THE WALT DISNEY COMPANY, APPELLANT,
v.
JILL NELSON, APPELLEE

Fla. 5th DCA | 1996-07-26
No. 95-3108
W. SHARP and THOMPSON, JJ., concur.
677 So. 2d 400 Florida District Court of Appeal, Fifth District (1996) Negative Treatment
Cited by 34 cases

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Synopsis

Disney appealed the trial court's denial of its motion to dismiss for lack of personal jurisdiction in a premises liability case brought by an injured guest. The appellate court reversed, holding that Disney's uncontradicted affidavit establishing its lack of business operations in Florida, combined with Nelson's failure to provide sworn proof rebutting that affidavit, warranted dismissal for lack of jurisdiction.


Holding

The court reversed and remanded, holding that the Company's uncontradicted affidavit, combined with Nelson's failure to submit sworn proof in opposition, established that the Company lacked sufficient minimum contacts with Florida to support personal jurisdiction. The mere fact that the Company was the parent corporation of subsidiaries doing business in Florida was insufficient to establish jurisdiction under Florida's long-arm statute.


Headnotes

[1] A plaintiff must demonstrate that a defendant has met at least one of the long-arm jurisdictional criteria set forth in § 48.193 before a court can determine if federal d…

[2] A plaintiff initially meets the burden of demonstrating the applicability of Florida's long-arm statute by pleading facts within a jurisdictional basis contained in the s…

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Key Quotes

“If, however, the defendant supplements the motion with an affidavit contesting jurisdiction, then the burden returns to the plaintiff who must, by affidavit or other sworn statement, prove a sufficient jurisdictional basis.”

Establishes the burden-shifting framework in jurisdictional disputes: once the defendant submits a contesting affidavit, plaintiff must provide sworn rebuttal.

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Facts & Procedural History

Jill Nelson suffered injuries in a slip-and-fall accident at Walt Disney World Resort Villas on March 5, 1990, and filed suit in January 1992 against …

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Opinion of the Court
GRIFFIN, Judge.

GRIFFIN, Judge.

The Walt Disney Company [“Company”] brings this interlocutory appeal following the circuit court’s denial of its motion to dismiss for lack of personal jurisdiction. We reverse.

Jill Nelson was a guest at the Walt Disney World Resort Villas when, on March 5, 1990, she suffered injuries from a slip and fall accident while walking near her villa. She filed a complaint on January 16,1992, against Walt Disney World Co. [‘WDWCo.”] in the Circuit Court in and for Orange County. Following a technical amendment, a second amended complaint was filed in January, 1995, naming WDWCo., Company, and Lake Buena Vista Communities, Inc. [“LBVC”] as defendants. Two more technical amendments followed, and, on June 15, 1995, Company was officially served with a copy of Nelson’s unsworn fourth amended complaint.

The fourth amended complaint [“the complaint”] sounded in premises liability, essentially charging each defendant with the negligent maintenance of its property. Accordingly, counts I through III alleged negligence actions directly against, respectively, WDWCo., Company and LBVC. Counts IV through VII alleged negligence actions against these same parties through each other’s actions under theories of agency. Specifically, it was alleged that WDWCo. and LBVC were agents for each other and for Company.

Company responded by filing a motion to dismiss on the ground that the Florida court lacked personal jurisdiction over the foreign corporation. Accompanying the motion was the sworn affidavit of Marsha Reed, Company’s corporate secretary, which contained the following:

5. The Company is a Delaware corporation incorporated November 24, 1986, and is qualified to do business in California and New York, having its principal place of business at 500 South Buena Vista Street, Burbank, California. The Company’s business activities consist of the licensing of the reproduction of its copyrighted fanciful characters and other ancillary licensing agreements.

6. The Company is not qualified to do business in Florida, has not conducted business in Florida, does not do business in Florida, has neither incurred nor paid taxes to Florida, has not appointed an agent for service of process in Florida, has no office or place of business in Florida, has no employees in Florida, and owns no real estate in Florida.

7. WALT DISNEY WORLD CO. and LAKE BUENA VISTA COMMUNITIES, INC. are wholly owned subsidiaries of The Company. Neither act as agents for The Company in the State of Florida nor do they engage in any business or business ventures for or on behalf of The Company in Florida.

8. The Company maintains separate books, records and accounts from WALT DISNEY WORLD CO. and LAKE BUE-NA VISTA COMMUNITIES, INC.

9. The Company does not exercise any control or discretion over the day to day operations or policies of WALT DISNEY WORLD CO. or LAKE BUENA VISTA COMMUNITIES, INC.

10. The Company does not own, manage, operate or maintain the WALT DISNEY WORLD COMPLEX, the Walt Disney World Resort Villas or the Pompano Grill Restaurant.

At the hearing on the motion to dismiss, counsel for Nelson relied on the language in the complaint that WDWCo. and LBVC, which are Florida corporations, are agents of the Company. Counsel added that, since the Company admitted in its affidavit that WDWCo. and LBVC were wholly owned subsidiaries of the parent company, Company could not deny that it was doing business in Florida through its agents. Although brief reference was made at the hearing to two Company employee depositions taken prior to the Company’s motion and which had been filed with the court, Nelson offered no affidavit or other sworn proof in response to Reed’s affidavit. Nevertheless, the circuit court denied the Company’s motion. We agree with the Company that the lower court erred in denying the motion to dismiss because the affidavit of Marsha Reed was unre-butted.

The propriety of long-arm jurisdiction in Florida is examined by means of a two-step analysis. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla.1989). First, the plaintiff must demonstrate that the defendant has met at least one of the long-arm jurisdictional criteria set forth in § 48.193. Once this burden is satisfied, the court must then determine whether federal due process requirements have been met, in that the defendant possesses certain minimum contacts with the state and maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278, 283 (1940)).

The burden of demonstrating the applicability of § 48.193 may initially be met by pleading facts within a jurisdictional basis contained in the statute. Fla. R. Civ. P. 1.070(i); Venetian Salami, 554 So. 2d at 502. If the plaintiff has pled a prima facie case for jurisdiction, a simple motion to dismiss for lack of jurisdiction must fail, as a motion to dismiss, without more, challenges only the facial sufficiency of the jurisdictional pleading. Venetian Salami, 554 So. 2d at 502; Grogan v. Archer, 669 So. 2d 289, 292 (Fla. 5th DCA 1996). If, however, the defendant supplements the motion with an affidavit contesting jurisdiction, then the burden returns to the plaintiff who must, by affidavit or other sworn statement, prove a sufficient jurisdictional basis. Venetian Salami, 554 So. 2d at 502-03; Grogan, 669 So. 2d at 292. If the affidavits are factually reconcilable, the trial court can resolve the issue on the basis of the affidavits; otherwise, an evidentiary hearing must be held. Venetian Salami, 554 So. 2d at 503; Grogan, 669 So. 2d at 292.

Taken in its best light, Nelson’s complaint alleged that the Company, a foreign corporation, was conducting business in Florida by both its own operations and through the operations of its agents, WDWCo. and LBVC. These allegations were sufficient to state a prima facie case of jurisdiction under Florida’s long-arm statute. See § 48.193(l)(a). They were, however, directly and completely contradicted by the affidavit of Marsha Reed, the Company’s corporate secretary. The Company’s status as parent of WDWCo. and LBVC was, without more, ineffective to establish long-arm jurisdiction under § 48.193. See Qualley v. International Air Serv. Co., 595 So. 2d 194, 196 (Fla. 3d DCA 1992) (holding that the mere presence of a parent corporation’s wholly-owned subsidiary in Florida is insufficient to bring the parent within § 48.193), cause dismissed, 605 So. 2d 1265 (Fla.1992). These allegations were sufficient to shift the burden back to Nelson to produce sworn testimony in support of jurisdiction. See Venetian Salami, 554 So. 2d at 502; Grogan, 669 So. 2d at 292. No affidavit was filed in opposition to that of Reed; Nelson failed to meet her burden.

REVERSED and REMANDED.

W. SHARP and THOMPSON, JJ., concur.


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Citator

Cited By (20 total)

  • State v. The Am. Tobacco Co., 707 So. 2d 851 (Fla. 4th DCA 1998)
    …ker v. Domino’s Pizza, Inc., 629 So. 2d 1026 (Fla. 4th DCA 1993). The law is clear that the mere presence of a wholly owned subsidiary is insufficient to form a basis for the assertion of personal jurisdiction. See, e.g., Walt Disney Co. v. Nelson, 677 So. 2d 400 (Fla. 5th DCA 1996); Qualley v. International Air Serv. Co., 595 So. 2d 194 (Fla. 3d DCA), dismissed, 605 So. 2d 1265 (Fla.1992). However, pursuant to the agency theory, the state alleges [*855] that the parents controlled their subsidiaries. As to…
  • Enic, PLC v. F.F. S. & Co., Inc., 870 So. 2d 888 (Fla. 5th DCA 2004)
    …make the latter the agent of the former. It is well settled in Florida that the mere presence of a subsidiary in Florida, without more, does not subject a non-Florida corporate parent to long-arm jurisdiction. See, e.g., Walt Disney Co. v. Nelson, 677 So. 2d 400, 403 (Fla. 5th DCA 1996); Qualley v. International Air Service Co., 595 So. 2d 194, 196 (Fla. 3d DCA 1992), cause dismissed, 605 So. 2d 1265 (Fla.1992). However, when a parent exercises sufficient control over a subsidiary, that control establishes…
  • Dev. Corp. OF Palm Beach v. WBC Constr., L.L.C., 925 So. 2d 1156 (Fla. 4th DCA 2006)
    …ection 48.193(l)(a). The court explained: It is well settled in Florida that the mere presence of a subsidiary in Florida, without more, does not subject a non-Florida corporate parent to long-arm jurisdiction. See, e.g., Walt Disney Co. v. Nelson, 677 So. 2d 400, 403 (Fla. 5th DCA 1996); Qualley v. International Air Service Co., 595 So. 2d 194, 196 (Fla. 3d DCA 1992), cause dismissed, 605 So. 2d 1265 (Fla.1992). However, when a parent exercises sufficient control over a subsidiary, that control establishes…
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