Third District Court of Appeal State of Florida
Opinion filed March 7, 2018. Not final until disposition of timely filed motion for rehearing. ________________
No. 3D16-1015 Lower Tribunal No. 14-3780 ________________
Fincantieri-Cantieri Navali Italiani S.p.A., Appellant,
vs.
Anthony Yuzwa, Appellee.
An appeal from a non-final order from the Circuit Court for Miami-Dade County, Rodney Smith, Judge.
Fowler White Burnett, P.A. and Allan R. Kelley and Helaine S. Goodner; Sheppard, Mullin, Richter & Hampton LLP and Martin D. Katz, pro hac vice (Los Angelesk, CA), for appellant.
Loughren, Doyle & Reising, P.A. and Richard B. Doyle, Jr. (Ft. Lauderdale); Banning LLP and William L. Banning, pro hac vice (Rancho Santa Fe, CA), for appellee.
Before SUAREZ, LAGOA, and SALTER, JJ.
SUAREZ, J.
In this case, we are asked to determine whether Florida courts have personal
jurisdiction over an Italian shipbuilder based on injuries a Canadian citizen sustained on a cruise ship built in Italy, and owned by a Washington corporation,
while the ship was in international waters in the Pacific Ocean. The trial court
determined that it had both general and specific personal jurisdiction. We reverse
because the foreign shipbuilder’s contacts with Florida are not so continuous and
systematic as to render it essentially at home in this State nor is there an adequate
connection between Florida and the underlying claims.
BACKGROUND
Fincantieri-Cantieri Navali Italiani S.p.A. (“Fincantieri”),
Appellant/Defendant below, is an Italian shipbuilding company. Anthony Yuzwa
(“Yuzwa”), Appellee/Plaintiff below, is a Canadian citizen who was injured while
working as a performer aboard a Fincantieri-built cruise ship—the MS Oosterdam.
Fincantieri built the Oosterdam in Italy pursuant to a contract, signed in London
and governed by English law, with HAL Antillen N.V. (“HAL”), a Netherlands
Antilles corporation and subsidiary of the Miami-based Carnival Corporation
(“Carnival”). The Oosterdam is owned by Holland America Line, a Carnival
subsidiary headquartered in Seattle, Washington.
On February 14, 2011, Yuzwa, who worked aboard the Oosterdam as a
professional dancer, was injured during a rehearsal when a stage lift crushed his
foot. This occurred while the ship was off the coast of Mexico in the Pacific
Ocean, having embarked from its home port in San Diego, California the day
2 before. Yuzwa sued Fincantieri, and other defendants, in both California and
Florida. However, following jurisdictional discovery in California, Yuzwa
dismissed Fincantieri from that case, maintaining the instant action in Florida
against Fincantieri and one other defendant (Harbour Marine Systems, Inc.).1
Yuzwa’s operative Complaint asserts claims for negligence, strict products
liability, and breach of express and implied warranty. Fincantieri moved to
dismiss for lack of personal jurisdiction and forum non conveniens2 and attached
sworn proof contesting Yuzwa’s jurisdictional allegations. Yuzwa filed an
opposition with supporting declarations, the deposition of a senior Fincantieri
executive, and various other exhibits. Following a non-evidentiary hearing, the
trial court denied Fincantieri’s motion to dismiss. This timely appeal follows.
ANALYSIS
We review the trial court’s order denying Fincantieri’s motion to dismiss for
lack of personal jurisdiction de novo. See, e.g., Wendt v. Horowitz, 822 So. 2d
1252, 1256 (Fla. 2002). Our jurisdictional analysis is governed by Venetian
Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), which requires both a
statutory and constitutional inquiry to determine whether Florida courts may
exercise personal jurisdiction over a nonresident defendant. First, the plaintiff
must allege sufficient jurisdictional facts to bring the action within the ambit of
1 Harbour Marine is not a party to this appeal. 2 Because we find jurisdiction is lacking, we do not address forum non conveniens. 3 Florida’s long-arm statute: section 48.193, Florida Statutes (2017). Id. at 502.
Second, the nonresident defendant must have sufficient “minimum contacts” to
satisfy constitutional due process requirements. Id.; see also World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (“The Due Process
Clause of the Fourteenth Amendment limits the power of a state court to render a
valid personal judgment against a nonresident defendant.”).
Unlike long-arm statutes in other states, Florida’s statutory requirements are
not coextensive with federal due process requirements. See Internet Sols. Corp. v.
Marshall, 39 So. 3d 1201, 1207 (Fla. 2010) (explaining that Florida’s long-arm
statute “bestows broad jurisdiction” whereas “United States Supreme Court
precedent interpreting the Due Process Clause . . . imposes a more restrictive
requirement.”); cf Modern Principles of Personal Jurisdiction, 4A Fed. Prac. &
Proc. Civ. § 1069 (4th ed.) (“[B]ecause a majority of states (and Puerto Rico) have
enacted jurisdictional statutes that either have expressly incorporated the due
process standard or have been interpreted to extend to the limits of due process,
this analysis frequently is collapsed by the federal court into a one-step inquiry:
does the assertion of personal jurisdiction satisfy the requirements of due
process?”).
A key component of the Venetian Salami analysis is its allocation of the
burden of proof. Initially, the plaintiff bears the burden of pleading sufficient
4 jurisdictional facts to fall within the long-arm statute. Venetian Salami, 554 So. 2d
at 502. “If the allegations in the complaint sufficiently establish long-arm
jurisdiction, then the burden shifts to the defendant to contest the jurisdictional
allegations in the complaint, or to claim that the federal minimum contacts
requirement is not met, by way of affidavit or other similar sworn proof.[3]” Belz
Investco Ltd. P'ship v. Groupo Immobiliano Cababie, S.A., 721 So. 2d 787, 789
(Fla. 3d DCA 1998) (citing Venetian Salami, 554 So. 2d at 502; Field v. Koufas,
701 So. 2d 612 (Fla. 2d DCA 1997)). “If properly contested, the burden then
returns to the plaintiff to refute the evidence submitted by the defendant, also by
affidavit or similar sworn proof.” Id. If the parties’ sworn proof is in conflict,
“the trial court must conduct a limited evidentiary hearing to resolve the factual
dispute.” Id.4
Both the long-arm statute and federal due process distinguish between two
types of personal jurisdiction: general and specific. General jurisdiction is based
purely on a defendant’s contacts with the forum state, regardless of where the
3 Much of Fincantieri’s sworn proof takes the form of declarations. See Def. Control USA, Inc. v. Atlantis Consultants Ltd. Corp., 4 So. 3d 694, 699 (Fla. 3d DCA 2009) (holding that declarations can be used in lieu of affidavits to establish jurisdictional facts). 4 The trial court’s analysis deviated from Venetian Salami. Instead of shifting the
burden back to the Plaintiff once Fincantieri had submitted its sworn proof contesting the jurisdictional allegations in the Complaint, the court determined that it “must consider the pleadings and affidavits in the light most favorable to the plaintiff.” 5 cause of action arises. In order for a state to exercise such extensive jurisdiction, a
defendant’s contacts must be sufficiently “substantial and not isolated” and
“continuous and systematic.” See § 48.193(2), Fla. Stat. (2017); Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984) (“Even when the
cause of action does not arise out of or relate to the foreign corporation's activities
in the forum State, due process is not offended by a State’s subjecting the
corporation to its in personam jurisdiction when there are sufficient contacts
between the State and the foreign corporation.” (footnote omitted)). Specific
jurisdiction does not require the same level of contacts; instead, jurisdiction is
based on the cause of action arising out of a defendant’s certain minimum contacts
with the state. See § 48.193(1)(a), Fla. Stat. (2017); Helicopteros, 466 U.S. at 414
(“When a controversy is related to or ‘arises out of’ a defendant’s contacts with the
forum, the Court has said that a ‘relationship among the defendant, the forum, and
the litigation’ is the essential foundation of in personam jurisdiction.”). Because
the trial court incorrectly found that Fincantieri was subject to both general and
specific jurisdiction, we address each category in turn.
General Jurisdiction
Florida’s long-arm statute provides a basis for asserting general personal
jurisdiction pursuant to section 48.193(2):
(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is 6 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.
The trial court determined that Fincantieri was subject to general jurisdiction
based on the following contacts with Florida: (1) Fincantieri’s long-standing
“partnership” with Carnival, spanning over 25 years; (2) numerous contracts with
Carnival, resulting in the construction of around 60 cruise ships and amounting to
90% of the cruise ships built under Fincantieri’s Merchant Ships Business Unit; (3)
over 25 billion dollars in revenue for building ships for Carnival; (4) a Florida
office and Area Manager to solicit cruise ship business and serve Florida clients;
and (5) frequent meetings and communications with Carnival related to the
building of cruise ships.
It is undisputed that Fincantieri has a substantial business relationship with
Carnival; however, we conclude that some of the trial court’s findings are
overstated. For instance, the trial court found that there was a “partnership”
between Carnival and Fincantieri based on the deposition testimony of a
Fincantieri representative who referred to the relationship with Carnival as “more
of a partnership[.]” But there is no evidence in the record that Carnival and
Fincantieri have ever formed a legal partnership. See 8B Fla. Jur. 2d Business
Relationships § 541 (“A partnership is only established when both parties
contribute to the capital or labor of the business, have a mutuality of interest in
7 both profits and losses, and agree to share in the assets and liabilities of the
business.”). And although Fincantieri has a single employee in Florida—the “Area
Manager”—the sworn proof below conclusively shows that he simply serves as a
liaison, directing any ship owner inquiries to the correct person or office in Italy.
Finally, testimony from Fincantieri’s Senior Executive Vice President of the
Merchant Ships Business Unit establishes that meetings with Carnival are “very,
very usually done in Italy” because that is where Fincantieri has all its
organization, structure, technical development, and shipyards.
Notwithstanding the trial court’s misstatements of the evidentiary record,
Fincantieri does appear to be engaged in “substantial and not isolated activity
within this state” under the plain meaning of the long-arm statute due to years of
shipbuilding for Carnival. However, we find that Fincantieri’s contacts with
Florida are nevertheless insufficient to satisfy the more restrictive due process
requirements for general jurisdiction.
In International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), the
United States Supreme Court held that in order to subject a foreign corporation to
personal jurisdiction, due process requires certain “minimum contacts . . . such that
the maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” The Court further explained that “there have been some
instances in which the continuous corporate operations within a state were thought
8 so substantial and of such a nature as to justify suit against it on causes of action
arising from dealings entirely distinct from those activities.” Id. at 318 (emphasis
added). This eventually came to be known as general jurisdiction. Over time, the
Supreme Court has refined its approach to general jurisdiction and provided more
guidance as to the “continuous and substantial” contacts necessary to satisfy due
process.
An early “textbook case of general jurisdiction appropriately exercised over
a foreign corporation that has not consented to suit in the forum” is the Supreme
Court’s 1952 decision in Perkins v. Benguet Consol. Min. Co., 342 U.S. 437
(1952). Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 928
(2011) (quoting Donahue v. Far Eastern Air Transport Corp., 652 F.2d 1032, 1037
(C.A.D.C.1981)). In Perkins, the Court ruled that Ohio could exercise general
jurisdiction over a Philippine mining corporation because Ohio was the company’s
temporary principle place of business while the Japanese were occupying the
Philippine Islands during World War II. 342 U.S. at 447. Although the company
had halted mining operations due to the Japanese occupation, the company’s
president and principle stockholder maintained an office in Ohio where he carried
out “a continuous and systematic supervision of the necessarily limited wartime
activities of the company.” Id. at 448.
9 In Helicopteros, a case arising out of a helicopter crash in Peru, the Court
held that general jurisdiction over a Colombian corporation was improper because
its contacts with Texas—a contract negotiation session, accepting checks drawn on
a Texas bank, purchasing 80% of its helicopter fleet along with parts and
accessories, and sending personnel to Texas for training—were not sufficiently
“continuous and systematic.” 466 U.S. at 416. Although the Columbian
corporation made regular purchases in Texas for substantial sums, the Court held
that “mere purchases, even if occurring at regular intervals, are not enough to
warrant a State’s assertion of in personam jurisdiction over a nonresident
corporation in a cause of action not related to those purchase transactions.” Id. at
418.
More recently, the Supreme Court has decided two cases that raise the bar
even higher for general jurisdiction. In Goodyear, the Court held that North
Carolina courts lacked general jurisdiction over foreign tire manufacturers in a case
arising out of a bus accident in France. 564 U.S. at 919. Although some of the
foreign manufacturers’ tires were sold in North Carolina, the Court explained that
the “[f]low of a manufacturer’s products into the forum . . . may bolster an
affiliation germane to specific jurisdiction . . . [b]ut ties serving to bolster the
exercise of specific jurisdiction do not warrant a determination that, based on those
ties, the forum has general jurisdiction over a defendant.” Id. at 927. More
10 importantly, a unanimous Supreme Court held that in order to be subject to general
jurisdiction, a foreign corporation’s contacts with the forum State must be “so
‘continuous and systematic’ as to render [it] essentially at home in the forum
State.” Id. at 919.
Similarly, in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the Court relied
on the “at home” requirement in Goodyear to determine that California courts
lacked general jurisdiction over Daimler, a German automobile manufacturer, for
claims arising out of Argentina’s “Dirty War.” The Court held that even if the
substantial California contacts of Daimler’s American subsidiary, Mercedez-Benz
USA, were attributable to Daimler, general jurisdiction would not be proper
because California was not Daimler’s place of incorporation or principle place of
business; in other words, Daimler was not “at home” in California. Id. at 760-61.
Based on this understanding of the constitutional due process requirements,
we conclude that Fincantieri is not subject to general jurisdiction in Florida
because its contacts are not sufficiently “continuous and systematic” as to render it
“at home” in this State. In comparing this case to the “textbook” example in
Perkins, we observe that although Fincantieri does have an office in Miami, the
unrefuted sworn proof below was that the purpose of this office, with its single
employee, is to serve as a point of contact for ship owners and direct any inquiries
to the correct person or office in Italy. Unlike the office in Perkins, Fincantieri’s
11 Miami office is not involved in any of the company’s actual operations. Indeed, all
of Fincantieri’s executive officers and directors reside in Italy. Moreover, the vast
majority of Fincantieri’s 7,000 plus employees are based in the company’s offices
and shipyards in Italy.
In both Goodyear and Daimler, the Supreme Court explained that with
respect to a corporation, “the paradigm forum for the exercise of general
jurisdiction . . . [is] the place of incorporation and principal place of business . . . .”
Daimler, 134 S. Ct. at 760 (quoting Goodyear, 564 U.S. 735). Here, it is
undisputed that Fincantieri is an Italian corporation, and its principal place of
business is Italy. While it is true that general jurisdiction is not necessarily limited
to those two “paradigm forums,” we decline to “look beyond the exemplar bases
Goodyear identified,” such as Perkins, “and approve the exercise of general
jurisdiction” based on the magnitude of Fincantieri’s business activities in Florida.
See Daimler, 134 S. Ct. at 761 (declining to go beyond the paradigm forums and
approve the exercise of general jurisdiction wherever a corporation “engages in a
substantial, continuous, and systematic course of business”).
Yuzwa points us to a single unpublished opinion in support of his argument
that general jurisdiction exists in this case. See Barriere v. Cap Juluca, No. 12-
23510-CIV, 2014 WL 652831 (S.D. Fla. Feb. 19, 2014). In Barriere, the United
States District Court for the Southern District of Florida determined that it had
12 general jurisdiction over Cap Juluca, an Anguillan resort, based on its “substantial
and not isolated activity in Florida[,]” which included the maintenance and
operation of a Miami sales office; a Miami agent who managed Cap Juluca’s
assets; and a Florida-based agent that promoted, managed, operated, and provided
reservation services for Cap Juluca. Id. at *8.
We are not persuaded that Barriere is applicable here. As an initial matter,
we note that Cap Juluca did not include any sworn proof with its motion to
dismiss, so the allegations in the complaint remained unrebutted. Id. Further,
unlike the office in Barriere, Fincantieri’s Miami liaison office is not a sales office,
and there is no evidence that Fincantieri’s assets are managed by a Florida-based
agent. Finally, the reasoning in Barriere was recently called into question in
McCullough v. Royal Caribbean Cruises, Ltd., 268 F. Supp. 3d 1336, 1349 (S.D.
Fla. 2017) (“Thus, this Court disagrees with the ruling in Barriere, as it is
inconsistent with Daimler.”).
Because Fincantieri’s contacts with Florida were not sufficiently
“continuous and systematic” as to render it “at home” in this State, we hold that it
is not subject to general jurisdiction. We now turn to the second category of
personal jurisdiction: specific jurisdiction.
Specific Jurisdiction
13 Section 48.193(1)(a) lists several specific acts that could subject a
nonresident defendant to personal jurisdiction in Florida, provided that the
plaintiff’s cause of action “arises from” the specified acts.
(1)(a) A 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 and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:
(emphasis added). Yuzwa alleges that Fincantieri is subject to specific jurisdiction
in Florida based on the following two acts:
1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state. 2. Committing a tortious act within this state.
§ 48.193(1)(a), Fla. Stat.
As to the first act, —“[o]perating, conducting, engaging in, or carrying on a
business . . . in this state”—it is undisputed that Fincantieri does business in
Florida. But the relevant inquiry here is whether Yuzwa’s cause of action arises
from Fincantieri’s business in Florida. See Moo Young v. Air Canada, 445 So. 2d
1102, 1104 (Fla. 4th DCA 1984) (“The fact that a non-resident does business in
Florida is not enough to obtain jurisdiction over it. In addition, there must be some
connection between the cause of action pleaded and the business operations
conducted in Florida.”). This is known as the “connexity” requirement. Id. The 14 trial court, based on an expansive interpretation of this requirement, found that
there was a sufficient connection between Yuzwa’s claims and Fincantieri’s
business in Florida. We disagree.
The trial court relied on several cases in support of its holding that
“‘connexity’ is found where a defendant is engaging in business activities related
to the types of products or activities that caused a plaintiff harm.” While it is true
that the injury need not occur in Florida, and the product that caused the injury
need not be sold in Florida, we are reluctant to find that the connexity requirement
has been satisfied where both the injury and the sale of the product occurred
outside of the State, as is the case here. Indeed, in all of the cases the trial court
uses for support, there is a clear connection to Florida. See Davis v. Pyrofax Gas
Corp., 492 So. 2d 1044, 1044 (Fla. 1986) (finding that a nonresident manufacturer
or wholesaler could be sued in Florida where a space heater sold in Michigan, but
also marketed and sold in Florida, caused injury in Florida); Canron Corp. v. Holt,
444 So. 2d 529, 530 (Fla. 1st DCA 1984) (finding jurisdiction over a New York
corporation, with its principal place of business in South Carolina, where the
corporation sold and shipped equipment to Florida that later caused injury in
Georgia); Kravitz v. Gebrueder Pletscher Druckgusswaremfabrik, 442 So. 2d 985,
987 (Fla. 3d DCA 1983) (finding jurisdiction over a foreign bicycle rack
manufacturer where the rack was purchased in Illinois, but identical racks were
15 also sold in Florida, and the injury occurred in Florida); Shoei Safety Helmet Corp.
v. Conlee, 409 So. 2d 39 (Fla. 4th DCA 1981) (finding jurisdiction over a Japanese
helmet manufacturer where the helmet was sold indirectly in Florida, and the
injury also occurred in Florida).
Here, there is no apparent connection between Yuzwa’s claims and
Fincantieri’s business in Florida. The Oosterdam was not constructed in Florida; it
was not purchased in Florida; it is not owned by a Florida entity, it did not embark
from a Florida port; and the injury, to a non-Florida resident, occurred thousands of
miles away from Florida in the Pacific Ocean. The only connection Yuzwa
identifies is that similar cruise ships have been sold in Florida. We hold that this is
far too remote to satisfy the connexity requirement under both the long-arm statute
and the Due Process Clause. See Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., 137
S. Ct. 1773, 1781 (2017) (explaining that “a defendant's relationship with a. . .
third party, standing alone, is an insufficient basis for jurisdiction”); Oldfield v.
Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1223–24 (11th Cir. 2009) (“A finding
that such a tenuous relationship . . . somehow satisfied the relatedness requirement
would not only contravene the fairness principles that permeate the jurisdictional
due process analysis, but would also interpret the requirement so broadly as to
render it virtually meaningless.”).
16 Finally, we address the second act upon which specific jurisdiction is
based—“[c]ommitting a tortious act within this state.” § 48.193(1)(a)(2), Fla. Stat.
Here again, it is not apparent how Florida is remotely connected to the underlying
claims. Moreover, the plain language of the statute requires that the actual tortious
act be committed within the state. Yuzwa alleges that Fincantieri negligently
designed the Oosterdam’s stage and lifts in Florida. But this allegation is
contradicted by the unrebutted sworn proof below, which establishes that
Fincantieri designed the Oosterdam in Italy and purchased a “turnkey” stage from
HMS, S.A., a French company. Yuzwa also argues that “Fincantieri, through its
agent, HMS, negligently serviced, maintained and/or repaired the stage in Florida
at least once during the warranty period.” While it is true that Fincantieri inspected
the Oosterdam once in Florida in 2004, the unrebutted sworn proof below was that
“the inspection and maintenance of the entertainment areas and stage would have
been undertaken by HMS, which Fincantieri neither directed nor controlled.”
Consequently, we do not find an adequate connection between Florida and either
of the two specified acts upon which specific jurisdiction was based.
CONCLUSION
Because Fincantieri’s contacts with Florida do not render it “at home” here,
and there are insufficient connections between this state and the underlying claims,
17 we reverse, holding that the circuit court lacked both general and specific personal
jurisdiction over Fincantieri.
Reversed.