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FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 5

FEBRUARY 7, 2025

THE COURT SLAPS FLEX SEAL FOR SEEKING A MISPLACED WRIT OF CERTIORARI ON A DISCOVERY ISSUE WITHOUT BASIS

Swift Response, LLC v. Routt, 50 Fla. L. Weekly D260 (Fla. 1st DCA Jan. 29, 2025):

The plaintiff sued this defendant for the bodily injury he suffered when a can of Flex Seal Clear Spray he was using allegedly combusted without warning. The accident occurred in 2021 but, as part of the discovery process, plaintiffs sought product information dating back to 2011. Waiting until the last day of the response period, the defendant produced nearly nothing, instead serving several boilerplate general objections.

The trial court granted the plaintiff’s motion to compel and ordered the defendant to produce information related specifically to the Flex Seal Clear Spray (and not as to other colors or other products) from the date requested. The trial court advised the defendant to submit a privilege log for an in-camera inspection for any documents it claimed were privileged. The defendant never did that.

The court observed that the petition was jurisdictionally flawed because it characterized the defendant’s harm as a deprivation of its legal right to be free from carte blanche disclosure of legally irrelevant information. The First District advised that such a claimed legal right lacked any basis in substantive law and had no basis in the Constitution or statute.

The court reminded us that a writ of certiorari is a form of extraordinary relief. It implies an act that invades legal rights or affects due process.

For this reason, certiorari is not usually available to address discovery problems because discovery in civil litigation is a function of court procedure—historically an equitable tool that is now incorporated into the civil rules. Inconvenience, embarrassment, or discomfort flowing from procedural decisions does not implicate a substantive right and is not recognizable as an injury remediable through a writ of certiorari.

After dressing down all the defendant’s arguments to explain why its “jurisdictional argument [fell] apart,” the court concluded that there is no certiorari jurisdiction to review discovery orders that do not cause demonstrable material harm; i.e., harm that in no way appears on the face of the petition.

APPELLATE COURT REVERSED TRIAL JUDGE’S FINDINGS THAT FLORIDA HAD GENERAL JURISDICTION OVER THE DEFENDANT ITALIAN MANUFACTURER OF FERRARIS

Ferrari S.p.Av. Romanelli, 50 Fla. L. Weekly D255 (Fla. 4th DCA Jan. 29, 2025):

The plaintiff filed a products liability complaint against Ferrari. The complaint alleged that the trial court could exercise general jurisdiction over Ferrari pursuant to Section 48.193(2), because Ferrari’s affiliation with Florida was so continuous and systematic that it rendered Ferrari essentially at home in Florida.

The complaint also alleged that Ferrari conducts business in Florida by manufacturing vehicles, parts and equipment and providing service for at least seven Ferrari-authorized dealerships here; that it markets its image to Florida customers through its website; that it sells Ferrari museum tickets to Florida-based customers; that it hosts Ferrari dealer annual meetings in Daytona Beach; and that it has executives present for races that take place in Florida.

Ferrari moved to dismiss the complaint for lack of personal jurisdiction, arguing that its Florida business contacts did not meet the particularly high threshold necessary to support the exercise of general jurisdiction. Ferrari submitted two affidavits stating, among other things, that it does no business in Florida, does not maintain a Florida sales force, does not conduct sales or marketing campaigns, does not sponsor races in Florida, and does not sell museum tickets in Florida.

In response to Ferrari’s sworn proof, the plaintiff attached several unsworn exhibits in support of his jurisdictional argument, mainly consisting of web pages, invoices, and Ferrari corporate documents.

After a non-evidentiary hearing, the trial court concluded that because Ferrari has multiple dealerships in Florida, and because it makes representations to Florida users on the internet, and other contacts, it was subject to general jurisdiction.

Venetian Salami sets forth the burden-shifting framework for determining whether personal jurisdiction exists over a nonresident defendant.

The plaintiff has the initial burden to plead a basis for personal jurisdiction under the long-arm statute, Section 48.193. That requirement is satisfied either by tracking the language of the statute or by alleging specific facts that demonstrate that the defendant’s actions fit within one or more of the statute’s subsections.

If a statutory basis for jurisdiction is pled, the court then determines whether sufficient minimum contacts are demonstrated to satisfy due process.

To contest a complaint’s jurisdictional allegations or to dispute minimum contacts, the defendant must file affidavits in support of its position. Those affidavits must contain factual allegations which, if taken as true, show that the defendant’s conduct does not subject it to jurisdiction. The defendant must refute the essential jurisdictional facts set forth in the complaint.

If the defendant’s affidavits are sufficient, then the burden shifts to the plaintiff to provide sworn proof for a basis of jurisdiction. If the plaintiff fails to come forward with sworn proof, then the defendant’s motion to dismiss must be granted.

There are two forms of personal jurisdiction: specific and general. Specific jurisdiction refers to a court’s adjudicatory authority when a suit arises out of or relates to the defendant’s contacts with the forum. In other words, “specific jurisdiction arises when a corporate defendant’s in-state activities have not only been continuous and systematic but also give rise to the liability sued on.”

General jurisdiction refers to situations where a defendant’s contacts with the forum justify suit even as to causes of action arising from dealings entirely distinct from its related activities. The paradigm avenues for general jurisdiction over a corporation are when it has incorporated in that forum or has its principal place of business there. Outside those paradigms, general jurisdiction exists only in exceptional cases.

The context required to meet the general jurisdictional standards is much higher than those to support specific jurisdiction. General jurisdiction exists only when the contacts are so continuous and systematic as to render the corporation essentially at home in the forum state. The analysis does not focus solely on the magnitude of the defendant’s in-state contacts. Instead, the analysis requires an appraisal of a corporation’s activities in their entirety nationwide and worldwide because a corporation that operates in many places can scarcely be deemed to be at home in all of them.

Ferrari conceded that the seven authorized dealerships were in Florida, but the affidavit attested that those dealerships were entirely separate legal entities and not subject to Ferrari’s direct control. Thus, their business contacts could not be attributed to Ferrari for jurisdictional purposes.

Even if the dealerships’ contacts were attributable to Ferrari, the mere existence of a website does not establish general jurisdiction. Additionally, the affiant denied the complaint’s allegations that Ferrari sold museum tickets and was authorized to do business in Florida. The court found that the assertions about Ferrari’s in-state contacts were entirely insufficient.

Because Ferrari’s affidavits adequately rebutted the operative complaint’s jurisdictional allegations, the burden shifted to the plaintiff to provide sworn proof in support of general jurisdiction—a burden the plaintiff failed to meet, because he relied entirely on unsworn exhibits to support his jurisdictional position. This, the court found, entitled Ferrari to dismissal.

AN ORDER DENYING A MOTION FOR REHEARING ON THE TRIAL COURT’S PRIOR ORDER DENYING RULE 1.540 MOTION TO SET ASIDE A DEFAULT WAS UNAUTHORIZED AND DID NOT TOLL THE TIME FOR FILING A NOTICE OF APPEAL.

Cupid Lyons-White, 50 Fla. L. Weekly D269 (Fla. 3d DCA Jan. 29, 2025)