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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA MISSY BARKER } } } CIVIL ACTION -vs} No. 12-000-00 } MIKE SALESMAN } Defendant, } MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT SALESMANS MOTION TO DISMISS Plaintiff, Plaintiff Missy Barker submits this memorandum of law in opposition to the defendants motion to dismiss the lawsuit against him. QUESTION PRESENTED: Does the Florida court have personal jurisdiction over Mike Salesman, a Mississippi resident, who sells dog toys to customers via constant emails, mail delivery of products, and telephone calls and taped a conversation with a Florida customer without consent? FACTS: The Defendant runs a dog toy company based in Mississippi that conducts business in Florida, Georgia, Alabama, and Mississippi. The Defendant resides in Mississippi but does much of his trade in the other states through email, telephone correspondence, and mail. Despite wanting to spend some time in Florida, he has only been there to change planes. A friend of his, a Mississippi attorney, advised the Defendant that Mississippi allows someone to tape a telephone conversation with the consent of one party to the conversation. The Defendant decided to tape all telephone conversations with customers using a digital recording device without their knowledge or consent.

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One day, Missy Barker called from Florida to complain about the Defendant messing up her order. The Defendant offered to check the recording of the conversation in which Ms. Barker placed the order. She claimed that she never consented to a recording and that because she lived in Florida the Defendant could not legally record her without her consent. The Defendant argued back that the Florida rules did not apply because he was a resident of Mississippi. A week later he received notice that Ms. Barker was suing because the Defendant had recorded the conversation without her consent ARGUMENT: The Defendant clearly conducts business in Florida as shown by constant emails, mail deliveries of products, and telephone calls; therefore, the Defendant meets both the conducting business threshold under the Florida long arm statute and minimum number of contacts needed under the Constitution for the Florida court to have personal jurisdiction. The advent of modern technology has increasingly allowed small business owners to conduct business all over the nation without leaving the comfort of their homes. However, this change in business practice has given rise to the complex legal question of what happens when a business owner violates another states statute during the ordinary course of business. Emails and the telephone allow a business owner to contact customers in Florida without physically being in Florida, as was once required. Thus, physical presence in Florida should not be a prerequisite to a court having personal jurisdiction over the business owner. The court will find the following cases and statutes helpful in ruling on the motion to dismiss. Kountze v. Kountze, 996 So. 2d 246 (Fla. 2d DCA 2008); Koch v. Kimball, 710 So. 2d 5 (Fla. 2d DCA 1998); 48.193(1), 934.02(1), 934.03(1), 934.10, Fla. Stat. (2011).

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In order to understand the key issues at the heart of the heart of Barker, four statutes must be examined in depth. The first three statutes to be examined are 934.02(1), 934.03(1), and 934.10. The first of which states that, [w]ire communication is any aural transfer made in whole or in part. . . by the aid of wire. . . between the point of origin and the point of reception. In simpler terms, wire communication is a conversation that can be heard by the human ear and that is transmitted at some point through a wire. This definition clearly applies to Barker because there was a telephone conversation between Ms. Barker and the Defendant, the conversation was audible to them, and the conversation was transmitted at some point through a wire; therefore, the telephone conversation is a wire communication. Additionally, 934.03(1) reads, [e]xcept as otherwise specifically provided in this chapter, any person who: (a) [i]ntentionally interceptsanywirecommunication shall be punished as provided in subsection (4). Unless otherwise stated, someone who deliberately tapes a telephone call conversation has committed a third-degree felony. Florida Statute 934.10 gives an individual who has had their privacy infringed on by a violation of 934.03(1) the right to recover damages in a civil suit. The final statute at the core of Barker is the Florida Long Arm statute, Florida Statute 48.193(1) states: Any person, whether or not a citizen or resident of this state, who personally. . .does any of the acts enumerated in this subsection thereby submits himself. . .to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts: a) Operating, conducting, engaging in, or carrying on a business . . . in this state or having an office or agency in this state. b) Committing a tortious act within this state. In clearer language, the Florida courts have personal jurisdiction over: anyone who does business in Florida, whether or not the person lives in Florida; or anyone who carries out a tort in Florida.

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In addition to statutes, case law is vitally important in establishing a proper legal conclusion to the quandary faced in Barker. A case that is very similar to the facts in Barker is Koch v. Kimball. Nicolina Koch worked as a salesperson in Georgia whose sales territory included Florida. Throughout the course of her work she called Florida on a weekly basis and had made five three day business trips to Florida. Koch recorded, from her home in Georgia, a business call with her supervisor, Michael Kimball, in Tampa. Kimball sued because she violated the Florida Security for Communications Act and Koch moved to dismiss the action on the grounds that she was not within Floridas personal jurisdiction. Koch, 710 So. 2d at 6. Ultimately the court held that, [h]aving found that appellee established sufficient jurisdictional facts and sufficient minimum contacts to satisfy due process, we conclude that jurisdiction is proper under Floridas long arm statute and due process.Id. at 7-8. The other case that addresses this complex legal question and establishes a rule of law is Kountze v. Kountze. Neely Kountze was a resident of Nebraska that had no business in Florida and only vacationed there; but he had also attended two board meetings held there. His cousin Edward Kountze, a Florida resident, called Neely Kountze at his office in Nebraska. This telephone call was recorded by Neely Kountze without cousins knowledge or consent. The subject matter of the telephone call was a point of dispute since Neely Kountze claimed that the conversation was primarily business while Edward Kountze claimed that the conversation revolved around private matters. However, the court established that nearly all calls prior to the recorded conversation concerned personal matters. Edward Kountze sued for damages under Florida Statute 934.10 and Neely Kountze moved to dismiss for lack of personal jurisdiction. Kountze, 996 So. 2d at 248. The court held, [w]e accordingly recede from our decision in Koch to the extent we held that an extraterritorial violation of the Florida Security of Communications

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Act was sufficient, standing alone, to support personal jurisdiction over a foreign defendant under section 48.193(1)(b). Id. at 253. Kountze clearly restated the rule of law that governed both cases, a two prong test to be passed before an out of state citizen fell within the personal jurisdiction of the Florida courts. The rule of law governing states the following: Before a Florida court can exercise personal jurisdiction over a nonresident defendant, a two-stage inquiry is conducted. During the first stage, the court determines whether sufficient jurisdictional facts exist to support the exercise of jurisdiction under Floridas long arm statute . . . During the second stage, a constitutional inquiry is conducted to determine whether sufficient minimum contacts exist between the forum state and the defendant to satisfy the due process requirement that a nonresident defendant should reasonably anticipate being haled into court in Florida. Id. at 251. In order for someone to be within the personal jurisdiction of the Florida courts, they must both fall within the requirements of the long arm statute and maintain the minimum contacts necessary for due process under the constitution. The court in Kountze ruled that they did not have personal jurisdiction over Neely Kountze because he did not maintain the minimum amount of contact with Florida since he had only been there on vacation and had no business dealings in Florida. Contrarily, the court in Koch found that they did have personal jurisdiction over Ms. Koch because of her constant contact and business dealings with the state of Florida. To establish which case is controlling over the facts in Barker, one must look for key similarities between the cases. While Kountze does center on a recorded telephone call, the call was not about business matters. Nor did Neely Kountze maintain regular business with Florida. However, Koch mirrors all of the most important facts found in Barker. Like the Defendant, Ms. Koch was an out-of-state salesperson who maintained regular contact with the state of Florida. The subject matter of the phone call in Koch was a business matter, which is another important similarity to Barker. Because of the important similarities and lack of any significant differences Koch is controlling over Barker.

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The final issue is that of statutory application. Like Koch, the court should hold that the Defendant falls within the personal jurisdiction of the Florida court under 48.193(1) because he passes the two-pronged test established that governs both Kountze and Koch. The Defendant meets both the long arm statute requirements and the necessary minimum contacts because he maintained near constant contact with Florida through the business he conducted there. Since the Defendant recorded Ms. Barker without her consent he violated 934.03(1) and since he falls within the personal jurisdiction of the Florida court, the statute is enforceable against him. Furthermore, Ms. Barker has a right under 934.10 to sue the Defendant for damages. Ultimately, the recorded conversation was a wire communication according to the definition set forth by 934.02(1). The Defendant violated 934.03(1) by recording the telephone conversation without the consent or knowledge of Ms. Barker. Koch and Kountze are both similar in facts to Barker, but Koch is more similar to Barker than is Kountze. The Koch facts are nearly identical to the Barker facts and the Koch court decided to hold Ms. Koch liable despite her Georgia residence. The Defendant meets the requirements of the two-pronged test for an out-of-state defendant to be held liable. Section 48.193(1) is relevant because the Defendant regularly conducted business in the state of Florida; he meets the minimum contact requirement by conducting a large portion of his business in Florida and maintaining regular contact with his Florida clients. Thus, the court has personal jurisdiction over the Defendant. Under 934.10, Ms. Barker can claim damages against the Defendant for his tortious act against her. In conclusion, Ms. Barker can hold the Defendant liable for damages for secretly taping their conversation in violation of the Florida statutes.

CONCLUSION:

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For the reasons set forth, Plaintiff Barker requests this court to deny defendants motion to dismiss the lawsuit against him. Respectfully submitted, Andrew Albaugh Florida Attorney, Esq. Florida Bar Number 031020 Albaugh and Albaugh Main Street Anytown, Fla.