[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 10, 2009
No. 08-12328
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-01740-CV-ORL-22-KRS
INTERNET SOLUTIONS CORPORATION,
Plaintiff-Appellant,
versus
TABATHA MARSHALL,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 10, 2009)
Before BIRCH and BARKETT, Circuit Judges, and KORMAN,* District Judge.
PER CURIAM:
*
Honorable Edward R. Korman, United States District Judge for the Eastern District of
New York, sitting by designation.
Plaintiff-Appellant Internet Solutions Corporation (“ISC”) appeals the
district court’s dismissal for lack of personal jurisdiction of its claim against
Defendant-Appellee Tabatha Marshall involving allegedly defamatory postings on
Marshall’s website. The district court dismissed the claim because ISC failed to
show that Marshall had sufficient contacts with the forum state, Florida, and
because exercising personal jurisdiction over the claim would be at odds with due
process. Since there is no controlling Florida precedent regarding the application
of the state long-arm statute to internet websites, we certify the question to the
Florida Supreme Court and defer our decision pending this certification.
I. BACKGROUND
ISC, a Nevada corporation with its principal place of business in Orlando,
Florida, operates a number of internet websites that deal with employment
recruiting and internet advertising. Marshall, a Washington resident, owns and
operates a website, http://www.tabathamarshall.com, on which she posts
information about various consumer-related issues regarding different companies.
The site permits third parties to comment on all of Marshall’s entries, with these
comments appearing on the same webpage as the original post. In August 2007,
Marshall put up a post about VeriResume, one of the websites operated by ISC. It
appears that contact information for VeriResume and other ISC affiliates also was
2
listed on a separate part of the website.
In November 2007, ISC filed a diversity action against Marshall in the
United States District Court for the Middle District of Florida. ISC brought claims
of defamation, trade libel, and injurious falsehood, and sought injunctive relief. It
also contended that venue was proper in the Middle District because a substantial
part of the circumstances which gave rise to its claims occurred in that district.
The court had jurisdiction, ISC asserted, because Marshall had entered into Florida
to commit a tortious act and reasonably should have known that her statements
could have subjected her to litigation in Florida.
Marshall subsequently moved to dismiss the complaint for lack of
jurisdiction. She contended that the court had no personal jurisdiction under
Florida’s long-arm statute, Fla. Stat. § 48.193, because she did not have sufficient
Florida-related contacts and had not committed a tortious act in that state.1 She
also asserted that the exercise of personal jurisdiction by the court would violate
federal due process. As part of this motion, Marshall filed a declaration in which
she detailed her lack of contacts with Florida. In this declaration, she stated that
she had been a resident of Washington since 2000, owned no property in Florida,
had no investments in Florida businesses, held no bank accounts in that state, and
1
She also contended that there was no pendent jurisdiction, but the district court rejected
this argument and the issue has not been raised on appeal.
3
had visited it on only one occasion — a three-day work-related trip in 2004 which
was unconnected to her website. She also declared that she received no income for
her website, did not sell any products or services through her website, had not
solicited or received any business or donations from Florida for her website, and
had not sent any business-related communications into Florida tied to her website.
In addition, she stated that she never provided on her website any mechanism to
identify Florida companies discussed therein.
The district court granted Marshall’s motion and dismissed ISC’s claim
based on lack of personal jurisdiction. The court first found that the exercise of
jurisdiction was appropriate under Florida’s long-arm statute because ISC had
made out a prima facie case for jurisdiction, which Marshall failed to rebut. The
court then addressed whether the exercise of jurisdiction would violate federal due
process. It determined that Marshall’s declaration adequately rebutted ISC’s prima
facie showing of jurisdiction and that ISC failed to refute Marshall’s contention
that she did not have the requisite minimum contacts. As a result, the court found
that it lacked personal jurisdiction over the claim since Marshall did not have the
minimum contacts with Florida that would be necessary to exercise jurisdiction in
a manner that would mesh with traditional concepts of fairness and justice. ISC
now appeals the district court’s dismissal.
4
II. DISCUSSION
We review a district court’s dismissal for lack of personal jurisdiction de
novo. See Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008). The
plaintiff bears the burden of making out a prima facie case for personal jurisdiction
by presenting sufficient evidence to withstand a directed verdict motion. See
Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360
(11th Cir. 2006). The defendant then must “raise[], through affidavits, documents
or testimony, a meritorious challenge to personal jurisdiction.” Sculptchair, Inc. v.
Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir. 1996) (quotation marks omitted).
If the defendant does so, “the burden shifts to the plaintiff to prove jurisdiction by
affidavits, testimony or documents.” Id. (quotation marks omitted).
We use a two-step inquiry in determining whether the exercise of personal
jurisdiction of a non-resident defendant is proper. See Horizon Aggressive
Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir. 2005). First,
we examine whether the exercise of jurisdiction would be appropriate under that
state’s long-arm statute. See id. “Second, we examine whether the exercise of
personal jurisdiction over the defendant would violate the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.” Id. (quotation
marks and citation omitted). The due process inquiry requires us to determine
5
whether “the defendant ha[s] minimum contacts with the forum state” and if the
district court’s exercising of jurisdiction over that defendant would “offend
traditional notions of fair play and substantial justice.” Id. (quotation marks and
citation omitted).
Florida’s long-arm statute permits state courts to exercise jurisdiction over a
cause of action arising out of a tortious act committed within Florida. Fla. Stat.
§ 48.193(1)(b) (2008). For the purposes of the statute, the defendant does not have
to be physically present in Florida for the tortious act to occur within that state.
See Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002). Additionally, a
defendant can commit a tortious act within Florida via her “telephonic, electronic,
or written communications into Florida” so long as the cause of action arose from
those communications. Id.
Marshall thus would be subject to jurisdiction under § 48.193(1)(b) if her
allegedly defamatory postings on her website constituted electronic
communications “into Florida.” The Florida Supreme Court has yet to address
whether the posting of information on an out-of-state website about a company
with its principal place of business in Florida would meet the statutory
requirements for long-arm jurisdiction. Some state appellate courts have indicated
that it might. In Becker v. Hooshmand, 841 So. 2d 561, 561–63 (Fla. Dist. Ct.
6
App. 4 2003), for example, the court concluded that it had jurisdiction regarding a
defamation claim against a Pennsylvania resident who posted allegedly defamatory
material about a Florida doctor in an internet chat room, even though the comments
did not specifically target Florida residents. The Becker court appears to expand
on the traditional concept that jurisdiction could only be created if the
communications were directed at Florida residents, such as mailing a letter into
Florida or making a defamatory telephone call to a Florida resident.2 See Casita,
L.P. v. Maplewood Equity Partners L.P., 960 So. 2d 854, 857 (Fla. Dist. Ct. App. 3
2007) (noting that long-arm jurisdiction is proper when “the communication was
made into this state by a person outside the state”). If a court applied the
traditional standard, it might not have jurisdiction over Marshall since her
statements appeared on a general website and did not specifically target Florida
residents.
We conclude that Florida law is unsettled regarding whether Marshall’s
actions would meet the requirements of § 48.193(1)(b). Since we thus are dealing
2
We note that at least one federal district court seems to disagree with Becker and only
find jurisdiction when the website clearly targets Florida. In Whitney Information Network, Inc.
v. Xcentric Ventures, LLC, 347 F. Supp. 2d 1242, 1244–45 (M.D. Fla. 2004), the court found
jurisdiction proper because the defendants, who ran an Arizona-based consumer protection
website, permitted users to request information on companies from any state, including Florida,
and offered their assistance in the filing of class action suits against these companies. These
activities, the court found, meant that the defendants ran more than just a “passive website” and
thus made them subject to the court’s jurisdiction. Id. at 1245.
7
with questions of Florida law which are determinative of this case and for which
“there are no clear controlling precedents in the decisions of the Supreme Court of
[Florida],” we certify the issue to that court. See Fla. Stat. § 25.031; Fla. R. App.
P. 9.150(a).
III. QUESTION CERTIFIED
We respectfully certify the following question to the Supreme Court of
Florida for further instruction:
DOES POSTING ALLEGEDLY DEFAMATORY STORIES AND
COMMENTS ABOUT A COMPANY WITH ITS PRINCIPAL PLACE OF
BUSINESS IN FLORIDA ON A NON-COMMERCIAL WEBSITE OWNED
AND OPERATED BY A NONRESIDENT WITH NO OTHER CONNECTIONS
TO FLORIDA CONSTITUTE COMMISSION OF A TORTIOUS ACT WITHIN
FLORIDA FOR PURPOSES OF FLA. STAT. § 48.193(1)(b)?
Our phrasing of this question should not limit how the Supreme Court
analyzes the relevant issues and responds to the question in light of the record in
this case. See Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 284 F.3d 1228, 1234
(11th Cir. 2002). To assist the Supreme Court in considering this issue, we
transmit to the court the entire record in this case along with the briefs of the
parties.
QUESTION CERTIFIED
8