IN THE SUPREME COURT OF FLORIDA CASE NO: SC08- FOURTH DCA CASE NO.: 4D RESVERATROL PARTNERS, LLC. AND BILL SARDI, Petitioners, vs.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO: SC08- FOURTH DCA CASE NO.: 4D RESVERATROL PARTNERS, LLC. AND BILL SARDI, Petitioners, vs. RENAISSANCE HEALTH PUBLISHING, LLC. Respondent. On Review from the Fourth District Court of Appeal of the State of Florida PETITIONERS JURISDICTIONAL BRIEF ROBERTA G. MANDEL Fla. Bar No JOSEPH H. LOWE Fla. Bar No STEPHENS, LYNN, KLEIN, et. al South Dadeland Blvd. Penthouse II, Datran Two Miami, Florida Telephone: (305) Facsimile: (305)

2 TABLE OF CONTENTS PAGE TABLE OF CITATIONS ii, iii INTRODUCTION SUMMARY OF ARGUMENT ARGUMENT THE FOURTH DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH EITHER A DECISION FROM THIS HONORABLE COURT OR A DECISION FROM ANOTHER DISTRICT COURT OF APPEAL CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i-

3 TABLE OF CITATIONS CASE PAGE Alternate Energy Corp. v. Redstone 328 F.Supp.2d 1379 (S.D.Fla. 2004) Am Fin. Trading v. Bauer 828 So.2d 1071, 1974 (Fla. 4 th DCA 2002) Bailey v. Turbine Design, Inc. 86 F. Supp.2d 790 (W.D. Tenn. 2000) Barrett, M.D. v. The Catacombs Press 44 F.Supp.2d 717 (E.D. Penn. 1999) Becker v. Hooshmand 841 So.2d 561 (Fla. 4 th DCA 2003)...-3, 7, 8- Carida v. Holy Cross Hospital 424 So.2d 849 (Fla. 4 th DCA 1982), overruled on other grounds, 620 So.2d 1004 (Fla. 1993)..-6- Coastal Video Commun., Corp. 59 F.Supp.2d 562 (E.D. Vir. 1999) Dahn World Co. Ltd. v. Chung 2006 WL (D. Ariz. 2006) First America Dev. Corp. v. Daytona Beach News-Journal Corp. 196 So.2d 97, 102 (Fla. 1966) Griffis v. Luban 646 N.W.2d 527 (Minn. 2002) Kline v. Williams 2006 WL (D.D.C. 2006) McBee v. Delica Co., Ltd. 417 F.3d 107 (1 st Cir. 2005) Revell v. Lidov 317 F.3d 467 (5 th Cir. 2002) Silver v. Levinson 648 So.2d 240 (Fla. 4 th DCA 1994) Trintec Indus., Inc. v. Pedre Prods., Inc. -ii-

4 395 F.3d 1275 (Fed. Cir. 2005) TRW Vehicle Safety Systems, Inc., et. al. v. Santiso 980 So.2d 1149 (Fla. 4 th DCA 2008) Venetian Salami Co. v. Parthenais 554 So.2d 499(Fla.1989)...-3, 4, 5, 7, 8- Wendt v. Horowitz 822 So.2d 1252 (Fla. 2002)...-3, 5, 7, 8- OTHER AUTHORITIES Section (1)(b), Fla. Stat iii-

5 INTRODUCTION This petition for review requests that this Court exercise jurisdiction on the grounds that the Fourth District decision creates direct and express conflict with decisions of this Court as well as other District Courts of Appeal. The Parties will be referred to as they appear in this Court. The designation A followed will be used to refer to the Appendix attached hereto. STATEMENT OF THE CASE AND FACTS Renaissance Health Publishing, LLC., a Florida corporation, sued out-of-state Petitioners Resveratrol Partners, LLC. and Bill Sardi for trade libel and two related statutory violations arising from statements made on Petitioner s website allegedly disparaging Renaissance s products.(a1). The complaint stated that Renaissance marketed Resveratrol; Sardi sold publications about food supplements, in paper format and e-books; and Petitioners falsely and intentionally disparaged the quality of Resveratrol on their Internet website. The complaint alleged that Resveratrol Partners was a Nevada limited liability company with its principal place of business in California; Bill Sardi was president of Resveratrol Partners and the author of one of the offending stories; Resveratrol Partners and Bill Sardi did business in Florida; a substantial part of the events giving rise to this litigation occurred in Florida, and the defendants were transacting business in Florida by -1-

6 (a) providing Internet users in Florida access to its web sites; (b)contracting with, or attempting to contract with, Florida residents for the sale of goods and services, including the sale of the articles described herein on its Internet web sites; (c) selling or attempting to sell goods or services to residents of the State of Florida; (d) maintaining an office in the State of Florida; and/or (e)committing tortious acts in the State of Florida. (A1-A2). Petitioners moved to dismiss the complaint for lack of personal jurisdiction because they didn t fall within the ambit of Florida s long-arm statute, and because they had so little contact with Florida that subjecting them to the jurisdiction of a Florida court would offend constitutional due process considerations. (A2). After limited discovery, certain facts crystallized. Neither Sardi nor Resveratrol Partners maintained an office in Florida; employed a business agent in Florida; owned property in Florida; maintained bank accounts in Florida, or solicited Florida business through direct mail, magazines or periodicals delivered to Florida or any Florida based broadcast or cable advertising. Petitioners sold Longevinex to consumers primarily via the Internet at the Longevinex website. Sales of Longevinex to Florida residents through the website represented 2.4% of Resveratrol Partners total gross domestic sales. In the three-year period prior to the filing of the lawsuit, Sardi sold 86 books and e-books to Florida residents totaling $2, in sales. (A2). The trial court granted the Petitioners motion to dismiss and Respondent appealed. On April 30, 2008, the Fourth District issued -2-

7 its opinion which stated, the following, in pertinent part: Looking first at the long-arm statute, we hold that the defendants are subject to Florida s jurisdiction under section (1)(b), which allows a Florida court to assert jurisdiction over a nonresident defendant who personally or through an agent...commit[ed] a tortious act within this state. (A3) The defendants interactive web site which sells product to Florida residents is akin to the chat room in Becker. 1 Applying Wendt 2 and Becker, we conclude that the initial burden under Venetian Salami 3 was satisfied. (A3) The purpose of the alleged business defamation in this case was to convince consumers to purchase the defendants products and not the plaintiff s. Sales to Florida residents through the interactive website totaled 2.4% of Resveratrol s total gross domestic sales; Sardi sold books and e-books to Florida residents realizing $2, in sales. Such commercial activity within Florida is sufficient to subject the defendants to jurisdiction here where a defendant disparages a competitor s competitor has its corporate headquarters, the defendant could reasonably anticipate being haled into court there. Citations omitted. This case is distinguishable from internet defamation cases involving passive websites nor designed to market products in the purported forum state. Citations omitted. (A4). The Petitioners filed a Motion For Rehearing And/Or Motion For Rehearing En Banc and Motion for Certification that was denied by the Fourth District Court of Appeal on June 13, SUMMARY OF THE ARGUMENT The complaint failed to allege sufficient jurisdictional facts to bring the action within the ambit of Florida s long-arm statute 1 Becker v. Hooshmand, 841 So.2d 561 (Fla. 4 th DCA 2003). 2 Wendt v. Horowitz, 822 So.2d 1252 (Fla. 2002). 3 Venetian Salami Co. v. Parthenais, 554 So.2d 499(Fla.1989). -3-

8 and the jurisdictional claim against the Petitioners failed both prongs of the test set forth by this Court in Venetian Salami. 4 The Fourth District s decision conflicts with a plethora of decisions in which Florida courts have consistently found that Florida s long-arm statute is not implicated where (as in this case), a communication has not been circulated; communicated; sent; directed; or targeted into Florida. The mere existence of a website does not confer jurisdiction. When a person places information on the Internet, he communicates with persons world-wide. There was nothing on the website showing an intent to reach out to persons living in Florida. The alleged defamatory statement was not expressly aimed, communicated, circulated or targeted at the state and there was, in fact, no evidence that anyone in Florida even saw the statement on the web site. If courts were to conclude, that a person s act of placing information on the Internet subjects that person to personal jurisdiction in each state in which information is accessed, then state jurisdiction over persons would be universal and notions of limited state sovereignty and personal jurisdiction would be eviscerated. ARGUMENT THE FOURTH DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION FROM THIS COURT OR A DECISION FROM ANOTHER DISTRICT COURT OF APPEAL. 4 Venetian Salami Co. v. Parthenais, 554 So.2d 499(Fla. 1989). -4-

9 In Venetian Salami, supra, this Court set forth a two-step inquiry for determining whether a Florida court has personal jurisdiction over a nonresident. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida s long-arm statute, section , Florida Statutes. If so, the next inquiry is whether sufficient minimum contacts are demonstrated to satisfy due process requirements. Id. Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant. Am Fin. Trading v. Bauer, 828 So.2d 1071, 1974 (Fla. 4 th DCA 2002). The complaint in this case failed to allege facts that indicate that Petitioners actions fit within any of the sections of Florida s long-arm statute and the jurisdictional claim against the Petitioners failed both prongs of Venetian Salami. The Fourth District s decision conflicts with a plethora of decisions from this Court and other district courts of appeal that have consistently held that telephonic, electronic, or written communications into Florida from outside of the state may form the basis for personal jurisdiction under Section (1)(b) if the alleged cause of action arises from the communications. In First America Dev. Corp. v. Daytona Beach News-Journal Corp., 196 So.2d 97, 102 (Fla. 1966), this Court held that the tort of defamation is committed in the place where it is published. In Wendt v. Horowitz, supra, this Court held: telephonic, electronic, or written communication is deemed published in -5-

10 Florida, subjecting the publisher to long-arm jurisdiction under Section (1)(b) of the Florida Statutes if the communication was made into this state by a person outside the state, even if that person has no other contacts with the state. In Carida v. Holy Cross Hospital, 424 So.2d 849 (Fla. 4 th DCA 1982), overruled on other grounds, 620 So.2d 1004 (Fla. 1993), a defendant s alleged commission of defamation by virtue of phone calls into the state involved sufficient minimum contacts with state so as to permit acquisition of personal jurisdiction over him under the long-arm statute. In Silver v. Levinson, 648 So.2d 240 (Fla. 4 th DCA 1994), the mailing of a letter into Florida from an out-of-state defendant formed the basis for a defamation claim because the intentional tort was aimed directly at the state. Id. at 242. Contrary to the established case law, the Fourth District, in this case, held that Florida s long-arm statute applied to out-of-state defendants whose Internet website contained allegedly defamatory statements about a Florida corporation even though there was no evidence that the statements were circulated; published; targeted; or sent into the state of Florida. There was nothing on the website showing an intent to reach out to persons living in Florida. Furthermore, there was no evidence that anyone in the state of Florida even saw the statement on the website. The mere existence of a website on the Internet doesn t satisfy Florida law that a communication be directed into the state. The law requires that for the communication -6-

11 to be deemed published it must have made its way into the state by a person outside the state. Here, the Fourth District incorrectly determined that the interactive website was akin to the chatroom in Becker v. Hooshmand, 841 So.2d 561 (Fla. 4 th DCA 2003). The court also improperly applied the Becker and Wendt decisions in determining that the initial burden under Venetian Salami was satisfied,(a3), where the complaint failed to establish that a tort was committed in Florida and failed to establish that there was an injury to a person or property within the state. Here, unlike Becker and Wendt, no communication was published or sent into the State. Also, unlike Becker and Wendt, the Petitioners didn t target their actions to the state of Florida. As stated earlier, a statement appearing on a website that is accessible world-wide does not constitute a communication that is circulated or sent into the state. This precise point was made by the court in Alternate Energy Corp. v. Redstone, 328 F.Supp.2d 1379 (S.D.Fla. 2004).In that case, a Nevada corporation brought a state-court defamation action in Florida against a Michigan-based operator of an Internet site. The court granted the motion to dismiss for lack of personal jurisdiction, finding that the Internet site operator s selling subscriptions to unknown, relatively small number of Florida residents did not constitute carrying on business in Florida under the long-arm statute, nor did it constitute commission of tortious act in Florida. Interestingly, in that case, the Plaintiff (as did -7-

12 the Fourth District here), relied upon the decisions in Wendt and Becker. In granting the defendant s motion to dismiss, the Southern District noted that the defendant had not targeted the state of Florida and that the website had not caused more harm to the Plaintiff in Florida than anywhere else. Id. Similarly, in this case, the statement on the Petitioners website was not targeted to the state of Florida and there is no indication that the website caused more harm to the Plaintiff in Florida than anywhere else. In fact, there is no evidence that anyone in Florida even saw the statement on the Petitioners website. Thus, the complaint failed to allege sufficient jurisdictional facts to bring the action within the ambit of Florida s long-arm statute. Nevertheless, the Fourth District went on to consider the next inquiry under Venetian Salami, namely whether sufficient minimum contacts were demonstrated to satisfy due process requirements. Id. The overwhelming evidence established that the Petitioners did not purposefully establish minimum contacts with Florida sufficient to satisfy the due process inquiry. Petitioners had no presence in Florida. They merely had a website that could be accessed from Florida (and everywhere else in the world). Only a de minimus percentage of sales were made to an unknown number of Floridians over a twenty-eight month period. The Fourth District s finding that sales to Florida residents through the website totaling 2.4% of Resveratrol s total gross domestic sales and Sardi s sale of books and e-books to Florida -8-

13 residents totaling $2, was sufficient commercial activity to subject the Petitioners to jurisdiction in Florida conflicts with decisions from this Court and other district courts of appeal. No other Florida court has determined such facts sufficient to hold an out-of-state defendant subject to jurisdiction in Florida. In fact, NO other state or federal court has similarly held. 5 In TRW Vehicle Safety Systems, Inc., et. al. v. Santiso,980 So.2d 1149 (Fla. 4 th DCA 2008), a different panel of judges on the Fourth District held that Florida jurisdiction couldn t be constitutionally conferred over out-of-state defendants with much larger sales of products shipped to Florida addresses($78,973.00; $181,607.00; $2,935,730; $1,128,476 and $32,735.00). The court determined that the sales were de minimis and fortuitous. The court should have reached the same conclusion here. 6 CONCLUSION 5 See, McBee v. Delica Co., Ltd., 417 F.3d 107 (1 st Cir. 2005) Trintec Indus., Inc. v. Pedre Prods., Inc., 395 F.3d 1275 (Fed. Cir. 2005) Revell v. Lidov, 317 F.3d 467 (5 th Cir. 2002); Kline v. Williams, 2006 WL (D.D.C. 2006); Griffis v. Luban, 646 N.W.2d 527 (Minn. 2002);Coastal Video Commun., Corp., 59 F.Supp.2d 562 (E.D. Vir. 1999); Barrett, M.D. v. The Catacombs Press, 44 F.Supp.2d 717 (E.D. Penn. 1999); Dahn World Co. Ltd. v. Chung, 2006 WL (D. Ariz. 2006); Bailey v. Turbine Design, Inc., 86 F. Supp.2d 790 (W.D. Tenn. 2000) 6 Although the TRW decision was rendered subsequent to the decision here, the Petitioners filed a Notice of Supplemental Authority with the decision prior to the court issuing its ruling on Petitioners Motion For Rehearing. -9-

14 Based upon the arguments and citations of authority contained herein, this Court should not exercise jurisdiction in this matter. CERTIFICATE OF SERVICE I WE HEREBY CERTIFY that a true copy of the foregoing was served via U.S. Mail to: JOEL B. ROTHMAN, Esq., Seiden, Alder, Matthewman & Block, P.A., 2300 Glades Road, Suite 340 West, Boca Raton, Florida on this 21 st day of July, STEPHENS LYNN KLEIN LaCAVA HOFFMAN & PUYA P.A. Penthouse II, Datran Two 9130 S. Dadeland Blvd. Miami, Florida Tel.:(305) Fax: (305) By: ROBERTA G. MANDEL Florida Bar No.: JOSEPH H. LOWE Florida Bar No.: CERTIFICATE OF COMPLIANCE Pursuant to Fla. R. App. P (a)(2), undersigned counsel hereby certifies that the foregoing Answer Brief was prepared using Courier New, 12 point-font. ROBERTA G. MANDEL Florida Bar No.: