Third District Court of Appeal
State of Florida
Opinion filed May 31, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-0020
Lower Tribunal No. 22-4345
________________
B. Little & Company, Inc., etc.,
Appellant,
vs.
Choi Wai Printing (Hong Kong) Limited, etc.,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Carlos Guzman, Judge.
Law Office of Kathleen A. Daly, P.A., and Kathleen A. Daly (West Palm
Beach), for appellant.
Sprechman & Fisher, P.A., and Stacey S. Fisher, for appellee.
Before EMAS, HENDON and BOKOR, JJ.
BOKOR, J.
Appellant B. Little & Company appeals the trial court’s order denying
its motion to dismiss a breach of contract complaint for lack of personal
jurisdiction and forum non conveniens. The parties are both foreign
corporations that don’t conduct any business in Florida or maintain any
physical presence in Florida. B. Little employs staff, maintains a physical
presence, and conducts business in New York. The contract at issue, which
pertains to product manufacturing, contains an arbitration clause requiring
disputes to be arbitrated in New York, and does not contemplate any
business occurring in Florida. The only tangential connection to Florida
consists of the owner of B. Little renting a personal residence in the state.
We review a denial of a motion to dismiss for lack of personal jurisdiction de
novo. See, e.g., Wendt v. Horowitz,
822 So. 2d 1252, 1256 (Fla. 2002). We
review a denial of a motion to dismiss based on forum non conveniens under
an abuse of discretion standard. See, e.g., Ryder Sys., Inc. v. Davis,
997
So. 2d 1133, 1134 (Fla. 3d DCA 2008). Upon review of the record, we
conclude that the trial court should have granted B. Little’s motion to dismiss
based on forum non conveniens.
First, we examine whether the trial court properly asserted personal
jurisdiction over the defendants. The record evidence establishes, without
any contradiction from Choi Wai Printing (the appellee and plaintiff below),
2
no minimum contacts within Florida. See Venetian Salami Co. v. Parthenais,
554 So. 2d 499, 502 (Fla. 1989). However, if B. Little sought affirmative relief
from the trial court prior to asserting a lack of personal jurisdiction, then B.
Little submitted to the personal jurisdiction of the court. “Affirmative relief is
best defined as relief for which defendant might maintain an action
independently of plaintiff’s claim and on which he might proceed to recovery
. . . .” Sampson Farm Ltd. P’ship v. Parmenter,
238 So. 3d 387, 392 (Fla. 3d
DCA 2018) (quotation and citation omitted); see also Babcock v. Whatmore,
707 So. 2d 702, 704 (Fla. 1998) (“Personal jurisdiction may be waived by
formal submission in a cause, or by submission through conduct.”) (quotation
omitted); Sprint Corp. v. Telimagine, Inc.,
923 So. 2d 525, 528 (Fla. 2d DCA
2005) (citing Babcock and explaining “that because Sprint Corp. moved
below to enforce the arbitration clause of the parties' operating agreement
through its motion to dismiss or stay, it submitted itself to the jurisdiction of
the court and waived any objection based on a lack of personal jurisdiction”).
After filing an answer and affirmative defenses (which failed to raise
lack of personal jurisdiction), B. Little filed a motion to compel arbitration
(which again failed to raise lack of personal jurisdiction). B. Little finally
raised lack of personal jurisdiction as a defense in an amended answer.
Under the test expressed in Parmenter, B. Little’s motion to compel
3
arbitration, filed prior to asserting a lack of personal jurisdiction in a
subsequent amended answer, constituted affirmative relief and waiver. “If a
party takes some step in the proceedings which amounts to a submission to
the court’s jurisdiction, then it is deemed that the party waived his right to
challenge the court’s jurisdiction regardless of the party’s intent not to
concede jurisdiction.” Cumberland Software, Inc. v. Great Am. Mortg. Corp.,
507 So. 2d 794, 795 (Fla. 4th DCA 1987). “The first step a party takes in a
case, whether it be the filing of a preliminary motion or a responsive pleading,
must raise the issue of personal jurisdiction or that issue is waived.”
Id. In
examining the record before us, answering the complaint and seeking
affirmative relief in the form of a motion to compel arbitration prior to any
objection based on lack of personal jurisdiction constitutes a waiver of the
right to challenge personal jurisdiction. See id.; Fla. Dept. of Child. & Fams.
v. Sun-Sentinel, Inc.,
865 So. 2d 1278, 1283–84 (Fla. 2004) (finding no
waiver of personal jurisdiction where a party seeks to transfer venue after
raising a challenge to personal jurisdiction; distinguishing from cases where
a court found waiver of personal jurisdiction where a party seeks affirmative
relief prior to challenging jurisdiction); Gannon v. Cuckler,
281 So. 3d 587,
593 (Fla. 2d DCA 2019) (finding waiver where defense of personal
jurisdiction was not raised in answer or motion preceding answer).
4
Accordingly, the trial court correctly denied the motion to dismiss for lack of
personal jurisdiction.
Next, we examine the issue of forum non conveniens. We review the
trial court’s analysis of the Kinney factors for abuse of discretion. See Kinney
Sys., Inc. v. Cont’l Ins. Co.,
674 So. 2d 86 (Fla. 1996) (articulating factors to
be considered by the trial court in exercising its discretion to dismiss due to
forum non conveniens); see also Fla. R. Civ. P. 1.061(a) (codifying same
factors; providing that trial court’s decision to grant or deny motion to dismiss
for forum non conveniens “rests in the sound discretion of the trial court,
subject to review for abuse of discretion”). In reviewing the record presented
to the trial court, no fact or argument presented supports Florida as a more
convenient forum.
The record establishes, without contradiction, that New York is an
adequate forum, and the private and public interests overwhelmingly lead to
the conclusion that this case should be adjudicated in New York. Because
the overwhelming weight of the Kinney factors favor the case being resolved
in New York instead of Florida, we reverse and remand for entry of an order
of dismissal on that basis. See Rolls-Royce, Inc. v. Garcia,
77 So. 3d 855,
860 (Fla. 3d DCA 2012) (noting that the deference typically afforded to a
plaintiff’s choice of forum does not apply in an action involving out-of-state
5
entities with little or no contact with Florida; reversing denial of dismissal due
to forum non conveniens where neither party had any connections to Florida
except for plaintiffs’ counsel being located in Florida); Tananta v. Cruise
Ships Catering and Servs. Int’l, N.V.,
909 So. 2d 874, 888 (Fla. 3d DCA
2004) (dismissing due to forum non conveniens as to action brought by
foreign seamen with no ties to Florida except for conducting business in the
United States generally). Therefore, we conclude that the record mandated
that the trial court grant the motion to dismiss based on forum non
conveniens and reverse and remand for dismissal on that basis.
Affirmed in part, reversed in part, and remanded.
6
