Tag Archives: personal jurisdiction

Things to Think About When Drafting Your Complaint

     There are certain things which you should think about before you begin to draft a complaint. If you consider these things in advance it will substantially increase the  chances of your complaint surviving a motion to dismiss.

  1. Understand Your Client.

     This may sound elementary. However, it is surprising how many lawyers do not understand who they are representing. Is your client a corporation, a limited liability corporation, or a partnership? Is your client from Florida, California or from China? All of these things factor into the equation of where your lawsuit will be filed.

      Who is it from the client that has to authorize the filing of a lawsuit. Is your client a public company? Is board approval required? Do the company’s bylaws have special provisions governing under what circumstances litigation may be commenced? These are all things  which the careful lawyer should think about in advance.

  1. Understand the Defendant.

      This is equally important, if not more important, than understanding your client. Who the defendant is will have a substantial impact on what type of lawsuit you file and where you file it. For example, is there diversity of citizenship? Is the plaintiff from one state and the defendant from another? Is the claim for over $75,000 in damages  ? If so, you may want to consider filing the Complaint in federal court. If you file in state court, and the claim is over $75,000, you and your client need to be aware of the possibility that the case may be “removed” from state court to federal court. Removal has serious consequences for the progress of the case and ultimate cost.

3. Personal Jurisdiction

     If you do not have personal jurisdiction, it is likely that the complaint will be dismissed. In order to have personal jurisdiction over the defendant, you must be able to show, among other things,  that the defendant  resides in or was doing business in the state in which you choose to sue. If the defendant does not reside in the state in which you choose to sue, consider how you may go about obtaining jurisdiction under the Florida long arm statute. See F. S. §48.193. The specific bases of personal jurisdiction under §48.193 are beyond the scope of this article; however, these are things to be aware of when drafting the complaint. Remember that you are required to plead the basis for long arm jurisdiction in the Complaint.

4. Your Complaint Should Tell a Story

      Litigators are, after all, storytellers at heart. What we do is explain our client’s saga in writing and, at appropriate times in front of the judge and jury. There is no reason to wait in order to get the story down pat. You should understand the story before you file the complaint. Try writing it down on a piece of paper, or dictate it before you begin. Make sure there is a beginning, a middle and an end and explain why, and how, your client has been harmed. You would be surprised how many complaints fail to follow this basic formula and are dismissed for that reason.

 5. Consider the Causes of Action

      Once  you understand your client’s story, you should give serious thought to causes of action. Now that you have told the court why  your client has been wronged, you need to explain why the law provides a remedy. There is an excellent book called “Florida Causes of Action” which you should review before you draft causes of action for your complaint. http://www.floridalitigationguide.com/. A simple review of the index will also help jog your mind as to what the defendant can be sued for. The book also contains the specific elements necessary to be pleaded in each cause of action. You would be surprised how many plaintiff’s lawyers fail to consult this book and rely, instead, on old forms or from memory. Bad idea. Why be lazy? A simple review of “Florida Causes of Action” significantly decreases the likelihood that your complaint will be dismissed.

 6.   Pleading with Particularity

     Many complaints, particularly those involving fraud, require that the circumstances constituting the fraud be pleaded with “specificity.” You should  understand what “specificity” actually means. Most often it means that, if the complaint was based upon false or fraudulent representations made by the defendant, that you identify who made representations, when the representations were made, how your client relied on them, and the dates of the representations, including a specific description of what was said. This will also assist in avoiding an early dismissal of your complaint.

7. Attach Relevant Contracts to your Complaint

      It is important to attach the contracts, if any, upon which your client is relying, to the Complaint. It is not necessary to attach every document and email to your complaint as an exhibit. Instead, the Florida Rules of Civil Procedure provide that you should attach copies of the contract upon which your claim is founded. This will assist in giving the defendant notice of what your claim is based upon. It is hard to understand why so many plaintiff’s lawyers fail to do this.

      You should also give consideration as to whether the contract which is attached to your complaint is actually consistent with the facts alleged in the complaint. If there is a contradiction, you will get a “Harry Pepper” motion. This motion is designed to dismiss your complaint based upon the fact that your complaint conflicts with the exhibits. By careful drafting, you should be able to avoid this.

      The above are just a representative sample of the things that you should consider before filing a complaint. Thinking through the allegations of the complaint in advance, including potential causes of action, jurisdiction and damages, will assist you in obtaining a better outcome.



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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.


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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