Personal jurisdiction in products liability cases

Setting the Record Straight on Personal Jurisdiction and Products Liability

by Will Ourand

Products liability defendants have churned out an ever-increasing number of jurisdictional challenges over the past few years. The catalyst for this new onslaught of motions is a series of SCOTUS cases ranging from the 2011 decisions in Goodyear Dunlop Tires v. Brown and J. Mcintyre Machinery v. Nicastro to the 2017 decision in Bristol-Meyers Squibb v. Superior Court. If you were to simply read a defense motion citing these cases, you would likely be left with the impression that everything you learned about personal jurisdiction during 1L Civil Procedure, from International Shoe to World-Wide Volkswagen, is no longer good law. Thankfully, that’s simply not true.

This article will provide necessary background context as to the big picture issues in products liability personal jurisdiction disputes, will then examine the recent SCOTUS cases, will move on to analyze opinions across the country applying those SCOTUS opinions, and will conclude by explaining how to successfully defeat an erroneous jurisdictional challenge brought in a Florida products liability action.

I. Big Picture: Products Liability and Personal Jurisdiction

Products liability cases are particularly ripe for jurisdictional disputes for the simple reason that they often involve goods that are manufactured in a far-off state or country by an out-of-state corporation. The products then make their way into the consumer’s hands and then fail, resulting in injury. The manufacturers (and other entities in the chain of distribution) may then seek to distance themselves from the very same consumers who they were all too happy to profit from, by arguing that they cannot be subject to the jurisdiction of the consumers’ home states, the states where the injuries were caused, or the states where the products were sold, serviced, installed, or otherwise used. Instead, the defendants would prefer a world where they could pick the sole venue for claims against them — that venue being the state or foreign country where they were incorporated.

When a defendant raises a jurisdictional challenge, the court must answer one question: does that defendant have “sufficient contacts” with the state such that continuing with the lawsuit would not “offend traditional notions of fair play and substantial justice.”1 There are two possible paths to jurisdiction under this analysis. First, the court may have “general jurisdiction” if the defendant’s contacts are “continuous and systematic.”2 General jurisdiction would confer jurisdiction for any case, no matter the claims or issues.3 General jurisdiction is clearly proper in the defendant’s state of incorporation or where it maintains a principal place of business.4

There is currently a split of authority at the national level as to whether a defendant who has voluntarily qualified to transact business and designated a registered agent has consented to jurisdiction within that state.5 The Third, Fourth, and Fifth DCA have each held that a Florida court may exercise jurisdiction under these circumstances.6 However, in August, the Third DCA issued an opinion (which is non-final at the time of this writing) which held that this prior law has “yielded” to the recent SCOTUS decisions in Goodyear v. Brown and Daimler v. Bauman. 7 I strongly believe this is an incorrect interpretation of those cases. Indeed, there is a recent trend of decisions across the country holding that neither Goodyear nor Daimler displaced existing law on consent jurisdiction via service on a registered agent.8 These decisions recognize a distinction between establishing jurisdiction based on a consent theory as opposed to establishing “at home” general jurisdiction based on “systematic and continuous contacts.”9 And, consent jurisdiction makes intuitive sense. After all, the company has chosen to invoke the benefit of the state’s laws to further its own business interests. Having done so, it only seems fair that it shouldn’t then be able to shirk its obligation to defend a lawsuit in that state.

The second possible basis for jurisdiction is “specific jurisdiction,” which allows the court to exercise jurisdiction over the defendant for claims “arising out of” or “connected with” the defendant’s affiliations to the state.10 The seminal opinion on specific jurisdiction in products liability cases is the 1980 decision in World-Wide Volkswagen v. Woodson. 11 The World-Wide Volkswagen majority famously articulated the “stream of commerce” metaphor, explaining that: “The forum State does not exceed its powers under the Due Process Clause if it asserts

personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”12

Eight years after World-Wide Volkswagen was decided, Justice O’Connor, writing for a four Justice plurality in Asahi Metal Indus. Co. v. Superior Court of California, created the “stream of commerce plus” test.13 Justice O’ Connor reasoned that “[t]he placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.”14 Her opinion went on to state that, “[a]dditional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State. …”15 Justice Brennan wrote for another four justice plurality of the Court. He disagreed with the “additional conduct” requirement articulated by Justice O’Connor. In doing so, he explained that: “The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.”16 It should be noted, however, that even the “additional conduct” standard articulated by Justice O’Connor is readily met where a defendant advertises in a state, establishes “channels for providing regular advice to customers” in the state, or markets the product “through a distributor who has agreed to serve as the sales agent in the forum state.”17

Since Asahi, specific jurisdiction in products liability cases has continued to be primarily driven by the various interpretations of the “stream of commerce” doctrine. This remains true even after the most recent pertinent SCOTUS decision in Bristol-Myers Squibb, as will be discussed in the next section.

II. The Recent SCOTUS Cases

There are two critical points to understand when analyzing and arguing against the typical defense motion invoking the recent SCOTUS decisions. First, these motions typically fail to acknowledge that each recent SCOTUS decision has revolved around a unique and attenuated set of facts — facts which are drastically different than the clear majority of products liability actions. Second, the defendants often attempt to blur the analyses applied by the Court with respect to general and specific jurisdiction. With these two critical points in mind, it’s easy to see how each case is readily distinguishable in the vast majority of products liability lawsuits in Florida.

Let’s start with the 2011 Goodyear decision. In that case, the plaintiffs were North Carolina residents whose children died in a bus accident in France. They filed suit in their home state of North Carolina against Goodyear USA, and Goodyear’s “foreign affiliates” located in Germany, France, and Luxembourg.18 Notably, Goodyear USA did not challenge jurisdiction.19 Only the foreign Goodyear entities did so.20 Justice Ginsburg, writing for the majority, unsurprisingly held that North Carolina lacked general jurisdiction over the German, French, and Luxembourg companies because the record did not support a finding that those companies were “at home” in North Carolina.21 In doing so, the majority opinion explicitly recognized that those companies “were not registered to do business in North Carolina.”22 The majority opinion then rejected the argument that the “stream of commerce” doctrine could confer general jurisdiction — which makes sense, because the “stream of commerce” doctrine confers jurisdiction where “a nonresident defendant, acting outside the forum, places in the stream of commerce a product that ultimately causes harm inside the forum.”23 In other words, this analysis is germane to specific jurisdiction.24

The majority opinion likewise concluded that the state court lacked specific jurisdiction, observing that “the episode-in-suit, the bus accident, occurred in France, and the tire alleged to have caused the accident was manufactured and sold abroad.”25 It is clear then that Goodyear is entirely distinguishable from any Florida lawsuit involving either an accident that occurs in Florida, or a product sold, serviced, inspected, or used in Florida. Defendants like to gloss over or entirely omit this critical factual distinction while extracting general quotes and platitudes from the case — often from the general jurisdiction analysis — in support of an argument that Florida lacks specific jurisdiction. Do not let them get away with such arguments in your cases.

SCOTUS handed down its decision in J. McIntyre on the same day it issued Goodyear. And much like Goodyear, J. McIntyre also involved an attenuated set of jurisdictional facts. Specifically, the plaintiff in that case was injured by a welding machine manufactured by an English company.26 The English company, however, had never advertised in New Jersey, did not maintain an office in New Jersey, and had, at most, sold just four machines that wound up in New Jersey.27 Under those facts, Justice Kennedy authored a plurality opinion finding that the defendant lacked the type of “purposeful availment” needed to subject it to specific jurisdiction under Justice O’Connor’s “stream of commerce plus” test.28

J. McIntyre has limited applicability to most products liability cases. First, the facts in that case are extremely attenuated. The four-welding machines sold in New Jersey pale in comparison to the mass marketed products sold throughout Florida. Second, as a legal matter, J. McIntyre again commanded no majority opinion; as such, the prior law on stream-of-commerce remained intact following that decision.

Subsequently, in January 2014, SCOTUS decided Daimler AG v. Bauman. In that case, the plaintiffs were Argentinian nationals who filed a lawsuit in the Northern District of California against Daimler, a German corporation.29 The plaintiffs alleged that Daimler was involved in a “Dirty War” through its Argentinian subsidiary.30 Justice Ginsburg, writing for the majority, merely held that California did not have general jurisdiction over the German company for the same reasons that North Carolina did not have general jurisdiction over the European Goodyear entities.31 The factual differences and limited legal application of this decision should be obvious to the reader at this point.

SCOTUS decided Walden v. Fiore the very next month.32 The plaintiff in Walden was a Nevada resident who brought suit in Nevada against a Georgia police officer based on an alleged unlawful search and seizure occurring at a Georgia airport.33 Justice Thomas authored the majority opinion, and unsurprisingly held that Nevada lacked specific jurisdiction over the Georgia police officer because the officer had no connection to Nevada.34 You may wonder why I am discussing this case in a products liability article. The reason is simple: products liability defendants are using this decision in support of their jurisdiction motions. Walden is readily distinguishable from cases involving product manufacturers and others in the distributive chain who have regular business contacts with Florida through the sale of products, advertising, dealer and distribution networks, etc.

The most recent pertinent decision is Bristol-Myers Squibb, which came out in June 2017. In that case, a group of plaintiffs from across the country filed suit in California for injuries they claimed were caused by the drug Plavix.35 The SCOTUS opinion addressed only those plaintiffs who were not residents of California.36 Bristol-Myers Squibb was not a California company.37 Under these facts, the Court merely held that the non-resident plaintiffs who “were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California,” could not sue in California.38 The Court expressly noted that it was not changing the law; indeed, the Court clarified that the opinion was merely a “straightforward application … of settled principles of personal jurisdiction.”39 As such, Bristol-Myers Squibb did not alter the jurisdictional analysis for cases involving an injury occurring in Florida, or for a case involving a product sold, installed, serviced, maintained, or used within Florida.

III. Cases Applying the Recent SCOTUS Decisions

Manufacturers have launched a wave of jurisdictional challenges premised on the notion that Goodyear, J. McIntyre, Daimler, Walden, and Bristol-Myers Squibb have radically altered personal jurisdiction in products liability cases. For example, automakers and tire manufacturers have filed motions to dismiss in cases where a vehicle is first sold in one state, but then fails and causes a crash and severe injuries while being used in another state. These kinds of motions will typically argue that the state where the crash happened lacks general jurisdiction because it’s not the manufacturer’s state of incorporation or the state where it maintains its headquarters. They will then often argue that specific jurisdiction is lacking because the “first sale” did not happen within the state.

Although some decisions, including an unpublished opinion from the Middle District of Florida,40 have bitten on this type of argument, the majority of courts have rejected such motions.41 For example, the Texas Court of Appeals recently rejected Michelin’s argument that “jurisdictional ‘liability’ only extends as far as the point of first retail sale.”42 The Court explained, “Michelin targets Texas and intends for its tires to end up in the hands of Texas consumers,” and “Michelin could have reasonably foreseen that the tire would end up in Texas, and given the company’s extensive targeting of the state, it could hardly be surprised that it would be hauled to court to answer defect charges in Texas.”43 The Court then poignantly observed that:

If a manufacturer takes a shotgun shell approach to marketing and deliberately aims a batch of product at multiple states, it seems odd to let the manufacturer complain that even though its product actually struck a targeted state, the point should not count simply because there was an unexpected ricochet along the way. 44

Similarly, in Tarver v. Ford Motor Co., 2016 U.S. Dist. LEXIS 167363 (W.D. Okla. Dec. 5, 2016), the Western District of Oklahoma rejected the same kind of argument, reasoning:

The Court finds unavailing Ford’s argument that personal jurisdiction does not exist because the subject vehicle was assembled in Kansas City, Missouri and later sold to an independent dealership in Indiana. The pivotal inquiry under the stream of commerce theory is whether a defendant has attempted to serve a market and expects its product to be used there. Irrespective of the state of assembly, Ford designs, manufactures, markets, and sells products specifically built for interstate travel, which includes Oklahoma. Ford manufactured and sold the subject vehicle with the reasonable expectation it would be used in Oklahoma and this action arises from the vehicle’s use in Oklahoma. 45

Ford subsequently filed a motion for reconsideration based on Bristol-Myers Squibb. The court denied the motion, observing that “The court’s decision in Bristol-Meyers makes no mention of the ‘stream of commerce’ doctrine. Rather, the court made its decision through a ‘straightforward application’ of ‘settled principles of personal jurisdiction.”46

The Western District of Oklahoma likewise rejected the same type of argument made by Suzuki, noting that, “although the motorcycle alleged to have caused [the plaintiff’s] injuries originally was sold in Ohio rather than Missouri, it was of the same type as motorcycles SMC sold into Missouri via its distribution system, and the crash occurred in Missouri.”47 As such, the court found that “SMC’s placement of its product into the stream of commerce sufficiently relates to Plaintiff’s cause of action, and SMC has the requisite minimum contacts with Missouri to satisfy due process standards.”48

The West Virginia Supreme Court provided a concise and eloquent explanation as to why the “point of first sale” rule advanced by manufacturers is neither compelled nor supported by existing precedent, reasoning:

We decline to use the place of sale as a per se rule to defeat specific jurisdiction. Such an approach ignores even the plurality in J. McIntyre that indicated that the inquiry considers both the defendant’s conduct and the economic realities of the market the defendant seeks to serve. It also utterly ignores the “targeting” of a forum for the purpose of developing a market. The focus in a stream of commerce or stream of commerce plus analysis is not the discrete individual sale, but, rather, the development of a market for products in a forum.49

Many additional cases reaching the same conclusion under various facts have been provided in the endnotes to this article. These decisions were all issued within the past few years; indeed, many of these cases were issued just a few months ago. If you are faced with a jurisdictional challenge premised on the notion that Bristol-Myers Squibb, et al. have marked a radical change in the law on jurisdiction, the cases cited in this section and in the endnotes will help show the court that this type of argument is simply wrong.

IV. Battling Personal Jurisdiction in Florida State Court

A jurisdictional challenge in a products liability action in Florida state court will be governed in accordance with the procedure set out in Venetian Salami Co. v. Parthenais. 50 This procedure recognizes that: “Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts.”51 A defendant can then challenge those allegations by filing affidavits in support of its position.52 Once the defendant has done so, “[t]he burden is then on the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.”53

The plaintiff is entitled to conduct discovery to help disprove the defendant’s self-serving affidavits. This right to discovery was established by the Florida Supreme Court in Gleneagle Ship Management v. Leondakos, which recognized that “While a plaintiff should not file a frivolous complaint alleging personal jurisdiction, we recognize that averments made in good faith may not always rise to assertions which could be made under oath. Thus, a plaintiff should be able to conduct limited discovery on the jurisdictional question in order to gather facts and file an opposing affidavit.”54

In crafting discovery and framing arguments in opposition to the defense motion, it will be critical to understand the constitutional principles of due process discussed above, in addition to the provisions of Florida’s long-arm statute and controlling case law. As a general matter, the key issues tend to revolve around the defendant’s marketing efforts, in-state distribution network (i.e. company owned stores, third-party dealers, etc.), product sales within the State, and other similar issues.

It’s critical to remember the sheer size of our state in this analysis. The Florida market is incredibly lucrative. Manufacturers depend on the sale of their products in Florida’s large marketplace to ensure profitability. Notably, the Fourth DCA explicitly recognized the direct relevance of Florida’s market size to the jurisdictional inquiry a few years after Asahi was issued, explaining that:

A manufacturer that produces hundreds of thousands of product units that are distributed over a five-year period in the United States, of which at least 6,000 were marketed in Florida, should reasonably anticipate being sued in this state in connection with product defects causing injury. It does not offend traditional notions of fair play and justice to permit the manufacturer to be sued in the fourth most populous state in the country under such circumstances.55

Additionally, it’s important to understand that the defendants’ corporate structure and relationship to other entities involved in the design, manufacture, and sale of its products may confer a basis for jurisdiction. Florida’s long-arm statute specifically recognizes that a defendant subjects itself to jurisdiction by committing an enumerated act either “personally or through an agent.”56 As one example, Florida courts have recognized that “when a parent exercises sufficient control over a subsidiary, that control establishes an agency and supports jurisdiction.”57 Products liability defendants often operate as a chain of interrelat-

ed companies that are established for one sole purpose: to sell the parent’s products. The plaintiff should consider and explore agency-based jurisdiction in discovery where it appears that there may be evidence of sufficient control to establish jurisdiction.

Finally, it’s important to consider and, if viable, develop a case for general jurisdiction. In addition to looking at the defendant’s incorporation paperwork and principal place of business, also look to whether the defendant has voluntarily qualified to transact business in Florida and designated a registered agent in the State. As discussed above, the Third DCA has recently issued an opinion (which is non-final at the time of this writing) which may cut against this type of argument; however, longstanding precedent still supports such a claim.58 I would argue that the recent Third DCA case was wrongly decided and misconstrues the Goodyear and Daimler decisions. This argument is supported by multiple courts from across the country.59

V. Conclusion

At the end of the day, personal jurisdiction is still about “fair play and substantial justice.” SCOTUS has not overruled International Shoe or World-Wide Volkswagen. A defendant who has knowingly tapped into and profited from the lucrative Florida market must answer in a Florida court for the harms its products cause within our state.

WILLIAM C. OURAND

graduated magna cum laude from the Florida State University College of Law where he served for two years on the editorial board of the Law Review. After graduation, he was inducted into the Florida State Chapter of the Order of the Coif. He is currently an associate at Newsome Melton, where he represents consumers in products liability and class action lawsuits.

1 Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154 (1945). 2 Id. 3 Id. 4 Id. 5 See Brieno v. Paccar, Inc., No. 17-cv-867 SCY/KBM, 2018 U.S. Dist. LEXIS 129777 (D.N.M. 8-2- 2018); McDonald AG Inc. v. Syngenta AG (In re Syngenta AG MIR 162 Corn Litig.), No. MDL No. 2591, 2016 U.S. Dist. LEXIS 65312 (D. Kan. 5-17-016). 6 Rose’s Stores v. Cherry, 526 So.2d 749 (Fla. 5th DCA 1988); Junction Bit & Tool Co. v. Institutional Mortg. Co., 240 So.2d 879 (Fla. 4th DCA 1970); Dombroff v. Eagle-Picher Indus., Inc., 450 So.2d 923 (Fla. 3d DCA 1984); Ranger Nationwide, Inc. v. Cook, 519 So.2d 1087 (Fla. 3d DCA 1988); but see Waite v. AII Acquisition Corp., 901 F.3d 1307, 27 FLW Fed. C1232 (11th Cir. 2018) and Magwitch, LLC v. Pusser’s W. Indies Ltd., 200 So.3d 216, 41 FLW D2077 (Fla. 2d DCA 2016). 7 Woodruff-Sawyer & Co. v. Ghilotti, 43 FLW D1996 (Fla. 3d DCA 8-29-2018). 8 Brieno v. Paccar, Inc., No. 17-cv-867 SCY/KBM, 2018 U.S. Dist. LEXIS 129777 (D.N.M. 8-2-2018); Gorton v. Air & Liquid Sys. Corp., 303 F. Supp. 3d 278 (M.D. Pa. 2018); Senju Pharm. Co., Ltd. v. Metrics, Inc., 96 F. Supp. 3d 428 (D.N.J. 2015); Mitchell v. Eli Lilly & Co., 159 F. Supp. 3d 967, 979 (E.D. Mo. 2016). 9 Id. 10 Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 2851 (2011). 11 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 (1980). 12 Id. 13 Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112 (1987). 14 Id. at 112. 15 Id. 16 Id. at 117. 17 Id. at 112. 18 Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 918 (2011) 19 Id. 20 Id. 21 Id. at 919. 22 Id. at 921. 23 Id. at 926 (emphasis in original). 24 Id. at 927. 25 Id. at 919. 26 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 878 (2011) 27 Id. at 885-87. 28 Id. 29 Daimler AG v. Bauman, 571 U.S. 117, 134 S. Ct. 746 (2014). 30 Id. at 121. 31 Id. at 122. 32 Walden v. Fiore, 571 U.S. 277, 134 S. Ct. 1115 (2014) 33 Id. at 279. 34 Id. at 290. 35 Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). 36 Id. at 1778. 37 Id. 38 Id. at 1781. 39 Id. at 1783. 40 Erwin v. Ford Motor Co., No. 8:16-cv-01322-T-24 AEP, 2016 U.S. Dist. LEXIS 185960 (M.D. Fla. 8-31-2016) (transferring case to Delaware, Ford’s state of incorporation); but see Erwin v. Ford Motor Co., 309 F. Supp. 3d 229, 233 (D. Del. 2018) (“Although I am bound by the transfer . . . the due process analysis of the transferring court seems tenuous at best. To my knowledge, no court has ever reached a similar result in a case involving a manufacturer with nationwide distribution, and the cases upon which the decision rested presented far different facts.”). 41 Michelin N. Am., Inc. v. De Santiago, 2018 Tex. App. LEXIS 6039, at *39 (App. 8-2-2018); Tarver v. Ford Motor Co., 2016 U.S. Dist. LEXIS 167363, at (W.D. Okla.12-5-2016); Tarver v. Ford Motor Co., 2017 U.S. Dist. LEXIS 130517, at *7 (W.D. Okla. 8-16-2017); Alexander v. Suzuki Motor of Am., Inc., 2018 U.S. Dist. LEXIS 135170, at *18 (E.D. Mo. 8-10-2018); Bandemer v. Ford Motor Co., 913 N.W.2d 710, 714 (Minn. Ct. App. 2018), appellate review granted, 2018 Minn. LEXIS 405 (7-17- 2018); Ford Motor Co. v. McGraw, 788 S.E.2d 319 (2016); Lucero v. Ford Motor Co., Cause No. ADV‐18‐0247(b) (Mont. 8th Dist. 10-10-2018); Spiva v. Bridgestone Americas Tire Ops., LLC, Cause No. 18‐C‐0286‐S6 (Ga. Gwinnett County 10-8-2018); Spiva v. Ford Motor Co., Cause No. 18‐C‐0286‐S6 (Ga. Gwinnett County 9-28-2018); Tomas v. Bayerische Motoren Werke AG, 2018 U.S. Dist. LEXIS 143968 (N.D. Ala. 8-24-2018); Dillard v. Fed. Corp., 2018 U.S. Dist. LEXIS 129409 (W.D. Tex. 8-1-2018); Align Corp. v. Boustred, 421 P.3d 163 (Colo. 2017); Thomas v. Ford Motor Co., 289 F. Supp. 3d 941 (E.D. Wis. 2017); Kowal v. Westchester Wheels, Inc., 2017 IL App (1st) 152293, 417 Ill. Dec. 888, 89 N.E.3d 807; Griffin v. Ford Motor Co., 2017 U.S. Dist. LEXIS 141709 (W.D. Tex. Aug. 31, 2017); Antonini v. Ford Motor Co., 2017 U.S. Dist. LEXIS 135247 (M.D. Pa. 8-23-2017). 42 Michelin N. Am., Inc. v. De Santiago, 2018 Tex. App. LEXIS 6039, at *39 (App. 8-2-2018). 43 Id. at 37. 44 Id. at 39. 45 Tarver v. Ford Motor Co., 2016 U.S. Dist. LEXIS 167363, at (W.D. Okla. 12-5-2016) (emphasis added). 46 Tarver v. Ford Motor Co., 2017 U.S. Dist. LEXIS 130517, at *7 (W.D. Okla. 8-16-2017) (emphasis added). 47 Alexander v. Suzuki Motor of Am., Inc., 2018 U.S. Dist. LEXIS 135170, at *18 (E.D. Mo. 8-10-2018) (emphasis added). 48 Id. (emphasis added). 49 State ex rel. Ford Motor Co. v. McGraw, 788 S.E.2d 319 (2016) (emphasis added). 50 Venetian Salami co. v. Parthenais, 554 So.2d 499 (Fla. 1989). 51 Id. at 502. 52 Id. 53 Id. 54 Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So.2d 1282, 1284 (Fla. 1992). 55 McHugh v. Kenyon, 547 So.2d 318, 319 (Fla. 4th DCA 1989). 56 Fla. Stat. §48.193(1) (emphasis added). 57 ENIC, PLC v. F.F. S. & Co., 870 So.2d 888, 891 (Fla. 5th DCA 2004) 58 See Wood-ruff Sawyer, note 7; see also cases cited in note 5. 59 See cases cited in notes 5 and 8.