Fincantieri-Cantieri Navali Italiani S.P.A. v. Yuzwa ( 2018 )


Menu:
  •        Third District Court of Appeal
    State of Florida
    Opinion filed March 7, 2018.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D16-1015
    Lower Tribunal No. 14-3780
    ________________
    Fincantieri-Cantieri Navali Italiani S.p.A.,
    Appellant,
    vs.
    Anthony Yuzwa,
    Appellee.
    An appeal from a non-final order from the Circuit Court for Miami-Dade
    County, Rodney Smith, Judge.
    Fowler White Burnett, P.A. and Allan R. Kelley and Helaine S. Goodner;
    Sheppard, Mullin, Richter & Hampton LLP and Martin D. Katz, pro hac vice (Los
    Angelesk, CA), for appellant.
    Loughren, Doyle & Reising, P.A. and Richard B. Doyle, Jr. (Ft.
    Lauderdale); Banning LLP and William L. Banning, pro hac vice (Rancho Santa
    Fe, CA), for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
    SUAREZ,                                                                   J.
    In this case, we are asked to determine whether Florida courts have personal
    jurisdiction over an Italian shipbuilder based on injuries a Canadian citizen
    sustained on a cruise ship built in Italy, and owned by a Washington corporation,
    while the ship was in international waters in the Pacific Ocean. The trial court
    determined that it had both general and specific personal jurisdiction. We reverse
    because the foreign shipbuilder’s contacts with Florida are not so continuous and
    systematic as to render it essentially at home in this State nor is there an adequate
    connection between Florida and the underlying claims.
    BACKGROUND
    Fincantieri-Cantieri      Navali       Italiani    S.p.A.      (“Fincantieri”),
    Appellant/Defendant below, is an Italian shipbuilding company. Anthony Yuzwa
    (“Yuzwa”), Appellee/Plaintiff below, is a Canadian citizen who was injured while
    working as a performer aboard a Fincantieri-built cruise ship—the MS Oosterdam.
    Fincantieri built the Oosterdam in Italy pursuant to a contract, signed in London
    and governed by English law, with HAL Antillen N.V. (“HAL”), a Netherlands
    Antilles corporation and subsidiary of the Miami-based Carnival Corporation
    (“Carnival”). The Oosterdam is owned by Holland America Line, a Carnival
    subsidiary headquartered in Seattle, Washington.
    On February 14, 2011, Yuzwa, who worked aboard the Oosterdam as a
    professional dancer, was injured during a rehearsal when a stage lift crushed his
    foot. This occurred while the ship was off the coast of Mexico in the Pacific
    Ocean, having embarked from its home port in San Diego, California the day
    2
    before. Yuzwa sued Fincantieri, and other defendants, in both California and
    Florida.     However, following jurisdictional discovery in California, Yuzwa
    dismissed Fincantieri from that case, maintaining the instant action in Florida
    against Fincantieri and one other defendant (Harbour Marine Systems, Inc.).1
    Yuzwa’s operative Complaint asserts claims for negligence, strict products
    liability, and breach of express and implied warranty.        Fincantieri moved to
    dismiss for lack of personal jurisdiction and forum non conveniens2 and attached
    sworn proof contesting Yuzwa’s jurisdictional allegations.         Yuzwa filed an
    opposition with supporting declarations, the deposition of a senior Fincantieri
    executive, and various other exhibits. Following a non-evidentiary hearing, the
    trial court denied Fincantieri’s motion to dismiss. This timely appeal follows.
    ANALYSIS
    We review the trial court’s order denying Fincantieri’s motion to dismiss for
    lack of personal jurisdiction de novo. See, e.g., Wendt v. Horowitz, 
    822 So. 2d 1252
    , 1256 (Fla. 2002).       Our jurisdictional analysis is governed by Venetian
    Salami Co. v. Parthenais, 
    554 So. 2d 499
     (Fla. 1989), which requires both a
    statutory and constitutional inquiry to determine whether Florida courts may
    exercise personal jurisdiction over a nonresident defendant. First, the plaintiff
    must allege sufficient jurisdictional facts to bring the action within the ambit of
    1   Harbour Marine is not a party to this appeal.
    2   Because we find jurisdiction is lacking, we do not address forum non conveniens.
    3
    Florida’s long-arm statute: section 48.193, Florida Statutes (2017). 
    Id. at 502
    .
    Second, the nonresident defendant must have sufficient “minimum contacts” to
    satisfy constitutional due process requirements.       Id.; see also World-Wide
    Volkswagen Corp. v. Woodson, 
    444 U.S. 286
    , 291 (1980) (“The Due Process
    Clause of the Fourteenth Amendment limits the power of a state court to render a
    valid personal judgment against a nonresident defendant.”).
    Unlike long-arm statutes in other states, Florida’s statutory requirements are
    not coextensive with federal due process requirements. See Internet Sols. Corp. v.
    Marshall, 
    39 So. 3d 1201
    , 1207 (Fla. 2010) (explaining that Florida’s long-arm
    statute “bestows broad jurisdiction” whereas “United States Supreme Court
    precedent interpreting the Due Process Clause . . . imposes a more restrictive
    requirement.”); cf Modern Principles of Personal Jurisdiction, 4A Fed. Prac. &
    Proc. Civ. § 1069 (4th ed.) (“[B]ecause a majority of states (and Puerto Rico) have
    enacted jurisdictional statutes that either have expressly incorporated the due
    process standard or have been interpreted to extend to the limits of due process,
    this analysis frequently is collapsed by the federal court into a one-step inquiry:
    does the assertion of personal jurisdiction satisfy the requirements of due
    process?”).
    A key component of the Venetian Salami analysis is its allocation of the
    burden of proof. Initially, the plaintiff bears the burden of pleading sufficient
    4
    jurisdictional facts to fall within the long-arm statute. Venetian Salami, 
    554 So. 2d at 502
    .   “If the allegations in the complaint sufficiently establish long-arm
    jurisdiction, then the burden shifts to the defendant to contest the jurisdictional
    allegations in the complaint, or to claim that the federal minimum contacts
    requirement is not met, by way of affidavit or other similar sworn proof.[3]” Belz
    Investco Ltd. P'ship v. Groupo Immobiliano Cababie, S.A., 
    721 So. 2d 787
    , 789
    (Fla. 3d DCA 1998) (citing Venetian Salami, 
    554 So. 2d at 502
    ; Field v. Koufas,
    
    701 So. 2d 612
     (Fla. 2d DCA 1997)).        “If properly contested, the burden then
    returns to the plaintiff to refute the evidence submitted by the defendant, also by
    affidavit or similar sworn proof.” 
    Id.
        If the parties’ sworn proof is in conflict,
    “the trial court must conduct a limited evidentiary hearing to resolve the factual
    dispute.” Id.4
    Both the long-arm statute and federal due process distinguish between two
    types of personal jurisdiction: general and specific. General jurisdiction is based
    purely on a defendant’s contacts with the forum state, regardless of where the
    3  Much of Fincantieri’s sworn proof takes the form of declarations. See Def.
    Control USA, Inc. v. Atlantis Consultants Ltd. Corp., 
    4 So. 3d 694
    , 699 (Fla. 3d
    DCA 2009) (holding that declarations can be used in lieu of affidavits to establish
    jurisdictional facts).
    4 The trial court’s analysis deviated from Venetian Salami. Instead of shifting the
    burden back to the Plaintiff once Fincantieri had submitted its sworn proof
    contesting the jurisdictional allegations in the Complaint, the court determined that
    it “must consider the pleadings and affidavits in the light most favorable to the
    plaintiff.”
    5
    cause of action arises. In order for a state to exercise such extensive jurisdiction, a
    defendant’s contacts must be sufficiently “substantial and not isolated” and
    “continuous and systematic.” See § 48.193(2), Fla. Stat. (2017); Helicopteros
    Nacionales de Colombia, S.A. v. Hall, 
    466 U.S. 408
    , 414 (1984) (“Even when the
    cause of action does not arise out of or relate to the foreign corporation's activities
    in the forum State, due process is not offended by a State’s subjecting the
    corporation to its in personam jurisdiction when there are sufficient contacts
    between the State and the foreign corporation.” (footnote omitted)).          Specific
    jurisdiction does not require the same level of contacts; instead, jurisdiction is
    based on the cause of action arising out of a defendant’s certain minimum contacts
    with the state. See § 48.193(1)(a), Fla. Stat. (2017); Helicopteros, 
    466 U.S. at 414
    (“When a controversy is related to or ‘arises out of’ a defendant’s contacts with the
    forum, the Court has said that a ‘relationship among the defendant, the forum, and
    the litigation’ is the essential foundation of in personam jurisdiction.”). Because
    the trial court incorrectly found that Fincantieri was subject to both general and
    specific jurisdiction, we address each category in turn.
    General Jurisdiction
    Florida’s long-arm statute provides a basis for asserting general personal
    jurisdiction pursuant to section 48.193(2):
    (2) A defendant who is engaged in substantial and not
    isolated activity within this state, whether such activity is
    6
    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.
    The trial court determined that Fincantieri was subject to general jurisdiction
    based on the following contacts with Florida: (1) Fincantieri’s long-standing
    “partnership” with Carnival, spanning over 25 years; (2) numerous contracts with
    Carnival, resulting in the construction of around 60 cruise ships and amounting to
    90% of the cruise ships built under Fincantieri’s Merchant Ships Business Unit; (3)
    over 25 billion dollars in revenue for building ships for Carnival; (4) a Florida
    office and Area Manager to solicit cruise ship business and serve Florida clients;
    and (5) frequent meetings and communications with Carnival related to the
    building of cruise ships.
    It is undisputed that Fincantieri has a substantial business relationship with
    Carnival; however, we conclude that some of the trial court’s findings are
    overstated.   For instance, the trial court found that there was a “partnership”
    between Carnival and Fincantieri based on the deposition testimony of a
    Fincantieri representative who referred to the relationship with Carnival as “more
    of a partnership[.]” But there is no evidence in the record that Carnival and
    Fincantieri have ever formed a legal partnership. See 8B Fla. Jur. 2d Business
    Relationships § 541 (“A partnership is only established when both parties
    contribute to the capital or labor of the business, have a mutuality of interest in
    7
    both profits and losses, and agree to share in the assets and liabilities of the
    business.”). And although Fincantieri has a single employee in Florida—the “Area
    Manager”—the sworn proof below conclusively shows that he simply serves as a
    liaison, directing any ship owner inquiries to the correct person or office in Italy.
    Finally, testimony from Fincantieri’s Senior Executive Vice President of the
    Merchant Ships Business Unit establishes that meetings with Carnival are “very,
    very usually done in Italy” because that is where Fincantieri has all its
    organization, structure, technical development, and shipyards.
    Notwithstanding the trial court’s misstatements of the evidentiary record,
    Fincantieri does appear to be engaged in “substantial and not isolated activity
    within this state” under the plain meaning of the long-arm statute due to years of
    shipbuilding for Carnival.    However, we find that Fincantieri’s contacts with
    Florida are nevertheless insufficient to satisfy the more restrictive due process
    requirements for general jurisdiction.
    In International Shoe Co. v. Washington, 
    326 U.S. 310
    , 316 (1945), the
    United States Supreme Court held that in order to subject a foreign corporation to
    personal jurisdiction, due process requires certain “minimum contacts . . . such that
    the maintenance of the suit does not offend ‘traditional notions of fair play and
    substantial justice.’” The Court further explained that “there have been some
    instances in which the continuous corporate operations within a state were thought
    8
    so substantial and of such a nature as to justify suit against it on causes of action
    arising from dealings entirely distinct from those activities.” 
    Id. at 318
     (emphasis
    added). This eventually came to be known as general jurisdiction. Over time, the
    Supreme Court has refined its approach to general jurisdiction and provided more
    guidance as to the “continuous and substantial” contacts necessary to satisfy due
    process.
    An early “textbook case of general jurisdiction appropriately exercised over
    a foreign corporation that has not consented to suit in the forum” is the Supreme
    Court’s 1952 decision in Perkins v. Benguet Consol. Min. Co., 
    342 U.S. 437
    (1952). Goodyear Dunlop Tires Operations, S.A. v. Brown, 
    564 U.S. 915
    , 928
    (2011) (quoting Donahue v. Far Eastern Air Transport Corp., 
    652 F.2d 1032
    , 1037
    (C.A.D.C.1981)). In Perkins, the Court ruled that Ohio could exercise general
    jurisdiction over a Philippine mining corporation because Ohio was the company’s
    temporary principle place of business while the Japanese were occupying the
    Philippine Islands during World War II. 
    342 U.S. at 447
    . Although the company
    had halted mining operations due to the Japanese occupation, the company’s
    president and principle stockholder maintained an office in Ohio where he carried
    out “a continuous and systematic supervision of the necessarily limited wartime
    activities of the company.” 
    Id. at 448
    .
    9
    In Helicopteros, a case arising out of a helicopter crash in Peru, the Court
    held that general jurisdiction over a Colombian corporation was improper because
    its contacts with Texas—a contract negotiation session, accepting checks drawn on
    a Texas bank, purchasing 80% of its helicopter fleet along with parts and
    accessories, and sending personnel to Texas for training—were not sufficiently
    “continuous and systematic.”      
    466 U.S. at 416
    .       Although the Columbian
    corporation made regular purchases in Texas for substantial sums, the Court held
    that “mere purchases, even if occurring at regular intervals, are not enough to
    warrant a State’s assertion of in personam jurisdiction over a nonresident
    corporation in a cause of action not related to those purchase transactions.” 
    Id. at 418
    .
    More recently, the Supreme Court has decided two cases that raise the bar
    even higher for general jurisdiction.    In Goodyear, the Court held that North
    Carolina courts lacked general jurisdiction over foreign tire manufacturers in a case
    arising out of a bus accident in France. 
    564 U.S. at 919
    . Although some of the
    foreign manufacturers’ tires were sold in North Carolina, the Court explained that
    the “[f]low of a manufacturer’s products into the forum . . . may bolster an
    affiliation germane to specific jurisdiction . . . [b]ut ties serving to bolster the
    exercise of specific jurisdiction do not warrant a determination that, based on those
    ties, the forum has general jurisdiction over a defendant.” 
    Id. at 927
    . More
    10
    importantly, a unanimous Supreme Court held that in order to be subject to general
    jurisdiction, a foreign corporation’s contacts with the forum State must be “so
    ‘continuous and systematic’ as to render [it] essentially at home in the forum
    State.” 
    Id. at 919
    .
    Similarly, in Daimler AG v. Bauman, 
    134 S. Ct. 746
     (2014), the Court relied
    on the “at home” requirement in Goodyear to determine that California courts
    lacked general jurisdiction over Daimler, a German automobile manufacturer, for
    claims arising out of Argentina’s “Dirty War.” The Court held that even if the
    substantial California contacts of Daimler’s American subsidiary, Mercedez-Benz
    USA, were attributable to Daimler, general jurisdiction would not be proper
    because California was not Daimler’s place of incorporation or principle place of
    business; in other words, Daimler was not “at home” in California. 
    Id. at 760-61
    .
    Based on this understanding of the constitutional due process requirements,
    we conclude that Fincantieri is not subject to general jurisdiction in Florida
    because its contacts are not sufficiently “continuous and systematic” as to render it
    “at home” in this State. In comparing this case to the “textbook” example in
    Perkins, we observe that although Fincantieri does have an office in Miami, the
    unrefuted sworn proof below was that the purpose of this office, with its single
    employee, is to serve as a point of contact for ship owners and direct any inquiries
    to the correct person or office in Italy. Unlike the office in Perkins, Fincantieri’s
    11
    Miami office is not involved in any of the company’s actual operations. Indeed, all
    of Fincantieri’s executive officers and directors reside in Italy. Moreover, the vast
    majority of Fincantieri’s 7,000 plus employees are based in the company’s offices
    and shipyards in Italy.
    In both Goodyear and Daimler, the Supreme Court explained that with
    respect to a corporation, “the paradigm forum for the exercise of general
    jurisdiction . . . [is] the place of incorporation and principal place of business . . . .”
    Daimler, 
    134 S. Ct. at 760
     (quoting Goodyear, 
    564 U.S. 735
    ).                  Here, it is
    undisputed that Fincantieri is an Italian corporation, and its principal place of
    business is Italy. While it is true that general jurisdiction is not necessarily limited
    to those two “paradigm forums,” we decline to “look beyond the exemplar bases
    Goodyear identified,” such as Perkins, “and approve the exercise of general
    jurisdiction” based on the magnitude of Fincantieri’s business activities in Florida.
    See Daimler, 
    134 S. Ct. at 761
     (declining to go beyond the paradigm forums and
    approve the exercise of general jurisdiction wherever a corporation “engages in a
    substantial, continuous, and systematic course of business”).
    Yuzwa points us to a single unpublished opinion in support of his argument
    that general jurisdiction exists in this case. See Barriere v. Cap Juluca, No. 12-
    23510-CIV, 
    2014 WL 652831
     (S.D. Fla. Feb. 19, 2014). In Barriere, the United
    States District Court for the Southern District of Florida determined that it had
    12
    general jurisdiction over Cap Juluca, an Anguillan resort, based on its “substantial
    and not isolated activity in Florida[,]” which included the maintenance and
    operation of a Miami sales office; a Miami agent who managed Cap Juluca’s
    assets; and a Florida-based agent that promoted, managed, operated, and provided
    reservation services for Cap Juluca. Id. at *8.
    We are not persuaded that Barriere is applicable here. As an initial matter,
    we note that Cap Juluca did not include any sworn proof with its motion to
    dismiss, so the allegations in the complaint remained unrebutted. Id. Further,
    unlike the office in Barriere, Fincantieri’s Miami liaison office is not a sales office,
    and there is no evidence that Fincantieri’s assets are managed by a Florida-based
    agent. Finally, the reasoning in Barriere was recently called into question in
    McCullough v. Royal Caribbean Cruises, Ltd., 
    268 F. Supp. 3d 1336
    , 1349 (S.D.
    Fla. 2017) (“Thus, this Court disagrees with the ruling in Barriere, as it is
    inconsistent with Daimler.”).
    Because Fincantieri’s contacts with Florida were not sufficiently
    “continuous and systematic” as to render it “at home” in this State, we hold that it
    is not subject to general jurisdiction. We now turn to the second category of
    personal jurisdiction: specific jurisdiction.
    Specific Jurisdiction
    13
    Section 48.193(1)(a) lists several specific acts that could subject a
    nonresident defendant to personal jurisdiction in Florida, provided that the
    plaintiff’s cause of action “arises from” the specified acts.
    (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:
    (emphasis added). Yuzwa alleges that Fincantieri is subject to specific jurisdiction
    in Florida based on the following two 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.
    § 48.193(1)(a), Fla. Stat.
    As to the first act, —“[o]perating, conducting, engaging in, or carrying on a
    business . . . in this state”—it is undisputed that Fincantieri does business in
    Florida. But the relevant inquiry here is whether Yuzwa’s cause of action arises
    from Fincantieri’s business in Florida. See Moo Young v. Air Canada, 
    445 So. 2d 1102
    , 1104 (Fla. 4th DCA 1984) (“The fact that a non-resident does business in
    Florida is not enough to obtain jurisdiction over it. In addition, there must be some
    connection between the cause of action pleaded and the business operations
    conducted in Florida.”). This is known as the “connexity” requirement. 
    Id.
     The
    14
    trial court, based on an expansive interpretation of this requirement, found that
    there was a sufficient connection between Yuzwa’s claims and Fincantieri’s
    business in Florida. We disagree.
    The trial court relied on several cases in support of its holding that
    “‘connexity’ is found where a defendant is engaging in business activities related
    to the types of products or activities that caused a plaintiff harm.” While it is true
    that the injury need not occur in Florida, and the product that caused the injury
    need not be sold in Florida, we are reluctant to find that the connexity requirement
    has been satisfied where both the injury and the sale of the product occurred
    outside of the State, as is the case here. Indeed, in all of the cases the trial court
    uses for support, there is a clear connection to Florida. See Davis v. Pyrofax Gas
    Corp., 
    492 So. 2d 1044
    , 1044 (Fla. 1986) (finding that a nonresident manufacturer
    or wholesaler could be sued in Florida where a space heater sold in Michigan, but
    also marketed and sold in Florida, caused injury in Florida); Canron Corp. v. Holt,
    
    444 So. 2d 529
    , 530 (Fla. 1st DCA 1984) (finding jurisdiction over a New York
    corporation, with its principal place of business in South Carolina, where the
    corporation sold and shipped equipment to Florida that later caused injury in
    Georgia); Kravitz v. Gebrueder Pletscher Druckgusswaremfabrik, 
    442 So. 2d 985
    ,
    987 (Fla. 3d DCA 1983) (finding jurisdiction over a foreign bicycle rack
    manufacturer where the rack was purchased in Illinois, but identical racks were
    15
    also sold in Florida, and the injury occurred in Florida); Shoei Safety Helmet Corp.
    v. Conlee, 
    409 So. 2d 39
     (Fla. 4th DCA 1981) (finding jurisdiction over a Japanese
    helmet manufacturer where the helmet was sold indirectly in Florida, and the
    injury also occurred in Florida).
    Here, there is no apparent connection between Yuzwa’s claims and
    Fincantieri’s business in Florida. The Oosterdam was not constructed in Florida; it
    was not purchased in Florida; it is not owned by a Florida entity, it did not embark
    from a Florida port; and the injury, to a non-Florida resident, occurred thousands of
    miles away from Florida in the Pacific Ocean.          The only connection Yuzwa
    identifies is that similar cruise ships have been sold in Florida. We hold that this is
    far too remote to satisfy the connexity requirement under both the long-arm statute
    and the Due Process Clause. See Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., 
    137 S. Ct. 1773
    , 1781 (2017) (explaining that “a defendant's relationship with a. . .
    third party, standing alone, is an insufficient basis for jurisdiction”); Oldfield v.
    Pueblo De Bahia Lora, S.A., 
    558 F.3d 1210
    , 1223–24 (11th Cir. 2009) (“A finding
    that such a tenuous relationship . . . somehow satisfied the relatedness requirement
    would not only contravene the fairness principles that permeate the jurisdictional
    due process analysis, but would also interpret the requirement so broadly as to
    render it virtually meaningless.”).
    16
    Finally, we address the second act upon which specific jurisdiction is
    based—“[c]ommitting a tortious act within this state.” § 48.193(1)(a)(2), Fla. Stat.
    Here again, it is not apparent how Florida is remotely connected to the underlying
    claims. Moreover, the plain language of the statute requires that the actual tortious
    act be committed within the state. Yuzwa alleges that Fincantieri negligently
    designed the Oosterdam’s stage and lifts in Florida.          But this allegation is
    contradicted by the unrebutted sworn proof below, which establishes that
    Fincantieri designed the Oosterdam in Italy and purchased a “turnkey” stage from
    HMS, S.A., a French company. Yuzwa also argues that “Fincantieri, through its
    agent, HMS, negligently serviced, maintained and/or repaired the stage in Florida
    at least once during the warranty period.” While it is true that Fincantieri inspected
    the Oosterdam once in Florida in 2004, the unrebutted sworn proof below was that
    “the inspection and maintenance of the entertainment areas and stage would have
    been undertaken by HMS, which Fincantieri neither directed nor controlled.”
    Consequently, we do not find an adequate connection between Florida and either
    of the two specified acts upon which specific jurisdiction was based.
    CONCLUSION
    Because Fincantieri’s contacts with Florida do not render it “at home” here,
    and there are insufficient connections between this state and the underlying claims,
    17
    we reverse, holding that the circuit court lacked both general and specific personal
    jurisdiction over Fincantieri.
    Reversed.
    18