Supreme Court Decisions May Overturn State’s ‘Long-Arm’ Statute
By Andrew C. Hall
Every Litigator must consider the issue of in personam jurisdiction, the process for serving someone with a summons and complaint in order to give a court jurisdiction to try a case. In Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Florida 1989), the Florida Supreme Court stated the jurisdictional standards over non–resident defendants; the complaint must allege sufficient facts to bring the action within the ambit of the long arm statute and demonstrate that the Defendants have sufficient contacts to satisfy due process.
In light of two recent Supreme Court decisions, F.S. §48.193 (2) appears to be unconstitutional. This section of the long arm statue provides for jurisdiction when an entity engages in substantial and not isolated activity within the State of Florida even though the claim does not arise from that activity.
In BNSF Railway, Co. v Tyrell, decided on May 30, 2017, Justice Ginsberg, joined by seven other justices, examined in personam jurisdiction under the FELA. The Court first confirmed the concept of general in personam jurisdiction being limited to where a corporation is deemed “at home,” the state of organization or where the corporation has sufficient activities, when viewed a whole, to make that state the primary place from which the corporation operates.
In the absence of general jurisdiction, specific jurisdiction requires that a nexus between the forum and the claim must be established. In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, decided on June 19, 2017, Justice Alito clarified specific jurisdiction. Bristol Meyers Squibb, (BMS), a Delaware Corporation, and a Fortune 500 company headquartered in New York, employed 25,000 people worldwide and earned $15 billion dollars annually. It had substantial activities within California, including five research laboratories, 160 research employees, and 250 sales representatives. BMS had a small government advocacy office in Sacramento. BMS made Plavix, the alleged cause of plaintiffs’ damages. Between 2006 and 2012, BMS sold 187 million Plavix pills in California earning $900 million. While those contacts would be sufficient under F.S. §48.193(2) as written, the Supreme Court deemed them insufficient under the due process clause without a nexus to the actual claim.
F.S. 48.193(2), Florida’s version of a similar approach to jurisdiction, is now inconsistent with due process. This failure can result in a dismissal at trial or on appeal. At least one case has been stopped in mid-trial because of the application of the BMS ruling. Absent changes in the application of the due process clause, lawyers should not rely on this statute.
Andrew C. Hall is the founder and managing partner of Hall, Lamb, Hall & Leto, P.A., a Miami-based law firm specializing in complex corporate, business, and securities litigation. The firm can be contacted at 2665 S. Bayshore Dr., PH 1 Miami, FL 33133 (305) 374-5030 www.hlhlawfirm.com