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Date: 02-16-2019
Case Style:
Case Number: 3D18-1350
Judge: Vance Salter
Court: Third District Court of Appeal State of Florida
Plaintiff's Attorney: Allison L. Friedman
Defendant's Attorney: Juliana Gonzalez
Description:
Tulsa Contract Legal Secretarial Services
Air Shunt Instrument, Inc. (“Air Shunt”), appeals a trial court order denying
its motion to dismiss for lack of personal jurisdiction. Air Shunt was sued by the
appellee, Airfoil International Aircraft Spare Parts Co. WLL (“Airfoil”), for breach
of contract relating to a group of aircraft parts in Air Shunt’s repair facility in
California. We reverse the order and remand the case for dismissal for lack of
personal jurisdiction, as Airfoil failed (1) to include legally sufficient jurisdictional
allegations in its complaint, and (2) to “prove by affidavit the basis upon which
jurisdiction may be obtained,”1 following Air Shunt’s filing and service of a
comprehensive affidavit by its Chief Executive Officer that was fact-based and
legally sufficient to defeat Airfoil’s insufficient jurisdictional allegations.
Airfoil’s Complaint
The complaint alleges two claims, one of which (replevin—a problem, given
that the six aircraft components under repair concededly remained at Air Shunt’s
premises in California) was voluntarily dropped by Airfoil. The remaining claim
alleges that Air Shunt is a foreign corporation “doing business” in Miami-Dade
County and throughout the United States.
The complaint further alleges that Air Shunt’s business is the repair of
aircraft parts, but there is no allegation that such repairs are undertaken anywhere
in Florida. Airfoil alleged that it was promised a credit for “certain work orders
that could not be performed in the amount of $31,000.00.” The attachment lists six
work orders and information regarding the parts to be repaired, but there are no
1 Tobacco Merchants Ass’n of U.S. v. Broin, 657 So. 2d 939, 941 (Fla. 3d DCA 1995), quoted in Rollet v. de Bizemont, 159 So. 3d 351, 356 (Fla. 3d DCA 2015).
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work orders actually attached, no contracts, and no allegations that Air Shunt
picked up parts, worked on parts, or contracted to work on parts, in Florida.
Air Shunt’s Motion to Dismiss and Jurisdictional Affidavit
Air Shunt moved to dismiss the complaint for lack of personal jurisdiction.
Unrebutted allegations in the sworn affidavit of its Chief Executive Officer
attached to its motion included these:
It is a California corporation with its principal place of business in
Chatsworth, California.
It does not operate, conduct, engage in, or carry on a business or business
venture in the State of Florida.
It has not contracted to insure any person, property, or risk located within
Florida.
It does not own, use, possess, or hold a mortgage or other lien on any real
property within Florida.
It has not engaged in substantial or significant solicitation or service
activities within Florida.
It has not manufactured any products, materials, or things within the State of
Florida in the ordinary and foreseeable course of commerce, trade, or use.
It has not entered into any contract to be performed in Florida.
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It does not transact business in Florida or otherwise engage in any
substantial business activity that targets Florida such that it has availed itself
of the laws of Florida.
It has not engaged in substantial and not isolated activity within Florida,
either interstate or intrastate.
The [aircraft] parts described in Airfoil’s complaint are located in California.
Airfoil’s Counter-Affidavit
In response, and as contemplated by the oft-cited case of Venetian Salami
Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), Airfoil filed a counter-affidavit and
five emails. Airfoil’s affiant, Milton Robinson, alleges that he is secretary,
registered agent, and records custodian for Airfoil. The attachments to his affidavit
are emails indicating:
The COO of Airfoil, Khalifa Alsada, sent an email from Airfoil in the
Kingdom of Bahrain to addressees including Nick Crawford, Air Shunt’s
quality assurance manager in Chatsworth, California. The email asked that
financial communications from Air Shunt be directed to Mr. Hameed or Mr.
Ayman at Airfoil.
Mr. Ayman Alobaidli, Chairman of the Board of “Airfoil International
W.L.L.” (which may or may not be a different entity than “Airfoil
International Aircraft Spare Parts Co. WLL,” the plaintiff identified as
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“Airfoil” in the complaint and this opinion), sent an email to “Paul” at Air
Shunt, appointing Mr. Robinson and his company (MBR Development,
LLC, in Miami) to reconcile past due invoices and expedite payment. The
email does not in any way indicate that the audit would take place in Florida,
or that any such invoices had or have anything to do with the aircraft parts
involved in the complaint.
Another email from “Paul” asks Mr. Robinson to forward financial
questions to “Elen Perez at accounting@airshunt.com.” This followed an
email from Mr. Robinson to Mr. Alobaidli (the Chairman in Bahrain) and
“Paul” asking them to please send the most recent statement to Mr.
Robinson so that Airfoil payables could be matched to accounts receivable.
Another email from Mr. Robinson to Nick Crawford at Air Shunt asks for a
copy of “the contract with Airfoil Bahrain,” and states that “we have
established the Airfoil US entity Airfoil USA, LLC” (yet another entity
unidentified in Airfoil’s complaint, and apparently indicating that the repair
contract in question is with “Airfoil Bahrain”).
These emails contradict, rather than support, Mr. Robinson’s affidavit that
“[a]s early as 2012, Air Shunt has been doing business with entities in the
State of Florida as evidenced by the attached [emails].”
Notice of Evidentiary Hearing
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The allegations in the complaint and in Mr. Robinson’s affidavit are
woefully inadequate to establish: specific jurisdiction, section 48.193(1)(a), Florida
Statutes (2018); general jurisdiction, section 48.193(2); or minimum contacts
under the applicable and well-established case law. As to the threshold review of a
complaint for long-arm jurisdictional sufficiency, see Wadley v. Nazelli, 223 So.
3d 1118, 1121 (Fla. 3d DCA 2017). In the present case, Airfoil alleges the breach
of an agreement to provide a monetary credit and to return six aircraft components
from California, but the complaint attaches no contract, work order (though work
orders are referenced by number on an attachment), or basis for a credit.
As to the complaint’s allegations regarding minimum contacts, see Daimler
AG v. Bauman, 571 U.S. 117 (2014) (exercise of general jurisdiction by a State
requires affiliations that are so continuous and systematic as to render the
defendant essentially “at home” in the forum State).
Despite these shortcomings, Airfoil noticed an “evidentiary hearing,” at
which Mr. Robinson testified. Neither party arranged for a court reporter to attend,
so the record contains no transcript. Airfoil thus invokes Applegate v. Barnett
Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979), for the proposition that without
a transcript this appeal must fail.
In many cases, that argument would prevail. In the present case, it fails. An
evidentiary hearing is only appropriate when a preliminary prerequisite—a legally
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sufficient set of allegations regarding jurisdiction over the non-resident defendant
corporation—has been satisfied. Here it was not.
If the threshold jurisdictional allegations suffice, the burden shifts to the
defendant, by affidavit, to counter the jurisdictional allegations under oath. If that
requirement is satisfied by the defendant, the plaintiff must file a counter-affidavit
under oath placing a key jurisdictional fact or facts in dispute, such that an
evidentiary hearing becomes necessary to resolve the dispute. Airfoil did not
satisfy that requirement either. As to this sequence of steps, see Borden v. East
European Insurance Co., 921 So. 2d 587, 592 (Fla. 2006), and Rollet v. de
Bizemont, 159 So. 3d 351, 355 (Fla. 3d DCA 2015).
Outcome: For these reasons, we reverse the order denying Air Shunt’s motion to
dismiss the amended complaint for lack of jurisdiction. We remand for the entry
of an order granting the motion and dismissing the amended complaint with leave
to further amend, if Airfoil chooses, to remedy the jurisdictional pleading
deficiencies detailed in this opinion.
Reversed and remanded for further proceedings.
Plaintiff's Experts:
Defendant's Experts:
Comments: