Robinson v. Giarmarco & Bill, P.C.

United States Court of Appeals,

Eleventh Circuit.

No. 94-5215.

Marilyn Z. ROBINSON, individually as Co-Personal Representative
of the Estate of Marvin L. Robinson, as Co-Trustee of the Marvin L.
Robinson Amended and Re-stated Trust and as Co-Trustee of the
Marvin L. Robinson Marital Trust, Plaintiff-Appellee,

v.

GIARMARCO & BILL, P.C., Julius H. Giarmarco, David Hertzberg,
Purdy Donovan and Beal, CPAs and S. Sam Tootalian, Defendants-
Appellants.

Feb. 6, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-6211-CIV-JAG), Jose A. Gonzalez, Jr.,
Judge.

Before COX, Circuit Judge, DYER, Senior Circuit Judge, and
GOETTEL*, Senior District Judge.

DYER, Senior Circuit Judge:

Attorney Julius Giarmarco and his firm ("Giarmarco"), Attorney

David Hertzberg ("Hertzberg"), S. Sam Tootalian ("Tootalian"), a

partner in Purdy, Donovan & Beal CPAs, challenge the district

court's finding of personal jurisdiction and proper venue. We

affirm on both issues.

I. BACKGROUND

A. Standard of Review

This appeal involves the denial of a motion to dismiss for

lack of personal jurisdiction or for a change of venue. See

Fed.R.Civ.P. 12(b). The district court predicated its decision on

the complaint, defendants' affidavits, and Tootalian's deposition

*
Honorable Gerard L. Goettel, Senior U.S. District Judge for
the Southern District of New York, sitting by designation.
testimony. Exercising its discretion, the court did not hold an

evidentiary hearing. Delong Equip. Co. v. Washington Mills

Abrasive Co., 840 F.2d 843, 845 (11th Cir.1988). The district

court's refusal to change venue will only be disturbed for a clear

abuse of discretion. Howell v. Tanner, 650 F.2d 610, 616 (5th Cir.

Unit B 1981), cert. denied, 456 U.S. 918, 102 S.Ct. 1775, 72

L.Ed.2d 178 (1982). We review denial of a motion to dismiss for

lack of personal jurisdiction de novo. Cable/Home Communication

Corp. v. Network Productions, Inc., 902 F.2d 829, 855 (11th

Cir.1990). When no evidentiary hearing has been held, the standard

by which to decide the issue of personal jurisdiction is clear:

[T]he plaintiff must establish a prima facie case of personal
jurisdiction over a nonresident defendant. A prima facie case
is established if the plaintiff presents enough evidence to
withstand a motion for directed verdict. The district court
must accept the facts alleged in the complaint as true, to the
extent they are uncontroverted by the defendant's affidavits.
Finally, where the plaintiff's complaint and the defendant's
affidavits conflict, the district court must construe all
reasonable inferences in favor of the plaintiff.

Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990) (citations

omitted).

After reviewing the documents before the district court, we

find no actual conflict in comparing the allegations on the face of

the complaint with the defendants' affidavits and Tootalian's

testimony. The defendants have alleged facts that either harmonize

with or are not directly addressed in the complaint. To the extent

that conflicting inferences can be drawn from the jurisdictional

allegations asserted by both sides, we construe all reasonable

inferences for the plaintiff in detailing the following relevant

facts.
B. Facts

This case arises from estate planning services which the

defendants rendered to Marvin Robinson ("Decedent"). The

defendants reside and are licensed to practice only in Michigan.

The Decedent resided in Michigan until 1980 when he and his wife

moved to Florida.

Tootalian began providing accounting services to the Decedent

in 1957 but it was not until 1980, after the Decedent had relocated

to Florida, that Tootalian became involved with the Decedent's

estate planning. He provided financial data and attended meetings

with the Decedent's original tax attorney, who is not a party to

this litigation. In 1984, the Decedent discharged his tax attorney

and Tootalian contacted Hertzberg to assume representation of the

Decedent in his estate planning matters.

In 1987 the Decedent requested that Hertzberg prepare a will

and amend an existing trust agreement. By their terms, the will

and the amended trust agreement were governed by and administered

under Florida law. The will identified the Decedent as a Florida

resident. Hertzberg delivered the documents to the Decedent in

Florida, where they were executed.1 While Hertzberg represented

the Decedent, Tootalian's participation in the estate planning

1
Hertzberg's affidavit states "[t]hat upon completing the
drafting of decedent's trust and estate documents, I forwarded
them to his accountant, S. Sam Tootalian, in Bloomfield,
Michigan." It is unclear whether "estate documents" encompasses
the will but, construing the vagueness in favor of the plaintiff,
we presume that it does. It is obvious from the very documents
that Hertzberg drafted that he knew his client lived in Florida.
Presumably, he also knew that Tootalian would have to mail the
documents to Florida. This is a reasonable inference because the
complaint alleges, and the defendants do not dispute, that the
documents were executed in Florida.
increased. He met with the Decedent and Hertzberg and had many

telephone conversations with the Decedent to discuss the estate.

Hertzberg announced his retirement from practice in 1989, at

which time Tootalian introduced the Decedent to Giarmarco.

Giarmarco represented the Decedent from at least January 1990 until

November 1990, during which time he prepared a codicil to the will,

which again identified the Decedent as a Florida resident and

stated that Florida law would govern. He also prepared two

amendments to the trust agreement. Giarmarco mailed these

documents to the Decedent in Florida, where they were executed.

Several facts alleged in the complaint are uncontroverted.

First, in September 1988 the Decedent employed Tootalian to review

his will and trust documents "to project the testamentary

disposition thereunder." In that same month, the plaintiff

alleges, Tootalian "prepared a memorandum to the Decedent, stating

that he had reviewed the Trust and projected the distributions to

Plaintiff and the Marital Trust as if neither were to bear any

portion of the estate taxes." The plaintiff further asserts that

Tootalian prepared two memorandums in November 1989. One was

addressed to the Decedent advising him that the "Marital Trust and

assets passing to Plaintiff would be free of estate taxes." The

second memorandum, addressed to Giarmarco, advised Giarmarco that

the Decedent wanted him to review certain matters raised in the

memorandum and to make certain changes to the trust documents.

Finally, the plaintiff alleges that Tootalian's engagement

continued until at least September 12, 1990, when he prepared a

memorandum advising the Decedent that "his current trust documents
essentially provided for the distribution of his net assets to or

for the benefit of Marilyn A. Robinson free of estate taxes."

Marvin Robinson died in 1992. His will was admitted to

probate and the trust is administered in Broward County, Florida.

Contrary to the Decedent's intentions, the trust and estate

incurred a tax liability in excess of $850,000, which prompted the

plaintiff to file suit for negligence and breach of contract. The

defendants moved to dismiss for lack of personal jurisdiction or,

alternatively, for a change of venue to Michigan. The district

court determined that the facts alleged in the complaint supported

jurisdiction pursuant to Florida Statutes § 48.193(1)(b) (1989) and

the Due Process Clause of the Fourteenth Amendment. The court

further found venue proper pursuant to 28 U.S.C. § 1391, and that

a transfer would merely shift inconvenience from the defendants to

the plaintiff. Defendants appeal that judgment.

II. DISCUSSION

The analytical steps necessary to decide whether the district

court has personal jurisdiction over the defendants are succinctly

stated in Madara:

The determination of personal jurisdiction over a nonresident
defendant requires a two-part analysis. First, we consider
the jurisdictional question under the state long-arm statute.
If there is a basis for the assertion of personal jurisdiction
under the state statute, we next determine whether sufficient
minimum contacts exist to satisfy the Due Process Clause of
the Fourteenth Amendment so that "maintenance of the suit does
not offend "traditional notions of fair play and substantial
justice.' " Only if both prongs of the analysis are satisfied
may a federal or state court exercise personal jurisdiction
over a nonresident defendant.

916 F.2d at 1514 (citations omitted) (quoting International Shoe

Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed.
95 (1945)).

A. Long-Arm Statute

The Florida Long-Arm Statute permits a federal or state court

to exercise personal jurisdiction over a nonresident defendant in

certain enumerated situations. In pertinent part 48.193 provides:

(1) Any 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 ...
to the jurisdiction of the court of this state for any cause
of action arising from the doing of any of the following acts:

....

(b) Committing a tortious act within this state.

The reach of the statute is a question of Florida law. Thus,

"federal courts are required to construe it as would the Florida

Supreme Court." Madara, 916 F.2d at 1514.

Defendants argue that Doe v. Thompson, 620 So.2d 1004

(Fla.1993), and its progeny, demonstrate that an allegedly

negligent act committed outside of the state resulting in injury in

Florida is insufficient to confer personal jurisdiction over a

nonresident defendant. The cases cited by defendants do not

indicate such a trend,2 nor is that the holding of Doe. Silver,

2
The cases cited by Giarmarco and Hertzberg only involve
intentional torts, and do not address the issue of foreign
negligence resulting in damage to a Florida resident. See, e.g.,
Silver v. Levinson, 648 So.2d 240, 242 (Fla.Dist.Ct.App.1994)
(personal jurisdiction found where plaintiff's allegations that
nonresident defendant sent defamatory letter to recipient in
Florida); Allerton v. State Dep't of Ins., 635 So.2d 36, 39
(Fla.Dist.Ct.App.1994) (personal jurisdiction found where
plaintiff alleged nonresident employee of securities firm
participated in scheme to conceal true financial condition of a
Florida insurer); Pipkin v. Wiggins, 526 So.2d 1002, 1003
(Fla.Dist.Ct.App.1988) (personal jurisdiction found where
nonresident defendant intentionally interfered with business
relationship in Florida); Carida v. Holy Cross Hosp., Inc., 424
So.2d 849, 851 (Fla.Dist.Ct.App.1982) (personal jurisdiction
648 So.2d at 242 ("Doe only addressed the "corporate shield'

doctrine: section 48.193(1)(b) does not subject an employee to

personal jurisdiction who has performed a negligent act outside of

the state solely in his corporate capacity even if the injury

occurs in Florida"); Allerton, 635 So.2d at 39 (In Doe "the

supreme court agreed that, under the corporate shield doctrine,

acts of a corporate employee performed in a corporate capacity do

not form the basis for jurisdiction over corporate employees in

their individual capacities"). The corporate shield doctrine has
not been raised as a defense in this case. Therefore, Doe and its

progeny are inapposite.

This court previously determined that Florida law

interpreting the reach of § 48.193(1)(b) was unclear. Sun Bank,

N.A. v. E.F. Hutton & Co., 926 F.2d 1030, 1033 (11th Cir.1991).

Although Florida courts have since fleshed out, at least to some

extent, the parameters of the statute in the context of intentional

torts, see, e.g., Doe and the cases cited in note 2, the scope of

found where plaintiff alleged nonresident doctor made libelous
telephone calls to Florida residents).

Defendants further rely on Phillips v. Orange Co., 522
So.2d 64 (Fla.Dist.Ct.App.1988) and Kennedy v. Reed, 533
So.2d 1200 (Fla.Dist.Ct.App.1988). In Phillips the court
found it lacked personal jurisdiction because the plaintiff
suffered no injury in Florida. 522 So.2d at 66. The lack
of personal jurisdiction in Kennedy turned on the
plaintiff's failure to allege specific acts that occurred in
Florida tying the nonresident defendants to the forum, and
failure to allege facts showing defendants had sufficient
minimum contacts. 533 So.2d at 1201-02. Allegations in the
complaint that the alleged damage occurred in Florida,
standing alone, did not confer jurisdiction in that case.
Id. Because the present case is factually distinct, we
believe the Florida Supreme Court would find neither
Phillips nor Kennedy controlling.
the statute when the plaintiff has alleged negligence remains

unclear. We therefore follow the rule of Sun Bank: "jurisdiction

under § 48.193(1)(b) "[is] not limited to a situation where an act

in Florida cause[s] an injury in Florida but also ... reache[s] the

situation where a foreign tortious act cause[s] injury in Florida.'

" Id. (citing Bangor Punta Operations, Inc. v. Universal Marine

Co., 543 F.2d 1107, 1109 (5th Cir.1976)). The complaint

sufficiently alleges that the attorneys negligently drafted and the

accountant negligently reviewed the will and the trust documents,

which they intended to be administered in Florida under Florida

law. Their negligence has allegedly caused damage to an estate in

Florida. Accordingly, we hold that the statute provides for

personal jurisdiction over Giarmarco, Hertzberg and Tootalian.

B. Due Process

We engage in a two-prong inquiry to determine whether

asserting personal jurisdiction over nonresident defendants

comports with due process. First, we must decide whether each

defendant has established "minimum contacts" with Florida. Second,

we must determine whether the exercise of personal jurisdiction

would offend " "traditional notions of fair play and substantial

justice.' " Madara, 916 F.2d at 1515-16 (citing Williams Elec. Co.

v. Honeywell, Inc., 854 F.2d 389, 392 (11th Cir.1988) (quoting

International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct.

154, 158, 90 L.Ed. 95 (1945)). The due process principles

applicable to specific personal jurisdiction are well stated in

Madara:

1. Minimum contacts
 Where a forum seeks to assert specific personal
jurisdiction over a nonresident defendant, due process
requires the defendant have "fair warning" that a particular
activity may subject him to the jurisdiction of a foreign
sovereign. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472,
105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985); Shaffer v.
Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d
683 (1977) (Stevens, J. concurring in judgment). This fair
warning requirement is satisfied if the defendant has
"purposefully directed" his activities at the forum, Keeton
[v. Hustler Magazine, Inc.] 465 U.S. [770] at 774, 104 S.Ct.
[1473] at 1473 [79 L.Ed.2d 790 (1984) ], and the litigation
results from alleged injuries that "arise out of or relate to"
those activities. Burger King, 471 U.S. at 472, 105 S.Ct. at
2182 (quoting Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404
(1984)).

Additionally, the defendant's conduct and connection with
the forum must be of a character that he should reasonably
anticipate being haled into court there. Burger King, 471
U.S. at 474, 105 S.Ct. at 2183; World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d
490 (1980). However,

the unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy
the requirement of contact with the forum State ... it is
essential in each case that there be 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.

Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40,
2 L.Ed.2d 1283, reh'g denied, 358 U.S. 858, 79 S.Ct. 10, 3
L.Ed.2d 92 (1958). This requirement assures that a defendant
will not be haled into a jurisdiction as a result of random,
fortuitous, or attenuated contacts, Burger King, 471 U.S. at
475, 105 S.Ct. at 2183; Keeton, 465 U.S. at 774, 104 S.Ct. at
1478; or because of the unilateral activity of a third
person. Burger King, 471 U.S. at 475, 105 S.Ct. at 2183;
Helicopteros, 466 U.S. at 417, 104 S.Ct. at 1873.
Jurisdiction is proper where the defendant's contacts with the
forum proximately result from actions by the defendant himself
that create a "substantial connection" with the forum state.
Burger King, 471 U.S. at 475, 105 S.Ct. at 2183 (quoting McGee
v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct.
199, 201, 2 L.Ed.2d 223 (1957)). Although the concept of
foreseeability is not irrelevant to this analysis, the kind of
foreseeability critical to the proper exercise of personal
jurisdiction is not the ability to see that the acts of third
persons may affect the forum, but rather that the defendant's
own purposeful acts will have some effect in the forum. See
Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112,
 107 S.Ct. 1026, 1032-33, 94 L.Ed.2d 92 (1987).

2. Fair Play and Substantial Justice

Once it has been determined that the nonresident
defendant has purposefully established minimum contacts with
the forum such that he should reasonably anticipate being
haled into court there, these contacts are considered in light
of other factors to decide whether the assertion of personal
jurisdiction would comport with "fair play and substantial
justice." Burger King, 471 U.S. at 476, 105 S.Ct. at 2184
(quoting International Shoe Co., 326 U.S. at 320, 66 S.Ct. at
160). These other factors are the burden on the defendant in
defending the lawsuit, the forum state's interest in
adjudicating the dispute, the plaintiff's interest in
obtaining convenient and effective relief, the interstate
judicial system's interest in obtaining the most efficient
resolution of controversies and the shared interest of the
states in furthering fundamental substantive social policies.
Burger King, 471 U.S. at 477, 105 S.Ct. at 2184; World-Wide
Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564. Minimum
requirements of "fair play and substantial justice" may defeat
the reasonableness of asserting personal jurisdiction even if
the defendant has purposefully engaged in forum activities.
Burger King, 471 U.S. at 477-78, 105 S.Ct. at 2185.
Conversely, these considerations may serve to establish the
reasonableness of jurisdiction upon a lesser showing of
minimum contacts than would otherwise be required. Id. at
477, 105 S.Ct. at 2184.

916 F.2d at 1516-17 (footnote omitted).

With these principles in mind, we turn to the present case.

The Decedent did not retain Hertzberg, Giarmarco, and Tootalian to

merely perform ministerial tasks; rather he retained them to

analyze federal and Florida law, to design a will and trust that

would minimize taxes, and to advise him of the disposition of

assets upon his death so that he could ensure the estate would pass

as he intended. The attorneys and Tootalian rendered estate

planning services to the Decedent knowing that he resided in

Florida. The defendants all knew that the will would be probated,

and the trust administered, in Florida. They all mailed

correspondence to the Decedent in Florida.
 Although Tootalian worked jointly with the tax attorneys, each

defendant has established minimum contacts with the forum.

Hertzberg and Giarmarco drafted documents intending for Florida law

to govern the disposition of assets located in Florida. Tootalian

provided various accounting services to the Decedent for over

thirty years. Significantly, however, he only became involved in

the estate planning after the Decedent moved to Florida in 1980,

and his participation in the estate matters increased thereafter.

Tootalian reviewed the estate documents, and wrote memorandums

directed to the Decedent in Florida projecting the testamentary

disposition of the estate, which, if done properly, required

analysis of federal and state tax codes. Tootalian, by his own

admission, also had many telephone conversations with the

Decedent.3 Clearly, if any one of the defendants was negligent,

his conduct resulted in damage to an estate and trust in Florida.

The defendants are not being haled into a Florida court as the

result of any random, fortuitous, or attenuated contacts, or

because of any unilateral activity by the Decedent. The nature of

the professional services rendered in this case was such that the

defendants were fully aware that their actions or omissions would

have a substantial effect in Florida. They should have reasonably

anticipated the possibility of a suit arising from conduct directed

towards the Florida Decedent. We conclude each defendant has

3
By an order filed contemporaneously with this opinion we
denied, on procedural grounds, plaintiff's motion for us to take
judicial notice and supplement the record to show that Tootalian
sought affirmative relief in the Florida court by filing a
petition for fees and costs for services rendered to the
Decedent's estate and trust.
purposefully directed his activities at the forum sufficient to

establish minimum contacts.

The assertion of personal jurisdiction comports with fair

play and substantial justice. The State of Florida has a

significant interest in adjudicating a dispute involving services

provided by out-of-state professionals to its resident, concerning

assets located within its borders. The plaintiff, a Florida

resident, has a great interest in the convenience of litigating in

her home state. The burden on the defendants occasioned by

litigating outside of Michigan is not slight, but modern methods of

transportation and communication reduce this burden significantly.

See McGee, 355 U.S. at 223, 78 S.Ct. at 201. Finally, we do not

see any interest of the interstate judicial system in obtaining the

most efficient resolution of controversies, or any interest of the

states in furthering fundamental social policies that will be

thwarted by our decision. On balance, these considerations do not

defeat our conclusion to assert personal jurisdiction over the

defendants.

III. VENUE

A district court may transfer a case "for the convenience of

the parties and witnesses, and in the interest of justice." 28

U.S.C. § 1404(a) (1993). "The plaintiff's choice of forum should

not be disturbed unless it is clearly outweighed by other

considerations." Howell, 650 F.2d at 616. The district court

found that transferring the case to Michigan would merely shift

inconvenience from the defendants to the plaintiff, implying that

the plaintiff's choice of forum was not outweighed by other
factors. We see no abuse of discretion in that decision.

IV. CONCLUSION

For the foregoing reasons, we hold that the defendants are

subject to the personal jurisdiction of the district court and that

the motion to change venue was properly denied. AFFIRMED.