Banco De Los Trabajadores v. Cortez Moreno , 237 So. 3d 1127 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed January 24, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-730
Lower Tribunal No. 15-27321
________________
Banco de los Trabajadores,
Appellant,
vs.
Ricardo Rene Cortez Moreno,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, William Thomas, Judge.
Dorta & Ortega, P.A., and Omar Ortega, Rey Dorta and Rosdaisy
Rodriguez; Williams & Connolly LLP, and Peter J. Kahn, Jonathan M. Landy and
Matthew H. Jasilli (Washington, D.C.), for appellant.
Brill & Rinaldi, The Law Firm, and David W. Brill, Joseph J. Rinaldi and
Michelle Y. Medina-Fonseca (Weston); The McKee Law Group, LLC, and Robert
J. McKee (Davie); Joel S. Perwin, P.A., and Joel S. Perwin, for appellee.
Before EMAS, LOGUE and SCALES, JJ.
PER CURIAM.
I. Introduction
Appellant Banco de los Trabajadores (“Bantrab”), the defendant below, was
sued by Appellee Ricardo Rene Cortez Moreno (“Cortez”). In this non-final
appeal, Bantrab seeks review of the trial court’s order denying its motion to
dismiss two counts of Cortez’s complaint for lack of personal jurisdiction. For the
reasons that follow, we reverse the trial court’s order denying Bantrab’s motion to
dismiss.
In November of 2015, Cortez filed a complaint against Bantrab, a
Guatemalan bank, and against seven individual directors of Bantrab (the
“Directors”). Cortez later filed an amended (and second amended) complaint that
alleged the following twenty claims:
Counts I-VII: Assault and Battery (against the Directors);
Count VIII: Assault and Battery (against Bantrab);
Counts IX-XV: Florida RICO (against the Directors);
Count XVI: Florida RICO (against Bantrab);
Count XVII: Breach of Contract (against Bantrab);
Counts XVIII-XX: Tortious Interference with Contract (against three of the
Directors)
(The counts relevant to this appeal are in bold.)
2
This appeal addresses only the portion of the trial court’s March 14, 2017
order that found personal jurisdiction as to Bantrab,1 and only as to Counts VIII
(assault and battery) and XVI (Florida RICO violations).2
II. Background Facts
The second amended complaint contains the following allegations:
Bantrab is a Guatemalan corporation, with its principal place of business in
Guatemala. Cortez was a citizen of Guatemala but has been a resident of Miami-
Dade County since 2008, and is now a United States citizen.
In 2008, Bantrab entered into a written professional services agreement with
Cortez, under which Cortez would assist in promoting and increasing Bantrab’s
business and business presence in Florida and the United States. Both parties
further agreed to submit any type of dispute relating to the contract to the
jurisdiction of the courts of Miami-Dade County.
The complaint alleges that Bantrab launched a “Bancarization project” that
sought the business of Guatemalan residents who worked and lived in Florida and
who sent money to their families in Guatemala. To help create and operate this
business, Bantrab entered into a contract with Cortez’s company, Union Expresso.
1 The Directors were later dismissed on the basis of improper service, and
therefore, only Bantrab has appealed the trial court’s order.
2 Bantrab did not appeal that portion of the trial court’s order finding that Florida’s
long-arm statute conferred specific jurisdiction over Bantrab to adjudicate Cortez’s
claim for breach of contract (Count XVII).
3
To promote the Bancarization project, Bantrab sent officers and staff to Florida, set
up small banking facilities (“mini-consulates”) in Florida, advertised in Florida,
contracted with money transfer companies based in Florida, and worked with
several associate banks in Florida. Cortez acknowledged in his complaint that
Bantrab’s formal banking activities take place in Guatemala.
At some point, the President of the Republic of Guatemala became aware
that Bantrab was allegedly involved in money laundering. He contacted Cortez
and asked Cortez to investigate Bantrab’s suspected money-laundering activities in
Florida and elsewhere in the United States. From this point onward, as he acted
upon the President’s request, Cortez allegedly became a target of Bantrab and the
Directors. Cortez alleges he discovered evidence that Bantrab and the Directors
were participating in a large-scale conspiracy. Relevant to the jurisdictional issue
presented, Cortez alleges he discovered that Bantrab and the Directors were aiding
and abetting drug traffickers by laundering the proceeds of narcotics trafficking
and transferring these proceeds to Florida through Bantrab. Further, Cortez alleges
that the Directors were traveling to Florida to meet with members and
representatives of drug cartels in furtherance of this unlawful activity.
When the Directors learned of Cortez’s investigation, the Directors
threatened Cortez that if he did not stop his investigation, leave Florida and come
to Guatemala, they would ruin his substantial business in Guatemala. The
4
Directors went to Florida to meet with Cortez in a further attempt to convince
Cortez to halt his investigation and to bury his findings. When Cortez refused,
Bantrab canceled its contract with Cortez’s company, Union Expresso.
At that point, Cortez decided to travel to Guatemala in an attempt to reach
some acceptable resolution with Bantrab. On August 20, 2009, Cortez met with
the Directors but no real progress was made at that meeting. Two days later, while
still in Guatemala and on his way to the airport to return to Florida, the vehicle
Cortez was riding in was fired upon forty-two times, and Cortez was struck by two
of the bullets. One bullet traveled through Cortez’s right arm and into his chest
and torso. The second bullet entered his lower back. Cortez alleges that the
Directors, as agents or employees of Bantrab, hired a hitman to carry out this
attack on Cortez because of Cortez’s investigation into Bantrab’s (and the
Directors’) conspiracy and money-laundering activities allegedly occurring in
Florida. This attempted murder formed the basis for Cortez’s assault and battery
claims.
III. Procedural Background
In addition to pleading these case-specific facts, Cortez’s second amended
complaint also tracked the statutory language of the relevant portions of Florida’s
long-arm jurisdiction statute (section 48.193 of the Florida Statutes (2015)). Cortez
alleged that Bantrab was subject to the jurisdiction of the courts of Florida for
5
causes of action arising from Bantrab’s alleged: (i) operating, conducting,
engaging in, or carrying on a business or business venture in this state or having an
office or agency in this state; (ii) committing a tortious act within this state; or (iii)
engaging in substantial and not isolated activity within this state.
After the second amended complaint was filed, Bantrab filed a motion to
dismiss, contending that, even accepting all of the complaint’s allegations as true,
those allegations, as a matter of law, fail to establish personal jurisdiction over
Bantrab for the assault and battery claim and the Florida RICO claim. Bantrab
opposed all jurisdictional discovery and the trial court permitted no discovery on
this issue. The trial court held a non-evidentiary hearing3 on Bantrab’s motion and,
on March 14, 2017, entered the order on appeal that denied Bantrab’s motion to
dismiss, concluding that the allegations of Cortez’s second amended complaint
established both general and specific personal jurisdiction over Bantrab. The trial
court’s order, though, did dismiss, without prejudice, Cortez’s Florida RICO claim
against Bantrab (Count XVI), requiring Cortez to file a more definite statement.
3 Although Bantrab filed an affidavit of Alba Virginia Marisol Garcia Escobar, the
legal corporate manager and secretary of the board of directors of Bantrab, the trial
court found that the averments of that affidavit failed to refute the specific
jurisdictional allegations in the second amended complaint. On appeal, Bantrab
does not contest this finding, but argues that even if the allegations of the second
amended complaint are accepted as true, Cortez failed to establish either specific or
general jurisdiction over Bantrab for the assault and battery and Florida RICO
claims.
6
Bantrab timely appealed the jurisdictional determinations in the trial court’s March
14, 2017 non-final order. We have jurisdiction. See rule 9.130(a)(3)(C)(i).4
IV. Analysis5
4 During the pendency of an appeal of a non-final order, absent a stay, the trial
court continues to exercise jurisdiction over a case except that a trial court may not
render a final order disposing of the case while appellate review is pending. Rule
9.130(f). The docket in this case reflects that, on April 12, 2017, Cortez filed a
third amended complaint, again alleging against Bantrab an assault and battery
claim (in Count VII), a Florida RICO claim (in Count XIV), and a breach of
contract claim (in Count XV). On June 20, 2017, the trial court granted, with
prejudice, Bantrab’s motion to dismiss all of Cortez’s claims against Bantrab
contained in Cortez's third amended complaint. The trial court determined
that Cortez’s claims are time-barred and, in the case of the Florida RICO claim,
that Cortez failed to state a legally viable cause of action. Because rule 9.130(f)
precluded the trial court from entering a final dismissal order consistent with its
June 20 order granting Bantrab’s motion to dismiss, Bantrab asked this Court to
hold this appeal in abeyance, and allow the trial court to enter a final, appealable
dismissal order. Cortez opposed Bantrab’s relinquishment motion, and this Court
denied Bantrab’s motion. Generally, a determination that a plaintiff cannot state a
cause of action against a defendant will render moot a personal jurisdictional
determination. See Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002). We
decline, however, to dismiss this appeal on mootness grounds. Any mootness of
the jurisdictional determination might be only temporary. For example, the trial
court might decide, for whatever reason, not to enter a final judgment for Bantrab;
or, if the trial court does enter such a judgment for Bantrab, that judgment could be
subject to rehearing or reversal on appeal. Importantly, we express no opinion on
the viability of Cortez’s claims Bantrab; but, because there remains the possibility
that Cortez’s claims against Bantrab may be reinstated, our review of the
jurisdictional determinations in the trial court’s March 14, 2017 order is not
rendered moot.
5We review de novo the trial court’s decision on a motion to dismiss for lack of
personal jurisdiction of a defendant. Wendt v. Horowitz, 822 So. 2d at 1256;
Castillo v. Concepto Uno of Miami, Inc., 193 So. 3d 57, 59 (Fla. 3d DCA 2016).
7
On appeal, Bantrab contends that Cortez failed to allege sufficient
jurisdictional facts to establish either general or specific jurisdiction over Bantrab,
a non-resident defendant, as to the assault and battery and Florida RICO counts.
Bantrab also contends that the trial court applied the incorrect standard in making
its determination as to general jurisdiction.
In Florida, the appropriateness of exercising personal jurisdiction over a
nonresident defendant involves a two-part inquiry. The court must:
first determine whether sufficient jurisdictional facts exist to
bring the action within the ambit of Florida’s long-arm statute
(section 48.193), and then [it must] determine whether the
foreign corporation possesses sufficient “minimum contacts”
with Florida to satisfy federal constitutional due process
requirements.
Reynolds Am., Inc. v. Gero, 56 So. 3d 117, 119 (Fla. 3d DCA 2011) (citing
Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989)). Florida
courts undertake the Venetian Salami inquiry by first determining whether the
complaint’s allegations are sufficient to bring the action within the ambit of
Florida’s long-arm statute. If the allegations are sufficient, the burden then shifts
to the defendant to contest, via affidavit or other sworn proof, the jurisdictional
allegations or whether sufficient minimum contacts exist; if properly contested,
the burden then returns to the plaintiff to refute the defendant’s evidence with
similar sworn proof. Belz Investco Ltd. P’ship v. Groupo Immobiliano Cababie,
S.A., 721 So. 2d 787, 789 (Fla. 3d DCA 1998) (citations omitted).
8
First, we provide an overview of “general” and “specific” jurisdiction
provided for in Florida’s long-arm statute; then, we discuss whether Cortez’s
general jurisdictional allegations are sufficient under the statute as informed by
recent United States Supreme Court precedent; and finally, we evaluate whether
Cortez’s specific jurisdictional allegations are sufficient under the statute.
A. “General” and “Specific” Jurisdiction under Florida’s Long-Arm Statute
Cortez bears the initial burden of alleging sufficient allegations to bring the
action within the ambit of Florida’s long-arm statute, section 48.193 of the Florida
Statutes. Id. at 789; see also Casita, L.P. v. Maplewood Equity Partners L.P., 960
So. 2d 854, 856 (Fla. 3d DCA 2007). Long-arm jurisdiction under section 48.193
may be established in one of two ways: “general” jurisdiction or “specific”
jurisdiction. Rautenberg v. Falz, 193 So. 3d 924, 928 (Fla. 2d DCA 2016). A
Florida court has “general” jurisdiction over a nonresident defendant when the
defendant has “engaged in substantial and not isolated activity within this state.”
See § 48.193(2), Fla. Stat. (2015).6 If a defendant is subject to the court’s “general”
jurisdiction, it is unnecessary to establish “whether or not the claim arises from that
6 Section 48.193(2) (general jurisdiction) provides in full:
A defendant who is engaged in substantial and not isolated activity
within this state, whether such activity is 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.
9
activity.” Id. Conversely, “specific” jurisdiction is claim-specific. A Florida court
may exercise “specific” jurisdiction over a nonresident defendant in those cases in
which it is alleged that the nonresident defendant commits any of the specific acts
enumerated in the statute in Florida, so long as the cause of action arises from that
enumerated act committed in Florida. See § 48.193(1)(a)1.-9. (Fla. Stat. (2015).7
7 Section 48.193(1)(a) (specific jurisdiction) provides in full:
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:
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.
3. Owning, using, possessing, or holding a mortgage or other lien on
any real property within this state.
4. Contracting to insure a person, property, or risk located within this
state at the time of contracting.
5. With respect to a proceeding for alimony, child support, or division
of property in connection with an action to dissolve a marriage or with
respect to an independent action for support of dependents,
maintaining a matrimonial domicile in this state at the time of the
commencement of this action or, if the defendant resided in this state
preceding the commencement of the action, whether cohabiting
during that time or not. This paragraph does not change the residency
requirement for filing an action for dissolution of marriage.
6. Causing injury to persons or property within this state arising out of
an act or omission by the defendant outside this state, if, at or about
the time of the injury, either:
a. The defendant was engaged in solicitation or service activities
within this state; or
10
B. General Jurisdiction
In the instant case, not only did Cortez’s second amended complaint track
the statutory language of the general jurisdiction provisions of Florida’s long-arm
statute – alleging that Bantrab “engaged in substantial and not isolated activity
within this state” § 48.193(2), Fla. Stat. (2015) – Cortez also included detailed
allegations that Bantrab engaged in substantial and not isolated activity within this
state, including the allegations that Bantrab:
● Launched a “Bancarization project” that sought the business of
Guatemalan residents who worked and lived in Florida and who
sent money to their families in Guatemala.
● Sent officers and staff to Florida, set up small banking facilities
(“mini-consulates”) in Florida;
● Advertised in Florida, contracted with money transfer companies
based in Florida, and worked with several associate banks in
Florida; and
● Participated in a large-scale conspiracy to aid and abet drug
traffickers by laundering the proceeds of this narcotics trafficking
through Bantrab and through Florida financial institutions and by
b. Products, materials, or things processed, serviced, or manufactured
by the defendant anywhere were used or consumed within this state in
the ordinary course of commerce, trade, or use.
7. Breaching a contract in this state by failing to perform acts required
by the contract to be performed in this state.
8. With respect to a proceeding for paternity, engaging in the act of
sexual intercourse within this state with respect to which a child may
have been conceived.
9. Entering into a contract that complies with s. 685.102.
11
traveling to Florida to meet with members and representatives of
drug cartels.
The trial court concluded that the allegations of the second amended
complaint, which Bantrab’s affidavit failed to refute specifically,8 were sufficient
to establish general jurisdiction over Bantrab. The trial court found that Cortez
sufficiently alleged that Bantrab engaged in “substantial and not isolated activity
within this state,” see section 48.193(2), which has been construed to mean a
showing of “continuous and systematic general business contact” with the state.
Vos, B.V. v. Payen, 15 So. 3d 734, 736 (Fla. 3d DCA 2009); Gadea v. Star
Cruises, Ltd., 949 So. 2d 1143, 1145 (Fla. 3d DCA 2007) (quoting Carib-USA
Ship Lines Bahamas, Ltd. v. Dorsett, 935 So. 2d 1272, 1275 (Fla. 4th DCA 2006)
and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416
(1984)); Bafitis v. Ara, 815 So. 2d 702, 703 (Fla. 3d DCA 2002). We have held
that the requirement of continuous and systematic general business contacts “must
be ‘extensive and pervasive, in that a significant portion of the defendant’s
8As this court observed in Tobacco Merchs. Ass’n of U.S. v. Broin, 657 So. 2d
939, 941 n.4 (Fla. 3d DCA 1995):
The court in Venetian Salami did not create a default procedure
whereby the mere filing of any affidavit by a defendant requires that a
trial court rule in his favor. The defendant’s affidavit must meet all
requirements for legal sufficiency and must also refute all
jurisdictional allegations in the plaintiff’s complaint. But once this has
been done, the burden shifts to the plaintiff to refute the legally
sufficient affidavit.
12
business operations or revenue [are] derived from established commercial
relationships in the state.’” Taylor v. Gutierrez, 129 So. 3d 415, 419 (Fla. 3d DCA
2013) (quoting Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245, 259 (Fla. 4th
DCA 2011)) (additional citations omitted).
The constitutional due process standard, however, for determining general
jurisdiction changed significantly with the United States Supreme Court’s
decisions in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).
In Daimler, the Court held that “approv[ing] the exercise of general
jurisdiction in every State in which a corporation ‘engages in a substantial,
continuous, and systematic course of business’ . . . [represents a] formulation [that
is] unacceptably grasping.” 134 S. Ct. at 760-61. Instead, Daimler reaffirmed the
principle announced earlier in Goodyear:
[T]he inquiry under Goodyear is not whether a foreign corporation’s
in-forum contacts can be said to be in some sense “continuous and
systematic,” it is whether that corporation’s “affiliations with the State
are so ‘continuous and systematic’ as to render [it] essentially at home
in the forum State.”
Id. at 761 (quoting Goodyear, 564 U.S. at 919).
We conclude that the trial court applied the incorrect constitutional due
process standard in determining whether it could exercise general jurisdiction over
Bantrab on the counts for assault and battery and Florida RICO. Although our
13
standard of review is de novo, and while we might have the discretion to make
such a determination in the first instance, we conclude it is more appropriate, on
this record and under these circumstances, for the trial court to make this
determination in the first instance. We therefore reverse that portion of the trial
court’s March 14, 2017 order and, to the extent it may be necessary, remand so the
trial court can apply Daimler and Goodyear in its determination of whether
Cortez’s operative complaint sufficiently alleges the court’s general jurisdiction
over Bantrab to adjudicate Cortez’s assault and battery and Florida RICO claims.
C. Specific Jurisdiction
In addition to finding Cortez had adequately alleged a basis for the trial court
to assert general jurisdiction over Cortez’s claims under section 48.193(2), in its
March 14, 2017 order, the trial court also determined that Cortez’s second
amended complaint provided a sufficient basis for the trial court to assert specific
jurisdiction under section 48.193(1)(a) of Florida’s long arm statute.
Cortez asserts that the court may exercise specific jurisdiction over Bantrab
because his complaint tracks the language of sections 48.193(1)(a)(1) and (2), i.e.,
those provisions of Florida’s long-arm statute authorizing the court to exercise
specific jurisdiction over a nonresident defendant that operates a business venture
in this state or commits a tort in this state. In relevant part this statute provides: “A
person . . . who . . . does any of the acts enumerated in this subsection thereby
14
submits himself . . . to the jurisdiction of the courts of this state for any cause of
action arising from . . . 1. Operating, conducting, engaging in, or carrying on a
business or business venture in this state . . . . 2. Committing a tortious act within
this state . . . .” § 48.193(1)(a)1.-2., Fla. Stat. (2015) (emphasis added).
Specifically, Cortez alleges that Bantrab committed a tort in Florida (the
conspiracy to murder Cortez to prevent him from continuing his investigation into
Bantrab’s illegal activities in Florida) and that Bantrab was operating a “business”
or “business venture” in Florida (the illegal money-laundering operation). Cortez
contends that the assault and battery (the attempted murder in Guatemala) and the
Florida RICO claims arose from tortious acts committed in Florida and from
Bantrab’s allegedly illegal business operations in Florida.
While sufficient allegations of general jurisdiction do not require any
showing that the cause of action arises from the defendant’s activity in the state
(see section 48.193(2)), those provisions of Florida’s long-arm statute governing
specific jurisdiction expressly require allegations both: (i) that the defendant does
one of the enumerated acts within Florida, and (ii) that the plaintiff’s cause of
action “arise from” one of the enumerated acts occurring in Florida. See §
48.193(1)(a), Fla. Stat. (2015). These dual requirements – that the defendant’s
conduct occur in Florida and that the plaintiff’s cause of action arises from such
Florida activity – are known as the statute’s connexity requirement. See, e.g.,
15
Wendt, 822 So. 2d at 1260; see generally White v. Pepsico, Inc., 568 So. 2d 886
(Fla. 1990); Wiggins v. Tigrent, 147 So. 3d 76, 87 (Fla. 2d DCA 2014); Am.
Overseas Marine Corp. v. Patterson, 632 So. 2d 1124, 1127 (Fla. 1st DCA 1994).
1. Assault and Battery (Count VIII)
a. Committing a tortious act within Florida – section 48.193(1)(a)(3)
Bantrab contends that, because the assault and battery (the attempted
murder) was committed in Guatemala and not in Florida, and did not cause injury
to Cortez in Florida, there can be no specific jurisdiction for this claim, as the
cause of action is not one “arising from” a tortious act committed within the state.
Cortez acknowledges that no element of the assault and battery intentional
tort occurred in Florida, but counters that the assault and battery is not the “tortious
act” conferring specific jurisdiction under the long-arm statute. Rather, Cortez
argues that the tortious act establishing specific jurisdiction is the conspiracy that
Bantrab and its Directors undertook in the State of Florida.
The significant problem, however, with Cortez’s argument is that Florida
does not recognize civil conspiracy as a freestanding tort. SFM Holdings Ltd. v.
Banc of Am. Secs., LLC, 764 F.3d 1327, 1338-39 (11th Cir. 2014) (applying
Florida law). The gist of a civil conspiracy is not the conspiracy itself, but the
underlying civil wrong occurring pursuant to the conspiracy and which results in
the plaintiff’s damages. Marriott Int’l, Inc. v. Am. Bridge Bahamas, Ltd., 193 So.
16
3d 902, 909 (Fla. 3d DCA 2015). The conspiracy does not give rise to an
independent cause of action, but is a device to allow a plaintiff to spread liability to
those involved in causing the underlying tort. Lorillard Tobacco Co. v. Alexander,
123 So. 3d 67, 80 (Fla. 3d DCA 2013) (observing: “Conspiracy is not a separate or
independent tort but is a vehicle for imputing the tortious acts of one coconspirator
to another to establish joint and several liability.”) (quoting Ford v. Rowland, 562
So. 2d 731, 735 n.2 (Fla. 5th DCA 1990)).9 The conspiracy, therefore, is
inextricably linked with the underlying tort. Blatt v. Green, Rose, Kahn &
Piotrkowski, 456 So. 2d 949, 950-51 (Fla. 3d DCA 1984).
Just as the alleged conspiracy – alone and in isolation – is not actionable
independently from the underlying tort, we similarly conclude that the conspiracy
alleged by Cortez, standing alone, does not provide a sufficient basis to confer
specific jurisdiction under section 48.193(1)(a)(2) to adjudicate the assault and
battery. This is especially true here when not a single element of the underlying
assault and battery is alleged to have occurred in Florida.
We cannot read section 48.193(1)(a)’s dual requirements – both that a
defendant does an enumerated act in Florida and that the cause of action arises
from an enumerated act in Florida – as authorizing the exercise of specific
9 This is not a case involving an allegation of anti-competitive conduct where an
independent conspiracy tort has been recognized. See, e.g., Buckner v. Lower Keys
Hosp. Dist., 403 So. 2d 1025, 1029 (Fla. 3d DCA 1981).
17
jurisdiction when the only tort relied upon to confer such jurisdiction is a civil
conspiracy to commit a tort, and no element of the underlying tort is alleged to
have occurred in Florida. Cortez has not provided us with, and we have not been
able to locate, any authority for the proposition that Florida’s long-arm statute
confers such specific jurisdiction upon a Florida court. We decline Cortez’s
invitation to be the first Florida court to determine that the connexity requirement
is met under such circumstances. We therefore conclude that Cortez’s allegations
are insufficient to confer specific jurisdiction under section 48.192(1)(a)(2) to
adjudicate Cortez’s assault and battery claim against Bantrab.10
b. Operating a business venture in Florida – section 48.192(1)(a)(1)
Cortez also argues that the trial court has specific jurisdiction to adjudicate
Cortez’s assault and battery claim against Bantrab under section 48.193(1)(a)(1),
because Cortez has alleged that Bantrab is conducting business in Florida, and the
attack on Cortez arose out of such activities. Our reading of this Court’s connexity
requirement jurisprudence, however, obviates the need for us to evaluate whether
10 Because our holding in this regard is focused on Venetian Salami’s first prong –
i.e., whether sufficient jurisdictional facts exist to bring the action within Florida’s
long-arm statute – we need not, and therefore do not, reach the due process prong
of the Venetian Salami test. We do note, though, that recent constitutional
jurisprudence suggests that, to comply with the Fourteenth Amendment’s due
process requirement, a state court may exercise specific jurisdiction over a non-
resident defendant only when the complained-of injury actually occurs in the
forum state. See Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco
Cty., 137 S. Ct. 1773 (2017).
18
Cortez’s allegations regarding Bantrab’s business activities are sufficient to confer
jurisdiction to adjudicate Cortez’s tort claim. Because we have determined that
Cortez has not met the connexity requirement conferring jurisdiction to adjudicate
Cortez’s assault and battery tort, Bantrab’s business activities are irrelevant.
Small v. Chicola, 929 So. 2d 1122, 1125 n.1 (Fla. 3d DCA 2006); Elmlund v.
Mottershead, 750 So. 2d 736, 737 n.2 (Fla. 3d DCA 2000).
Therefore, we reverse that portion of the trial court’s order concluding that
it had specific jurisdiction over Bantrab under Florida’s long-arm statute to
adjudicate Count VIII.
2. Florida RICO (Count XVI)
In Count XVI, Cortez alleged that Bantrab’s conduct is actionable under
Florida’s RICO statute. While not entirely clear, it seems that, notwithstanding
the trial court’s dismissal of this claim without prejudice requiring Cortez to file a
more definite statement, the trial court’s March 14, 2017 order nonetheless
determined that Cortez’s allegations were sufficient to confer specific jurisdiction
under section 48.193(1)(a) for the trial court to adjudicate this claim.
Because the trial court had dismissed the claim, it was premature for the trial
court to reach the jurisdictional issue. Until it had first been determined that Cortez
could state a cause of action for Florida RICO against Bantrab, the trial court was
19
unable to determine the question of specific jurisdiction. As the Florida Supreme
Court observed in Wendt:
The threshold question that must be determined is whether the
allegations of the complaint state a cause of action. Cf. 8100 R.R.
Ave. Realty Trust v. R.W. Tansill Constr. Co., 638 So. 2d 149, 1515
(Fla. 4th DCA 1994) (where the threshold question of personal
jurisdiction turns on whether a tort is committed in Florida, the court
necessarily must review the allegations of the complaint to determine
if a cause of action is stated); Silver [v. Levinson], 648 So. 2d [240] at
241 [(Fla. 4th DCA 1994)] (same).
Wendt, 822 So. 2d at 1260.
Indeed, as indicated above in footnote 4, the trial court, after apparently
determining that it could exercise personal jurisdiction over Bantrab to adjudicate
Cortez’s Florida RICO claims, sometime later determined that Cortez could not
state a Florida RICO cause of action against Bantrab, and dismissed that claim
with prejudice. Hence, to the extent that the trial court’s March 14, 2017 order
purported to determine that the trial court had specific jurisdiction over Bantrab to
adjudicate Cortez’s Florida RICO claim, we reverse that part of the order as being
premature.
V. Conclusion
We therefore: (i) reverse the trial court’s order finding general jurisdiction
over Bantrab for Count VIII alleging assault and battery and Count XVI alleging
Florida RICO violations, and, to the extent it may be necessary, remand for further
proceedings consistent with this opinion, including a determination as to whether
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the court can assert general personal jurisdiction over Bantrab applying the
constitutional due process standard announced in Goodyear and Daimler; (ii)
reverse the trial court’s order finding specific jurisdiction over Bantrab for Count
VIII; and (iii) reverse, as premature, that portion of the trial court’s order
purporting to find specific jurisdiction over Bantrab for Count XVI.
Reversed with instructions.
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