THE BEST ADVICE FOR PRESERVING JURISDICTIONAL DEFENSES – – TREAD LIGHTLY

Your client is a foreign citizen.   He resides in a land far, far away.   The only time that he has been to Florida, he claims, is for a vacation five years ago where he stayed in South Beach for one week, swam in the ocean several times, had a few martinis and returned to his homeland.   He does not have an office in Florida.   He does not do business in Florida.   He does not own real property in Florida.   In fact, he does not have any contacts with Florida at all.   That, however, did not stop the XYZ Corporation from suing him in Florida.   The XYZ Corporation has alleged, among other things, that your client has “minimum contacts” with the forum state.   Based upon your telephone interview with the client, since he is now afraid to even travel here just to meet you, you have determined that there is no basis for personal jurisdiction.   What should you do next in order to avoid inadvertently subjecting him to the jurisdiction of the Florida Courts.

1. File a Motion to Dismiss for Lack of Personal Jurisdiction.

While this may seem obvious, it is not obvious to many lawyers.   The only way to preserve jurisdictional defenses is to assert those defenses early and timely.   Do not file anything else.  Do not file a Notice of Appearance.   Do not file any other motions.   Note in your Motion to Dismiss that you are “specially appearing”.

2. Seek an Immediate Hearing on Your Motion to Dismiss.

It is important that you seek an immediate hearing in order to avoid the potential that your adversary may claim that your client has submitted himself to the jurisdiction of the court through “conduct.”   It is a really bad idea to file a Motion to Dismiss and let it sit in the Court file without having a hearing on it.   The reason for this is that there is a strong likelihood that your adversary, an aggressive Plaintiff’s lawyer, will seek to move the case forward by serving discovery, both party and non-party, in order to establish the merits of his client’s claim and that your client’s position that he has no contact with the forum state is untrue.   At this point, the case becomes a race to see who can get to the Judge first.  You should get to the Judge first by having your motion timely heard.

3. Whatever You Do, Do Not Seek “Affirmative Relief” From the Court.

The concept of waiving your jurisdictional defenses by seeking “affirmative relief” is a tricky one.   Florida Courts have defined it differently.   Generally, a Florida Court will find that jurisdictional defenses have been waived if your client files a Motion which does anything to advance his case on the merits.   One Florida Court, which is in a minority position, has found that, in order for the Court to hold that your client has sought “affirmative relief” the Defendant must actually seek something which is the equivalent to a money judgment.   Be forewarned that this is a distinctly minority approach and the test employed by the Florida Courts is significantly more expansive.   In other words, you can get yourself, and your client, into trouble by seeking relief from the Court in addition to asserting jurisdictional objections.

4. Resolve the Jurisdictional Issue at the Outset.

Allowing a case to remain in the Court system for several months or years, without resolving the jurisdictional objections you raised at the beginning, will likely subject your client to an argument that he has agreed to the jurisdiction of the Florida Courts through conduct.   Every aspect of your client’s conduct, mostly taken through you and the pleadings you file, will be scrutinized by opposing counsel and the Court.  Thus, it is important, indeed critical, to have an early determination regarding whether the plaintiff has jurisdiction over your client within the first ninety days of the litigation.   Note also that filing a Motion to Quash Service of Process is not the same thing as filing a Motion to Dismiss.   If anything, both should be joined at the outset if service is at issue but, whatever you do, don’t file a Motion to Quash and let it sit there for several months or years while you wait to later file a Motion to Dismiss for Lack of Jurisdiction.   The Florida Courts frown upon this type of gamesmanship and have often found a waiver when this occurs. 

5. Be Ready to Respond to Jurisdictional Discovery

Your adversary has the right to take “jurisdictional discovery”.  This means that the XYZ corporation will be free to ask your client about his contact with the State of Florida in the form of document requests, requests for admission and both party and non-party depositions. You have to respond to this discovery. You don’t have to respond to discovery which is served upon your client directed to the merits of the dispute.  This type of discovery should be objected to and you should seek a ruling from the Court as soon as possible.

While the litigation of issues regarding jurisdiction may become the equivalent of a litigation within a litigation, it is important that this portion of the case be addressed as soon as possible, particularly since, if the case is dismissed, substantial legal fees will ultimately be saved since it may avoid the litigation of the case on the merits in a Florida Court.

Conclusion

Representing defendants from foreign states or countries in the Florida Courts can be tricky. Out of state lawyers should avoid this altogether or retain competent local counsel to assist since the case law and procedure in this area can be difficult to navigate.

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