Juan Melgarejo v. Pycsa Panama, S.A. , 537 F. App'x 852 ( 2013 )

Case: 12-14858 Date Filed: 09/17/2013 Page: 1 of 25
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14858
________________________
D.C. Docket No. 9:11-cv-81138-KLR
JUAN MELGAREJO,
Plaintiff-Appellant,
versus
PYCSA PANAMA, S.A.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 17, 2013)
Case: 12-14858 Date Filed: 09/17/2013 Page: 2 of 25
Before HULL and MARTIN, Circuit Judges, and HINKLE, ∗ District Judge.
PER CURIAM:
Plaintiff-Appellant Juan Melgarejo appeals the dismissal of his complaint for
lack of personal jurisdiction over Defendant-Appellee Pycsa Panama, S.A. After
careful review, and with the benefit of oral argument, we affirm.
I. FACTS AND PROCEDURAL HISTORY
This appeal involves Florida’s Long Arm Statute. See Fla. Stat. § 48.193.
Under subsection (2), courts in Florida have “general jurisdiction” over a non-
resident defendant if that defendant engages in “substantial and not isolated”
activity in Florida, whether or not the cause of action arose from that Florida
activity. Id. § 48.193(2). But, even if a defendant does not engage in substantial
activity in Florida, Florida courts have specific jurisdiction over a defendant if the
asserted cause of action “arises from” that defendant’s “conducting” or “carrying
on” a business in Florida or having “an office or agency” in Florida. Id.
§ 48.193(1)(a)(1) (emphasis added).
With that background, we set forth some information about the parties and
then describe the events that gave rise to Melgarejo’s cause of action here,
highlighting the facts relevant to our personal jurisdiction analysis. 1
∗
Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
2
Case: 12-14858 Date Filed: 09/17/2013 Page: 3 of 25
A. The Parties
Defendant Pycsa Panama, S.A. (“Pycsa”) is a Panamanian corporation
whose headquarters are in Panama City, Panama. It is a wholly owned subsidiary
of Pycsa International, Limited (“Pycsa International”), a Cayman Islands
corporation. Pycsa International is owned by Mayford Development, Limited
(“Mayford Development”), a Bahamas corporation.
In 1994, Panama’s Ministry of Public Works awarded a contract to
defendant Pycsa to design, construct, maintain, and operate a tollway around
Panama City, Panama. This project consisted of two segments—the Northern
Corridor and the Panama-Colon Highway, also referred to as the Madden
Segment. 2 All work for the project was to be conducted in Panama.
1
The evidence before the district court included, inter alia: (1) the 1997 employment
agreement between plaintiff Melgarejo and defendant Pycsa; (2) an April 2012 affidavit of
Charles Haddad, the chief executive officer of Pycsa since 2009; (3) the April 2012 and June
2012 affidavits of Maximo Haddad, the president of a company owned by the same parent
company as Pycsa and the former president of Pycsa; (4) an affidavit submitted by plaintiff
Melgarejo; (5) a copy of a complaint filed by Pycsa in another case in the Southern District of
Florida; and (6) an affidavit of a Panamanian attorney stating his opinion that the Panama
judicial system is corrupt. We base our description of the facts on these materials and the district
court’s findings of fact.
2
In an affidavit, Pycsa’s current chief executive officer stated that the two parts of the
tollway project were the “Northern Corridor” and the “Panama-Colon Highway.” However,
other record evidence states that the two parts were the “Northern Corridor” and the “Madden
Project” or “Madden Segment.” Nothing in the record addresses this discrepancy. However, in
its brief to this Court, Pycsa agrees that the tollway project consisted of the “Northern Corridor”
and the “Madden Segment.” Accordingly, we assume that the “Panama-Colon Highway” and
the “Madden Segment” refer to the same project.
3
Case: 12-14858 Date Filed: 09/17/2013 Page: 4 of 25
Plaintiff Melgarejo is a professional engineer who holds a Ph.D. from the
University of Michigan. He became a full-time resident of Florida in 1989. From
1989 until 1996, Melgarejo lived in Orlando, Florida, and in 1996, Melgarejo
moved to Singer Island, Florida. From 1991 until 2002, he also maintained a home
in Mexico City, Mexico. Since 2002, Melgarejo has lived with his family in
Weston, Florida.
B. The 1997 Employment Agreement
On October 6, 1997, plaintiff Pycsa hired defendant Melgarejo to serve as its
“Director” and to manage the Panama tollway project. Pycsa and Melgarejo
entered into an employment agreement (the “agreement”), which required
Melgarejo to “devote [his] time and effort to managing Construction of the Project
. . . necessary to efficiently bring the Project to Completion and into Operation.”
The agreement defined “Completion” as “the later of Completion . . . of the
Northern Corridor and Completion . . . of the Madden Segment.” The agreement
required Melgarejo to “follow all directions of [Pycsa’s] board of directors” and
“inform the board of directors of [Pycsa’s] affairs.” The agreement provided that
Panamanian law governed.
Under the agreement, plaintiff Melgarejo was to receive $250,000 (in United
States currency) upon completion of the Northern Corridor and that same amount
upon completion of the Madden Segment. Additionally, Melgarejo was entitled to
4
Case: 12-14858 Date Filed: 09/17/2013 Page: 5 of 25
$500,000 (in United States currency) if other debt-service related criteria were met.
The agreement required that defendant Pycsa provide Melgarejo with: (1) “an
automobile in Panama”; (2) “air transport . . . to and from [his] home to Panama”;
(3) “lodging in Panama”; and (4) reimbursements for all “travel, business and other
expenses reasonably incurred in connection with [his] services to [Pycsa].”
Compensation under the agreement was to be “paid only from [bond]
Distributions.”
It is undisputed that the parties signed the agreement at the Panamanian
Consulate in New York, New York. However, there is conflicting evidence as to
where the parties negotiated the agreement prior to signing it.
In affidavit testimony, plaintiff Melgarejo stated that he “negotiated [the
agreement] in New York City, Palm Beach, Florida, and Panama in meetings and
telephone conversations with Max Haddad, then President of PYCSA, and
PYCSA’s New York counsel, David Spencer.” 3 Melgarejo stated that, during the
course of these negotiations, he “met with Mr. Spencer in New York City (and not
just at the Panamanian Consul, but on U.S. soil), with Max Haddad at his home in
Palm Beach, Florida, and also in Panama.” Melgarejo claimed that he “spoke with
Mr. Spencer many times by telephone from [Melgarejo’s] home in Singer Island,
Florida, as well as from [his] home in Mexico City, Mexico.”
3
Melgarejo is Maximo Haddad’s nephew.
5
Case: 12-14858 Date Filed: 09/17/2013 Page: 6 of 25
In contrast, Maximo Haddad stated that he, as Pycsa’s president, signed the
employment agreement and never met “with [Melgarejo] in Florida or New York
to discuss or negotiate the terms of the contract.” In particular, Haddad stated that
“[a]ll negotiations between Pycsa and Melgarejo prior to the signing of the contract
were conducted in Panama or Mexico City.” Haddad acknowledged that he had a
home in Florida, but stated that his primary residence was in Panama City, Panama
and that he spent only “limited time” at his Florida residence.
C. 2001 Termination of the Agreement and 2010 Panama Suit
From 1997 until 2001, plaintiff Melgarejo performed his work under the
agreement. During that time, all of the work that Melgarejo did for defendant
Pycsa occurred in either Panama or Mexico. On July 1, 2001, he voluntarily
resigned his position with Pycsa. After Melgarejo did so, it is undisputed that
Pycsa did not pay him any of the sums set forth in the agreement. At some point,
Pycsa informed Melgarejo that it would not pay him for his work.
On approximately July 30, 2010, over nine years after he voluntarily
terminated the agreement, Melgarejo filed a complaint in Panamanian court (the
“Panama suit”). In the Panama suit, Melgarejo claimed that Pycsa had breached
the agreement. He sought to recover compensation allegedly owed under the
agreement. As of 2012, that lawsuit remained pending in Panama and the parties
had filed responses and begun discovery. However, Melgarejo testified in an
6
Case: 12-14858 Date Filed: 09/17/2013 Page: 7 of 25
affidavit that he “[did] not believe that [he] can obtain a fair hearing or justice from
the Panamanian courts against PYCSA because [he] [is] not wealthy or as well-
connected as . . . PYCSA.”
D. Melgarejo’s 2011 Federal Complaint
Over a year after filing the Panama suit, on October 12, 2011, Melgarejo
filed a complaint in the United States District Court for the Southern District of
Florida (the “federal complaint”). Melgarejo’s federal complaint contained three
anticipatory breach of contract claims, each one based on the agreement. For all
claims, Melgarejo sought a total of $1,000,000—the maximum compensation
possible under the agreement. The claims and requested relief in Melgarejo’s
federal complaint are substantially identical to the claims and requested relief in
Melgarejo’s Panama suit.
Melgarejo’s federal complaint alleged that the district court had personal
jurisdiction over defendant Pycsa in Florida because: (1) Pycsa had “an office or
agency in [Florida]”; (2) Pycsa “utilized its affiliate office in Miami, Florida to
receive mail in the United States in connection with the subject matter of Dr.
Melgarejo’s contract with PYCSA and to coordinate portions of the project that Dr.
Melgarejo managed”; and (3) Pycsa had “purposefully availed itself of the benefits
and protections of [the Southern District of Florida] by filing a lawsuit in [the]
district in connection with the project, styled Pycsa Panama, S.A. v. Tensar Earth
7
Case: 12-14858 Date Filed: 09/17/2013 Page: 8 of 25
Techno, U.S. District Court for the Southern District of Florida, Civil Action No.:
1:06-cv-20624-ASG” (the “Tensar case”). For these reasons, Melgarejo contended
that personal jurisdiction existed over defendant Pycsa under Florida’s Long-Arm
Statute, Fla. Stat. § 48.193(1)(a).
The federal complaint alleged that “[Pycsa] has sufficient continuous and
systematic contacts with Florida so that general jurisdiction exists and Panama is
not an available alternative forum because Panama’s judicial system is corrupt and
its problems would preclude [Melgarejo] the fair and reasonably expeditious
adjudication of his claims.”
E. Pycsa’s Motion to Dismiss for Lack of Personal Jurisdiction
Defendant Pycsa responded with a motion to dismiss for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2), or in the alternative,
on forum non conveniens grounds.
Defendant Pycsa’s evidence, attached to its motion, showed that Pycsa: (1)
“has never had an office, sales representative, agent or employees in Florida”; (2)
“has no mailing address or telephone number or listing in Florida”; (3) “owns no
real property in the United States”; (4) “does not have a bank account in Florida”;
(5) “has never had a banking relationship with any United States institution with
the exception of the Bank of New York, solely in connection with the Indenture
8
Case: 12-14858 Date Filed: 09/17/2013 Page: 9 of 25
dated October 6, 1997”; and (6) “has never owned any of the bonds issued by any
U.S. institution.”
Although Pycsa itself did not have “an office or agency” in Florida, Pysca
acknowledged that “it did utilize in the past an affiliate’s office as a matter of
convenience for the limited purpose of receiving U.S. correspondence and
facilitating the procurement of materials for shipment abroad.” That “affiliate”
was MHMS Incorporated (“MHMS”).
In an affidavit, Pycsa’s former president, Maximo Haddad, stated that he has
served as the president of MHMS since 2002. Haddad’s affidavit states that: (1)
MHMS is an Arizona corporation, which owns and operates an office complex in
California; (2) Pycsa International, a Cayman Islands corporation, owns both Pycsa
and MHMS; but (3) MHMS “does not conduct, and has never conducted, business
with or for [defendant] Pycsa”; and (4) MHMS “has never conducted business with
[plaintiff] Melgarejo” and “has no involvement with toll road projects located in
Panama.”
In his affidavit, Haddad acknowledged that “MHMS did lease and maintain
a small office located at 200 So. Biscayne Blvd., 27th Floor, Miami, Florida, from
May 2003 until August 2008, which was used for the company’s business.” But,
“[t]o the best of his knowledge, the office was never used by Pycsa . . . or . . .
9
Case: 12-14858 Date Filed: 09/17/2013 Page: 10 of 25
Melgarejo, other than Pycsa receiving mail or ordering some materials for use in
Panama.”
Regarding MHMS’s office in Florida, Pycsa emphasized that: (1) “MHMS
did not perform any business activities on behalf of Pycsa”; (2) MHMS “is a
completely separate entity from Pycsa”; (3) MHMS “has no ties to Pycsa other
than a shared corporate parent”; and (4) MHMS’s activity in Florida cannot be
attributed to Pycsa.
Defendant Pycsa’s motion also addressed its lawsuit in Florida: the Tensar
case. Pycsa filed that lawsuit against Tensar, the manufacturer of retaining wall
systems, alleging claims based on the failure of Tensar’s retaining walls. Pycsa
pointed out that the Tensar case involved a completely different subject matter than
the employment contract in dispute with Melgarjo. Pycsa further argued that its
contacts with Florida were insufficient to satisfy the due process test for personal
jurisdiction.
F. Melgarejo’s Response in Opposition to Pycsa’s Motion to Dismiss
In response to Pycsa’s motion to dismiss, plaintiff Melgarejo filed a copy of
Pycsa’s complaint in the Tensar case. The Tensar case involved claims of products
liability, negligence, negligent hiring, and negligent supervision. Each claim was
based on the collapse of two Tensar retaining walls that Pycsa used in constructing
10
Case: 12-14858 Date Filed: 09/17/2013 Page: 11 of 25
the Northern Corridor (which was one of the projects that Melgarejo managed
between 1997 and 2001).
Pycsa’s Tensar complaint alleged that, in 2002, Tensar approached Pycsa
about providing retaining walls for the Northern Corridor project. Melgarejo had
already left Pycsa in 2001. Pycsa hired Tensar in 2002 and used Tensar retaining
walls at places in Panama. In 2003 and 2004, two of those retaining walls
collapsed.
In its Tensar complaint, Pycsa stated that it was a Panamanian corporation
with its principal place of business in Panama, but that, during “all times relevant
hereto, Pycsa utilized its affiliate office in Miami, Florida to receive mail in the
United States and to coordinate the procurement and shipment of U.S. materials,
including those materials utilized by Tensar in implementing the . . . retaining wall
system at issue herein.”
Thus, Melgarejo argued that personal jurisdiction over Pycsa was
appropriate under Florida’s Long-Arm Statute “because Pycsa used its affiliate’s
office in Miami to receive mail and procure supplies in connection with the
construction of the Panamanian toll roads that are the subject of Dr. Melgarejo’s
contract claim.” Melgarejo also asserted that the Due Process Clause was satisfied
because Pycsa had “conducted, engaged in and carried on business in Florida in
connection with building the Panamanian toll roads.”
11
Case: 12-14858 Date Filed: 09/17/2013 Page: 12 of 25
G. District Court’s Personal Jurisdiction Order
The district court granted defendant Pycsa’s motion to dismiss for lack of
personal jurisdiction over Pycsa in Florida. The district court quoted subsection
1(a)(1) of Fla. Stat. § 48.193, which provides that Florida courts have personal
jurisdiction over a non-resident defendant when the claims arise from the non-
resident defendant’s operating or carrying on a business within Florida, or having
an “office or agency” in the state. Fla. Stat. § 48.193(1)(a)(1). The district court
concluded that, under Florida’s Long-Arm Statute, there was no specific personal
jurisdiction over defendant Pycsa because plaintiff Melgarejo’s claims “do not
arise out of Pycsa’s business activities in Florida.” The district court made a
finding that “MHMS is a completely separate company and is only affiliated with
Pycsa in that they share a common corporate parent” and “MHMS’s office was
used by Pycsa sparingly in the past, but never for any meetings, negotiations, or
supervision of the contract involving Pycsa and [Melgarejo].”
The district court also found that Florida’s Long-Arm Statute did not allow
for general personal jurisdiction over Pycsa in Florida because “Pycsa’s minimal
use of an affiliate’s office to perform ministerial tasks unrelated to the
[employment] contract in no way amount[ed] to the level of ‘substantial and not
isolated activity’ within [Florida] that is required to establish general jurisdiction
over a foreign, non-resident defendant.”
12
Case: 12-14858 Date Filed: 09/17/2013 Page: 13 of 25
Although the district court found statutory jurisdiction under Florida law
lacking, it also rendered an alternative holding that exercising personal jurisdiction
over Pycsa in Florida would violate the Fourteenth Amendment’s Due Process
Clause. This was because “Pycsa does not conduct, engage in, or carry on business
in Florida” and plaintiff Melgarejo’s claims “do not arise out of any activities
Pycsa performed (or failed to perform) in Florida.” Thus, there was no “reasonable
basis for Pycsa to anticipate being haled into court in Florida.” The district court
concluded that exercising personal jurisdiction over defendant Pycsa in Florida
would not comport with “fair play and substantial justice” because “Pycsa would
be greatly burdened by having to come from Panama to defend a lawsuit in
Florida.” This was particularly true when Melgarejo could “easily and effectively
obtain relief in Panama for his alleged damages, seeing as he has already
commenced litigation in Panama arising out of the same subject matter.”
The district court thus dismissed Melgarejo’s complaint for lack of personal
jurisdiction and did not consider Pycsa’s alternative ground for dismissal—forum
non conveniens.
Melgarejo timely appealed.
II. DISCUSSION
A. Personal Jurisdiction Questions
13
Case: 12-14858 Date Filed: 09/17/2013 Page: 14 of 25
We consider two questions in resolving whether personal jurisdiction exists.
See Mutual Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir.
2004). 4 “First, we determine whether the exercise of jurisdiction is appropriate
under the forum state’s long-arm statute.” Id. “Second, we examine whether the
exercise of personal jurisdiction over the defendant would violate the Due Process
Clause of the Fourteenth Amendment to the United States Constitution . . . .” Id.The Due Process Clause “requires that the defendant have minimum contacts with
the forum state and that the exercise of jurisdiction over the defendant does not
offend traditional notions of fair play and substantial justice.” Id. (internal
quotation marks and citations omitted).
B. Florida’s Long-Arm Statute
Because Florida is the forum state, we start our analysis with Florida’s
Long-Arm Statute. See Fla. Stat. § 48.193. “Florida’s long-arm statute is to be
strictly construed.” Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th
Cir. 1996).
4
“[T]he issue of whether personal jurisdiction is present is a question of law and subject
to de novo review.” Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th Cir.
2009). “Findings of fact that bear on personal jurisdiction are reviewed for clear error.” Merial
Ltd. v. Cipla Ltd., 681 F.3d 1283, 1292 (11th Cir. 2012). A plaintiff seeking to establish
personal jurisdiction over a nonresident defendant “bears the initial burden of alleging in the
complaint sufficient facts to make out a prima facie case of jurisdiction.” United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). In a case like this one, where a defendant
challenges personal jurisdiction “by submitting affidavit evidence in support of its position, the
burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction.” Id.(internal quotation marks and citation omitted).
14
Case: 12-14858 Date Filed: 09/17/2013 Page: 15 of 25
On appeal, plaintiff Melgarejo relies only on subsection (1)(a)(1) of
Florida’s Long-Arm Statute, which, as noted before, provides that courts may
exercise personal jurisdiction over a non-resident defendant “for any cause of
action arising from” any of the following acts: “[o]perating, conducting, engaging
in, or carrying on a business or business venture in [Florida] or having an office or
agency in [Florida].” Id. § 48.193(1)(a)(1). 5 Thus, to establish personal
jurisdiction under Fla. Stat. § 48.193(1)(a)(1), the cause of action must arise from
the defendant’s business activity.
Because the reach of Florida’s Long-Arm Statute “is a question of Florida
law,” this Court, sitting in diversity jurisdiction, is required to construe the statute
“as would the Florida Supreme Court.” United Techs., 556 F.3d at 1274 (internal
quotation marks and citation omitted). We are also bound to adhere to the
interpretations of Florida’s Long-Arm Statute offered by Florida’s District Courts
of Appeal “[a]bsent some indication that the Florida Supreme Court would hold
otherwise.” Id. (internal quotation marks and citation omitted).
The Florida Supreme Court has explained that determining whether
jurisdiction is appropriate under Florida’s Long-Arm Statute is a separate inquiry
from determining whether exercising personal jurisdiction comports with the Due
5
While before the district court Melgarejo argued for general jurisdiction under Fla. Stat.
§ 48.193(2), he apparently has abandoned those arguments on appeal. Thus, we consider only
whether specific personal jurisdiction exists under Fla. Stat. § 48.193(1)(a)(1). To the extent that
Melgarejo does attempt to make a general jurisdiction argument, such an argument is meritless.
15
Case: 12-14858 Date Filed: 09/17/2013 Page: 16 of 25
Process Clause. See Internet Solutions Corp. v. Marshall, 39 So. 3d 1201, 1207
(Fla. 2010) (“[T]he federal due process analysis is not built into Florida’s long-arm
statute . . . .”); see also Cable/Home Commc’n Corp. v. Network Prods., Inc., 902
F.2d 829, 856 (11th Cir. 1990).
Accordingly, “[t]he mere proof of any one of the several circumstances
enumerated in [Florida’s Long-Arm Statute] as the basis for obtaining jurisdiction
of nonresidents does not automatically satisfy the due process requirement of
minimum contacts.” Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla.
1989). In short, the Due Process Clause “imposes a more restrictive requirement”
than does Florida’s Long-Arm Statute. Internet Solutions, 39 So. 3d at 1207(internal quotation marks and citation omitted).
C. Florida Long-Arm Statute Analysis
With these background principles in mind, we turn to whether defendant
Pycsa was conducting business in Florida and whether Melgarejo’s claims arise
from that business.
To establish that a defendant is “conducting” or “carrying on a business” for
the purposes of Fla. Stat. § 48.193(1)(a)(1), “the activities of the defendant must be
considered collectively and show a general course of business activity in the state
for pecuniary benefit.” Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d
16Case: 12-14858 Date Filed: 09/17/2013 Page: 17 of 25
1247, 1249 (11th Cir. 2000) (applying Fla. Stat. § 48.193(1)(a)(1) in diversity
jurisdiction case).
We previously identified factors relevant to whether a plaintiff has shown a
defendant’s “general course of business activity,” including: (1) “the presence and
operation of an office in Florida,” (2) “the possession and maintenance of a license
to do business in Florida,” (3) “the number of Florida clients served,” and (4) “the
percentage of overall revenue gleaned from Florida clients.” Horizon Aggressive
Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1167 (11th Cir. 2005)
(applying Fla. Stat. § 48.193(1)(a)(1) in diversity jurisdiction case) (citing Milberg
Factors, Inc. v. Greenbaum, 585 So. 2d 1089, 1091 (Fla. 3d DCA 1991); Hobbs v.
Don Mealey Chevrolet, Inc., 642 So. 2d 1149, 1153 (Fla. 5th DCA 1994);
Sculptchair, 94 F.3d at 628). It is undisputed that, during the relevant period,
Pycsa had no Florida business license, served no Florida clients, and thus did not
glean any revenue from Florida clients.
Melgarejo places great weight on the first factor and cites Pycsa’s statement
in the Tensar lawsuit (and its subsequent admission in this lawsuit) about having an
“affiliate office in Miami.” Melgarejo contends that this statement reveals that
Pycsa had an office in Florida. The record, however, shows that this was not the
case. Although MHMS had a small Miami office, the district court found that
Pycsa conducted only occasional and insignificant business operations from
17
Case: 12-14858 Date Filed: 09/17/2013 Page: 18 of 25
MHMS’s Miami office. Pycsa’s use of the MHMS office does not establish the
sort of “general course of business activity” necessary for personal jurisdiction
under Fla. Stat. § 48.193(1)(a)(1). See Future Tech., 218 F.3d at 1249.
Additionally, MHMS’s Miami business operations are not attributed to Pycsa, as
MHMS and Pycsa are separate corporate entities whose only connection is a
common corporate parent.
Moreover, even though Pycsa did conduct some business through MHMS’s
Miami office, there is nothing in the record linking those business operations with
Melgarejo’s cause of action in this case. Florida’s Long-Arm Statute requires that
a plaintiff’s claim “aris[e] from” a non-resident defendant’s Florida-based business
operations. Fla. Stat. § 48.193(1)(a). Florida’s First District Court of Appeal has
explained that although the term “‘arising from’ is broad,” it nevertheless “requires
a ‘direct affiliation,’ ‘nexus,’ or ‘substantial connection’ to exist between the basis
for the cause of action and the business activity.” Citicorp Ins. Brokers (Marine),
Ltd. v. Charman, 635 So. 2d 79, 82 (Fla. 1st DCA 1994) (internal quotation marks
omitted). The record reveals only that Pycsa used MHMS’s office to receive mail
and order some materials for use in Panama. There is no evidence that the mail or
materials received in that affiliate office had anything to do with Melgarejo’s
employment contract. The district court did not, and we cannot infer from these
18
Case: 12-14858 Date Filed: 09/17/2013 Page: 19 of 25
facts that the mail that Pycsa received or the materials that it ordered were
substantially connected to Melgarejo’s employment with Pycsa.
Melgarejo also contends that he was Pycsa’s “agent” within the meaning of
the Florida statute and that personal jurisdiction over Pycsa exists because
Melgarejo performed business activities on Pycsa’s behalf in Florida. Notably,
Melgarejo did not raise this argument before the district court. “It is well
established in this circuit that, absent extraordinary circumstances, legal theories
and arguments not raised squarely before the district court cannot be broached for
the first time on appeal.” Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009).
Even if we were to consider the merits of this argument, we would reject it.
Nothing in the record suggests that Melgarejo was Pycsa’s agent in Florida or that
he conducted any business for Pycsa there.
Next, plaintiff Melgarejo argues that personal jurisdiction exists because his
claims arise from an employment contract between a non-resident defendant and a
Florida resident, which, according to Melgarejo, was partially negotiated in
Florida. This argument also fails. Even if we “construe all reasonable inferences”
in favor of Melgarejo, see Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d
1264, 1269 (11th Cir. 2002), and accept as true his statement that some contract
negotiations occurred in Florida, this fact alone does not establish that Pycsa was
conducting or carrying on a business in Florida, as Fla. Stat. § 48.193(1)(a)(1)
19
Case: 12-14858 Date Filed: 09/17/2013 Page: 20 of 25
requires, see Future Tech., 218 F.3d at 1249. 6 In Sculptchair, we held that the non-
resident defendant was not “carrying on a business or business venture in Florida”
when her only ties to Florida were “a series of telephone conversations with [the
president of the plaintiff-company’s] Florida office and a one-hour meeting to
facilitate a contract to be performed wholly in Canada.” 94 F.3d at 628. Similarly
here, even if some Pycsa official visited Florida for the specific purpose of
negotiating with Melgarejo, “[w]e have no difficulty concluding that [Pycsa’s]
limited . . . activities fail to qualify as carrying on a business or business venture in
Florida.” See id.7
To the extent that Melgarejo raises an additional argument that by filing a
complaint in Florida, Pycsa subjected itself to personal jurisdiction in Florida as to
future claims involving a similar subject-matter, this argument also fails. 8
6
And there was no evidence that Melgarejo personally ever went to the affiliate office and
no evidence that any negotiation for his employment agreement occurred in that affiliate office.
7
The district court rejected this argument, stating: “[t]he contract was negotiated between
Maximo Haddad and [Melgarejo] in meetings held in Panama and Mexico, and Pycsa denies that
any negotiations involving this contract ever took place in Florida.” We could construe this
statement as an implied finding of fact that contract negotiations did not occur in Florida. Based
on the undisputed facts in the record—the agreement pertained to construction projects in
Panama, Pycsa had no employees or more than de minimis business operations in Florida, the
agreement was not signed in Florida, Pycsa’s counsel was not located in Florida—we would not
then say that the finding was clearly erroneous. See Merial Ltd., 681 F.3d at 1292. However,
even without construing the district court’s order as containing such a finding of fact, the
argument fails.
8
It is unclear from Melgarejo’s briefs on appeal whether or not he attempts to assert such
an argument. On the one hand, Melgarejo points out that Pycsa sued Tensar in Florida and
argues that “it [is] fair to litigate in Florida today what was litigated yesterday, unless there is
something today that makes Florida an inconvenient forum.” However, Melgarejo also
20
Case: 12-14858 Date Filed: 09/17/2013 Page: 21 of 25
It is well-settled under Florida law that filing suit in Florida subjects a party
to jurisdiction regarding “such lawful orders which are thereafter entered with
respect to the subject matter of the action.” Trs. of Columbia Univ. in the City of
N.Y. v. Ocean World, S.A., 12 So. 3d 788 (Fla. 4th DCA 2009) (internal quotation
marks and citation omitted). However, “[a] current defendant’s prior decision to
bring a suit in Florida should not act indefinitely as a sword of Damocles hanging
perilously over the head of that defendant if [it] later challenges jurisdiction in a
separate suit (albeit a suit arising from the same subject matter).” Gibbons v.
Brown, 716 So. 2d 868, 870 (Fla. 1st DCA 1998).
In Gibbons, the state appellate court held that, by bringing claims in Florida
state court based on a car accident that had occurred in Canada, the non-resident
defendant, Gibbons, had not subjected herself to personal jurisdiction in Florida
regarding all future claims based on that same car accident. Id. at 870–71. The
state appellate court found that there was no personal jurisdiction based on two
facts: (1) Gibbons had filed her suit two years earlier; and (2) plaintiff Brown, had
not been a party to Gibbons’s earlier action. Id. at 871.
acknowledges that “[s]uing in Florida is not by itself a basis for continuing jurisdiction over the
plaintiff in a later case.” Melgarejo’s statements are difficult to reconcile. Construing his briefs
liberally, we address any argument that he may attempt to make regarding the effect of the
Tensar case in our personal jurisdiction analysis.
21
Case: 12-14858 Date Filed: 09/17/2013 Page: 22 of 25
Similarly here, Pycsa filed its Tensar lawsuit more than five years before
Melgarejo filed his complaint in this case. Moreover, Melgarejo was not a party to
the Tensar case. Accordingly, the Tensar case does not “act indefinitely as a sword
of Damocles hanging perilously over” Pycsa’s head, precluding it from
successfully contesting personal jurisdiction in future cases like this one. See
Gibbons, 716 So. 2d at 870.
Because the district court properly concluded there is no basis for specific
personal jurisdiction under Fla. Stat. § 48.193(1)(a)(1), we do not reach the second
question of the personal jurisdiction analysis—whether such an exercise of
personal jurisdiction would be constitutional. See Madara v. Hall, 916 F.2d 1510,
1514 (11th Cir. 1990) (“Only if both prongs of the analysis are satisfied may a
federal or state court exercise personal jurisdiction over a nonresident defendant.”).
D. Forum Non Conveniens Issue
We also do not address Pycsa’s alternative grounds for dismissal: the forum
non conveniens doctrine. The district court held that there was no personal
jurisdiction, and we find no error in that decision.
On appeal, Melgarejo maintains that “[t]he District Court abused its
discretion by granting [Pycsa’s] motion to dismiss under the doctrine of forum non
conveniens.” Melgarejo further maintains that the district court erred by failing to
consider evidentiary materials that he submitted which were relevant to the forum
22
Case: 12-14858 Date Filed: 09/17/2013 Page: 23 of 25
non conveniens issue, including affidavits and documents describing corruption in
Panama’s court system. Melgarejo is wrong. The district court properly declined
to rule on the forum non conveniens issue. It is settled that “the doctrine of forum
non conveniens can never apply if there is absence of [personal] jurisdiction.”
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 67 S. Ct. 839, 841 (1947). By
finding a lack of personal jurisdiction, the district court necessarily concluded that
the doctrine of forum non conveniens did not apply and, thus, did not need to
consider evidence relevant to that issue. 9
Because the district court lacked personal jurisdiction over Pycsa, we also
decline to consider issues relevant only to the forum non conveniens analysis, such
as the availability of “an adequate alternative forum” and whether a plaintiff can
“reinstate [its] suit in the alternative forum without undue inconvenience or
prejudice.” See Galbert v. W. Caribbean Airways, 715 F.3d 1290, 1295 (11th Cir.
2013).
E. District Court’s Failure to Hold an Evidentiary Hearing
The district court ruled on Pycsa’s motion to dismiss without holding an
evidentiary hearing to resolve disputed jurisdictional facts. Melgarejo argues that
this is reversible error. We disagree.
9
The district court did discuss whether Melgarejo could bring his claims in an alternative
forum and the burden on Pycsa of having to litigate the case in Florida. These issues are
potentially relevant in a forum non conveniens analysis. However, the district court discussed
them under the rubric of due process, not forum non conveniens.
23
Case: 12-14858 Date Filed: 09/17/2013 Page: 24 of 25
This Court has previously explained that “when a defendant moves to
dismiss for lack of personal jurisdiction, an evidentiary hearing is not required.”
Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 n.6 (11th Cir. 2004).
When a district court does not hold a hearing, “the plaintiff must establish a prima
facie case of personal jurisdiction” by presenting “sufficient evidence by way of
affidavits or deposition testimony to survive a motion for a directed verdict.” Id.A district court then “must construe the allegations in the complaint as true if they
are not contradicted by [the] defendant’s evidence.” Id. When there is conflicting
evidence, “the district court must construe all reasonable inferences in favor of
[the] plaintiff.” Id.The district court followed this procedure here. After Pycsa challenged
personal jurisdiction, the district court gave Melgarejo an opportunity to respond
with evidentiary materials sufficient to establish a prima facie case of personal
jurisdiction. Although there was conflicting evidence, the district court did not fail
to “construe all reasonable inferences in favor of [Melgarejo].” See id.Accordingly, the district court did not err by failing to hold an evidentiary hearing.
Alternatively, any error based on the district court’s failure to conduct an
evidentiary hearing was harmless. Had the district court conducted a hearing and
found credible Melgarejo’s testimony that contract negotiations occurred in
24
Case: 12-14858 Date Filed: 09/17/2013 Page: 25 of 25
Florida, that finding would not have changed the district court’s personal
jurisdiction analysis, for the reasons that we discussed above.
III. CONCLUSION
In sum, we affirm the district court’s dismissal for lack of personal
jurisdiction.
AFFIRMED.
25