Juan MELGAREJO, Plaintiff-Appellant, v. PYCSA PANAMA, S.A., Defendant-Appellee.
No. 12-14858.
United States Court of Appeals, Eleventh Circuit.
Sept. 17, 2013.
III.
Finally, Gianoli argues for the first time on appeal that the district court should not have permitted any witnesses to testify at sentencing about his prescribing drugs to their relatives and neighbors because they were not direct victims of the misconduct for which Gianoli was convicted. Because he did not make that argument in the district court, we review only for plain error. United States v. Garey, 546 F.3d 1359, 1363 (11th Cir.2008). Gianoli bases his аrgument on the Crime Victims’ Rights Act, which requires that certain persons classified as crime victims be given notice of and the opportunity to be heard at certain hearings, including sentencing hearings.
AFFIRMED.
Frances Guasch De La Guardia, Laura Maria Gonzalez Marques, Jose A. Casal, Holland & Knight, LLP, Miami, FL, for Defendant-Appellee.
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
I. FACTS AND PROCEDURAL HISTORY
This appeal involves Florida‘s Long Arm Statute. See
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
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.
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, hе 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 “Di-
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 $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 counsеl, 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.”
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 Pyсsa 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.
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 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,
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 evidenсe, 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 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, Pycsa acknowledged that “it did utilize in the past
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 involvеment 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 ... 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 cannоt 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 Melgarejo. 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 complаint 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 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 corpоration 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
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
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.”4
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 рerform) 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 оf personal jurisdiction and did not consider Pycsa‘s alternative ground for dismissal—forum non conveniens.
Melgarejo timely appealed.
II. DISCUSSION
A. Personal Jurisdiction Questions
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).
B. Florida‘s Long-Arm Statute
Because Florida is the forum state, we start our analysis with Florida‘s Long-Arm Statute. See
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].”
Because the reach of Florida‘s Long-Arm Statute “is a question of Florida law,” this Court, sitting in diversity jurisdiction, is required tо 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 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 Comme‘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 non-residents 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
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
Melgarejo places great weight on the first factor and cites Pyсsa‘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 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
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 nonresident defendant‘s Florida-based business operations.
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
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,
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 quotаtion 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 nо 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.
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
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 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
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.
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 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.