41 Fla. L. Weekly D1699b
With respect to Florida, [Defendant] does not and has not:
a. Owned any real or personal property in Florida;
b. Have an office or designated agent in Florida;
c. Have a Florida bank account;
d. Have a Florida property tax listing;
e. Registered to do business in Florida;
f. Have any employees in the state of Florida;
g. Carried on any business in Florida;
h. Earned any income performing services in the state of Florida;
i. Committed any tortious action in the state of Florida;
j. Agreed to be subject to the jurisdiction of the state of Florida or consented to venue in Florida;
k. Breached any contracts or agreements in Florida.
Plaintiff’s Response Supporting Jurisdiction.
THE COURT: Your complaint is not a verified complaint, and you have not submitted any affidavit or declaration to traverse the allegations of the defendant’s jurisdictional affidavit. The case law is clear that under the circumstance, I must grant the motion, and I do grant the motion.
. . . .
[PLAINTIFF’S COUNSEL]: And that’s with leave to amend?
THE COURT: No, ma’am. That is not. It is finding that there is no jurisdiction here in Florida. Obviously, there may be jurisdiction elsewhere. Thank you.
Acts subjecting person to jurisdiction of courts of state. —
(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:
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.
. . . .
7. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.
§ 48.193(1)(a)1, 7, Fla. Stat. (2015).
(a) Amendments. A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.
. . .
(e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
I. CONTESTING PERSONAL JURISDICTION
A. CDI’s Affidavit and Intego’s “Declarations”
B. Whether the Trial Judge Should Have Allowed Intego
a Second Opportunity to File Actual Affidavits
II. ALLEGATIONS IN THE COMPLAINT, CDI’S
AFFIDAVIT, AND THE INTERNATIONAL SHOE TEST
A. Personal Jurisdiction Allegations in the Complaint
4. Defendant [CDI] pursued business in Florida, traveled to Florida to procure the business, and voluntarily agreed to Florida as its choice of law in an Engineering Services Agreement entered into on January 24, 2014 with [Intego] (“the Agreement”), a true and accurate copy of which is attached as Exhibit A.
B. CDI’s Affidavit
Virtually all of the evidence related to performance of the Contract in California is located in California, all of the witnesses to the performance of the Contract (and its alleged breach) are located in California and virtually all of the documents related to performance of the Contract are located in California.
I believe in good faith that CDI will be substantially prejudiced in defense of this action if DCI is forced to defend in Florida, including that it will suffer difficulty in great expense in (a) obtaining testimony or appearance at trial of CDI witnesses; (b) obtaining testimony and documents related to performance of the alleged Contract in California; (C) difficulty compelling production of documentary evidence and testimony in Florida; and (D) suffer prejudicial expense and travel to Florida for appearance in defense of this case.
C. The International Shoe Test
III. WHETHER INTEGO SHOULD HAVE BEEN
GRANTED LEAVE TO AMEND THE COMPLAINT
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