04-2303 GERBER V. BAYOU

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Third District Court » 2005 » 04-2303 GERBER V. BAYOU

State: Florida

Court: Florida Third District Court

Docket No: 04-2303 GERBER V. BAYOU

Case Date: 12/28/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2005

GERBER TRADE FINANCE, INC., a foreign corporation, Appellant,

** ** CASE NO. 3D04-2303 ** LOWER TRIBUNAL NO. 03-29006

vs. ** BAYOU DOCK SEAFOOD CO., INC., a foreign corporation, ** Appellee. **

Opinion filed December 28, 2005. An Appeal from the Circuit Court for Miami-Dade County, Henry H. Harnage, Judge. Lash & Goldberg and Alan D. Lash and Lawrence Lambert, for appellant. Carlton Fields and Allison Oasis Kahn, for appellee.

Before LEVY, GERSTEN, and FLETCHER, JJ.

LEVY, Judge.

Appellant, Gerber Trade Finance, Inc. ("Gerber"), a foreign company, 1 Conversion appeals from an Order dismissing its Complaint for and Civil Theft against the Appellee, Bayou Dock

Seafood, Company ("Bayou"), a foreign company, 2 with prejudice on the ground that Florida lacks personal jurisdiction over Bayou. We reverse. FACTS Gerber financed several transactions to purchase frozen

seafood products for J.A.D.E. Fisheries, Inc. d/b/a Ocean World Fisheries, U.S.A. ("J.A.D.E."), a Miami corporation. In turn,

Gerber was granted a security interest over J.A.D.E.'s seafood inventory. 3 J.A.D.E. After Gerber the recorded to its security Clear interest, Fisheries, The seafood

transferred

seafood

Krystal

Inc. ("Krystal Clear"), an alter ego of J.A.D.E.

was subsequently transferred to Bayou and kept at a cold storage facility in Miami. Gerber claimed a security interest in the

property and demanded its return from Bayou which refused. Gerber filed its initial Complaint in Miami Dade County, Florida, alleging that Bayou committed tortious acts in Florida; specifically, Conversion, Civil Theft, and Fraudulent Transfer. Bayou moved to dismiss the Complaint for lack of personal

1 2

Gerber is a New York corporation, registered to do business in Florida. Bayou is a Louisiana seafood distributor. 3 Gerber recorded a UCC-1 financing statement to perfect its security interest over the inventory.

2

jurisdiction,

and

attached

the

affidavit

of

its

president,

Edward Lee ("Lee"), who specified that Bayou does not conduct regular business activity in the State of Florida; that Bayou does not engage in substantial activity in Florida; and that Bayou does not maintain any offices or agency in Florida. In

response, Gerber submitted the affidavit of its vice-president, Jeffrey Silverstein, who verified the allegations of the

Complaint.

Bayou then submitted a second affidavit from Lee

wherein he acknowledged that Bayou agreed to take possession of the seafood in Miami, Florida, but denied the alleged acts were tortious. Specifically, Lee explained that Bayou was approached by Shantou Longfeng Foodstuff Co. ("Shantou") to hold the

warehouse in Bayou's name. The circuit court granted Bayou's Motion to Dismiss with prejudice, concluding that Bayou's contacts with Florida were isolated, limited, not continuous, and not systematic. filed a Motion for Rehearing and sought leave to Gerber its

amend

Complaint, but both were denied. the circuit for court lack erred of in

Gerber appeals, claiming that its Complaint over Bayou with and

dismissing

prejudice

personal

jurisdiction

denying its Motion to Amend its Complaint.

Consequently, the

issues before this Court are whether Gerber's Complaint alleging that Bayou committed acts of Conversion and Civil Theft within 3

Florida

satisfies and

Florida's the

long-arm

statute, minimum

section contacts

48.193(1)(b)

constitutional

requirement, and whether the circuit court should have allowed Gerber to amend its Complaint pursuant to Rule 1.190(a), to allege sufficient jurisdictional grounds. PERSONAL JURISDICTION In Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), the Supreme Court of Florida explained that in

determining whether long-arm jurisdiction is appropriate, the court must first determine that the Complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida's long-arm statute; and if it does, the court must then consider whether sufficient minimum contacts are demonstrated to satisfy due process requirements. Id. at 502.

Florida Statutes, section 48.193, provides two categories of personal jurisdiction: provides: general "[a] jurisdiction who under is section in

48.193(2),

which

defendant

engaged

substantial and not isolated activity within [Florida], whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this State, whether or not the claim arises from that activity[,]"

Download 04-2303 GERBER V. BAYOU.pdf