Jurisdiction and Procedure

By Michael P. Sampson (part 4 of 8) A spouse may attempt to bring in a corporate entity or trust into the divorce either under the Florida Long-Arm Statute or on an alter-ego theory. To pull in the foreign corporation or trust, the spouse must plead a basis for Florida long-arm jurisdiction. Alternatively, the spouse may allege the Florida court should act against the foreign entity because it’s merely the other spouse’s alter ego. Under Florida’s Long-Arm Statute, the spouse must pass a two-pronged test for establishing personal jurisdiction over a foreign entity.  Instead, the spouse may assert personal jurisdiction is established because the entity is merely the “alter ego” of the other spouse.  Personal jurisdiction refers to whether the actions of an individual or business entity permit the Florida court to exercise jurisdiction in a lawsuit naming the individual or business entity. See Borden v. East-European Ins. Co., 921 So. 2d 587 (Fla. 2006). See generally section 48.193, Florida Statutes; White v. Pepsico, Inc., 568 So. 2d 886 (Fla. 1990); Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989) (to subject a defendant to personal jurisdiction, “due process requires that the defendant have certain minimum contacts with the forum”). Florida Long Arm Statute First prong: Specific Jurisdiction or General Jurisdiction Specific Jurisdiction Long-arm jurisdiction over a foreign corporation or entity may be specific. See sections 48.193(1)(a)-(h), Florida Statutes. Specific jurisdiction is where the defendant either personally or through an agent does any of the acts enumerated in those subsections. Specific jurisdiction occurs “when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.” White v. Pepsico, Inc., 568 So. 2d 886, 888 n.3 (Fla. 1990) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)). General Jurisdiction Alternatively, long-arm jurisdiction may be general. See section 48.193(2), Florida Statutes. General jurisdiction may lie when a defendant is “engaged in substantial and not isolated activity” in Florida. See Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103 (Fla. 4th DCA 2014)(good analysis of specific and general jurisdiction, resulting in reversal of order denying motion to dismiss personal injury suit for lack of personal jurisdiction). Unlike specific jurisdiction, “general jurisdiction” lies over a defendant “engaged in substantial and not isolated activity within this state.” Section 48.193(2), Florida Statutes. There’s no “connexity” required between the nonresident’s activities in Florida and the cause of action the plaintiff asserts in the complaint. Wendt v. Horowitz, 822 So. 2d 1252, 1260 n.7 (Fla. 2002); White, 568 So. 2d at 889 n.4 (“‘Connexity’ is the term courts have adopted to mean a link between a cause of action and the activities of a defendant in the forum state.”); Am. Overseas Marine Corp. v. Patterson, 632 So. 2d 1124 (Fla. 1st DCA 1994).  For general jurisdiction, facts about the nonresident’s contacts must be extensive and pervasive. Reliance Steel Products Co. v. Watson, ESS, Marshall & Enggas, 675 F. 2d 587 (3d Cir.1982). When a spouse fails to plead any basis under the long-arm statute or under an alter-ego theory, dismissal is appropriate. For example, in Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA 2022), the trial court should have dismissed a former wife’s action against her nonresident former husband. She asked the Florida court to adjudicate her claims to domesticate and enforce a Hawaiian divorce judgment. But Ms. Murphy failed to plead and establish a basis under Florida’s long-arm statute for specific or general personal jurisdiction over her former husband. He countered the complaint with a sworn motion to dismiss. She failed to refute his sworn statements he was a North Carolina resident whose prior residency in Florida was incidental to military service. Further, she failed to allege and establish a sufficient basis for general jurisdiction. She had to show, but couldn’t, that he presently engaged in substantial and not isolated activity within Florida. Specific or General Jurisdiction under Florida’s Long-Arm Statute: Are the Entity’s Florida Contacts the Basis for the Spouse’s Claims Against It? If an entity’s contacts with Florida are also the basis for the suit, those contacts may establish specific jurisdiction. For example, see section 48.193(1)(a)-(h), Florida Statutes; Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103 (Fla. 4th DCA 2014) (affidavits revealed few contacts between Florida and the defendant, which had engaged in isolated transactions with Florida companies, mostly over the Internet, without having targeted Florida for business); Caiazzo v. American Royal Arts Corp., 73 So. 3d 245 (Fla. 4th DCA 2011) (applying traditional minimum contacts analysis, whether or not the Internet is involved); Canale v. Rubin, 20 So. 3d 463 (Fla. 2d DCA 2009).  In determining specific jurisdiction, courts consider: See Corporacion Aero Angeles, S.A. v. Fernandez, 69 So. 3d 295 (Fla. 4th DCA 2011). Alternatively, if an entity’s contacts with Florida are not also the basis for the claims, jurisdiction must arise from the entity’s general, more persistent, but unrelated present contacts with Florida. Fla. Stat. §48.193(2). For more about long-arm jurisdiction – specific or general – keep reading here. Questions About Corporations and Trust in Florida Divorce? For questions about personal jurisdiction over foreign corporations and trusts and opportunities in Florida Collaborative Divorce to resolve issues globally, contact Michael P. Sampson of Sampson Collaborative Law. Related Blog Posts:

By Michael P. Sampson (part 8 of 8) Sworn Affidavits or Declarations: Be Prepared! An entity drawn into a family law dispute typically must assemble sworn affidavits or sworn declarations to support challenges to service of process or personal jurisdiction or both. See Fishman, Inc. v. Fishman, 657 So. 2d 44 (Fla. 4th DCA 1995). Nonresident defendant corporations or trusts challenging long-arm jurisdiction in a Florida divorce must file sworn affidavits or sworn declarations to support their challenges. But, if the spouse attempting to establish jurisdiction over the nonresident fails to plead a legally sufficient basis for personal jurisdiction over it, the burden of refuting jurisdictional facts with affidavits doesn’t shift to the nonresident.  Similarly, a defendant’s coming forward with sworn affidavits or declarations to contest jurisdictional allegations a spouse may have plead shifts the burden to the spouse to prove by affidavit the basis upon which long-arm jurisdiction may be obtained. Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA 2022). In Murphy, the trial court should have dismissed a former wife’s action against her nonresident former husband. She failed to establish a basis under Florida’s long-arm statute for specific or general personal jurisdiction over him to adjudicate her claims to domesticate and enforce a Hawaiian divorce judgment. He challenged her jurisdictional allegations about how long he had lived in Florida before he left, the properties he used to own in Florida, and the possibility that he may still own property in Florida. His sworn affidavit denied he owned Florida property currently, resided in Florida when she filed her action to domesticate and enforce a Hawaiian divorce decree, or maintained substantial, ongoing contacts with Florida. Courts Derive Facts About Threshold Challenges to Service of Process or Jurisdiction from Sworn Affidavits or Declarations In reviewing a motion to quash service or dismiss for lack of personal jurisdiction, the court likely will derive facts from sworn affidavits or sworn declarations to support challenges, transcripts, and other records. See Rollet v. de Bizemont, 159 So. 3d 351 (Fla. 3d DCA 2015) (reversing denial of nonresident husband’s motion to dismiss accompanied by his affidavit detailing reasons his wife could not plead sufficient allegations to establish personal jurisdiction over him). Multiple Florida cases illustrate how important sworn affidavits or declarations are. For example, in Hamilton v. Hamilton, 142 So. 3d 969 (Fla. 4th DCA 2014), a family stock purchase agreement provided for mandatory venue and consent to jurisdiction in Florida, but a Michigan stepson’s affidavit refuted many allegations regarding contacts with Florida, independent of the forum selection clause, that could establish the requisite minimum contacts. The plaintiff stepmother filed no response or affidavits refuting stepson’s statements. Similarly, in Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103 (Fla. 4th DCA 2014), affidavits before the trial court revealed few contacts between the defendant and Florida. The court in Extendicare, Inc. v. Estate of McGillen, 957 So. 2d 58 (Fla. 5th DCA 2007) relied on affidavits to support challenges to jurisdictional allegations in a complaint. The plaintiff failed to meet its burden to offer sworn proof to contradict the jurisdictional allegations in the affidavit, thus failed to establish a basis for jurisdiction. See also Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla.1989), which sets forth the process for determining factual issues raised by a motion to dismiss for lack of personal jurisdiction and Bellairs v. Mohrmann, 716 So. 2d 320 (Fla. 2d DCA 1998) (following the Venetian Salami procedure regarding the alter ego theory for establishing jurisdiction).  Explain Corporate Relationships with Affidavits or Declarations For jurisdiction, how do courts handle foreign entities affiliated with Florida companies? Sworn affidavits and declarations can help judges figure out complex corporate structures. That way, the judges can determine if a spouse’s claims against a foreign entity within the structure is subject to personal jurisdiction. Eight acts or contacts Florida’s long-arm statute lists can subject an entity to specific jurisdiction. The spouse’s action must also “arise from” one or more of the acts or contacts that give rise to specific jurisdiction.  “Arise from” means a substantive connection between the basis of the cause of action and activity in Florida. There must be a direct affiliation, nexus, or substantial connection between the basis for the cause of action and the action that falls under the long-arm statute. Schumacher – Merely Sharing Trademarks In The Schumacher Group of Delaware, Inc. v. Dictan, 327 So. 3d 404(Fla. 3d DCA 2021), a Delaware holding company, principally doing business in Louisiana, supported its motion to dismiss with its vice president’s declaration. The medical malpractice plaintiff alleged insufficient jurisdictional facts to satisfy the long arm statute requirements. The VP’s declaration stating the company was a holding company doing no business in Florida, had no office in Florida, had no employees in Florida, and owned or lease no property in Florida. Further, the VP explained the Delaware holding company did not control its Florida affiliates’ business operations. The entities maintained separate corporate books and records and separate boards of directors.  Reversing the trial court, the appellate court accepted the declaration and other record evidence as sufficient to refute the plaintiff’s theories, and ordered the trial judge to dismiss the Delaware holding company. The court rejected that merely sharing trademarks, which aren’t legal entities through which a company could act, supported specific long-arm jurisdiction. Further, the plaintiff failed to overcome the declaration by presenting evidence to show such sharing met the “arising from” requirement for specific personal jurisdiction. Affidavits to Support Challenges May Be Excused When Spouse Fails to Plead Jurisdictional Basis A spouse who has sued a corporation or trust must plead a basis for jurisdiction before the burden shifts to the entity to file affidavits to support challenges to jurisdiction.  As noted above, however, when the spouse hasn’t sufficiently served the entity or pled a basis for jurisdiction, the court may excuse the entity from filing affidavits contesting service of process or jurisdiction. That is, the burden of establishing lack of jurisdiction never shifts to the entity. Fishman, Inc. v. Fishman, 657 So. 2d 44 (Fla. 4th DCA 1995).  In Fishman, the wife joined three out-of-state corporations