Judy A. Clausen* I. INTRODUCTION

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1 BEWARE FLORIDA S LONG ARMS CAN REACH THROUGH CYBERSPACE AND GRAB UNSUSPECTING PROFESSIONALS: PERSONAL JURISDICTION IN PROFESSIONAL MALPRACTICE CASES Judy A. Clausen* I. INTRODUCTION In today s increasingly technologically driven marketplace, it is not enough to just hang a shingle. To thrive in this competitive marketplace, attorneys, accountants, and financial advisors (professionals) need an online presence. Internet advertising leads to client relationships that transcend state and national borders. Modern professionals secure new clients through Internet advertising and communicate with clients remotely through . Particularly in Florida, a premier retirement destination, many retirees who built careers and nest eggs in other states receive advice from nonresident professionals. Retirees who received wise counsel for decades from home-state professionals often continue these long-term relationships after retiring to Florida. Many other residents of Florida, both legal and natural persons, select out-of-state professionals to meet their demands for counsel. However, even long-term relationships run sour when clients believe they received negligent services. This Article concerns the range of malpractice-related claims that disgruntled clients bring against nonresident professionals, including breach of fiduciary duty and professional negligence. Further, the Article contemplates issues surrounding personal jurisdiction in such cases. Often, nonresident professionals find themselves sued in Florida even when they have no office or agent in Florida and never met with the plaintiff in Florida. Therefore, personal jurisdiction challenges commonly present the first obstacle that * Judy A. Clausen is Of Counsel to Murphy Anderson, P.A., a law firm specializing in complex commercial litigation, including cases involving professional malpractice of financial advisors, accountants, and attorneys. She is a graduate of the University of Florida, College of Law and earned her Bachelor s Degree from Georgetown University.

2 506 Florida Coastal Law Review [Vol. X:505 Florida plaintiffs must overcome after they file malpractice-related claims against foreign professionals. Personal jurisdiction analysis involves a two-step inquiry. 1 First, Florida s long-arm statute must provide a basis for personal jurisdiction. 2 Second, sufficient minimum contacts between Florida and the nonresident defendant must satisfy constitutional due process so maintenance of the suit in Florida does not offend traditional notions of fair play and substantial justice. 3 Both the statutory and constitutional steps of personal jurisdictional analysis distinguish between specific and general jurisdiction. 4 Specific jurisdiction concerns the nonresident defendant s contacts with Florida as they relate to the cause of action and provides jurisdiction for any cause of action arising from those contacts. 5 General jurisdiction is based on an out-of-state defendant s activity in Florida regardless of whether the cause of action arises from the Florida activity. 6 Part II of this Article explores three specific jurisdictional grounds potentially available in malpractice-related cases under the Florida long-arm statute: tortious action, business activity, and breach of Florida contract subsections. 7 The heart of the analysis in Part II concerns the tortious action subsection. Courts consistently exercise personal jurisdiction based on the tortious action subsection even when the defendant never entered Florida if the defendant directed communications into Florida. 8 The alleged cause of action must arise from the communications. 9 In the absence of direction from the Florida Supreme 1 Int l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 2 See Response Reward Sys., L.C. v. Meijer, Inc., 189 F. Supp. 2d 1332, 1335 (M.D. Fla. 2002); Nida Corp. v. Nida, 118 F. Supp. 2d 1223, 1226 (M.D. Fla. 2000) (both citing Int l Shoe, 326 U.S. at 316). 3 See Carib-USA Ship Lines Bah. Ltd. v. Dorsett, 935 So. 2d 1272, 1275 (Fla. Dist. Ct. App. 2006) (citing Int l Shoe, 326 U.S. at 316). 4 See infra Parts II, III.A See Response Reward, 189 F. Supp. 2d at 1338 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)) (stating a court can exercise specific jurisdiction when the case arises out of or is related to the nonresident defendant s single or isolated contact with the forum). 6 See infra Parts II.D, III.A.1. 7 See infra Part II. 8 See infra Part II.A.1. 9 See infra Part II.A.1.

3 2009] Clausen 507 Court, the United States Court of Appeals for the Eleventh Circuit (Eleventh Circuit) and several Florida District Courts of Appeals (DCAs) have expanded the reach of the tortious action subsection even further. 10 These courts exercise specific jurisdiction in Florida merely because the plaintiff suffered injury in Florida as a result of the defendant s tort committed outside Florida. 11 Recognizing that Florida state courts are divided on the reach of the tortious action subsection, Part II recommends narrow construction of the tortious action subsection in all cases, particularly professional malpractice cases. 12 Part III primarily concerns the minimum contacts requirement of due process and begins with the traditional tests for specific and general jurisdiction. 13 Next, Part III explores the most widely embraced test for determining whether a defendant s Internet presence satisfies the minimum contacts requirement the Zippo sliding scale. 14 This test emerged from Zippo Manufacturing Co. v. Zippo Dot Com, Inc. 15 Many professionals may not realize that under Zippo, merely launching an interactive, commercial website potentially subjects them to jurisdiction in out-of-state courts. 16 Noting the lack of guidance from the Eleventh Circuit on Internet activity as a basis for minimum contacts, 17 Part III explores the inconsistent treatment of the Zippo sliding scale among 10 See infra Part II.A See infra Part II.A See infra Part II.A See infra Part III.A See infra Part III.A.3.i. 15 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp (W.D. Pa. 1997). 16 See id. at See discussion infra Part III.A.3.i. 17 See Thomas v. Mitsubishi Motor N. Am., Inc., 436 F. Supp. 2d 1250, 1253 (M.D. Ala. 2006) (stating the Eleventh Circuit has not sufficiently addressed the creation of sufficient contacts through a defendant s Internet presence). As of the date the Author submitted this Article for publication, the Eleventh Circuit had never discussed Zippo. However, not long after the Florida Coastal Law Review accepted this Article for publication, the Eleventh Circuit finally mentioned Zippo in Oldfield v. Pueblo De Bahia Lora, SA, 558 F.3d 1210 (11th Cir. 2009). In Oldfield, the Eleventh Circuit paus[ed] briefly to discuss the Zippo decision and the debate surrounding it, but declined to express an opinion as to the applicability of Zippo to the case at hand. Id. at A thorough analysis of Oldfield is outside the scope of this Article; however, the author will explore Oldfield in a case comment to be published in a subsequent issue of the Florida Coastal Law Review.

4 508 Florida Coastal Law Review [Vol. X:505 Eleventh Circuit district courts. 18 Next, Part III recommends the Eleventh Circuit embrace its traditional minimum contacts tests for general and specific jurisdiction when personal jurisdiction is based on Internet activity. 19 To this end, Part III recommends the Eleventh Circuit abandon the Zippo sliding scale in general jurisdiction cases, but use the Zippo sliding scale as a tool to assist in traditional minimum contacts analysis for specific jurisdiction cases. 20 Next, Part III applies its recommended approach to malpractice-related cases. 21 Finally, Part III briefly explores the second component of due process analysis that evaluates whether maintenance of the suit would offend traditional notions of fair play and substantial justice. 22 After articulating typical factors courts consider, Part III recommends factors tailored to the professional malpractice context. 23 In Part IV, this Article sets forth risk-management tips for professionals advertising online. 24 Then, Part IV provides pleading requirements and requirements for contesting personal jurisdiction in Florida 25 and incorporates case law concepts to set forth practice tips for counsel in malpractice-related cases. 26 II. FLORIDA S LONG-ARM STATUTE State law governs Florida s long-arm statute, Florida Statute section ; therefore, both federal and state courts are required to construe the long-arm statute as would the Florida Supreme Court See infra Part III.A.3.ii. 19 See infra Part III.A.3.iii. 20 See infra Part III.A.3.iii. 21 See infra Part III.A.3.iii. 22 See infra Part III.B. 23 See infra Part III.B. 24 See infra Part IV.A. 25 See infra Part IV.B. 26 See infra Part IV.C. 27 See Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, (11th Cir. 1996); Oriental Imports & Exports, Inc. v. Maduro & Curiel s Bank, N.V., 701 F.2d 889, (11th Cir. 1983); Response Reward Sys., L.C. v. Meijer, Inc., 189 F. Supp. 2d 1332, 1336 (M.D. Fla. 2002); Nida Corp. v. Nida, 118 F. Supp. 2d 1223, 1226 (M.D. Fla. 2000); Structural Panels, Inc. v. Tex. Aluminum Indus., Inc., 814 F. Supp. 1058, 1064 (M.D. Fla. 1993) (all holding the Florida long-arm statute is governed by state law and federal courts are required to construe it as would the Florida Supreme Court).

5 2009] Clausen 509 The first section of the Florida long-arm statute sets forth the provisions for specific jurisdiction and provides jurisdiction over a nonresident defendant for any cause of action arising from the enumerated acts. 28 The second section of the Florida long-arm statute provides for general jurisdiction. 29 This part analyzes case law for three specific jurisdictional grounds that may be applicable in malpractice cases: the tortious action, business activity, and breach of Florida contract subsections of the Florida long-arm statute. 30 Also, Part II explores the general jurisdiction subsection of Florida s long-arm statute in the professional malpractice context. 31 The key focus of Part II is the division amongst courts on whether the tortious action subsection provides a basis for personal jurisdiction when a nonresident defendant commits a tort outside Florida which results in injury in Florida. 32 Part II recommends that the Florida Supreme Court narrowly construe the tortious action subsection. 33 A. Specific Jurisdiction Under the Tortious Action Subsection The subsection of the Florida long-arm statute most commonly cited in malpractice-related cases is Florida Statute section (1)(b) 28 FLA. STAT (1)(a)-(h) (2008) (listing several of the enumerated acts supporting specific jurisdiction as follows: (a) operating... a business or business venture in this state; (b) committing a tortious act within this state; (c) owning... or holding a mortgage or other lien on real property within this state; (d) contracting to insure any person, property, or risk located within this state; (e) with respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state; (f) causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state... ; (g) breaching a contract in this state by failing to perform acts required by the contract to be performed in this state; (h) with respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state... ) (2) (providing for general jurisdiction over a nonresident defendant engaged in substantial and not isolated activity within Florida). 30 See infra Part II.A-C. 31 See infra Part II.D. 32 See infra Part II.A See infra Part II.A.3.

6 510 Florida Coastal Law Review [Vol. X:505 (tortious action subsection), which provides jurisdiction over persons who commit torts in Florida Florida courts consistently exercise jurisdiction under the tortious action subsection even when the professional never entered Florida but directed communications to Florida. The cause of action must relate to the communications. The Florida Supreme Court, the Eleventh Circuit, and several federal district courts and Florida appellate courts have exercised personal jurisdiction under the tortious action subsection even when the nonresident defendant never physically entered Florida. 35 Rather, telephonic, electronic, or written communications into Florida may form the basis for personal jurisdiction... if the alleged cause of action arises from the communications. 36 There must be connexity between the professional s communications with the client directed to Florida and the cause of action so that the cause of action depends on proof of either the existence or content of the communications directed to Florida. 37 For example, in Horizon Aggressive Growth, L.P. v. Rothstein- Kass, P.A., the Eleventh Circuit held the tortious action subsection authorized personal jurisdiction over an out-of-state auditing company sued for professional negligence, breach of fiduciary duties, construc (1)(b). 35 See infra note 36 and accompanying text. 36 Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002); see also Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, 347 F. Supp. 2d 1242, 1244 (M.D. Fla. 2004); Fletcher Jones West Shara, Ltd. v. Rotta, 919 So. 2d 685, (Fla. Dist. Ct. App. 2006); Machtinger v. Inertial Airline Servs., Inc., 937 So. 2d 730, 735 (Fla. Dist. Ct. App. 2006); Emerson v. Cole, 847 So. 2d 606, 608 (Fla. Dist. Ct. App. 2003). 37 See Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1168 (11th Cir. 2005) (citing Carlyle v. Palm Beach Polo Holdings, Inc., 842 So. 2d 1013, (Fla. Dist. Ct. App. 2003)). The court held a nonresident auditor s telephonic, electronic, and written communications into Florida triggered personal jurisdiction based on the tortious action subsection even though the auditor was never physically present in Florida, because the cause of action arose from the communications. There was connexity between the communications and the cause of action such that the cause of action would depend upon proof of either the existence or content of the communications. Id.

7 2009] Clausen 511 tive fraud, and breach of contract. 38 Even though the auditor never entered Florida, the Eleventh Circuit based jurisdiction on allegations that the auditor directed communications into Florida. 39 In these communications, the auditor asserted that the auditor would perform certain services for the plaintiff. 40 There was connexity between the out-of-state communications and the constructive fraud cause of action such that the cause of action would depend upon proof of either the existence or the content of the communications into Florida Florida courts are divided on whether the tortious action subsection supports jurisdiction when the foreign professional committed a tort outside Florida resulting in injury inside Florida. In the absence of clear Florida Supreme Court precedent, the Eleventh Circuit broadly construes the tortious action subsection, 42 providing for Florida jurisdiction when out-of-state tortious actions result in injury in Florida. 43 For example, in Robinson v. Giarmarco & Bill, P.C., the Eleventh Circuit exercised jurisdiction under the tortious ac- 38 Id. at , Id. at Id. at Id. at Nida Corp. v. Nida, 118 F. Supp. 2d 1223, 1228 (M.D. Fla. 2000) (citing Posner v. Essex Ins. Co., 178 F.3d 1209, 1217 (11th Cir. 1999)). 43 See, e.g., Posner, 178 F.3d at 1217 (holding the tortious action subsection applies to out-of-state defendants who cause injury in Florida); see also Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 257 (11th Cir. 1996) (holding the tortious action subsection permits federal courts to exercise personal jurisdiction over nonresident defendants when foreign tortious acts cause injury in Florida); Kim v. Keenan, 71 F. Supp. 2d 1228, (M.D. Fla. 1999) (confirming the tortious action subsection permits courts to exercise jurisdiction when a foreign tortious act causes injury in Florida); JB Oxford Holdings, Inc. v. Net Trade, Inc., 76 F. Supp. 2d 1363, 1366 (S.D. Fla. 1999) (holding the tortious action subsection supports jurisdiction, regardless of where the act causing injury in Florida actually was completed); Coca-Cola Foods v. Empresa Comercial Internacional de Frutas S.A., 941 F. Supp. 1175, (M.D. Fla. 1996) (requiring an evidentiary hearing for additional fact-finding, but stating defendants would be under the confines of Florida s long-arm statute if the intentional torts were specifically designed to cause plaintiff harm in Florida). The Plaintiffs in Coca-Cola Foods contended the tortious action subsection merely required the place of injury to be within Florida, and the court did not disagree. Coca-Cola Foods, 941 F. Supp. at

8 512 Florida Coastal Law Review [Vol. X:505 tion subsection in a negligence and breach of contract case over nonresident attorneys and an out-of-state accountant. 44 Even though the negligent estate planning services resulting in plaintiffs unexpected tax liability occurred out-of-state, Robinson held the tortious action subsection authorized jurisdiction because plaintiffs suffered damages in Florida. 45 Although the Eleventh Circuit s guidance to federal courts is to exercise jurisdiction under the tortious action subsection when a foreign tortious action results in injury inside Florida, Florida state courts remain divided. 46 In Korman v. Kent, the Fourth DCA declined jurisdiction under the tortious action subsection when the out-of-state defendant committed a tort outside Florida merely because the plaintiff suffered injuries inside Florida. 47 The Korman court explained that the tortious action subsection does not apply merely because a Florida resident suffers damages. 48 Korman stated, if the Legislature intended for this provision to encompass all tortious acts which were complete outside Florida, but ultimately have consequences here only because a Florida resident suffers damages, we believe it would be incumbent on the Legislature to make that statutory purpose clear in the plainest of language. 49 To satisfy Korman and courts that strictly construe the tortious action subsection, the plaintiff must show that a substantial aspect of the alleged tort occurred in Florida and those activities in Florida were essential to the success of the tort. 50 However, both the First and Fifth DCAs have supported the Eleventh Circuit s broad construction of the tortious action subsection. 51 In Allerton v. Florida Department of Insurance, the First DCA exercised jurisdiction over a nonresident securities investment company that participated in a scheme to conceal the financial condition of a Florida- 44 Robinson, 74 F.3d at Id. 46 See infra notes and accompanying text. 47 Korman v. Kent, 821 So. 2d 408, 410 (Fla. Dist. Ct. App. 2002); see also Harris v. Shuttleworth & Ingersoll, P.C., 831 So. 2d 706, 708 (Fla. Dist. Ct. App. 2002). 48 Korman, 821 So. 2d at Id. 50 See Watts v. Haun, 393 So. 2d 54, 56 (Fla. Dist. Ct. App. 1981). 51 See infra notes and accompanying text.

9 2009] Clausen 513 based insurer. 52 The out-of-state defendant committed the acts outside Florida allegedly causing the plaintiff injury inside Florida Recommended Approach: The Florida Supreme Court Should Narrowly Construe the Tortious Action Subsection Although the tortious action subsection left a fruitful area for attorneys, providing case law supporting or weighing against jurisdiction in any given factual scenario, 54 modern professionals and their clients need consistent guidance. On the one hand, the expense and time required to defend a malpractice suit in Florida could shut down the practice of a solo practitioner located across the country. On the other hand, only exercising jurisdiction over professionals who are physically present in Florida fails to recognize that professionals render advice remotely and is unfair to victims of negligence who reside in Florida. The Florida Supreme Court should narrowly construe the tortious action subsection and refrain from exercising jurisdiction based on the mere allegation that a Florida resident suffered damages in Florida when the tort took place outside Florida. First, according to long-standing precedent, Florida s long-arm statute is narrowly construed. 55 Broad construction of the tortious action subsection does not adhere to this long-standing mandate. Second, narrow construction of the tortious action subsection promotes internal consistency between subsections of the long-arm statute. 56 On its face, Florida Statute section (1)(f) (injurious action subsection), providing jurisdiction over foreign defendants engaged in 52 Allerton v. Fla. Dep t of Ins., 635 So. 2d 36, (Fla. Dist. Ct. App. 1994); see also Deloitte & Touche v. Gencor Indus., Inc., 929 So. 2d 678, , 683 (Fla. Dist. Ct. App. 2006) (holding a British accountant s transmission of false audit report to related American firm in Florida, with the knowledge the report would be relied upon in Florida by clients parent corporation, was sufficient to establish commission of a tortious act so as to establish jurisdiction under Florida s long-arm statute, even though the British firm did not communicate directly with parent). 53 Allerton, 635 So. 2d at See supra Part II.A See, e.g., Nida Corp. v. Nida, 118 F. Supp. 2d 1223, 1226 (M.D. Fla. 2000). 56 See infra notes and accompanying text.

10 514 Florida Coastal Law Review [Vol. X:505 solicitation or services in Florida who commit foreign acts that injure Florida persons or property, appears applicable in the professional malpractice context. 57 However, Florida courts clarified that the injurious action subsection only permits jurisdiction over foreign defendants for acts arising outside of Florida that cause personal injury or property damage in Florida. 58 The injurious action subsection does not support jurisdiction when there is only financial loss. 59 Generally, professional malpractice causes purely financial injury, rendering the injurious action subsection largely inapplicable. Broad construction of the tortious action subsection authorizes jurisdiction based on foreign tortious actions even when the plaintiff suffers solely financial injury in Florida. 60 This broad construction is inconsistent with the narrow construction of the injurious action subsection, requiring personal injury or property damage in Florida to justify Florida jurisdiction based on foreign conduct. 61 Third, federal courts must look to state law when interpreting the Florida long-arm statute. 62 If the Florida Legislature intended the tortious action subsection to cover all torts completed outside Florida, but ultimately having consequences in Florida, the legislature would have clarified that statutory purpose in the long-arm statute. 63 Finally, narrow construction of the tortious action subsection better balances the competing interests of protecting Florida residents with fairness to professionals practicing in a globalized economy. Sub- 57 See FLA. STAT (1)(f) (2009). 58 See infra note 59 and accompanying text. 59 See Response Reward Sys., L.C. v. Meijer, Inc., 189 F. Supp. 2d 1332, 1337 (M.D. Fla. 2002) ( Jurisdiction also does not exist under Section (1)(f)... for acts arising outside the state that cause financial injury within the state, in the absence of personal injury or property damage. (citing Sun Bank, N.A. v. E.F. Hutton & Co., 926 F.2d 1030, 1033 (11th Cir. 1991))); see also Prentice v. Prentice Colour, Inc., 779 F. Supp. 578, 585 (M.D. Fla. 1991) (citing Aetna Life & Cas. Co. v. Therm-O-Disc, Inc., 511 So. 2d 992, 994 (Fla. 1987)) (stating the injurious action subsection does not apply to situations in which the plaintiff suffers only economic damages within Florida). 60 See supra Part II.A See supra notes and accompanying text. 62 See supra note 27 and accompanying text. 63 See supra note 49 and accompanying text.

11 2009] Clausen 515 stantial precedent supports personal jurisdiction over an out-of-state professional who never enters Florida when the professional directs communications to Florida. 64 There must be connexity between the cause of action and the communications. 65 This case law recognizes the realities of modern professional practice and provides sufficiently flexible construction of the tortious action subsection to protect Florida citizens who rely on out-of-state professionals. 66 It is unfair to require modern professionals to defend suits all over the nation merely due to the location of plaintiffs when they suffer financial loss. 67 B. Specific Jurisdiction Under the Business Activity Subsection Often, plaintiffs in malpractice-related cases cite Florida Statute section (1)(a) (business activity subsection), which provides jurisdiction for causes of action arising out of a foreign defendant s business operation or business venture in Florida. 68 The term arising from, as used in the business activity subsection, does not require the business activity to proximately cause the alleged harm. 69 Rather, the phrase requires a direct affiliation, nexus, or substantial connection between the basis for the cause of action and the out-of-state defendant s Florida business activity. 70 To determine whether the business activity subsection authorizes jurisdiction, courts consider whether the sum of the outof-state defendant s collective business activity illustrates a general course of business in Florida for pecuniary benefit. 71 Even isolated, insubstantial business in Florida justifies personal jurisdiction under the business activity subsection See supra Part II.A See supra Part II.A See supra Part II.A See supra Part II.A FLA. STAT (1)(a) (2009). 69 Gadea v. Star Cruises, Ltd., 949 So. 2d 1143, (Fla. Dist. Ct. App. 2007) (citing Citicorp Ins. Brokers (Marine), Ltd. v. Charman, 635 So. 2d 79, 82 (Fla. Dist. Ct. App. 1994)). 70 Id. (citing Citicorp, 635 So. 2d at 82). 71 Nida Corp. v. Nida, 118 F. Supp. 2d 1223, 1227 (M.D. Fla. 2000) (citing Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir. 1996)). 72 See id. at (explaining when the forum contact is isolated, insubstantial business, the plaintiff must show that its cause of action arises from the defendant s business activity in Florida ).

12 516 Florida Coastal Law Review [Vol. X:505 In malpractice-related cases, courts look at factors such as whether the professional has any Florida licenses, offices, agents, or whether the professional solicits Florida clients, to determine whether the business activity subsection supports jurisdiction. 73 For example, in Foster, Pepper & Riviera v. Hansard, the First DCA declined jurisdiction under the business activity subsection over a Seattle law firm that prepared a private placement memorandum in Seattle. 74 Third parties in Florida suffered financial loss after they relied on the memorandum. 75 Even though the Florida plaintiffs signed all key documents in Florida, the court declined jurisdiction. 76 The Foster court based its decision on the defendant s affidavit alleging the defendant (1) did not carry on business in Florida; (2) had no office, agency, or business organization in Florida; (3) was not licensed in Florida; (4) performed none of the legal work in Florida; and (5) had no contact with the plaintiff in Florida. 77 Although Foster acknowledged precedent holding a defendant s commission of a single act for financial gain with the purpose of initiating a series of such acts could satisfy the business activity subsection, the Foster court refused to exercise personal jurisdiction. 78 Foster stated that while the law firm may have committed the single act of preparing the memorandum, other people committed the subsequent actions concerning sales of the securities. 79 Whereas Foster declined jurisdiction when the professionals performed no work in Florida, 80 in Rogers & Wells v. Winston, the Fourth DCA exercised jurisdiction even though a 73 See,e.g., Foster, Pepper & Riviera v. Hansard, 611 So. 2d 581, (Fla. Dist. Ct. App. 1992) (finding a lack of minimum contacts to exercise personal jurisdiction in Florida where no office, agency, license, or business organization exists in the state); Jasper v. Zara, 595 So. 2d 1075, 1076 (Fla. Dist. Ct. App. 1992) (declining to exercise personal jurisdiction in Florida over nonresident professionals who had no Florida offices, agents, or licenses). 74 Foster, 611 So. 2d at Id. 76 Id. 77 Id. 78 Id. at 583 (citing Wm. E. Strasser Constr. Corp. v. Linn, 97 So. 2d 458, 460 (Fla. 1957)) (explaining the series of acts that followed were performed by other parties, not the defendant). 79 Id. 80 Id.

13 2009] Clausen 517 New York law firm performed all services in New York because the plaintiff estate was being probated in Florida. 81 Aside from obvious factors, such as Florida licensure, courts look to more subtle factors, such as where the professional/client relationship began, to determine whether the business activity subsection supports jurisdiction. 82 In Rafal v. Mesick, a breach of fiduciary duty claim brought by Florida investors against a foreign securities broker, the Second DCA declined jurisdiction, in part because the professional/ client relationship began outside of Florida. 83 The out-of-state securities broker only sent communications to the plaintiffs in Florida because the plaintiffs moved to Florida. 84 Moreover, the securities broker only conducted securities transactions for the plaintiffs Connecticut investment accounts, not the Florida accounts. 85 Another nuanced factor courts consider in deciding whether the business activity subsection supports jurisdiction is which party initiated the professional/client relationship. 86 For example, in Jasper v. Zara, the Second DCA declined jurisdiction under the business activities subsection, over a New York financial planner who communicated by phone and letter to the Florida plaintiff. 87 The Florida plaintiff allegedly suffered damages as a result of following the defendant s advice that the plaintiff received in Florida. 88 The Jasper court emphasized 81 Rogers & Wells v. Winston, 662 So. 2d 1303, 1304 (Fla. Dist. Ct. App. 1995); see also Windels, Marx, Davies & Ives v. Solitron Devices, Inc., 510 So. 2d 1177, 1179 (Fla. Dist. Ct. App. 1987) (exercising personal jurisdiction over nonresident law firm hired by Florida corporation because of services rendered inside and outside of Florida, even though omission causing the harm occurred outside Florida). 82 See infra notes and accompanying text. 83 Rafal v. Mesick, 661 So. 2d 79, (Fla. Dist. Ct. App. 1995); see also Investors Assocs., Inc. v. Moss, 441 So. 2d 1144, 1145 (Fla. Dist. Ct. App. 1983) (declining to exercise personal jurisdiction over a New Jersey stock brokerage firm, in part, because the parties entered their agreement when the plaintiff was a New Jersey resident; after the plaintiff moved to Florida, the nonresident defendant s contact with the plaintiff was limited to responding to telephone inquiries about the status of the account). 84 Rafal, 661 So. 2d at Id. 86 See, e.g., Jasper v. Zara, 595 So. 2d 1075, 1075 (Fla. Dist. Ct. App. 1992). 87 Id. at Id. at 1075.

14 518 Florida Coastal Law Review [Vol. X:505 that the Florida client solicited the nonresident financial planner by phone in support of its refusal to exercise jurisdiction. 89 An out-of-state professional s Internet presence is also a potential factor courts consider in determining whether to exercise personal jurisdiction under the business activity subsection. 90 In Kim v. Keenan, a Florida plaintiff brought a malpractice suit against Georgia attorneys. 91 The Middle District of Florida recognized authority supporting the suggestion that active Internet solicitation could provide a jurisdictional basis under the business activity subsection. 92 However, the facts in Kim did not enable the court to rule on whether the out-of-state law firm s Internet presence served as a basis for long-arm jurisdiction. 93 The plaintiffs failed to assert the website existed at the time of the alleged malpractice. 94 C. Specific Jurisdiction Under the Breach of Florida Contract Subsection Sometimes plaintiffs plead malpractice-related causes of action as claims for breach of contract to provide professional services in a reasonable manner. 95 Another potential jurisdictional basis is Florida Statute section (1)(g) (breach of Florida contract subsection), which provides jurisdiction for causes of action arising from a professional s breach of a contract in Florida by failing to perform acts the contract required to be performed in Florida. 96 In order to establish 89 Id. 90 See, e.g., Kim v. Keenan, 71 F. Supp. 2d 1228, 1234 (M.D. Fla. 1999). 91 Id. at Id. at 1234; see Rhoda J. Yen, Personal Jurisdiction and the Internet: Applying Old Principles to a New Medium, FLA. B.J., Mar. 2002, at 41, (discussing Kim v. Keenan and the court s decision to consider Internet contacts in its determination of personal jurisdiction). 93 Kim, 71 F. Supp. 2d at Id. 95 See, e.g., id. at 1232 (alleging defendant law firms committed both professional negligence and breach of contract by failing to file complaint, resulting in dismissal with prejudice of plaintiffs claims). 96 FLA. STAT (1)(g) (2009); see Jasper v. Zara, 595 So. 2d 1075, 1075 (Fla. Dist. Ct. App. 1992) (plaintiffs asserting personal jurisdiction pursuant to the breach of Florida contract subsection against defendant financial planner for damages suffered as a result of following defendant s advice).

15 2009] Clausen 519 long-arm jurisdiction under the breach of Florida contract subsection, the mere existence of contractual obligations to be performed in Florida is insufficient. 97 The cause of action must arise directly from the breach of the duty to be performed in Florida. 98 The plaintiff must show the professional had a contractual duty to perform acts in Florida, not just a contractual duty to tender performance under the contract for Florida residents. 99 The breach of Florida contract subsection applies to implied and express contracts. 100 In summary, a plaintiff must show the contract provided for professional services, required performance of the services in Florida, and the cause of action arose from the breach of the contractual duty to provide services in Florida. D. General Jurisdiction Under the Florida Long-Arm Statute The final jurisdictional basis available in malpractice-related cases is Florida Statute section (2) (general jurisdiction subsection). 101 This subsection authorizes personal jurisdiction even when the cause of action does not arise from the Florida business activity, if the professional is engaged in substantial and not isolated activity in Florida. 102 General jurisdiction under Florida s long-arm statute requires plaintiffs to show continuous and systemic general business contacts between the defendant and Florida. 103 If a plaintiff meets this burden under Florida s general jurisdiction subsection, the plaintiff necessarily meets the burden of proving general jurisdiction under due process See infra note 98 and accompanying text. 98 See Cosmopolitan Health Spa, Inc. v. Health Indus., Inc., 362 So. 2d 367, 369 (Fla. Dist. Ct. App. 1978). 99 See Posner v. Essex Ins. Co., 178 F.3d 1209, 1218 (11th Cir. 1999). 100 See McDaniel v. Dep t of Admin., Div. of Ret., 450 So. 2d 572, 573 (Fla. Dist. Ct. App. 1984). 101 FLA. STAT (2) (2009). 102 Id.; see Nida Corp. v. Nida, 118 F. Supp. 2d 1223, 1227 (M.D. Fla. 2000) (citing (2)). 103 Gadea v. Star Cruises, Ltd., 949 So. 2d 1143, 1145 (Fla. Dist. Ct. App. 2007) (quoting Carib-USA Ship Lines Bah. Ltd. v. Dorsett, 935 So. 2d 1272, 1275 (Fla. Dist. Ct. App. 2006)). 104 Carib-USA, 935 So. 2d at (citing Woods v. Nova Cos. Belize, 739 So. 2d 617, 620 (Fla. Dist. Ct. App. 1999)).

16 520 Florida Coastal Law Review [Vol. X:505 A plaintiff s burden under the general jurisdiction subsection is high. 105 For example, in Snow v. DirecTV, Inc., the Eleventh Circuit declined general jurisdiction over a Washington law firm that had many Florida contacts. 106 The Washington law firm represented at least four Florida clients awaiting decisions in Washington state courts, conducted prelitigation negotiations via telephone and with many Florida residents, and represented a Washington client in three cases in Florida. 107 The Snow court determined these contacts did not support general jurisdiction because the law firm (1) had no physical presence in Florida, (2) never solicited clients in Florida, (3) did not employ any attorneys admitted to the Florida bar, and (4) derived less than one percent of its revenues from Florida matters. 108 III. CONSTITUTIONAL DUE PROCESS Due process requires sufficient minimum contacts between the defendant and the forum such that maintenance of the suit in the forum 105 See Woods, 739 So. 2d at 620 (holding the term [s]ubstantial and not isolated activity as used in the general jurisdiction subsection means continuous and systematic general business contact with Florida, the stringent general jurisdiction standard adopted by the U.S. Supreme Court (quoting Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 415 (1984))). 106 Snow v. DirecTV, Inc., 450 F.3d 1314, 1319 (11th Cir. 2006); see also Rafal v. Mesick, 661 So. 2d 79, 81 (Fla. Dist. Ct. App. 1995) (declining jurisdiction under the general jurisdiction subsection where nonresident securities broker maintained no office, mailing address, or telephone listing in Florida, solicited no business from Florida, only conducted securities transactions for the Connecticut accounts of plaintiffs, and sent communications to Florida plaintiffs solely because they moved to Florida); Jasper v. Zara, 595 So. 2d 1075, (Fla. Dist. Ct. App. 1992) (declining jurisdiction under the general jurisdiction subsection against nonresident financial planners who communicated by phone and letter to Florida plaintiff while in Florida, only after Florida plaintiff solicited defendant and defendant had no office, agent, address, or telephone listing in Florida, and never solicited business or advertised in Florida); Milberg Factors, Inc. v. Greenbaum, 585 So. 2d 1089, 1091 (Fla. Dist. Ct. App. 1991) (declining jurisdiction under the general jurisdiction subsection over nonresident financing institution with no office or agents in Florida where only five out of the 332 agreements the defendant signed in the last ten years were with Florida-based clients, and Florida clients constituted fewer than two percent of defendant s revenues, even though defendant had filed numerous financing statements in Florida and obtained nine judgments in Florida). 107 Snow, 450 F.3d at Id.

17 2009] Clausen 521 would not offend traditional notions of fair play and substantial justice. 109 Initially, Part III s minimum contacts section articulates the traditional minimum contacts tests for general and specific jurisdiction. 110 Then, the minimum contacts section of Part III explores the Zippo sliding scale that framed the analysis for whether a defendant s Internet presence satisfies the minimum contacts requirement. 111 Noting the dearth of Eleventh Circuit guidance concerning Internet activity as a basis for minimum contacts, 112 Part III analyzes the varied treatments of Zippo throughout the Eleventh Circuit. 113 Next, Part III recommends that courts abandon the Zippo sliding scale in general jurisdiction cases and use the Zippo sliding scale as a tool to supplement traditional specific jurisdictional analysis. 114 The minimum contacts section of Part III then applies the Article s recommended approach in the professional malpractice context. 115 Following the minimum contacts section, Part III acknowledges the second component of due process analysis that evaluates whether the exercise of jurisdiction would offend traditional notions of fair play and substantial justice. 116 After outlining factors courts generally consider, Part III articulates fair play and substantial justice factors specifically tailored to the professional malpractice context. 117 A. The Minimum Contacts Requirement Just as Florida s long-arm statute distinguishes between general and specific jurisdiction, 118 the minimum contacts requirement of due process makes a similar distinction. 119 A defendant has sufficient con- 109 See supra note 3 and accompanying text. 110 See infra Part III.A See infra Part III.A.3.i. 112 See supra note 17 and accompanying text. 113 See infra Part III.A.3.ii. 114 See infra Part III.A.3.iii. 115 See infra Part III.A.3.iii. 116 See infra Part III.B. 117 See infra Part III.B. 118 See supra notes and accompanying text. 119 See infra Part III.A.1-2.

18 522 Florida Coastal Law Review [Vol. X:505 tacts with the forum to satisfy the minimum contacts requirement if there is either general or specific jurisdiction The Traditional Minimum Contacts Test for General Jurisdiction Because the cause of action need not arise out of the defendant s in-state activities to support general jurisdiction, due process requirements for general jurisdiction are more stringent than they are for specific jurisdiction. 121 General jurisdiction requires a showing of continuous, systematic, 122 and substantial 123 business contacts between the defendant and the forum. To establish general jurisdiction, courts assess the defendant s contacts over a period of years prior to filing the complaint See 59 AM. JUR. 3d Proof of Facts 5 (2009). 121 See id. 4 (explaining specific jurisdiction requires fewer contacts between the defendant and the state than general jurisdiction); see also Exhibit Icons, LLC v. XP Cos., 609 F. Supp. 2d 1282, 1295 (S.D. Fla. 2009) ( As there is no requirement of a connection between the defendant s activities and the cause of action, the Due Process requirements are much more stringent for general personal jurisdiction than for specific personal jurisdiction. ); Fid. State Bank & Trust Co. v. Merrill Lynch, 768 F. Supp. 300, 305 (D. Kan. 1991) (noting a court may employ the less stringent specific jurisdiction requirements if a suit arises out of, or is related to the defendant s forum state contacts, but that it may be fair and reasonable to subject a foreign defendant to general jurisdiction even if the cause of action in the forum state was unrelated to the defendant s forum activities (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952); Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1418 (10th Cir. 1988))). 122 Miller v. Berman, 289 F. Supp. 2d 1327, 1336 (M.D. Fla. 2003) ( The due process requirements for general personal jurisdiction are more stringent than for specific personal jurisdiction, and require a showing of continuous and systematic general business contacts between the defendant and the forum state. (emphasis removed) (quoting Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292 (11th Cir. 2000))); see also Carib-USA Ship Lines Bah. Ltd. v. Dorsett, 935 So. 2d 1272, 1275 (Fla. Dist. Ct. App. 2006) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984)). 123 Int l Shoe Co. v. Washington, 326 U.S. 310, 318 (1945); see also Baker v. Carnival Corp., No CIV-HUCK, 2006 WL , at *4 (S.D. Fla. Nov. 20, 2006) (citing Lakin v. Prudential Sec., Inc., 348 F.3d 704, 712 (8th Cir. 2003)) (explaining how contacts can be continuous but not substantial). 124 See, e.g., KVAR Energy Sav., Inc. v. Tri-State Energy Solutions, LLP, No. 6:08- cv-85-orl-19krs, 2009 WL , at *4, *6 (M.D. Fla. Jan. 15, 2009) (taking into

19 2009] Clausen The Traditional Minimum Contacts Test for Specific Jurisdiction The Eleventh Circuit uses a three-prong test to determine whether sufficient minimum contacts support specific jurisdiction. 125 The defendant s contacts must (1) relate to the cause of action, (2) involve some action through which the defendant purposefully availed itself of the privileges of conducting activities within the forum, and (3) be such that the defendant reasonably should anticipate being haled into court in the forum (traditional three-prong minimum contacts test) Minimum Contacts Based on a Defendant s Internet Presence i. The Zippo Sliding Scale In 1997, the Western District of Pennsylvania, in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., created the Zippo sliding scale, framing the analysis to varying degrees for courts all over the nation concerning whether a defendant s Internet presence satisfies the minimum contacts requirement of due process. 127 Courts wholeheartedly embraced, refined, or outright rejected the Zippo sliding scale. 128 Zippo was an Internet domain name dispute. 129 The Zippo court defined a site as an Internet address that permits the exchange of information with a host computer. 130 Zippo defined the World Wide Web as account that defendant distributed plaintiff s products for over a year prior to the filing of the complaint). 125 Response Reward Sys., L.C. v. Meijer, Inc., 189 F. Supp. 2d 1332, 1338 (M.D. Fla. 2002) (citing Kim v. Keenan, 71 F. Supp. 2d 1228, 1235 (M.D. Fla. 1999)). 126 Id. 127 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997). 128 See generally Eric C. Hawkins, Note, General Jurisdiction and Internet Contacts: What Role, if any, Should the Zippo Sliding Scale Test Play in the Analysis?, 74 FORDHAM L. REV. 2371, (2006) (asserting Zippo has emerged as the most popular framework for analyzing Internet contacts and surveying the varied treatment of Zippo amongst various U.S. Courts of Appeal). 129 Zippo, 952 F. Supp. at Id. at 1121 n.2 (citing Bensusan Rest. Corp. v. King, 937 F. Supp 295, 297 (S.D.N.Y. 1996)).

20 524 Florida Coastal Law Review [Vol. X:505 the collection of sites available on the Internet. 131 According to Zippo, the Internet presented a global revolution looming on the horizon. 132 The evolution of law concerning personal jurisdiction based on Internet use was in its infant stages. 133 The Zippo sliding scale asserts that personal jurisdiction can be based on a defendant s Internet presence in a way that is directly proportionate, in a sliding scale, to the nature and quality of commercial activity the defendant conducts on the Internet. 134 The Zippo court justified the sliding scale as being consistent with historic principles of personal jurisdiction. 135 At one end of the sliding scale, where courts can clearly exercise personal jurisdiction, are instances in which a defendant conducts business over the Internet. 136 According to Zippo, a defendant clearly does business over the Internet when the defendant enters into contracts with residents of the forum or when the defendant knowingly and repeatedly transmits computer files over the Internet to residents of the forum. 137 At the other end of the sliding scale are instances in which a defendant simply posts information on a website accessible to users in the foreign forum. 138 These passive websites do no more than make information available to anyone interested and are not a basis for personal jurisdiction. 139 The middle of the Zippo spectrum consists of cases in which defendants have interactive websites where visitors can exchange information with the host computer. 140 In these middle-ground cases, Zippo recommends courts evaluate the level of website interactivity and the commercial nature of informational exchange occurring over the website when they determine whether to exercise jurisdiction. 141 Greater 131 Id. 132 Id. at Id. 134 Id. at Id. 136 Id. 137 Id. (citing CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996)). 138 Id. 139 Id. (citing Bensusan Rest. Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996)). 140 Id. 141 Id.