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June 23, 2017 by admin

Torts — Jurisdiction — Non-residents — Trial court erred in denying motion to dismiss for lack of jurisdiction without considering affidavit submitted by defendant refuting the jurisdictional allegations of the complaint — When non-resident defendant submits affidavit refuting jurisdictional allegations, burden shifts to plaintiff to file affidavit or other evidence clearly justifying exercise of jurisdiction

42
Fla. L. Weekly D1389b

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Torts
— Jurisdiction — Non-residents — Trial court erred in denying motion to
dismiss for lack of jurisdiction without considering affidavit submitted by
defendant refuting the jurisdictional allegations of the complaint — When
non-resident defendant submits affidavit refuting jurisdictional allegations,
burden shifts to plaintiff to file affidavit or other evidence clearly
justifying exercise of jurisdiction

COUNTY OF CUMBERLAND, NEW JERSEY,
Appellant, v. ANDREW K. KWAP, Appellee. 4th District. Case No. 4D16-3250. June
21, 2017. Appeal of non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Martin H. Colin, Judge; L.T. Case No.
2012CA004772 AJ. Counsel: Scott L. Mendlestein of Falk, Waas, Hernandez,
Cortina, Solomon & Bonner, P.A., Coral Gables, for appellant. Scott J.
Edwards, of Scott J. Edwards, P.A., Boca Raton, for appellee.

(KUNTZ, J.) The County of
Cumberland, New Jersey, appeals the circuit court’s order denying its motion to
dismiss for lack of personal jurisdiction. The court determined that the
allegations in plaintiff Andrew W. Kwap’s complaint were sufficient to satisfy
due process and justify the exercise of personal jurisdiction over the County.
We reverse because the court failed to account for the County’s affidavit
rebutting the allegations in the complaint.

Background

The County hired PTS America, LLC,
an international prisoner extradition company, to transport Kwap from Palm
Beach County to New Jersey. During the transport, Kwap was injured in an
accident while in a van owned and operated by PTS.

Following the accident, Kwap sued
PTS and the County. In his first amended complaint, he alleged that PTS
negligently transported him without safety restraints and that the County was
vicariously liable for the negligence of its agent, PTS.

The County filed a motion to dismiss
for lack of personal jurisdiction. Specifically, the County argued that the
court did not have personal jurisdiction under section 48.193(1)(b), Florida
Statutes, because it did not commit a tort in Florida, and because the alleged
tortfeasor, PTS, was an independent contractor, not its agent.

The County attached an affidavit to
its motion from the Sheriff of Cumberland County. The affidavit stated that PTS
operated as an independent contractor because PTS used its own equipment and
hired its own personnel; and because the County did not dictate or control any
aspect of the transport, such as the route, timing, use of particular
equipment, or the personnel employed by PTS.

After allowing limited
jurisdictional discovery, the court held a hearing on the County’s motion to
dismiss. At the hearing, the court heard argument from counsel, which included
discussions regarding deposition testimony of a PTS employee. At the conclusion
of the hearing, the court reserved ruling and later entered a written order
denying the motion. In its order, the court stated that the first amended
complaint contained sufficient allegations to exercise personal jurisdiction
over the County.

Analysis

Whether a Florida court has personal
jurisdiction over a non-resident defendant involves a two-step inquiry. Venetian
Salami Co. v. Parthenais
, 554 So. 2d 499, 502 (Fla. 1989). First, the court
must determine whether the complaint alleges sufficient jurisdictional facts to
bring the action within Florida’s long-arm statute, section 48.193, Florida
Statutes (2016). Id. at 502. Second, the court must determine whether
sufficient “minimum contacts” are shown between the non-resident defendant and
Florida in order to satisfy due process. Id.

The County argues that this appeal
involves the first part of the inquiry: that is, whether sufficient
jurisdictional facts were alleged in Kwap’s complaint. Our supreme court has
explained that this part of the inquiry “may involve a burden shift.” Kitroser
v. Hurt
, 85 So. 3d 1084, 1087 (Fla. 2012). When the defendant files an
affidavit to refute the jurisdictional allegations in the complaint, the burden
shifts back to the plaintiff to file an affidavit or other evidence that
clearly justifies the exercise of jurisdiction. Venetian Salami, 554 So.
2d at 502; see also Small v. Chicola, 929 So. 2d 1122, 1124 (Fla. 3d DCA
2006) (citing Elmex Corp. v. Atl. Fed. Savings & Loan Ass’n, 325 So.
2d 58, 61 (Fla. 4th DCA 1976)).

Here, the County filed an affidavit
that refuted the allegations in Kwap’s complaint. However, the court’s order
denying the County’s motion to dismiss did not consider its affidavit and
stated that the allegations in the complaint, “if true, provide a basis to invoke
Florida’s long-arm jurisdiction over this Defendant on the grounds, inter alia,
that there was an agency relationship between” PTS and the County. This was
error because the County’s affidavit shifted the burden back to Kwap, and
required the court to look beyond the allegations in the complaint.

The court erred when it denied the
motion to dismiss and exercised jurisdiction over the County based upon the
allegations of the complaint without considering the affidavit. On remand, the
court should consider the jurisdictional evidence to determine if the
long-arm statute was sufficiently implicated. If the court finds that the
affidavits and other evidence cannot be reconciled, a limited evidentiary
hearing may be needed. See Venetian Salami, 554 So. 2d at 503. If the
court finds that long-arm jurisdiction is established, then the court must next
determine if the exercise of jurisdiction over the County comports with due
process.

Conclusion

When a complaint includes sufficient
jurisdictional allegations, the burden shifts to the defendant to rebut those
allegations through an affidavit or other evidence. In this case, the defendant
filed an affidavit sufficient to rebut the jurisdictional allegations in the
plaintiff’s complaint. The burden then shifted back to the plaintiff to clearly
establish a factual basis to justify the exercise of personal jurisdiction. The
court’s failure to consider the evidence submitted beyond the four corners of
the plaintiff’s complaint was error. Therefore, the court’s order denying the
motion to dismiss for lack of personal jurisdiction is reversed.

Reversed and remanded for further
proceedings.
(WARNER and LEVINE, JJ., concur.)

* * *

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