[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_________________________ APRIL 19, 2002
THOMAS K. KAHN
No. 01-14431 CLERK
_________________________
D.C. Docket No. 99-03213-CV-SH
VICTOR A. MEIER, a minor, by and
through his parents, WILBER L. MEIER,
JR., as parent and natural guardian for
Victor Meier and Wilber L. Meier, III,
minors, PATRICIA MEIER, as parent for
Victor A. Meier and Wilber L. Meier, III,
minors, WILBER L. MEIER, III, a minor
by and through his parents Wilber L.
Meier, Jr., and Patricia Meier,
Plaintiffs-Appellants,
versus
SUN INTERNATIONAL HOTELS, LTD.,
a Bahamas Company,
SUN INTERNATIONAL BAHAMAS, LTD.,
a Bahamas Company,
ISLAND HOTEL COMPANY, LTD.,
a Bahamas Company,a.k.a. Atlantis Resort & Casino,
Paradise Island, PARADISE ISLAND, LTD.,
a Bahamas Company, WEDGE HOTEL MANAGEMENT
(BAHAMAS) LTD., a.k.a. Resort & Hotel, Paradise Island
PARADISE GRAND HOTEL VENTURE, LTD.,
a Bahamas joint venture,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 19, 2002)
Before BLACK and RONEY, Circuit Judges, and RESTANI*, Judge
RESTANI, Judge:
Plaintiffs-Appellants (hereinafter “Plaintiffs”) appeal the district court’s
dismissal of their complaint for lack of personal jurisdiction over several Bahamian
corporations as well as the district court’s order denying reconsideration of that
dismissal. Defendants-Appellees request that the court affirm the district court or,
in the alternative, dismiss for forum non conveniens. Because we find that the
federal district court in Florida may properly assert personal jurisdiction over
defendants-appellees, we REVERSE and REMAND.
I. BACKGROUND
In 1999, Plaintiffs were vacationing on Paradise Island in the Bahamas. On
July 19, 1999, Victor A. Meier went snorkeling with his father, plaintiff Wilber L.
Meier, Jr., and brother, plaintiff Wilber L. Meier, III, in an area known as
*
Honorable Jane A. Restani, Judge, U.S. Court of International Trade,
sitting by designation.
2
Snorkeler’s Cove. While snorkeling, Victor was struck by a commercial
motorboat and sustained massive injuries. After being transported to shore, Victor
was airlifted to Miami, Florida, to undergo medical treatment. He survived but lost
his arm and was permanently disfigured.
The Meiers subsequently filed this diversity action1 in the Southern District
of Florida against several foreign defendants, including Sun International Hotels,
Ltd. (“Sun Hotels”), Sun International Bahamas, Ltd. (“Sun Bahamas”), Island
Hotel Company, Ltd. (“Island Hotel”), and Paradise Island, Ltd. (“Paradise Island”)
(collectively “Sun Defendants”).2 Plaintiffs brought personal injury claims for
Victor’s physical injuries and for alleged emotional distress suffered by the entire
family. Plaintiffs claimed that the Sun Defendants were partially responsible for the
motorboat and, therefore, liable for the Plaintiffs’ injuries.
According to Plaintiffs, the motorboat was owned and operated by a
1
It is undisputed that the district court had original subject matter
jurisdiction through diversity of citizenship pursuant to 28 U.S.C. § 1332. The
Plaintiffs are citizens of Utah and the Defendants are foreign Bahamian
corporations. Defendants do not contest that the claims exceed $75,000.00.
2
The Meiers also brought claims against defendants Wedge Hotel
Management (Bahamas), Ltd., and Paradise Grand Hotel Venture, Ltd.
(collectively “Sheraton Defendants”). Although the district court denied the
Sheraton Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction, the
Plaintiffs requested that the court dismiss the Sheraton claims without prejudice in
order to pursue this appeal.
3
Bahamian water-sports vendor conducting business at the Atlantis Hotel and Casino
(“Atlantis”) located on Paradise Island.3 The Sun Defendants are a group of related
corporations that own and operate Atlantis. Sun Hotels is a holding company and
the parent corporation of Sun Bahamas. Sun Bahamas is a holding company and
the parent corporation of both Island Hotel, which manages and operates Atlantis,
and Paradise Island, the primary owner of land associated with Atlantis. Because
all four are admittedly affiliated with the ownership and operation of Atlantis,
Plaintiffs claim that the Sun Defendants are liable for their own negligent
supervision of the motorboat and vicariously liable for the operator’s negligence.4
The Sun Defendants moved to dismiss the Plaintiffs’ complaint for lack of
personal jurisdiction or, in the alternative, for forum non conveniens. Fed. R. Civ.
P. Rules 12(b)(2) and (3). The Sun Defendants argued that they were not subject to
in personam jurisdiction in Florida because they are Bahamian corporations without
the contacts necessary for the court to assert jurisdiction.
In support of the motion, the Sun Defendants submitted affidavits from
3
At the time of the accident, the Plaintiffs were registered guests at an
unrelated hotel.
4
The Sun Defendants’ denials of any relationship to the boat are irrelevant
to this inquiry and would be more appropriately raised in a 12(b)(6) Motion to
Dismiss or Motion for Summary Judgment.
4
Giselle Pyfrom and James Barrie Farrington. Pyfrom is the Assistant Secretary of
Sun Hotels and Senior Vice President at Sun Bahamas. Farrington is the Secretary
and Director of Paradise Island as well as the Director of Island Hotel. The
identical affidavits state, among other things, that the Sun Defendants are organized
and incorporated in the Bahamas, have their principal place of business in the
Bahamas, do not have a registered office or registered agent to conduct business in
the United States, and, most importantly, conduct business only in the Bahamas.
In response to the affidavits, Plaintiffs submitted depositions and
documentary evidence suggesting numerous contacts with Florida. The evidence
included a press release directing inquiries to a Sun Hotel officer’s telephone
number in Broward County, Florida, as well as a government form listing a Fort
Lauderdale attorney as an “Authorized Representative in the United States” and
“Agent for Service.” Plaintiffs submitted information from a website listing at least
six contact telephone numbers associated with the Sun Defendants. The thrust of
this evidence was to suggest that the Sun Defendants themselves conduct business
in Florida. In addition, the Plaintiffs submitted evidence regarding two U.S.
subsidiaries of Sun Hotels located in Florida, Sun International Resorts (“Sun
Resorts”) and Paradise Island Vacations (“PIV”) (collectively “the Florida
Subsidiaries”).
5
The district court granted the Sun Defendants’ motion to dismiss on grounds
that the Florida long-arm statute did not provide general jurisdiction over subsidiary
or agent corporations. The court stated that nothing in the language of § 48.193(2)
supports plaintiffs’ argument that the activities of the Sun Defendants’ agents may
be imputed to the defendants to satisfy the requirements of the statute. The court
went on to state that, for the same reason, the contacts would not satisfy the due
process requirements of the Fourteenth Amendment. Because the district court
dismissed the claims for lack of jurisdiction, the court did not address forum non
conveniens.
Following the court’s order, Plaintiffs moved for reconsideration. The
Plaintiffs requested that they be allowed to replead the matter based on additional
evidence regarding the Sun Defendants’ contacts in Florida. The district court
denied that request. The Meiers, therefore, appeal that denial and the original
dismissal for lack of jurisdiction. The Sun Defendants again argue that jurisdiction
was improper. In addition, Sun Defendants argue forum non conveniens.
II. STANDARD OF REVIEW AND BURDEN OF PROOF
We review the district court’s dismissal for lack of personal jurisdiction de
novo. See S.E.C. v. Carrillo, 115 F.3d 1540, 1542 (11th Cir. 1997). The plaintiff
has the burden of establishing a prima facie case of personal jurisdiction over a
6
nonresident defendant. See Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988).
“A prima facie case is established if the plaintiff presents enough evidence to
withstand a motion for directed verdict.” Madara v. Hall, 916 F.2d 1510, 1514
(11th Cir. 1990) (citation omitted).
Where, as here, the defendant submits affidavits to the contrary, the burden
traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction
unless those affidavits contain only conclusory assertions that the defendant is not
subject to jurisdiction. See Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir.
1999). Where the plaintiff’s complaint and supporting evidence conflict with the
defendant’s affidavits, the court must construe all reasonable inferences in favor of
the plaintiff. See Madara, 916 F.2d at 1514.
III. DISCUSSION
A. Personal Jurisdiction
The primary issue raised on appeal is whether the district court properly
dismissed Plaintiffs’ claims against the Sun Defendants for lack of personal
jurisdiction. A federal district court sitting in diversity may exercise personal
jurisdiction to the extent authorized by the law of the state in which it sits and to the
extent allowed under the Constitution. See Morris, 843 F.2d at 492; see also Lamb
v. Turbine Designs, Inc., 207 F.3d 1259, 1261 (11th Cir. 2000). The court must
7
determine whether the Sun Defendants’ activities satisfy the Florida long-arm
statute and, if satisfied, whether the extension jurisdiction comports with the due
process requirements of the Fourteenth Amendment. Posner, 178 F.3d at 1214
(citing Sculptchair, Inc., v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996)).
1. Florida Long Arm Statute
Plaintiffs argue that the Sun Defendants are subject to personal jurisdiction
under the general jurisdiction5 provision of the Florida long-arm statute. See Fla.
Stat. Ann. § 48.193(2)(2002). The general jurisdiction provision of the statute
states:
A defendant who is engaged in substantial and not isolated activity within
this state, whether such activity is wholly interstate, intrastate, or otherwise,
is subject to the jurisdiction of the courts of this state, whether or not the
claim arises from that activity.
Id. (emphasis added). In addition to the activities undertaken by the Sun
Defendants themselves, Plaintiffs argue that the Sun Defendants engaged in
“substantial and not isolated activity” in Florida through the Florida Subsidiaries.6
5
General jurisdiction arises from defendant’s contacts with forum that are
not directly related to cause of action being litigated. See Consolidated Dev. Corp.
v. Sherritt, Inc., 216 F.3d 1286, 1292 (11th Cir. 2000).
6
The “substantial and not isolated activity” requirement of the long-arm
statute has been recognized by Florida courts as the functional equivalent of the
continuous and systematic contact requirement for general jurisdiction under the
Fourteenth Amendment Due Process Clause as discussed in Helicopteros
8
This gives rise to two issues: 1) whether the Florida long-arm statute allows the
extension of general jurisdiction to a non-resident corporation based on the
activities of an agent; and 2) whether the Florida subsidiaries are agents of the Sun
Defendants.
a. General Jurisdiction Over Related Corporations
The Sun Defendants argue that the plain language of the Florida long-arm
statute prohibits the exercise of general jurisdiction over a non-resident corporation
based upon the acts of a subsidiary or related corporation. The Sun Defendants
compare the specific jurisdiction provision of the Florida long-arm statute, which
discusses the extension of jurisdiction to claims arising from specific acts of an
agent,7 to the general jurisdiction provision, which does not mention agents. The
Sun Defendants argue that the absence of language regarding agents in the latter
should be construed as a prohibition against the extension of general jurisdiction
based on an agent’s activities.
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-16, 104 S.Ct. 1868, 1872-
73 & n. 9 (1984). See Woods v. Nova Cos. Belize, Ltd., 739 So.2d 617, 620 (Fla.
4th DCA 1999).
7
Fla. Stat. Ann. § 48.193(1) states that “[a]ny 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 . . . to the
jurisdiction of the courts of this state. . .” Id. (emphasis added).
9
Plaintiffs cite to Universal Caribbean Establishment v. Bard, 543 So.2d 447
(Fla. 4th DCA 1989), for the proposition that, under the general jurisdiction
provision of the Florida long-arm statute, the activities of the Florida Subsidiaries
can be imputed to the Sun Defendants. In Universal Caribbean, the Florida Court
of Appeals reviewed facts similar to those at issue here. The plaintiffs brought a
personal injury suit against Universal Caribbean, the non-resident corporation that
owned the foreign resort allegedly involved in the injury. Universal Caribbean
moved to dismiss for lack of personal jurisdiction. The plaintiff argued that general
jurisdiction was proper under section 48.193(2) based on the activities of a Florida
subsidiary established by Universal Caribbean as a domestic booking agent for its
resort.
Upon reviewing the functions of the subsidiary and its ties to the foreign
parent corporation,8 the Florida Court of Appeals held that “Universal Caribbean
8
In Universal Caribbean, the court reviewed the financial, administrative,
and practical connections between Universal Caribbean and the Florida subsidiary,
Jolly Beach, Limited (hereinafter “Limited”) at length:
Limited’s business consists of being a tour operator solely for Universal
Caribbean’s Antigua resort. It is the largest booking agent in the United
States for Universal and books approximately 20,000 reservations per year.
While the resort also deals with other tour operators, Limited deals only with
Universal Caribbean. In fact, Limited advertises that it is the tour agent for
“our own hotel.” Dr. Erhardt [, the president of Universal Caribbean and
owner of the hotel,] approved and helped work on these advertising
10
did engage in substantial activity in this state” through its subsidiary. Id. at 448.
The court went on to hold that the foreign corporation was subject to general
jurisdiction pursuant to § 48.193(2) based upon the activities of its Florida
subsidiary. Id.
Although the Sun Defendants’ position conflicts with the intermediate state
court decision in Universal Caribbean, the district court adopted Sun Defendants’
theory finding that “[n]othing in the language of the general personal jurisdiction
brochures. Universal Caribbean approved all of the brochures, and the
stationery of Limited uses the same logo as Universal Caribbean. One of
the brochures prepared by Mr. Mermod [, a former employee of Universal
Caribbean and President of Limited,] and Dr. Erhardt states that “when
booking Jolly Beach, you book directly with the hotel as tour operator.” All
of these materials were prepared with the permission and approval of
Universal Caribbean. Both Dr. Erhardt and the hotel managers come to the
United States occasionally, and, while here, they meet with Mr. Mermod and
visit Limited’s office. Furthermore, Limited has an employee at the resort
to assist guests.
Limited prepares tour packages from hotel room rates given to it by
Universal Caribbean. It puts a profit on the total package and collects these
monies from various travel agents with whom it deals. It is then invoiced
by the hotel for the rooms occupied by Limited’s tour guests, and Limited
pays those invoices by wire transfer of monies to the hotel’s accounts in
New York. Limited also handles guest complaints and credits for the resort.
Although Limited does not have any written agreement to perform other
services for Universal Caribbean, it occasionally arranges for special
transportation of items to the hotel, special arrangements for guests, and
special needs of the hotel when requested.
Universal Caribbean, 543 So.2d at 448.
11
provision supports the plaintiffs’ argument that the activities of the Sun Defendants’
agents may be imputed to the defendants to satisfy the requirements of the statute.”
The court expressly rejected the holding of Universal Caribbean stating that
“[b]ecause it is not a decision of the Florida Supreme Court, [Universal Caribbean]
does not constitute binding authority on this issue of Florida law.” We disagree.
The reach of the [Florida long-arm] statute is a question of Florida law.”
Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 257 (11th Cir. 1996). “[F]ederal
courts are required to construe [such law] as would the Florida Supreme Court.”
Madara, 916 F.2d at 1514. “Absent some indication that the Florida Supreme
Court would hold otherwise, [federal courts] are bound to adhere to decisions of its
intermediate courts.” Sculptchair, 94 F.3d at 627 (citing Polskie Linie Oceaniczne
v. Seasafe Transp. A/S, 795 F.2d 968, 970 (11th Cir. 1986)).
Defendants do not cite to any Florida state case questioning Universal
Caribbean. Instead, the Sun Defendants cite to Polymers, Inc. v. Ultra Flo
Filtration Sys., Inc., 33 F. Supp. 2d 1008 (M.D. Fla. 1998). In Polymers, a Florida
federal district court determined that general jurisdiction could not be exercised
over a parent corporation based on the activities of its Florida subsidiary because §
48.193(2) “limits jurisdiction to acts of the defendant itself.” Id. at 1011. In
reaching this conclusion, the court cited only to the language of the statute and
12
Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1521 (11th Cir. 1985),
claiming that Pesaplastic limited the analysis of personal jurisdiction based on acts
of an agent to specific jurisdiction. Polymers is neither binding nor correct.
First, the court in Polymers was bound by Universal Caribbean for the same
reason we are here and, therefore, the court erred by construing the long-arm statute
without reference to it. Second, Polymers’ reliance on Pesaplastic was incorrect.
Pesaplastic in no way limited the analysis of general jurisdiction under the Florida
long-arm statute. Pesaplastic was decided in January of 1985, shortly after the
general jurisdiction provision of the Florida long-arm statute was amended in 1984
to include the general jurisdiction provision.9 Although it is not clear, it is entirely
likely that Pesaplastic, an appeal from a 1982 district court case, was analyzed
under the pre-1984 statute, which did not differentiate between specific and general
jurisdiction.
Even if the general jurisdiction provision had existed, Pesaplastic does not
mention § 48.193(2), much less limit its exercise. In Pesaplastic, the plaintiff
9
This general jurisdiction provision “was added to the statute in 1984 to
expand the jurisdiction of Florida courts to include a defendant engaged in
substantial activities in Florida regardless of whether the claim arises from that
activity, thus eliminating the ‘connexity’ requirement.” Universal Caribbean, 543
So.2d at 448 (citing Windels, Marx, Davies and Ives v. Solitron Devices, Inc., 510
So.2d 1177 (Fla. 4th DCA 1987); American Motors Corp. v. Abrahantes, 474
So.2d 271 (Fla. 3d DCA 1985)).
13
sought jurisdiction under § 48.193(1)(a), one of several specific jurisdiction
provisions, claiming that a foreign parent “conducted business” in Florida through a
local subsidiary. See id. at 1521. The court was not asked and, therefore, did not
address § 48.193(2).10
b. Agency
Generally, a foreign parent corporation is not subject to the jurisdiction of a
forum state merely because a subsidiary is doing business there. See Consolidated,
216 F.3d at 1293.11 “On the other hand, if the subsidiary is merely an agent
through which the parent company conducts business in a particular jurisdiction or
its separate corporate status is formal only and without any semblance of individual
identity, then the subsidiary's business will be viewed as that of the parent and the
latter will be said to be doing business in the jurisdiction through the subsidiary for
purposes of asserting personal jurisdiction.” Charles Alan Wright & Arthur R.
10
Pesaplastic could not have considered the intermediate state court’s
decision because it had not been issued.
11
Where the “subsidiary’s presence in the state is primarily for the purpose
of carrying on its own business and the subsidiary has preserved some semblance
of independence from the parent, jurisdiction over the parent may not be acquired
on the basis of the local activities of the subsidiary.” Consolidated, 216 F.3d at
1293, (quoting Portera v. Winn Dixie of Montgomery, Inc., 996 F.Supp. 1418,
1423 (M.D.Ala. 1998)(quoting Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1069 (2d ed.1987))).
14
Miller, Federal Practice and Procedure § 1069.4 (3d ed. 2002) (citations omitted).
In order to establish jurisdiction over the Sun Defendants, therefore, Plaintiff must
persuade the court that the Florida Subsidiaries are the entities through which the
Sun Defendants conduct substantial business activity in Florida. See Consolidated
at 1293-94.
As indicated, in Universal Caribbean, the court found that a domestic
subsidiary, acting exclusively as a booking agent for the foreign hotel owned by the
non-resident corporation, was an agent of the foreign corporation so that the
activities of the domestic subsidiary could be imputed to the non-resident
corporation for jurisdictional purposes. Universal Caribbean, 543 So.2d at 448.
The relationship between the Sun Defendants and the Florida Subsidiaries is similar
to that described in Universal Caribbean. As in Universal Caribbean, the Florida
Subsidiaries were established by the Sun Defendants to serve the Bahamian Hotel
business, with Sun Hotels as the principal parent corporation.12
The Florida Subsidiaries are wholly-owned subsidiaries of Sun International
North America, Inc., (“Sun N.A.”), a Delaware corporation. Sun N.A., like Sun
12
In response to the Sun Defendants’ affidavits objecting to jurisdiction,
Plaintiffs deposed four representatives of the Sun Defendants including Pyfrom,
Farringtom, Kent Lewis, Comptroller for Sun Resorts, and Howard Karawan, an
officer for both of the Florida Subsidiaries. These depositions described numerous
connections between the Sun Defendants and the Florida Subsidiaries.
15
Bahamas, is a wholly-owned subsidiary of defendant Sun Hotels. According to
Plaintiffs’ submitted depositions, both Sun Resorts and PIV solicit and coordinate
reservations for visits to Atlantis. According to those depositions, the Florida
Subsidiaries coordinated over fifty (50) percent of all guests at Atlantis in 1999, the
majority of which were from the U.S.
In addition, Sun Resorts coordinates all advertising and marketing for
Atlantis. Sun Resorts purchases goods in the U.S. for Atlantis. Sun Resort provides
day to day accounting services, including collection services, and maintains direct
communication links to the Atlantis for the transmittal of reservation and
accounting information. The Sun Defendants do not deny that the Florida
Subsidiaries perform these services. The Sun Defendants argue that these related
corporations are legally separate entities that are merely under service contracts
with the Sun Defendants and, therefore, the actions of one cannot support
jurisdiction for the other.
The financial ties between the Sun Defendants and the Florida subsidiaries
suggest a relationship far beyond service contracts. For example, the Sun
Defendants maintain several bank accounts in Florida. Sun Resorts manages these
accounts. In addition to paying for advertising and other expenses incurred by the
Sun Defendants, Sun Resorts pays itself from these accounts. When asked whether
16
“the same group of people at Sun Resorts handles both the Sun Resorts payables
and the Sun Bahamas receivables,” Kent Lewis answered “yes” and went on to
agree that Sun Resorts simply sends invoices to itself. According to the limited
record, Sun Resorts writes the check to itself from Sun Bahamas’ account at City
National Bank in Hallandale, Florida and deposits the check in its own account at
the same bank. According to the initial evidence submitted, Sun Resorts has a
similar arrangement with each of the Sun Defendants.
The court may extend jurisdiction to any foreign corporation where the
affiliated domestic corporation “manifests no separate corporate interests of its own
and functions solely to achieve the purpose of the dominant corporation.” See State
v. Am. Tobacco Co., 707 So.2d 851, 855 (Fla. 4th DCA 1998) (citations omitted).
The Florida Subsidiaries conduct business solely for the Sun Defendants. In his
deposition, Lewis confirmed that Sun Resorts does not “undertake any business
activity for anyone other than the Sun [D]efendants.” In addition, Lewis stated that
PIV’s sole purpose is to sell travel packages only to Atlantis and other resorts
owned and operated by the Sun Defendants.
As with Limited in Universal Caribbean, the evidence submitted strongly
suggests that the Florida subsidiaries were mere instrumentalities of the Sun
Defendants. Consequently, the court finds that Plaintiff has met its prima facie
17
burden establishing jurisdiction over the Sun Defendants under the Florida long-
arm statute.
Although the parties do not argue the matter in depth, the Court notes that the
district court order stated that the activities of the Florida Subsidiaries could, at best,
only be imputed to Sun Hotels.
Preliminarily, the Court notes that, in this case, potential imputation of [the
Florida Subsidiaries’] activities in Florida is only relevant to one defendant,
Sun Hotels, as their ultimate parent . . . . [Sun Bahamas, Island Hotel, and
Paradise Island] do not stand in a parent/subsidiary relationship to the
[Florida Subsidiaries]. Like the [Florida Subsidiaries], they stand in a
subsidiary relationship to Sun Hotels.
Agency is not, however, limited to a parent-subsidiary relationship. Personal
jurisdiction over affiliated parties, whether a parent or another related subsidiary, is
warranted when the resident corporation acts on behalf of those foreign affiliates.
See United Elec. Radio and Mach. Workers of Am. v. 163 Pleasant St. Corp., 987
F.2d 39, 45, 48 (1st Cir. 1993) (asserting jurisdiction over Scottish parent and co-
subsidiary based on business relationship with and activities of Massachusetts
subsidiary); see also Pappalardo v. Richfield Hospitality Servs., Inc., 790 So.2d
1226, 1228 (Fla. 4th DCA) (finding agency based on evidence that the various
parent and subsidiary defendants were “a confusing conglomerate, and were
essentially one and the same company both financially and structurally.”).
The Florida Subsidiaries conduct business with and for all of the Sun
18
Defendants. The Florida Subsidiaries act as accounting, advertising, and booking
departments for Island Hotel and Paradise Island, and therefore, Sun Bahamas,
inasmuch as they do for Sun Hotels. The evidence, therefore, suggests that the
Florida Subsidiaries were agents of all the Sun Defendants, not just Sun Hotels.
Because the Florida long-arm statute provides general jurisdiction based on
the activities of an agent, see discussion supra, the Court finds that Plaintiffs have
sufficiently established that the Sun Defendants, through their own actions13 and
through the actions of the Florida Subsidiaries, have engaged in “substantial and not
isolated activity” within Florida and are, therefore, subject to personal jurisdiction
pursuant to § 48.193(2).
2. Fourteenth Amendment Due Process
In addition to satisfying the Florida long-arm statute, a federal court sitting in
diversity must insure that jurisdiction comports with the due process requirements
of the Fourteenth Amendment. See Posner, 178 F.3d at 1220. Due process
13
Plaintiff submits evidence that the Sun Defendants have had some direct
contact with the forum state. The Sun Defendants maintain and staff several
Florida telephone numbers listed on the “Sun” website as contacts for the Sun
Defendants. See www.sunint.com (last visited March 22, 2002). The Sun
Defendants maintain seven bank accounts in Southern Florida. A recent Sun
Hotels press release directed all inquiries to John Allison, Executive Vice President
and Chief Financial Officer of Sun Hotels, at a Florida telephone number. A recent
Form F-4 Registration Statement lists a Fort Lauderdale attorney as Sun Hotels’
“Authorized Representative in the United States” and “Agent for Service.”
19
requires that a non-resident defendant have certain minimum contacts with the
forum so that the exercise of jurisdiction does not offend traditional notions of fair
play and substantial justice. See Int’l Shoe v. Washington, 326 U.S. 310, 316, 66
S.Ct. 154, 158 (1945); see also Consolidated Dev. Corp., 216 F.3d at 1291.
a. Minimum Contacts
A foreign corporation’s contacts with the forum that are unrelated to the
litigation must be substantial in order to warrant the exercise of general personal
jurisdiction. Consolidated Dev. Corp., 216 F.3d at 1292. “The due process
requirements for general personal jurisdiction are more stringent than for specific
personal jurisdiction, and require a showing of continuous and systematic general
business contacts between the defendant and the forum state.” Id.; see also
Borg-Warner Acceptance Corp. v. Lovett & Tharpe, 786 F.2d 1055, 1057 (11th Cir.
1996); Helicopteros, 466 U.S. at 412-13, 104 S.Ct. at 1872-73.
The district court determined that jurisdiction was improper under the
Fourteenth Amendment for the same reasons it rejected jurisdiction under the
Florida long-arm statute. The court determined that the activities of the Florida
subsidiaries could not be imputed to the Sun Defendants and that the activities of
the Sun Defendants alone were insufficient to satisfy the minimum contacts
requirement. We respectfully disagree.
20
As discussed, a foreign parent corporation is not subject to the jurisdiction of
a forum state merely because a subsidiary is doing business there. Where the
“subsidiary’s presence in the state is primarily for the purpose of carrying on its
own business and the subsidiary has preserved some semblance of independence
from the parent, jurisdiction over the parent may not be acquired on the basis of the
local activities of the subsidiary.” Consolidated Dev. Corp., 216 F.3d at 1293
(citing Portera v. Winn Dixie of Montgomery, Inc., 996 F.Supp. 1418, 1423
(M.D.Ala.1998) (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1069 (2d ed.1987)).
In Consolidated Dev. Corp., 216 F.3d at 1295, the Court declined to exercise
jurisdiction over a non-resident corporation. The Sun Defendants argue that
Consolidated Dev. Corp. supports the proposition that due process requirements
prohibit the extension of jurisdiction based on the actions of an agent. Defendants’
reliance on Consolidated Dev. Corp. is misplaced. The court dismissed the matter,
in part, because the plaintiffs came forth with no evidence contradicting the
corporation’s affidavits. Id. at 1294. Here, Plaintiffs submitted substantial evidence
contradicting Defendants’ affidavits. Because the court must, for the purposes of
jurisdiction, construe all reasonable evidentiary conflicts in favor of the Plaintiffs,
see Morris, 843 F.2d at 492, the Court concludes that Plaintiffs submitted sufficient
21
evidence to contradict Defendants’ affidavits.14
In Consolidated Dev. Corp., the court went on to state that, in order for the
plaintiff to persuade the court to extend general jurisdiction over the non-resident
parent corporation, the plaintiff would have to show that the domestic subsidiary’s
existence was simply a formality, and that the affiliated corporation was merely the
non-resident’s agent. Id. For the same reasons stated previously, the Court here is
persuaded that the Florida Subsidiaries’ existence was simply a formality, and that
the Florida Subsidiaries were merely the Sun Defendants’ agents in Florida.
In a similar case, Wiwa v. Royal Dutch Petroleum, Co., 226 F.3d 88, 95 (2d
Cir. 2000), the Second Circuit determined that the activities of a domestic
subsidiary were sufficient to constitutionally extend jurisdiction over a non-resident
corporation.
The continuous presence and substantial activities that satisfy the requirement
of doing business do not necessarily need to be conducted by the foreign
corporation itself. In certain circumstances, jurisdiction has been predicated
upon activities performed in New York for a foreign corporation by an agent.
Under well-established New York law, a court of New York may assert
jurisdiction over a foreign corporation when it affiliates itself with a New
York representative entity and that New York representative renders services
on behalf of the foreign corporation that go beyond mere solicitation and are
14
The Court notes that Defendants’ affidavits contain little more than
conclusory statements that the Sun Defendants are not subject to jurisdiction in
Florida. Conclusory affidavits are insufficient to shift the burden back to Plaintiff
to produce evidence supporting jurisdiction. Posner, 178 F.3d at 1215.
22
sufficiently important to the foreign entity that the corporation itself would
perform equivalent services if no agent were available.
Id. (citation omitted). As in Wiwa, the Florida Subsidiaries render services on
behalf of the Sun Defendants and are sufficiently important to the Sun Defendants
that those corporations would themselves perform the equivalent services if the
Florida Subsidiaries did not exist.
For the purposes of jurisdiction, the Court must construe all reasonable
inferences in favor of Plaintiffs. See Madara, 916 F.2d at 1514. Based on the
evidence previously discussed, it is reasonable to assume that the creation and
operation of the Florida Subsidiaries is a mere corporate formality and that the
Florida Subsidiaries are agents of the Sun Defendants. The Court finds that
Plaintiff has sufficiently established that the Sun Defendants’ had continuous and
systematic contacts with the forum state through the activities of the Florida
Subsidiaries.
b. Traditional Notions of Fair Play and Substantial Justice
In addition to a finding of continuous and systematic contacts, the Court must
also determine whether the extension of jurisdiction comports with traditional
notions of fair play and substantial justice under the principles established in
International Shoe and its progeny. See Posner, 178 F.3d at 1221. In determining
whether jurisdiction would comport with traditional notions of fair play and
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substantial justice, the court looks at: (a) the burden on the defendant, (b) the forum
State’s interest in adjudicating the dispute, (c) the plaintiff’s interest in obtaining
convenient and effective relief, (d) the interstate judicial system’s interest in
obtaining the most efficient resolution of controversies, and (e) the shared interest
of the several States in furthering fundamental substantive social policies. See
Future Tech. Today v. OSF Healthcare Sys., 218 F.3d 1247, 1251 (11th Cir. 2000)
(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462 ,476, 105 S.Ct. 2174, 2184-
85 (1985)).
Plaintiffs are Utah residents with a combined annual salary of $37,833. The
Sun Defendants operate multiple luxury resorts. The Sun Defendants spent
between seven and eleven million advertising in the U.S. in 1998 alone. The
burden on Defendants to litigate the matter in Florida is insignificant when
compared with the burden on Plaintiffs. Defendants argue that Plaintiffs could
litigate the matter in Bahamas, but that litigation is clearly inapposite to obtaining
convenient and effective relief.
Both Florida and the interstate judicial system have a strong interest in seeing
this matter resolved in Florida. Millions of tourists travel to Caribbean resorts each
year from Florida and elsewhere in the United States. Both Florida and the
interstate judicial system have an interest in adjudicating disputes arising from
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injuries which occur at or as a result of these resorts, particularly when the injured
are flown into Florida for medical treatment as a result. The Court finds that
jurisdiction in Florida would comport with traditional notions of fair play and
substantial justice.
C. Forum Non Conveniens
The Sun Defendants alternatively argue that, even if the Court determines
that the exercise of jurisdiction comports with the Florida long-arm statute and the
Constitution, the case should be dismissed for forum non conveniens. Fed. R. Civ.
P. 12(b)(3).
A dismissal under forum non conveniens requires a minimal amount of
evidentiary analysis by the district court, including a determination as to potential
witnesses, costs, etc. See C.A. La Seguridad v. Transytur Line, 707 F.2d 1304,
1307 (11th Cir. 1983). The district court did not reach the issue. The Court finds
that there is insufficient evidence to rule upon the matter and, therefore, remands
the issue to the district court to determine the facts supporting Defendants’ motion
to dismiss for forum non conveniens.
CONCLUSION
We find that, for the purposes of jurisdiction, the activities of the Florida
Subsidiaries may be imputed to the Sun Defendants under both the Florida long-
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arm statute and the Constitution. We find that the Defendants had continuous and
systematic contacts with the forum state, both through their own actions and
through those of the Florida Subsidiaries, sufficient to exercise jurisdiction in this
matter.
REVERSED and REMANDED
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