FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Hillsborough County; Ronald Ficarrotta, Judge.
E. Biasotti and Christine R. O'Neil of Biasotti and
Associates, St. Petersburg, for Appellant.
R. Lima, David A. Jagolinzer, and Janpaul Portal of The
Ferraro Law Firm, P.A., Miami, for Appellee.
Aktiengesellschaft (VWAG) seeks review of an interlocutory
order denying its motion to dismiss for lack of personal
jurisdiction a complaint filed against it. We reverse the
trial court's order because Mrs. Jones did not establish
that VWAG has the requisite minimum contacts with Florida for
the exercise of personal jurisdiction to comport with due
process, and we remand for the trial court to consider in the
first instance Mrs. Jones's February 19, 2015, motion to
compel to the extent that the motion sought discovery
relevant to personal jurisdiction.
2009, Kenneth and Carol Jones filed suit against sixteen
defendants, including Volkswagen Group of America, Inc.
(VWOA), alleging that Mr. Jones had developed mesothelioma as
a result of his exposure to asbestos-containing products that
the defendants had manufactured, distributed, and sold. The
Joneses' theory was that Mr. Jones had been exposed to
these products in the course of both his career in the
automotive industry in upstate New York and his work on his
personal vehicle-a 1987 Volkswagen Quantum that had been
given to him upon his retirement-in Florida. Mr. Jones died
while the case was pending, and Mrs. Jones, individually and
as personal representative of Mr. Jones's estate, filed
an amended complaint against the same defendants. VWAG was
not named as a defendant in either complaint.
October 2011, Mrs. Jones moved to add VWAG as a defendant.
The trial court granted the motion, and Mrs. Jones filed a
second amended complaint adding VWAG. VWAG moved to quash
service of process, asserting that Mrs. Jones had failed to
comply with the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial
Matters, November 15, 1965, 20 U.S.T. 361 (hereinafter Hague
Convention). See also § 48.194(1), Fla. Stat.
(2011) (providing that service of process on persons outside
United States may be required to conform to provisions of
Mrs. Jones effected service, VWAG filed an answer, asserting,
as an affirmative defense, that the Florida courts lacked
personal jurisdiction over it. On February 19, 2015, Mrs.
Jones moved pursuant to Florida Rule of Civil Procedure
1.310(b)(6) to compel VWAG to produce its designated
corporate representatives for deposition duces tecum on
matters "relevant to the issues of jurisdiction and/or
liability and causation." A week later, VWAG moved to
dismiss the complaint based on a lack of personal
jurisdiction, and it submitted a supporting affidavit from
Ian Ceresney, who has been VWAG's corporate counsel in
the United States for more than thirty-five years (the
Ceresney affidavit). Mrs. Jones opposed the motion and moved
for sanctions pursuant to section 57.105, Florida Statutes
(2014); she submitted a supporting affidavit from Gabriel
Saade, who is a law clerk employed by her counsel (the Saade
affidavit), and multiple other documents.
light of the volume of Mrs. Jones's filings and the
complexity of the issues involved, VWAG requested that the
court hold an evidentiary hearing on its motion to dismiss.
Mrs. Jones "reluctantly" agreed to an evidentiary
hearing and submitted additional materials in advance of the
hearing. Mrs. Jones's motion to compel was noticed for
hearing at the same time.
"evidentiary hearing, " VWAG relied solely on the
Ceresney affidavit, and Mrs. Jones's counsel presented a
Power Point presentation and relied on Mrs. Jones's
previous filings. Mrs. Jones asked the trial court for
"leave . . . to take discovery based on personal
jurisdictional facts, including the corporate representative
of [VWAG], " if the court "were not inclined to
just deny the Motion to Dismiss outright." There was no
testimony at the hearing, and the trial court did not receive
anything into evidence. At the conclusion of the hearing, the
court said only: "Defendant Volkswagen AG's Motion
to Dismiss for Lack of Personal Jurisdiction is denied. I
make a specific finding that there was no waiver [of the
defense of lack of personal jurisdiction] on their part, but
I find there is sufficient evidence of specific
jurisdiction." The court made no statements from which
we might obtain some insight into the rationale for its
ruling; nor did it do so in its written order, in which it
simply reiterated its conclusion and also denied Mrs.
Jones's motion for sanctions. The trial court granted
Mrs. Jones's motion to compel with respect to merits
discovery (as the need for jurisdictional discovery was now
moot) but agreed to stay the order pending appeal.
THE PARTIES' ARGUMENTS ON APPEAL
appeal, VWAG argues that (1) the complaint failed to
establish personal jurisdiction under Florida's Long-Arm
Statute, (2) Mrs. Jones failed to refute any of the factual
allegations included in the affidavit attached to its motion
to dismiss, and (3) the exercise of jurisdiction in this case
would violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.
Jones argues that (1) notwithstanding the trial court's
finding to the contrary, VWAG waived its right to challenge
personal jurisdiction, (2) the affidavit attached to
VWAG's motion to dismiss was not legally sufficient, (3)
her second amended complaint sufficiently pleaded
jurisdiction under section 48.193(1)(a)(6), Florida Statutes,
(4) the exercise of jurisdiction in this case comports with
due process because VWAG, acting both directly and through
its agent, VWOA, has the requisite minimum contacts with
Florida. Mrs. Jones asks that, if we nonetheless conclude
that she has failed to establish personal jurisdiction, we
remand "with instructions that the trial court conduct a
hearing after [Mrs. Jones] has had the opportunity to take
limited jurisdictional discovery, including the deposition of
VWAG's corporate representative."
Personal Jurisdiction and Venetian Salami
invoke the trial court's jurisdiction over a nonresident
defendant, a plaintiff must allege in the complaint a basis
for personal jurisdiction under the long-arm statute.
See § 48.193; Teva Pharm. Indus. v.
Ruiz, 181 So.3d 513, 516-17 (Fla. 2d DCA 2015). If
pleading a basis for specific jurisdiction under subsection
48.193(1), due process considerations also require the
plaintiff to establish that the nonresident defendant
"has sufficient minimum contacts with the state so that
the exercise of jurisdiction would not offend traditional
notions of fair play and substantial justice." Teva
Pharm., 181 So.3d at 516. To establish sufficient
minimum contacts, a plaintiff must establish that the
defendant's contacts with the forum state (1) are related
to the plaintiff's cause of action or have given rise to
it, (2) involve some act by which the defendant has
purposefully availed itself of the privilege of conducting
activities within the forum, and (3) must be such that the
defendant should reasonably anticipate being haled into court
there. Moro Aircraft Leasing, Inc., v. Int'l Aviation
Mktg., Inc., 206 So.3d 814, 817 (Fla. 2d DCA 2016).
Personal jurisdiction over a nonresident parent corporation
based on the actions of the resident subsidiary can be
obtained by establishing that the nonresident parent
corporation independently satisfies the test for
jurisdiction, that the facts justify piercing the corporate
veil, or that the parent exercises a high and very
significant amount of control over the subsidiary to render
the subsidiary an agent or alter ego of the parent. See
Schwartzberg v. Knobloch, 98 So.3d 173, 182 (Fla. 2d DCA
defendant may challenge the jurisdictional allegations in the
plaintiff's complaint or raise a contention of minimum
contacts by moving to dismiss the complaint and filing
legally sufficient affidavits or other sworn proof in
support. Venetian Salami Co. v. Parthenais, 554
So.2d 499, 502 (Fla. 1989); Rautenberg v. Falz, 193
So.3d 924, 928-29 (Fla. 2d DCA 2016). If the defendant's
affidavit or sworn proof fully disputes the jurisdictional
allegations, then the burden shifts to the plaintiff to prove
by affidavit or other sworn proof that there is a basis for
personal jurisdiction. Venetian Salami, 554 So.2d at
502; Rautenberg, 193 So.3d at 929. If the
parties' affidavits ...