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Aktiengesellschaft v. Jones

Florida Court of Appeals, Second District

May 17, 2017

CAROL JONES, individually and as personal representative of the Estate of Kenneth Jones, deceased, Appellee.


         Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Hillsborough County; Ronald Ficarrotta, Judge.

          Robert E. Biasotti and Christine R. O'Neil of Biasotti and Associates, St. Petersburg, for Appellant.

          Paulo R. Lima, David A. Jagolinzer, and Janpaul Portal of The Ferraro Law Firm, P.A., Miami, for Appellee.

          ROTHSTEIN-YOUAKIM, Judge.

         Volkswagen Aktiengesellschaft (VWAG) seeks review of an interlocutory order denying its motion to dismiss for lack of personal jurisdiction a complaint filed against it.[1] 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.


         In 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.

         In 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 Hague Convention).

         After 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.[2]

         In 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[3] in advance of the hearing. Mrs. Jones's motion to compel was noticed for hearing at the same time.[4]

         At the "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.

         VWAG timely appealed.


         On 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.

         Mrs. 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, [5] and (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."


         A. Personal Jurisdiction and Venetian Salami

         To 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[6] 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 2012).

         The 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 ...

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