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Gannon v. Cuckler

Florida Court of Appeals, Second District

October 16, 2019



          Appeal from the Circuit Court for Collier County; Lauren L. Brodie, Judge.

          Jennifer Anne Gore Maglio of Maglio Christopher & Toale, P.A., Sarasota, for Appellant.

          Jonathan S. Lawson of LaDue Curran & Kuehn, LLC, South Bend, Indiana; and Stacy D. Blank, Lee P. Teichner, and Patrick M. Chidnese of Holland & Knight LLP, Tampa, for Appellees.

          SALARIO, JUDGE.

         This is a technical opinion about provisions of a rule of civil procedure regulating the presentation of defenses to a complaint; it starts out a bit dry and dense but picks up some steam at the end as we certify conflict with several other cases. Myrtle Gannon is appealing from a final order of dismissal, specifically that part of the final order that dismissed her claims against Biomet, Inc., Biomet Orthopedics, LLC, Biomet U.S. Reconstruction, LLC, and Biomet Manufacturing, LLC-we refer to them collectively as Biomet-for lack of personal jurisdiction. The issue is whether Biomet waived that defense by failing to assert it at the time and in the manner required by subsections (b), (g), and (h) of Florida Rule of Civil Procedure 1.140. Ms. Gannon says it did because it filed a motion to dismiss that failed to assert personal jurisdiction under the rule. Biomet says that is not a problem because it denied personal jurisdiction in its answer and filed an amended motion before the dismissal hearing that did raise the defense. We hold the text of rule 1.140 is unambiguous and precludes Biomet's arguments. We affirm so much of the trial court's order as Ms. Gannon has not challenged and reverse to the extent the trial court dismissed on personal jurisdiction grounds. Recognizing that the Third, Fourth, and Fifth Districts have reached a different result on whether the filing of an amended motion to dismiss prior to a hearing cures a failure to raise personal jurisdiction in an earlier motion, we certify conflict as we describe below.


         The underlying litigation is, at bottom, a products liability case about an allegedly defective hip replacement. According to Ms. Gannon, the hip replacement was manufactured by Biomet. Dr. Cuckler and his business, Alabama Medical Consultants, were involved in the development and promotion of the product. We refer to those two parties collectively, for convenience, simply as Dr. Cuckler.

         Ms. Gannon filed her complaint against Biomet and Dr. Cuckler on April 8, 2016 in circuit court in Collier County, Florida. Speculation about why she chose that forum is fair game.[1] Ms. Gannon does not herself live in Florida, and her hip replacement surgery was not performed here. Biomet is organized under Indiana law and has its head offices there. It looks like Biomet's manufacture of the hip replacement has no connection whatever to the Sunshine State. And at the time of the conduct that matters in this case, Dr. Cuckler was resident in Alabama. As it happens, though, Dr. Cuckler later retired to Naples, Florida. The complaint alleged that jurisdiction was proper in Florida because that is where Dr. Cuckler now resides.

         On May 4, 2016, Biomet and Dr. Cuckler filed a joint motion to dismiss the complaint based on forum non conveniens (i.e., the idea that Florida is an inconvenient forum for resolution of the case) under rule 1.061 and to dismiss certain counts of the complaint for failure to state a claim upon which relief can be granted under rule 1.140(b). This motion did not assert that the court lacked personal jurisdiction over any defendant. At about the same time, Biomet and Dr. Cuckler each filed separate answers. Those answers did not assert lack of personal jurisdiction as a defense either. With respect to Ms. Gannon's allegation that the court had jurisdiction, however, the answers asserted that the allegation "contains legal conclusions to which no response is required." They also stated that "to the extent a response is required," the allegation is denied.

         At this point, the procedure in the trial court gets a little complex. The same law firm that represented Ms. Gannon had also filed several other complaints against Biomet and Dr. Cuckler in Collier County on behalf of other plaintiffs. The defendants and Ms. Gannon agreed that a hearing on the motion to dismiss in this case would be delayed pending a hearing on a motion to dismiss in another one of these cases called Eanes v. Cuckler. Biomet and Dr. Cuckler had also raised forum non conveniens in their motion in Eanes, and the parties thought that a decision in Eanes would inform the decision in this case. The trial court granted the defendants' motion to dismiss in Eanes in October 2016, and this court affirmed that order without opinion in April 2017. See Eanes v. Cuckler, 225 So.3d 811 (Fla. 2d DCA 2017) (table decision).

         Three months later, on July 3, 2017, the defendants filed an amended motion to dismiss in this case. Like the original motion, the amended motion urged dismissal based on forum non conveniens. It differed from the original, however, in that it jettisoned the argument that the complaint failed to state a claim and introduced a new argument that the claims against Biomet should be dismissed for lack of personal jurisdiction.

         The personal jurisdiction argument was based on the factual assertions- which Biomet later supported with affidavits-that Biomet was not organized under Florida law, did not maintain operations in Florida, and did not do anything related to the hip replacement in Florida and that neither Ms. Gannon nor anything about her hip replacement bore any connection to Florida. As legal support, the amended motion relied on the recent decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S.Ct. 1773 (2017), in which the United States Supreme Court held that the due process clause did not permit a court to exercise specific personal jurisdiction over the manufacturer of an allegedly dangerous drug in materially similar circumstances. Biomet further asserted that its failure to argue personal jurisdiction in its original motion did not result in a waiver because the filing of an amended motion asserting the defense prior to a hearing timely preserved it.

         With the agreement of the parties, the trial court considered the motion without a hearing on the basis of legal memoranda and affidavits related to jurisdictional facts. It then rendered an order granting the motion. It dismissed the claims against Biomet "with prejudice" based on a lack of personal jurisdiction. It further held that Biomet and Dr. Cuckler, to the extent not dismissed based on a lack of personal jurisdiction, were dismissed based on forum non ...

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