
them the opportunity to supply the deficiencies.”). Holl, 191 So. 2d at 47; see also,
e.g., United Auto. Ins. Co. v. Affiliated Healthcare Ctrs., Inc., 43 So. 3d 127, (Fla.
3d DCA 2010) (finding departure from essential requirements of law in trial
court’s refusal to permit amendment of summary judgment affidavit’s technical
defects; collecting similar cases); cf., Bower v. C.J. Timm Inv. Co., 630 So. 2d
678, 680 (Fla. 2d DCA 1994) (allowing plaintiff to file amendment to correct
defect in the jurat (the notary’s acknowledgment) of affidavit opposing motion to
dismiss for lack of personal jurisdiction).
Whereas these authorities all involved a party’s request to amend an
affidavit to cure defects as does the case here, Defendant below relied on cases
involving materially different facts, arguing to the trial court that a defective
declaration was tantamount to no affidavit at all and therefore Defendant was
entitled to dismissal of the complaint with prejudice as a matter of law. Hampton
22
Island Pres., LLC v. Club & Cmty. Corp., 998 So. 2d 665, 668 (Fla. 4th DCA
2009) (finding dismissal proper where plaintiff had already amended twice and
filed no affidavit to controvert defendant’s affidavits challenging jurisdiction);
Hilltopper Holding Corp. v. Estate of Cutchin ex rel. Engle, 955 So. 2d 598, 600
(Fla. 2d DCA 2007) (affirming dismissal for lack of jurisdiction where plaintiff
“did not file any countervailing affidavits” but merely challenged credibility of
defendant’s affidavits); Wash. Capital Corp. v. Milandco, Ltd., Inc., 695 So. 2d
838, 840 (Fla. 4th DCA 1997) (affirming dismissal of complaint where plaintiff
had already amended and “did not controvert any of the allegations in defendants’
affidavit”). These cases that Defendant presented to the trial court below did not
involve a first amendment, a proper affirmative request for leave to amend, or mere
technical and readily curable defects in a witness statement. These distinguishable
cases cannot properly be construed as defeating the substantial authorities cited
above requiring liberal granting of amendments as to complaints and affidavits
alike.
Conclusion.
In conclusion, we hold that the trial court erred in treating the allegations of
the complaint as legally insufficient to establish personal jurisdiction over
Defendant. We also hold that the trial court abused its discretion in dismissing
23
Plaintiff’s complaint with prejudice rather than allowing Plaintiff to amend either
its complaint or its declarations or both. Because we find that the trial court had
personal jurisdiction over Defendant under both Florida’s long-arm statute and due
process considerations, we reverse and remand for further proceedings consistent
with this opinion.
REVERSED.
B.L. THOMAS, J., CONCURS; BILBREY, J., DISSENTS WITH OPINION.
24
BILBREY, J., Dissenting.
Because the majority decision conflicts with established Florida and United
States Supreme Court precedent, as well as past cases from this and other District
Courts, misapplies the liberal amendment of pleadings requirement to what is
actually a failure of proof, and incorrectly equates dismissal without leave to
amend to dismissal with prejudice, I respectfully dissent.
I. CONTESTING PERSONAL JURISDICTION
There is a two-part test to establish personal jurisdiction. International Shoe
Co. v. Washington, 326 U.S. 310 (1945). First, a defendant must undertake “some
act by which [the defendant] purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and
protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985) citing Hanson v. Denckla, 357 U.S. 235, 253 (1958). “The first step
involves determining whether the forum state’s long-arm statute provides a basis
for jurisdiction.” Lockard v. Equifax, Inc., 163 F.3d 1259, 1265 (11th Cir. 1998).
Personal jurisdiction under the Florida long-arm statute can be based on either
specific acts subjecting a defendant to Florida jurisdiction or based more generally
on a defendant engaging in “substantial and not isolated activity within this state.”
§ 48.193, Fla. Stat.; Garris v. Thomasville-Thomas County Humane Society, Inc.,
941 So. 2d 540 (Fla. 1st DCA 2006); Helicopteros Nacionales de Columbia, S.A.
25
v. Hall, 466 U.S. 408 (1984). Second is a determination of whether a forum state’s
exercise of person jurisdiction over a defendant complies with “traditional notions
of fair play and substantial justice” as required by the Due Process Clause of the
Fourteenth Amendment of the United States Constitution. International Shoe, 326
U.S. at 316; see also Burger King Corp., 471 U.S. at 476.
The Florida Supreme Court set out the procedure for a defendant to contest
personal jurisdiction in Florida in Venetian Salami Co. v. Parthenais, 554 So. 2d
499 (Fla. 1989). This procedure has been consistently followed and applied since.
Prior to filing an answer to the complaint, a defendant must file a motion to
dismiss based on lack of personal jurisdiction. If personal jurisdiction is not
challenged before making a general appearance, it is waived. Fla. R. Civ. P.
1.140(b).
By itself, the motion to dismiss constitutes a challenge to the legal
sufficiency of the pleadings. Venetian Salami, 554 So. 2d at 502 citing Elmex
Corp. v. Atlantic Fed. Savings & Loan Ass’n of Ft. Lauderdale, 325 So. 2d 58 (Fla.
4th DCA 1976); Golf Car System-Pennsylvania, Inc. v. Golf Car Systems, Inc.,
470 So. 2d 79, 80 (Fla. 2d DCA 1985) (“Appellants’ unsupported motion simply
accepted as true all jurisdictional facts properly pleaded in the complaint and
asserted that they were nevertheless legally insufficient to invoke the long-arm
statute.”). However, when a defendant wants to go beyond merely challenging the
26
legal sufficiency of the allegations in the pleading and seeks to contest the
underlying facts supporting the jurisdictional allegations of the complaint, a
defendant must present evidence to refute the allegations and set forth why
personal jurisdiction is lacking.1 Venetian Salami, 554 So. 2d at 502. The burden
then shifts to the plaintiff asserting personal jurisdiction to “prove by affidavit” the
basis for personal jurisdiction. Id. Typically, the affidavits can be “harmonized”
and the trial court makes a legal determination whether personal jurisdiction exists
under the facts. Id. at 503. If the affidavits are in dispute, a limited evidentiary
hearing is conducted on the issue of personal jurisdiction to resolve the disputed
facts. Id.
A. CDI’s Affidavit and Intego’s “Declarations”
Here, CDI filed a motion to dismiss pursuant to Venetian Salami. CDI also
filed an affidavit which disclaimed any grounds for asserting personal jurisdiction
based on the specific acts involving its agreement with Intego or based on any
claim of general jurisdiction. CDI’s affidavit stated that it was made under penalty
of perjury and was notarized pursuant to California law by a California notary
public.
In response, Intego filed two documents entitled “Declarations.” These
1 If we were only dealing with the legal sufficiency of Intego’s complaint, I agree
that the requirement of liberally granting amendments to pleadings would come
into play if the complaint was found to be lacking sufficient allegations to establish
personal jurisdiction.
27
documents were not notarized, were not made under penalty of perjury, and were
not even averred to be “true and correct.” See §§ 92.50 and 92.525, Fla. Stat.
(setting forth how oaths and affidavits are made in Florida, in other states, and in
foreign countries, and how documents are verified). In short, the two Declarations
filed by Intego were nullities and of no probative value. The trial court correctly
declined to consider these unsworn Declarations. Arnold v. Arnold, 889 So. 2d
215, 216 (Fla. 2d DCA 2004) (“Unsworn statements cannot serve as the basis for a
trial court’s factual determinations.”). The procedures to be followed post-
Venetian Salami are well-established and Intego’s counsel should have known
what was required to support the allegations of personal jurisdiction once CDI filed
its affidavit.2 Intego never provided sworn facts to rebut the sworn factual
assertions of CDI and therefore failed to meet its burden to prove personal
jurisdiction over CDI. See Rollet v. De Bizemont, 159 So. 3d 351, 356 (Fla. 3d
DCA 2015) (“[Plaintiff’s] failure to file an affidavit or other evidence to rebut
[defendant’s] affidavit, filed in support of his motion to dismiss, required dismissal
of the complaint.”); Rensin v. Office of Attorney General, Dep’t Legal Affairs, 18
So. 3d 572 (Fla. 1st DCA 2009).
B. Whether the Trial Judge Should Have Allowed Intego
2Even if Intego’s counsel did not know of the Venetian Salami requirements for
contesting and proving personal jurisdiction before CDI filed its motion to dismiss,
counsel should have known once the motion to dismiss was filed because the
Venetian Salami case was featured prominently in the motion.
28
a Second Opportunity to File Actual Affidavits
As stated above, Intego had the opportunity under well-established legal
procedure to file evidence to prove the alleged personal jurisdiction. It failed to do
so. The majority opinion finds error in the trial court’s denial of leave to amend to
cure the purported technical deficiencies in Intego’s Declarations. However,
Intego never raised the issue of “technical deficiencies” in its initial brief, so the
issue was waived and we should not address it. See Hoskins v. State, 75 So. 3d
250 (Fla. 2011) (issues not raised in an initial brief are abandoned); Land v. Fla.
Dep’t of Corrs., 181 So. 3d 1252 (Fla. 1st DCA 2015).
More importantly, the problem with Intego’s Declarations was not a mere
technical defect. In all of the relevant cases cited by the majority, the trial courts
were presented with actual affidavits but some statement or evidence in the
affidavit was lacking. See Stephens v. Dichtenmueller, 216 So. 2d 448 (Fla. 1968)
(competency to offer expert opinion and vagueness); Holl v. Talcott, 191 So. 2d 40
(Fla. 1966) (possible failure to specify the negligent acts or standards of care
breached); United Auto. Ins. Co. v. Affiliated Healthcare Ctrs., Inc., 43 So. 3d 127
(Fla. 3d DCA 2010) (proper foundation for admission of business records under
hearsay exception).3 In contrast to these cases where there was a technical
3Bowers v. C.J. Timm Inv. Co., 630 So. 2d 678 (Fla. 2d DCA 1994), cited in the
majority opinion dealt with the waiver by trial counsel to a defective notary jurat
and stipulation to allowing an amended affidavit to be filed. Bowers is
distinguishable in that there was an attempt to file a proper affidavit for the hearing
29
deficiency with the affidavit, here there was no evidence offered at the hearing in
support of Intego’s position. Just as appellate courts “do not generally provide
parties with an opportunity to retry their case upon a failure of proof,” the busy
trial courts of Florida should not be forced to offer a party multiple opportunities to
carry the party’s burden of proof when the party fails to present any evidence at the
first hearing. See Phillips v. Nationstar Mortg., LLC, 189 So. 3d 944, 945 (Fla. 5th
DCA 2016); Burdeshaw v. Bank of New York Mellon, 148 So. 3d 819, 826 (Fla.
1st DCA 2014); Wolkoff v. American Home Mortg. Servicing, Inc., 153 So. 3d
280, 283 (Fla. 2d DCA 2014). Additionally, non-resident defendants should not be
repeatedly haled into Florida courts because resident plaintiffs failed to support
their allegations of personal jurisdiction by following the well-established
requirements for proof under Venetian Salami.
II. ALLEGATIONS IN THE COMPLAINT, CDI’S AFFIDAVIT,
AND THE INTERNATIONAL SHOE TEST
The issues remaining then are whether Intego stated a basis for personal
jurisdiction in its complaint, if so whether the CDI affidavit refuted the claims of
personal jurisdiction, and if so whether the trial court should have allowed an
amendment of the complaint after determining that personal jurisdiction was
lacking.
and more importantly the deficiencies were waived by the opposing party. Here
Intego did not try to file any actually sworn evidence in its Declarations and CDI
did not agree to allow a proper filing.
30
A. Personal Jurisdiction Allegations in the Complaint
In paragraph 4 of the complaint, Intego alleged:
4. Defendant [CDI] pursued business in Florida, traveled to
Florida to procure the business, and voluntarily agreed to Florida as its
choice of law in an Engineering Services Agreement entered into on
January 24, 2014 with [Intego] (“the Agreement”), a true and accurate
copy of which is attached as Exhibit A.
Taking the allegations in a light most favorable to Intego, the complaint arguably
alleged that CDI met the specific act requirement of section 48.193(1)(a)1, Florida
Statutes, by engaging in business in the State. It is clear that the complaint did not
allege that CDI was subject to general Florida jurisdiction under section 48.193(2).
Pursuing business or traveling to Florida without specifying the number of
occasions would be insufficient to show “substantial and not isolated activity.”
See Ranger Nationwide, Inc. v. Cook, 519 So. 2d 1087 (Fla. 3d DCA 1988).4 Had
CDI moved to dismiss the complaint without filing an affidavit that would
conclude the analysis and Intego could proceed with the suit.
B. CDI’s Affidavit
However, because CDI did file an affidavit it is necessary to examine
whether it refutes the allegations in the complaint that CDI engaged in specific acts
in Florida subjecting CDI to personal jurisdiction. I believe the affidavit does so.
CDI’s affidavit states that CDI does not and had not “[c]arried on any business in
4 The majority opinion recognizes only that specific jurisdiction over CDI is
present and does not argue that there is general jurisdiction over CDI.
31
Florida” or “breached any contracts or agreements in Florida.” The CDI affidavit
further states that the transaction commenced in California and that the contract
“was made in California, entered into in California, to be performed in California.”
It also states that CDI made two trips to Florida to meet with Intego employees, but
performed no services in Florida during those meetings. The CDI affidavit states
that Intego represented that it was qualified to do business in California, is
registered in and does business in California, and that “Intego contacted CDI
representing that it was doing business from an office located” in California. The
CDI affidavit alleged that Intego was selling its products in California.
The uncontested allegations in CDI’s affidavit are that the contract
originated in California when Intego, purporting to be a California company,
contacted CDI. The confidentiality agreement signed by parties at the inception of
their relationship noted that Intego (known by its d/b/a Critical Alert) was
organized under the laws of the State of Delaware and had an office in Santa
Monica, California. The CDI affidavit also states:
Virtually all of the evidence related to performance of the Contract in
California is located in California, all of the witnesses to the
performance of the Contract (and its alleged breach) are located in
California and virtually all of the documents related to performance of
the Contract are located in California.
***
I believe in good faith that CDI will be substantially prejudiced in
defense of this action if DCI is forced to defend in Florida, including
32
that it will suffer difficulty in great expense in (a) obtaining testimony
or appearance at trial of CDI witnesses; (b) obtaining testimony and
documents related to performance of the alleged Contract in
California; (C) difficulty compelling production of documentary
evidence and testimony in Florida; and (D) suffer prejudicial expense
and travel to Florida for appearance in defense of this case.
C. The International Shoe Test
CDI’s affidavit is the only evidence that the trial judge was provided when
she determined that that CDI was not subject to personal jurisdiction in Florida.
The various facts that the majority raises from Intego’s unsworn Declarations were
not properly before the trial judge and therefore appropriately not considered under
Venetian Salami and its progeny published since 1989. “If no such sworn proof is
forthcoming from the plaintiff as to the basis for jurisdiction, the trial court must
grant the defendant’s motion to dismiss.” Horowitz v. Rose Printing Co., 664 So.
2d 325, 327 (Fla. 1st DCA 1995) citing Tobacco Merchants Ass’n of U.S. v. Broin,
657 So. 2d 939 (Fla. 3d DCA 1995). Had Intego filed any proof in a valid
affidavit, we might have a more difficult decision as to whether sufficient contacts
had occurred to establish personal jurisdiction over CDI, but it did not.
The majority opinion mentions that CDI’s affidavit does not refute Intego’s
claim that CDI was pursuing business in Florida or traveling to Florida to secure a
contract. However, neither of these specific acts would subject Intego to specific
jurisdiction under section 48.193(1)(a) and neither of these specific acts would be
sufficient to allege general jurisdiction under section 48.193(2). Price v. Point
33
Marine, Inc., 610 So. 2d 1339 (Fla. 1st DCA 1992); Ranger. The trial court
properly found specific jurisdiction was lacking under the first prong of the
International Shoe test.
Furthermore, even if the requirements of the Florida long-arm statute were
met subjecting CDI to specific jurisdiction, I believe the assertion of personal
jurisdiction here would violate Due Process by offending the “traditional notions of
fair play and substantial justice.” International Shoe, 326 U.S. at 316. “The mere
proof of any one of the several circumstances enumerated in section 48.193 as the
basis for obtaining jurisdiction of nonresidents does not automatically satisfy the
due process requirement of minimum contacts.” Venetian Salami, 554 So. 2d at
502. It is not fair or reasonable to force CDI to defend the suit in Florida. See
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). Florida has no
interest involved in adjudicating the dispute, other than Intego doing business here.
Id. “[M]ere injury to a forum resident is not a sufficient connection to the forum.”
Walden v. Fiore, 134 S.Ct. 1115, 1125 (2014) citing Calder v. Jones, 465 U.S. 783
(1984). The unrefuted facts set forth by CDI in its affidavit show that it offends
Due Process to hale it into a Florida court based on the business dealings between
CDI and Intego in California.
III. WHETHER INTEGO SHOULD HAVE BEEN GRANTED
LEAVE TO AMEND THE COMPLAINT
The final consideration is whether, after having considered the evidence
34
before her and having properly granted the motion to dismiss for lack of personal
jurisdiction, the experienced trial judge was required to grant Intego’s request to
amend the complaint. It needs to be emphasized that although the majority opinion
says that Intego’s complaint was dismissed with prejudice, in fact prejudice was
not addressed, and the case was dismissed without leave to amend. There is an
important distinction between dismissal with prejudice and dismissal without leave
to amend. I recognize that the general rule when dealing with a pleading issue is
that dismissal should be without prejudice if it is possible to state a cause of action
and amendments should be liberally granted. But the order dismissed the
complaint “without leave to amend” and specified that the trial court was not
determining “whether jurisdiction would be proper in a different jurisdiction.”
Intego was free to file in California or anywhere else it could obtain personal
jurisdiction over CDI. See Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1221
(11th Cir. 1999) (dismissal due to lack of personal jurisdiction was not an
adjudication on the merits, but did act as res judicata to prevent further litigation in
Florida).
Furthermore, this was not a dismissal for failure to state a cause of action.
Rule 1.140(b), Florida Rules of Civil Procedure, distinguishes between motions to
dismiss based on lack of personal jurisdiction and motions to dismiss based on
failure to state a cause of action. A motion to dismiss for failure to state a cause of
35
action admits the allegations as true and involves consideration of an issue of law
dependent only on the four corners of the complaint. Siegle v. Progressive
Consumers Ins. Co., 819 So. 2d 732 (Fla. 2002). The personal jurisdiction
proceeding required by Venetian Salami goes beyond just pleading. It is an
evidentiary process more akin to a trial or at least a summary judgment proceeding.
At trial if the plaintiff fails to carry its burden of going forward or burden of
persuasion, it loses. A party does not get a chance to try the case again. At
summary judgment if one side presents affidavits that there is no contested issue of
material fact, and the other side does not rebut the affidavits, the movant wins.
The non-moving party does not get a second opportunity to prove that there are
facts in dispute. The same process should apply here. See Phillips, 189 So. 3d at
945; Burdeshaw, 148 So. 3d at 826; Wolkoff, 153 So. 3d at 283.
Intego’s problem was not a pleading defect, but a failure of proof. Our court
and others have not always been clear as to what a trial court should do when
granting a motion to dismiss based on lack of personal jurisdiction. Like the
majority, many cases do not recognize the important distinction between dismissal
with prejudice and dismissal without leave to amend. Many cases conclude
without even discussing prejudice or leave to amend. See Horowitz; Rollet;
Rensin; WH Smith, PLC. v. Benages & Assocs., Inc., 51 So. 3d 577 (Fla. 3d DCA
2010). Some cases direct dismissal without prejudice but without discussing
36
whether the plaintiff can amend or can only refile in an appropriate forum. See
Telesur v. DOT (SR), Inc., 100 So. 3d 1232 (Fla. 2d DCA 2012); PVC Windoors,
Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802 (11th Cir. 2010). But my
belief that we should affirm the dismissal without prejudice for Intego to refile in
an appropriate forum is consistent with what other courts have done. See
Cornerstone Inv. Funding, LLC. v. Painted Post Grp., Inc., 188 So. 3d 904 (Fla.
4th DCA 2016) (reversing denial of motion to dismiss without prejudice to refiling
in an appropriate forum); Camp Illahee Investors, Inc. v. Blackman, 870 So. 2d 80
(Fla. 2d DCA 2003) (directing trial court to dismiss claim without prejudice to
refiling in appropriate jurisdiction); Suffolk Federal Credit Union v. Continental
Ins. Co., 664 So. 2d 1153 (Fla. 3d DCA 1995) (directing trial court to dismiss
claim without prejudice to refiling in appropriate state); Posner, 178 F.3d at 1214,
n.6 (“A court without personal jurisdiction is powerless to take further action.”).
There are decisions to the contrary, but the opinions do not analyze the
pleading versus proof issue. Additionally, they do not seem to recognize that a
dismissal for lack of personal jurisdiction is not an adjudication on the merits and
the plaintiff is free to file in an appropriate forum. In World Class Yachts, Inc. v.
Murphy, 731 So. 2d 798 (Fla. 4th DCA 1999), the court conflated amendment and
dismissal with prejudice. There the court reversed a dismissal with prejudice
stating, “A trial court should not deny a party leave to amend a complaint unless
37
the privilege has been abused, there is prejudice to the opposing party, or
amendment would be futile.”5 Id. at 800. The trial court in that case had
considered affidavits from both parties. Id. at 799.
The Fourth District Court of Appeal has cited World Class Yachts on other
occasions with no additional discussion. See Henderson v. Elias, 56 So.3d 86 (Fla.
4th DCA 2011) (reversing with leave to amend where only the sufficiency of the
pleadings was challenged); Russo v. Fink, 87 So. 3d 815 (Fla. 4th DCA 2012)
(affirming with leave to amend where both parties submitted affidavits).
Thereafter, the Fourth District arguably created intra-district conflict with its recent
decision in Cornerstone Inv. Funding, LLC. which, correctly I believe, noted that
the dismissal without prejudice was with leave to refile in an appropriate forum.
The Third District has also addressed the issue subsequent to Suffolk Federal
Credit Union, also I respectfully submit, failing to distinguish between denial of
leave to amend and dismissal with prejudice. In Gerber Trade Fin., Inc. v. Bayou
Dock Seafood Co., Inc., 917 So. 2d 964 (Fla. 3d DCA 2005), the court reversed the
dismissal for lack of personal jurisdiction. The court noted in dicta that even if the
trial court had been correct to dismiss the complaint, the dismissal should have
been without prejudice and the plaintiff should have had leave to amend. Id. at
968. In my view this is only half right.
5 Even if this test applied here, I would find prejudice to CDI in having to continue
to defend an action in a state in which it has no connection.
38
Finally, several federal courts have denied leave to amend after finding a
lack of personal jurisdiction because amendment would be futile. See Spiegel v.
Schulman, 604 F.3d 72, 78 (2d Cir. 2010) (affirming order denying leave to amend
where amendment would be futile; plaintiff failed to demonstrate personal
jurisdiction over defendant); National Gen. Ins. Co. v. Road Side Assistance, 2008
WL 1913279 (E.D. Ark 2008). Federal courts have recognized the distinction
between dismissing an action with prejudice and dismissing an action without
leave to amend. See Smith v. U.S., 554 Fed. App. 30 (2d Cir. 2013); Hollander v.
Sandoz Pharm. Corp., 289 F.3d 1193 (10th Cir. 2002); Posner, 178 F.3d at 1221;
Walker v. THI of New Mexico at Hobbs Center, 801 F. Supp. 2d 1128, 1141 (D.
N.M. 2011) (“Dismissing the case for lack of personal jurisdiction, therefore, acts
as re judicata in courts subject to the same jurisdiction limits, but does not preclude
litigation of the merits in a court with jurisdiction.”); Rogers v. Nacchio, 2006 WL
7997562 (S.D. Fla. 2006), aff'd in part, appeal dismissed in part, 241 Fed. Appx.
602 (11th Cir. 2007).
IV. CONCLUSION
Therefore, as set forth above I would affirm the trial judge’s dismissal of the
complaint for lack of personal jurisdiction without leave to amend but with leave
for Intego to file in California or any other forum where it may obtain personal
jurisdiction over CDI. I also note that the trial court did not address CDI’s
39
alternative argument for dismissal based on forum non conveniens. I therefore see
no reason that CDI cannot seek a ruling from the trial court on that motion on
remand.
40