CHRISTIAN RAUTENBERG, Appellant, v. THOMAS FALZ and SYBAC SOLAR AG, CO., a foreign profit corporation, Appellees.
Case No. 2D15-2938
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
March 11, 2016
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
SILBERMAN, Judge.
Opinion filed March 11, 2016.
SILBERMAN, Judge.
Thomas Falz sued Christian Rautenberg, individually, and Sybac Solar AG, Co., a German company, for defamation and tortious interference. Rautenberg, a Gеrman citizen, appeals a nonfinal order that denies his amended motion to dismiss for lack of personal jurisdiction. Because the complaint fails to allege sufficient jurisdictional facts against Rautenberg, we reverse and remand for the trial court to dismiss the сomplaint without prejudice.
This case arose from statements Rautenberg made on December 20, 2013, that form the basis for claims for defamation and tortious interference with business relations.
The appellate court conducts a de novo review of the trial court‘s determination on personal jurisdiсtion over a nonresident defendant. Schwartzberg v. Knobloch, 98 So. 3d 173, 180 (Fla. 2d DCA 2012). But the court must strictly construe the long-arm statute. Id. Florida‘s long-arm statute provides in pertinent part as follows:
(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:
. . . .
2. Committing a tortious act within this state.
. . . .
(2) A dеfendant who is engaged in substantial and not isolated activity within this state, whether such activity is 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.
In considering a motion to dismiss for lack of personal jurisdiction, the trial court must apply the test set forth in Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). In doing so, the trial court must first determine whether the complaint alleges jurisdictional facts that are sufficient “to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Wiggins, 147 So. 3d at 84 (quoting Borden v. East-European Ins. Co., 921 So. 2d 587, 592 (Fla. 2006)).
In alleging a basis for jurisdiction, the plaintiff may either track the statutory language without supporting facts or allege specific facts to show that the defendant‘s actions fall within at least one of the subsections of
Falz acknowledges that his complaint does not track the language of the long-arm statute. Instead, he contends that the complaint alleges specific facts showing that Rautenberg committed tоrtious acts constituting defamation and tortious interference in Florida, thus subjecting Rautenberg to specific jurisdiction under
The allegations in the complaint do not expressly state that Rautenberg published false accusations about Falz in Florida. Falz alleged that “[t]he false accusations set forth herein were directed at Falz, individually and in his capacity as President of American Vulkan Corporation (hereafter ‘employer‘), located in Winter Haven, Polk County, Florida.” Falz alleged that “[o]n 20 December, 2013, Rautenberg, acting individually and as an agent and/or employee of Sybac, published the following false accusations to Falz‘s employer.” It appears that Falz may have wanted to imply that the accusations were made in Florida, but the allegation merely states that American Vulkan Corporation is located in Florida.
At a later hearing on motions by corporate defendant Sybac, Falz testified and acknowledgеd that the accusations were oral statements that Rautenberg made at a meeting in Germany in the presence of Falz, Sebastian Hackforth, and Bernd Hackforth. The Hackforths own Hackforth Holding, which in turn owns American Vulkan Corporation.
Rautenberg argued in his amendеd motion to dismiss that Falz failed to allege sufficient jurisdictional facts to bring the action within the application of the long-arm statute. Rautenberg further argued that he did not make a defamatory statement that was published in or directed to Florida. His affidavit states that he is a German citizen who lives in Germany. His affidavit further asserts, “I have never committed any tortious act in Florida. Specifically, I never published a defamatory statement about Falz to Falz‘s employer, American Vulkan in Winter Haven, Florida, as alleged in the complaint.”
Thus, evеn if the complaint could be read to allege that Rautenberg‘s statement was published in Florida, Rautenberg denied that he published any defamatory statement to Falz‘s employer in Florida. Falz filed an affidavit in response to the amended motion to dismiss in which he asserts that Rautenberg‘s “statements were intentionally calculated to cause [Falz] injury in Florida in [his] capacity as president of American Vulkan Corporation.”
Our reading of the complaint leads us to conclude that Falz failed to allege that Rautenberg committed a tortious act in Florida that would provide for specific jurisdiction under
In Casita, the trial court did not have рersonal jurisdiction based on the commission of a tortious act within Florida. 960 So. 2d at 857. There, the complaint alleged that the defamatory statements were made both inside and outside Florida, but the proofs presented at the hearing refuted that allegation. Id. at 856. Because the plaintiff was unable to offer any proof that the injurious statements were published within Florida, the appellate court reversed and remanded for dismissal of the complaint without prejudice. Id. at 857-58.
A complaint is not legally sufficient to allege personal jurisdictiоn based on tortious acts when the complaint fails to allege that the acts were committed within Florida. PK Computers, Inc. v. Indep. Travel Agencies of Am., Inc., 656 So. 2d 254, 255 (Fla. 4th DCA 1995). In PK Computers, claims of fraud, tortious interference, and slander arose from alleged oral statements, but the complaint did not allege that the statements were made in Florida or “were directed at listeners who were located in the state.” Id.
When the plaintiff fails to meet the first prong of the Venetian Salami test, the court “need not consider the minimum contacts aspect.” Id.; see also Casita, 960 So. 2d at 858. The appellate court instructed that on remand the motion to dismiss be granted without prejudice so as to allow the plaintiffs to amend the complaint if they could “assert proper allegations to support personal jurisdiction.” PK Computers, 656 So. 2d at 255; see also Russo v. Fink, 87 So. 3d 815, 819 (Fla. 4th DCA 2012).
Here, the complaint fails to meet prong one of the Venetian Salami test because it fails to allege that Rautenberg committed a tortious act within Florida. Thus, we need not reach the issue of whether Rautenberg has sufficient contacts with Florida to satisfy due process concerns. See Casita, 960 So. 2d at 858. However, we discuss minimum contacts to note that a defamatory oral statement made to a person outside Florida does nоt have the required “connexity” to Florida. Wiggins, 147 So. 3d at 87.
In Wiggins, an alleged conversion occurred by withdrawal of funds from a Delaware account, and the corporate defendant gained dominion and control over the funds in Washington. Id. This court determined that the tort did not occur in Flоrida and had no connexity with this state; thus, the plaintiff failed to satisfy the requirements for personal jurisdiction. Id. This court recognized that a defendant can commit a tortious act in Florida without physical presence in the state; however, in virtually all of those cases “thе finding that personal jurisdiction exists against a nonresident defendant who commits a tort outside of Florida involves some sort of communication directed into Florida for the purpose of fraud, slander, or other intentional tort.” Id. at 86. Examples are when telephonic, electronic, or written communications are directed into Florida. See id.
The United States Supreme Court‘s decision in Walden v. Fiore, 134 S. Ct. 1115 (2014), lends further support. “For a State to exercise jurisdiction consistent with due process, the defendant‘s suit-related conduct must create a substantial connection with the forum State.” Id. at 1121. The Court stated that Calder v. Jones, 465 U.S. 783 (1984), “made clear that mere injury to a forum resident is not a sufficient connection to the forum.” 134 S. Ct. at 1125. “The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant‘s conduct connects him to the forum in a meaningful way.” Id. In Calder, the defendants had published in the forum state of California an article that a large number of California citizens read. Id. at 1124. Here, there is no allegation of publication in Florida.
In summary, as to specific jurisdiction, the complaint is subject to dismissal because it fails to allege a tortious act committed within Florida and fails the first prong of the Venetian Salami test for long-arm jurisdiction.
As to general jurisdiction, Falz contends that the trial court correctly found that it has general jurisdiction over Rautenberg for engaging in “substantial and not isolated activity within this state.”
Again, Falz failed to make sufficient allegations of general jurisdiction as to Rautenberg under
Because the complaint fails to make sufficient allegations of jurisdictional facts to bring the action within the ambit of Florida‘s long-arm statute, the trial court should have dismissed the complaint. We reverse the order denying Rautenberg‘s amended motion to dismiss and direct the trial court on remand to dismiss the complaint without prejudice. See Russo, 87 So. 3d at 819; PK Computers, 656 So. 2d at 255.
Reversed and remanded.
CASANUEVA and SLEET, JJ., Concur.
SILBERMAN
Judge