Bluewater Trading LLC v. Fountaine Pajot, S.A.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16824 ELEVENTH CIRCUIT
JULY 2, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 07-61284-CV-JIC
BLUEWATER TRADING LLC,
a Delaware Limited Liability Company,
a.k.a. Blue Water Trading LLC,
Plaintiff-Appellant
versus
FOUNTAINE PAJOT, S.A.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 2, 2009)
Before DUBINA, Chief Judge, TJOFLAT and COX, Circuit Judges.
PER CURIAM:
I. BACKGROUND
Fountaine Pajot, S.A. (“Fountaine”) is a French vessel manufacturer. In late
2005, Michael Kaye, a resident of St. John, U.S. Virgin Islands, signed a contract to
purchase a new 37' Fountaine Pajot Maryland catamaran power trawler from Willmar
USA, Inc., (“Willmar”), a yacht dealer based in Broward County, Florida. During
presale negotiations, Kaye requested a copy of Fountaine’s written warranty on the
boat. Willmar told Kaye that it did not have a copy of the warranty but that “both
WILLMAR and FOUNTAINE fully back the vessels they sell.” (R.2-57 ¶ 21.) The
purchase contract was subsequently executed in the U.S. Virgin Islands. Before the
yacht was delivered, Kaye formed Bluewater Trading LLC (“Bluewater”), a Delaware
limited liability company, and transferred his interest in the purchase contract to
Bluewater.
In January 2006, the vessel was delivered to Bluewater in the British Virgin
Islands. Within weeks of that delivery, Bluewater discovered numerous
manufacturing defects in the vessel and demanded from Willmar and Fountaine a
copy of the written warranty and execution of warranty repairs.
When the demanded warranty repairs were not performed in a satisfactory
manner, Bluewater sued Willmar and Fountaine in the United States District Court
for the Southern District of Florida. Bluewater’s claims against Fountaine allege
2
violation of the Magnuson-Moss Warranty Act, 15 U.S.C. §§2310(d), 2302(b)(1)(A),
and 16 CFR 702.3, and violation of the Florida Deceptive and Unfair Trade Practice
Act.1 (R.2-57.) Fountaine’s General Manager was served with process while he was
in Miami, Florida, attending the Miami International Boat Show.
Fountaine moved to dismiss Bluewater’s claims on the grounds that the court
lacked personal jurisdiction over Fountaine and that the forum was inappropriate.
After the parties engaged in extensive discovery and submitted evidence regarding
Fountaine’s contacts in the United States, the district court granted Fountaine’s
motion, holding that Fountaine was not subject to personal jurisdiction in the
Southern District of Florida.
II. ISSUES ON APPEAL
Bluewater appeals the dismissal, arguing that personal jurisdiction over
Fountaine exists pursuant to the Florida long-arm statute or, alternatively, Federal
Rule of Civil Procedure 4(k)(2). Fountaine defends the dismissal, arguing that
personal jurisdiction cannot be asserted over Fountaine and that, even if the district
court erred in finding no personal jurisdiction, the forum selection clause in the
warranty would operate to require dismissal.
1
These are the only claims at issue in this appeal. Bluewater obtained a judgment against
Willmar, and that judgment is not challenged in this appeal.
3
III. STANDARDS OF REVIEW
This court reviews de novo the district court’s dismissal for lack of in
personam jurisdiction. Francosteel Corp. v. M/V Charm, 19 F.3d 624, 626 (11th Cir.
1994) (citation omitted).
IV. DISCUSSION
Bluewater argues that personal jurisdiction can be asserted over Fountaine
pursuant to the Florida long-arm statute at §48.193(1)(a), (g), and (2). Those sections
of the statute state:
(1) Any 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 the doing of
any of the following acts:
a) Operating, conducting, engaging in, or carrying on a
business or business venture in this state or having an
office or agency in this state.
...
(g) Breaching a contract in this state by failing to perform
acts required by the contract to be performed in this state.
...
(2) A defendant who is engaged in substantial and not isolated activity
within this state, whether such activity is wholly interstate, intrastate, or
4
otherwise, is subject to the jurisdiction of the courts of this state,
whether or not the claim arises from that activity.
Fla. Stat.§ 48.193(1)(a), (g), and (2).
In considering whether the Florida long-arm statute authorized the court to
assert personal jurisdiction over Fountaine, the district court reviewed the evidence
of Fountaine’s contacts with the state and concluded that those contacts could not
give rise to jurisdiction under the statute. The court found that Fountaine had
contracts with warranty service providers in Florida, made a few payments to those
providers and Willmar to cover warranty services, paid for a booth at the Miami
International Boat Show annually, and sent a representative to attend that show and
meet with a Willmar representative once a year. In addition, Fountaine sent emails
and marketing materials to Willmar and listed Willmar as its dealer in advertisements
in international boating publications and on a website.
The court determined that general jurisdiction could not be asserted over
Fountaine because the limited contacts Fountaine had with Florida could not be
described as “substantial and not isolated activity within [Florida].” (R.2-101 at 6
(quoting Fla. Stat. § 48.193(2) (2008)).) We agree. This is not a case like Richard
Bertram & Co. v. Am. Marine, Ltd., 258 So. 2d 335 (Fla. 3d DCA 1972), cited by
Bluewater, where there was a dealer agreement signed in Florida and the foreign
5
manufacturer provided substantial sales support and exercised significant control over
its dealer in Florida. Here, the evidence was that Fountaine did not directly sell
vessels in Florida, did not exercise control over Willmar in its sales or warranty
service, and did not have a contract with Willmar. We do not accept Bluewater’s
invitation to impute Willmar’s contacts with Florida to Fountaine.
We also agree with the district court that specific personal jurisdiction cannot
be asserted over Fountaine under the Florida statute. First, Fountaine’s contacts did
not rise to the level of “[o]perating, conducting, engaging in, or carrying on a
business or business venture in this state” as required by Fla. Stat. § 48.193(1)(a).
Thus, Bluewater’s claim could not arise out of Fountaine’s operation of a business
within Florida, as required by Fla. Stat. § 48.193(1)(a). Neither did it arise out of
Fountaine’s breach of a contract “by failing to perform acts required by the contract
to be performed in this state,” as required to assert jurisdiction under Fla. Stat. §
48.193(1)(g).
Finally, we agree that Federal Rule of Civil Procedure 4(k)(2) does not provide
a basis for assertion of personal jurisdiction over Fountaine. As stated above,
Fountaine’s contacts with Florida are limited. And, even when considered in
conjunction with Fountaine’s other contacts with the United States (attendance at the
6
Annapolis Boat Show2), they are insufficient for the assertion of personal jurisdiction
to comport with due process.
Finding no personal jurisdiction, we need not address Fountaine’s forum
selection clause argument.
V. CONCLUSION
For the foregoing reasons, we affirm the judgment.
AFFIRMED.
2
The district court addressed Bluewater’s assertion that Fountaine had additional contacts
with the United States by virtue of selling the vessel to Bluewater in the U.S. Virgin Islands by
concluding, based on undisputed evidence, that: (1) Fountaine was not a party to the purchase
agreement, and (2) delivery of the vessel was made in the British Virgin Islands.
7