Two Worlds United (“Two Worlds”) appeals an order dismissing its complaint against Roel Zylstra for lack of personal jurisdiction. For the reasons discussed below, we affirm the order of dismissal.
I. Facts
Two Worlds, a Florida not-for-profit corporation whose principal place of business is in Tampa, filed suit alleging that Zyls-tra, a California residеnt, and other defendants posted defamatory statements on a website owned and operated by Zylstra. Two Worlds alleged the following causes of actiоn against Zylstra: defamation, tor-tious interference, civil conspiracy, and negligent blogging. In response to the complaint, Zylstra filed a motion to quash servicе of process and to dismiss, asserting that Zylstra is not a resident of Florida. That same day, Zylstra filed a motion for attorney’s fees pursuant to section 57.105, Florida Statutes (2007). Zylstrа then filed an amended motion to dismiss, asserting lack of personal jurisdiction, which was accompanied by an affidavit from Zylstra. In opposition, Two Worlds relied uрon an affidavit of a legal assistant from a law firm in California and the depositions of Zylstra and defendant Richard Jackson. The trial court granted Zylstra’s motion to dismiss “[ajfter reviewing the affidavits, materials and memoranda on file and after hearing argument of counsel.”
II. Analysis
A. A motion for attorney’s fees under section 57.105 does not waive the defense of lack of personal jurisdiction.
On appeal, Two Worlds first claims that Zylstra waived his objection to personal jurisdiction by seeking affirmative relief by virtue of his motion for attorney’s fees. A defendant waives an objection to personal jurisdiction by going beyond matters of defense and by seeking affirmative relief from the trial court.
See Babcock v. Whatmore,
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A motion for fees pursuant to section 57.105 directly relates to the opposing party’s cause of aсtion and is substantively defensive in nature because it seeks to dissuade the opposing litigant from proceeding with allegedly frivolous litigation.
See Dep’t of Highway Safety & Motor Vehicles v. Salter,
B. Two Worlds did not establish personal jurisdiction over Zylstra
Two Worlds also contends on appeal that the Florida court has personal jurisdiction over Zylstrа under the long-arm statute because Zylstra committed tortious acts within Florida, see § 48.193(l)(b), Fla. Stat. (2007), and because, alternatively, Zylstra’s contacts within Florida are extensive аnd ongoing, see § 48.193(2). Two Worlds further argues that Zylstra maintains minimum contacts in Florida so as to satisfy due process requirements for long-arm jurisdiction.
Once a nonresident defendant files an affidavit contesting the allegations contained within a complaint concerning personal jurisdiction, as Zylstra did in this case, the burden shifts to the plaintiff to prove by affidavit the basis for personal jurisdiction.
See Venetian Salami Co. v. Parthenais,
In order to establish personal jurisdiction over a nonresident defendant, a plaintiff must satisfy a two-part test. The first part of the test is whether the complaint alleges sufficient jurisdictional facts to satisfy Florida’s long-arm statute, section 48.193.
Internet Solutions Corp. v. Marshall,
As to the first prong of the test, Two Worlds first relies on the specific long-arm jurisdiction set forth in section 48.193(l)(b), which rеquires that the defendant personally committed a tortious act within the state. The relevant, unrefuted sworn testimony was that Zylstra denied personally owning the website in quеstion but admitted to being the sole stockholder of Global Notion, Inc., the corporation which owns the website. Zylstra also denied personally placing any рostings on the website regarding Two Worlds and denied
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committing any tortious act against Two Worlds. Two Worlds filed the affidavit of a legal assistant in a California law firm, in which she offered hearsay evidence that Global Notion, Inc., had a suspended business license. But there was no evidence regarding what “suspended” legally means in the cоntext of California law or that the corporation was dissolved. The corporate shield doctrine applies here to shield Zyls-tra from being haled into сourt based on personal jurisdiction because he denied committing the alleged negligent and intentional acts and Two Worlds did not rebut Zylstra’s sworn affidavit.
See Doe v. Thompson,
Two Worlds claims that the recent holding in Marshall applies to the instant case to establish Two Worlds’ compliance with section 48.193(l)(b). In Marshall, the court held that
[a] nonresident defendant commits the tortious act of defamation in Florida for purposes of Florida’s long-arm statute when the nonresident makes allegedly defamatory statements about a Florida resident by posting thosе statements on a website, provided that the website posts containing the statements are accessible in Florida and accessed in Florida.
Two Worlds also claims that the trial court has personal jurisdiction over Zylstra pursuant to section 48.193(2), the general jurisdiction provision of Florida’s long-arm statute, which provides that “a defendant who is engaged in substantial and not isolated activity within this state, whether such аctivity 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.” “Substantial and not isolated activity” is that which is “continuous and systematic.”
Bafitis v. Ara,
III. Conclusion
We conclude that the trial court properly determined that Two Worlds did not establish personal jurisdiction over Zyls-tra. Accordingly, we affirm the trial *1179 court’s order dismissing Two Worlds’ complaint against Zylstra.