Woods v. Nova Companies Belize Ltd.

Appellants, Francis and Jacqueline Woods (plaintiffs), appeal the trial court’s dismissal of their negligence action based on lack of personal jurisdiction and forum non conveniens. For the reasons stated in this opinion, we reverse.

I. FACTS

Francis Woods, a resident of Belize, was injured in an aircraft accident in Costa Rica in 1994 while a passenger on an aircraft owned by appellee, Nova Companies Belize, Ltd. (defendant). He sustained multiple serious injuries, including burns to 65% of his body. Francis and his wife Jacqueline brought suit against defendant in Broward County Circuit Court, seeking recovery for damages resulting from Francis’s injuries.

Defendant is a Belizean corporation engaged in the business of shrimp farming. Beginning in late 1991, defendant began to export its shrimp to the United States. Eighteen percent of its worldwide shrimp sales are made to Florida importers, and ninety percent of its total shrimp sales are to the United States, with almost one hundred percent of its shipments traveling through Florida either by air or by boat. Defendant has utilized the services of a Florida broker to arrange for customs and FDA approval of the shrimp shipments, has purchased containers from Florida through a corporation which brings them to Belize for defendant’s use, has utilized storage facilities in Florida when necessary, and has purchased a variety of equipment and supplies from Florida sellers for its use in Belize. Defendant, however, does not own property in Florida, is not registered to do business in Florida, has never advertised to do business in Florida, and does not maintain a mailing address, telephone listing or bank account in Florida.

II. PERSONAL JURISDICTION

The trial court dismissed the plaintiffs’ complaint for lack of personal jurisdiction, as well as on grounds of forum non conveniens. Generally, when performing a jurisdictional analysis pursuant to a long-arm statute, Florida courts must engage in a two-part analysis. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). The court must first determine whether the party has alleged facts sufficient to fall within the scope of Florida’s long arm statute, section 48.193, and if so, whether the federal constitutional due process requirements of minimum contacts have been met. See id.

When seeking to establish jurisdiction over a nonresident defendant, the plaintiff need only plead “the basis for service in the language of the statute without pleading the supporting facts.” Id. at 502. Filing a motion to dismiss merely raises the legal sufficiency of the pleadings. To contest jurisdiction, a defendant must file affidavits in support of his position. The burden is then placed on the plaintiff to prove by affidavit the basis for jurisdiction. See id. at 502-503. “In most cases, the affidavits can be harmonized, and the court will be in a position to make a decision based upon facts which are essentially undisputed.” Id. at 503.

The trial court’s conclusory order dismissing the case contains no factual findings on the jurisdictional issue. The record before the trial court in this case consisted of affidavits, discovery documents and deposition testimony in support of the parties’ respective positions. The trial court did not hold an evidentia-ry hearing to consider live testimony where credibility was an issue. Therefore, the trial court occupied no better position than this Court to resolve the issue of whether personal jurisdiction exists under Florida’s long arm statute and whether minimum contacts are satisfied. Cf. Ciba-Geigy Ltd. v. The Fish Peddler, Inc., 691 So.2d 1111, 1118 (Fla. 4th DCA), review denied, 699 So.2d 1372 (Fla.1997).

Plaintiffs assert that the trial court had personal jurisdiction over defendant based on the general jurisdiction statute, section 48.193(2), Florida Statutes (1995), which provides:

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, ichether or not the claim arises from that activity.

(Emphasis supplied.) The general jurisdiction statute does not require eonnexity between a defendant’s activities and the cause of action. See Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Universal Caribbean Establishment v. Bard, 543 So.2d 447, 448 (Fla. 4th DCA 1989); Nichols v. Paulucci, 652 So.2d 389, 391 (Fla. 5th DCA 1995); American Overseas Marine Corp. v. Patterson, 632 So.2d 1124, 1128 (Fla. 1st DCA 1994).

“Substantial and not isolated activity” has been found to mean “continuous and systematic general business contact” with Florida. See Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 720 (Fla. 4th DCA 1998) (quoting American Overseas, 632 So.2d at 1128). This “continuous and systematic” contacts standard was the standard enunciated by the Supreme Court in Helicópteros as sufficient to fulfill the due process requirements of minimum contacts when asserting general jurisdiction. 466 U.S. at 415, 104 S.Ct. 1868. Because section 48.193(2) requires this high threshold, if the defendant’s activities meet the requirements of section 48.193(2), minimum contacts is also satisfied. See Universal Caribbean, 543 So.2d at 448; Nichols, 652 So.2d at 391; Amencan Overseas, 632 So.2d at 1127-28; see also Venetian Salami, 554 So.2d at 502 (recognizing that some bases of jurisdiction found in section 48.193 would satisfy minimum contacts concerns).

The record demonstrates that defendant engaged in continuous and systematic business activities with Florida and derived great pecuniary benefit from its transactions here. By selling approximately eighteen percent of its product to Florida importers, moving nearly all of its product through the state, purchasing equipment and supplies from Florida suppliers, utilizing storage facilities in Florida, and establishing essential business relationships in this state, all within its ongoing commercial relationship with Florida, defendant “engaged in substantial and not isolated activity within the state” as is required to establish general jurisdiction pursuant to section 48.193(2). See Achievers, 710 So.2d at 720; Pafco Gen’l Ins. Co. v. Wah-Wai Furniture Co., 701 So.2d 902, 903-04 (Fla. 3d DCA 1997).

Although defendant maintains that some of these business contacts took place after the accident in this ease, that fact is not dispositive. “[Cjontacts are commonly assessed over a period of years prior to the plaintiffs filing of the complaint.” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir.1996); see also Helicopteros, 466 U.S. at 409-411, 104 S.Ct. 1868 (examining contacts over a seven-year-period, up to the time the lawsuit was filed).

The activities cannot be described as either haphazard or fortuitous. See, e.g., Rafal v. Mesick, 661 So.2d 79, 81 (Fla. 2d DCA 1995); American Overseas, 632 So.2d at 1130; Price v. Point Marine, Inc., 610 So.2d 1339, 1341-42 (Fla. 1st DCA 1992). While any one of these activities alone may not be deemed sufficient, considered collectively, they establish personal jurisdiction. See Nichols, 652 So.2d at 392-93.

Based on the foregoing, we conclude that the trial court erred in not finding personal jurisdiction over defendant pursuant to section 48.193(2). Thus, the constitutional requirements of minimum contacts have been satisfied.

III. Forum Non Conveniens

Having determined that personal jurisdiction exists, we next address the question of forum non conveniens. “Forum non conveniens is a common law doctrine addressing the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere.” Kinney Sys. Inc. v. Continental Ins. Co., 674 So.2d 86, 87 (Fla.1996) (emphasis supplied) (footnote omitted).

The trial court’s decision to grant or deny a motion to dismiss on grounds of forum non conveniens is subject to an abuse of discretion standard of review. See Fla. R. Civ. P. 1.061(a). However, where, as here, the trial court’s decision is not based on live testimony, “[t]he presumption of correctness given to a trial court’s rulings ... is lessened, because the appellate court has everything the trial court had before it.” Ciba-Geigy, 691 So.2d at 1118.

In Kinney, the Florida Supreme Court adopted the federal four-part analysis for forum non conveniens:

[1] As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice. [3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

674 So.2d at 90 (quoting Pain v. United Technologies Corp., 637 F.2d 775, 784-85 (D.C.Cir.1980)) (brackets in original). The goal of adopting this analysis was to provide a “well-defined method of balancing the often competing interests.” Kinney, 674 So.2d at 90. The defendant bears the burden of persuasion as to each of the four Kinney steps. See Carenza v. Sun Int’l Hotels, Ltd., 699 So.2d 830, 832 (Fla. 4th DCA 1997); Camejo v. Ocean Drilling & Exploration, 838 F.2d 1374, 1379 (5th Cir. 1988).

We turn now to the first factor, to consider—whether an adequate alternative forum exists “which possesses jurisdiction over the whole case.” Kinney, 674 So.2d at 90. The affidavits submitted by defendant provide that service can be perfected; that both countries’ courts could exercise jurisdiction over the present case; and that both countries recognize a cause of action for resolution of the present case. Moreover, defendant has agreed to submit to the jurisdiction of the courts of both Costa Rica and Belize. Plaintiffs did not contest or rebut these affidavits. Thus, we must assume that the first prong of Kinney has been satisfied.

The second Kinney prong requires a balancing of the private interests of the parties. The factors examined in the second prong include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Kinney, 674 So.2d at 89 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), overruled, by statute on other grounds as recognized in American Dredging Co. v. Miller, 510 U.S. 443, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994)).

According to Kinney, the term “private interests” encompasses “four broad ‘practical’ concerns: adequate access to evidence and relevant sites, adequate access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with the litigation.” 674 So.2d at 91. The private-interest factor does not require that the alternative forum be a “better” choice, but “[o]n balance, it must neither disadvantage nor advantage either party.” Ciba-Geigy, 691 So.2d at 1119.

In this case, although the plane crash occurred in Costa Rica, the affidavit of plaintiffs’ expert states that “the sole and exclusive cause of the accident was pilot error.” Because Francis Woods was a passenger in an aircraft that was owned by defendant and flown by a pilot who was an agent of defendant, there is nothing in this record that would indicate that there is any significant question of liability.

On the other hand, according to the record evidence, the majority of Woods’ medical treatment occurred in the United States with a substantial amount of treatment taking place in Florida. Cf. Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1430 (11th Cir.1996). Thus, the record establishes that the majority of the damage testimony and evidence would involve witnesses located in Florida and other states within this country. Therefore, although plaintiffs are residents of Belize, because a portion of Wood’s medical treatment was in Florida, their choice of Florida as a forum for filing this lawsuit is clearly a reasonable one. Cf. Ciba-Geigy, 691 So.2d at 1118.

In addition, Costa Rica does not even recognize a general power of pre-trial deposition of non-parties, so there is a question regarding whether United States law would permit depositions in the United States if the action were transferred to Costa Rica. See Lo Ka Chun v. Lo To, 858 F.2d 1564, 1566 (11th Cir.1988); compare Value Rent-A-Car, 720 So.2d at 555 (plaintiff received medical treatment in alternate forum, and there was no issue of whether witnesses could be deposed regarding damages); Brunschwig v. Simpson, 711 So.2d 255 (Fla. 3d DCA 1998) (medical care and all witnesses located in alternate forum).

Costa Rica, one of the alternate forums, has no connection with this lawsuit other than the haphazard circumstance that the airplane crashed there during a flight between Costa Rica and Belize. While it is true that defendant’s business is in Belize, and plaintiffs reside there, those facts alone do not make Belize a preferable alternate forum. In this case, defendant’s general representation that “[a]ll evidence relevant to the airplane accident is located in Belize and Costa Rica” is insufficient to support the trial court’s conclusory findings that either alternate forum will provide greater access to relevant evidence and sites; that the alternate forums will provide greater access to, and compulsory process over, witnesses; and that the practicalities and expenses associated with this litigation warrant dismissal in favor of the alternate forums.

Dismissing this lawsuit in order to require plaintiffs to litigate in either Belize or Costa Rica would on balance significantly disadvantage plaintiffs. See Ciba-Geigy, 691 So.2d at 1119. On the other hand, litigating this case in Florida would not significantly disadvantage defendant. Only “[i]f the relative conveniences and inconveniences to the parties are ‘at or near equipoise’ ” does the court proceed to the third and fourth prongs. Id. at 1118; see also Kinney, 674 So.2d at 90. In this case, the trial court erred in finding that the private interests favor the alternate forums.

We therefore conclude that the defendant did not meet its burden of persuasion, that the record does not support the trial court’s conclusory findings, and that the dismissal of this action in the forum chosen by plaintiffs constitutes an abuse of discretion. Accordingly, the trial court’s order dismissing the plaintiffs complaint is reversed, and the case is remanded to the trial court for further proceedings.

STEVENSON, J., concurs.

MARRA, KENNETH A., Associate Judge, dissents with opinion.

. Although plaintiffs assert that Francis Woods is an American citizen, at his deposition he testified that he had resided in Belize for his entire life. The assertion of citizenship is not substantiated, nor refuted, in the record on appeal. The fact was mentioned only during arguments on the motion to dismiss and in a footnote in plaintiffs' initial brief. In any event, plaintiffs are not residents of Florida.

. The vast majority of stock is owned by individuals who reside in Virginia.

. In this case, because plaintiffs are residents of Belize, they are not entitled to that presumption. See Ciba-Geigy, Ltd. v. The Fish Peddler, Inc., 691 So.2d 1111, 1118 (Fla. 4th DCA), review denied, 699 So.2d 1372 (Fla.1997).

. Where the trial court finds that the balance of private interests is in equipoise or near equipoise, the third prong requires the trial court to determine whether factors of public interest tip the balance in favor of trial in another forum. See Kinney Sys. Inc. v. Continental Ins. Co., 674 So.2d 86, 90-91 (Fla. 1996). If the court decides that the balance favors such a forum, before dismissing the suit the fourth prong requires the trial judge to ensure that plaintiffs can reinstate their suit in that forum without undue inconvenience or prejudice. See id.