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Extendicare, Inc. v. Estate of McGillen, 2007 Fla. App. LEXIS 6779 (Fla. Ct. App. 5th Dist. 2007)

McGillen filed suit against Extendicare, its subsidiaries, three other defendant corporations, and five individual defendants, alleging that they all operated the defendant nursing home. Extendicare, a Canadian corporation filed a motion to quash service of process and to dismiss. The trial court denied its motion and Extendicate appealed.

On appeal the court noted that Extendicare filed the affidavit of Richard Bertrand, its CFO, with its motion. The affidavit alleged that Extendicare was a foreign corporation, distinct from the other corporate defendants, that Extendicare did not: conduct business in Florida; own or lease property; maintain a business, maintain an office; own, operate or control nursing homes; exercise control over the defendant nursing home; or provide any care to the resident. Extendicare contended that its corporate relationship with the defndant nursing home, without more, was insufficient to provide a basis for personal jurisdiction.

McGillen countered that Bertrand lacked personal knowledge. The estate also filed documents including deposition testimony from other cases in which codefendants and other individuals testified about their interaction with Extendicare entities based in the U.S., orders from other cases denying Extendicare’s motions to compel arbitration or motions to dismiss, Extendicare’s 2001 annual report and a 2002 press release, and Bertrand’s deposition, which noted he had served as an officer in two of the subsidiaries.

Reviewing the case de novo, the Court found that the trial court and the estate misunderstood the burden in determining jurisdiction. Once Extendicare filed its representative’s sworn facially sufficient affidavits refuting jurisdictional allegations, the question for the trial court was whether, taking the allegations in the affidavits as true, there was a basis for jurisdiction over Extendicare. Because the allegations of the representative’s affidavits were to be taken as true, the Estate’s efforts to discredit the affidavits by contesting the credibility of the affiant were misplaced.

McGillen alleged in the complaint that Extendicare acted through its subsidiaries or agents and that it established corporations as buffers between it and the nursing home. However, McGillen offered no evidence to show that Extendicare controlled its subsidiaries to the extent that an agency relationship existed that would justify long-arm jurisdiction. Without more, McGillen’s allegations concerning Extendicare’s budgetary role or the fact that Bertrand served as an officer in some of Extendicare’s subsidiaries did not show the “high and very significant” degree of control over internal day-to-day operations that is required to support a finding that personal jurisdiction is appropriate under an agency theory. Disclosing the parent in licensing forms, or the parent’s performance of accounting and payroll functions for the subsidiary was insufficient. The trial court’s decision was reversed.

Decided May 4, 2007

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