Lack of Jurisdiction for Domestic Violence Injunctions
If you do not reside in Florida, can another person file a petition for protection from domestic violence against you which would require you to defend yourself in a courtroom in Florida?
One common defense when the Respondent is served with the paperwork while he or she resides out of state is the “lack of jurisdiction” defense.
Clients contact our office after being served with the petition even though they live outside of Florida. Many of our clients believe the action is unjust because they do not want to be hauled into a court in another state.
In these cases, our clients also believe the accusations are false or exaggerated and no injunction should be issued.
By filing the motion to dismiss for lack of jurisdiction, we can help our clients defend the action on jurisdictional grounds because of the inconvenience and expense of traveling out of state.
Attorneys for Motions for Lack of Jurisdiction in Florida
At Sammis Law Firm, our attorneys only represent Respondents in injunctions or restraining order cases. In other words, with very few exceptions, we only defend people who have been accused of domestic violence.
By maintaining that focus we can aggressively fight these allegations with the goal of getting the case dismissed.
We represent clients in domestic violence, dating violence, repeat violence, and stalking violence injunction cases in Tampa and Plant City in Hillsborough County, FL.
Call (813) 250-0500 to discuss your case.
Common Scenario Lacking Jurisdiction in Injunction Cases
Consider a common fact pattern that presents itself in domestic violence injunction for protection cases in Florida:
A couple living in another state are having marital problems.
The wife wants to file for divorce. In order to gain an unfair or improper advantage in the divorce case, the wife decides to flee her home state with the children and relocates to the State of Florida.
When the husband is finally able to locate his wife and children in the State of Florida, the wife has a problem.
She has fled the home state with the children to live in Florida.
She knows the divorce will be decided by a judge in the home state and the court there will not look favorably on the fact that she uprooted the children and took off to Florida.
The wife is desperate to explain her actions in moving out of state so she runs to the local courthouse and files for a restraining order or an injunction for protection against domestic violence alleging that she does not want her husband to contact her or her children because she is in fear of a future act of domestic violence.
The husband is served with the injunction in his home state and is surprised to learn that he is required to appear for a hearing in Florida.
In many of these Florida domestic violence injunction for protection or restraining order cases, the husband may decide to file a motion to quash service of process and a motion to dismiss based on lack of personal jurisdiction and subject matter jurisdiction.
If the husband fails to contest the jurisdictional issue, then he is submitting himself to the full power of the court’s in Florida.
Special Venue and Residency Rules for Orders for Protection
Pursuant to Florida Statute 741.30(1)(j), “a petition for an injunction for protection against domestic violence may be filed in the circuit court where the Petitioner currently or temporarily resides, where the Respondent resides, or where the domestic violence occurred.”
Unlike in other types of civil litigation, there is no minimum requirement of residency to petition for an injunction for protection.
Jurisdiction and Showing “Minimum Contacts” When the Respondent is Served Out of State
Under Section 48.193, Florida’s long-arm statute, due process requires “minimum contacts” between the State of Florida and the non-resident Husband “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Florida 1989).
The reason that the petitioner, or wife in this example, must establish minimum contacts is to satisfy a purposeful availment requirement which “ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ fortuitous,’ or ‘attenuated’ contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
In other words, “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conduction activities within the forum State, thus invoking the benefits and protections of the laws.” Id.
The Wife may attempt to establish the “minimum contacts” by showing that the Husband called, wrote a letter, or sent an e-mail or text message to her in the State of Florida.
Alternatively, the wife may avoid the minimum contact issue entirely by serving the Husband while he is in the State of Florida, even if he is only in the State to pick up the children for visitation.
Lack of Jurisdiction over the Children When a Divorce Action is Pending in the Home State
The Court in Florida may decline to exercise jurisdiction in a case for a protective order (restraining order) for protection against domestic violence filed OBO or “On Behalf Of” the children when a divorce is currently pending in the home state.
In these cases, it is important to have proper representation by a qualified attorney so that your rights are protected.
Sample Motion to Dismiss the Petition for Injunction for Lack of Jurisdiction
The Respondent, _____, by and through her undersigned counsel, pursuant to Rule 12.140(b) and Rule 12.010(a)(1) of the Florida Rules of Family Law Procedure, hereby files this Motion to Dismiss the Petitioner’s Petition for Injunction for Protection Against Domestic Violence (hereinafter “Petition”), and in support thereof states the following:
- This case arises from the Petitioner’s Petition for Injunction for Protection Against [Domestic Violence, Stalking, Repeat Violence or Dating Violence] (hereinafter “Petition”), which was filed on [date].
- Pursuant to Rule 12.140(b) of the Florida Family Law Rules of Procedure, the Respondent moves to dismiss the Petition for lack of personal jurisdiction over the Respondent.
- The Respondent is not a resident of the State of Florida.
- When a respondent is an out-of-state resident, long-arm jurisdiction comes into play.
- Under the constitutional test established by Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) and its progeny, a court has personal jurisdiction over a nonresident defendant if the defendant has certain minimum contacts with the jurisdiction such that the lawsuit does not offend the judicial notions of fair play and substantial justice. Id.
- The minimum contacts analysis centers on the relationship between the defendant, the forum, and the litigation. Emerson v. Cole, 847 So. 2d 606 (Fla. 2d DCA 2003). There must be an additional showing that the defendant purposely availed himself to the jurisdiction of the state by conducting activities there, such that he should reasonably anticipate being subjected to that court’s personal jurisdiction before a state can establish personal jurisdiction over the defendant. World-Wide Volkswagen Corp v. Woodsen, 444 U.S. 286 (1980) (see also Wells Fargo Equipment Finance, Inc. v. Bacjet, LLC, 221 So. 3d 671 (Fla. 4th DCA 2017).
- In addition to the constitutional basis for personal jurisdiction of nonresidents, “[s]tates have the power to enact statutes governing the exercise of personal jurisdiction over nonresident defendants, as long as those statutes are either coextensive with or more restrictive than the outside limits of federal due process law.” Garrett v. Garrett, 668 So. 2d 991 (Fla. 1996).
- Florida has done just that, and its long-arm “… statute must be strictly construed  in order to guarantee compliance with due process requirements.” LaFreniere v. Craig-Myers, 264 So. 3d 232 (Fla. 1st DCA 2018).
- The appropriateness of long-arm jurisdiction in Florida is a two-fold inquiry: “[f]irst, the complaint must allege sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Strober v. Harris, 2022 WL 38494 (Fla. 2d DCA 2022) (citing Venetian Salami Co. v. Parathenais, 554 So. 2d 499, 502 (Fla. 1989) (citations omitted).
- Sufficient minimum contacts “require that the nonresident have sufficient minimum contacts within the State of Florida such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.” Strober at 5 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L.Ed. 95 (1945)).
- It is important to note that both prongs of the test must be satisfied for a court to have personal jurisdiction over a non-resident. “Regardless of whether plaintiff’s complaint contains sufficient allegations to establish statutory long-arm jurisdiction over defendant, the plaintiff must also satisfy the second prong of the analysis, namely, showing the defendant has sufficient minimum contacts with [the] state to satisfy due process.” Astro Aluminum Treating Co., Inc. v. Inter Contal, Inc., 296 So. 3d 462 (Fla. 4th DCA 2020) (emphasis added).
- Once sufficient minimum contacts with Florida have been established, Florida’s long-arm statute enumerates certain acts that cause a nonresident to submit herself to the jurisdiction of the Court in Florida. § 48.193(1), Fla. Stat.
- The Second District found in Strober that sufficient minimum contacts existed so as to allow the Court to exercise jurisdiction over the Respondent and overturned the lower court. Specifically, the Second District found that sufficient minimum contacts existed by (1) the respondent interviewed the petitioner, a Florida resident, on his YouTube channel, which reaches Florida viewers and from which he earned a significant income; (2) the respondent posted numerous videos that were demeaning in nature and criticized the petitioner and were made specifically to frustrate the petitioner; (3) the respondent did not dispute the authenticity or accuracy of the videos played during the hearing, which included him asking his viewers to confront the petitioner in public, inviting the petitioner to sue him, and asking for monetary donations to further his dispute with the petitioner.
- In the instant case, because the Petitioner failed to allege any jurisdictional facts supporting the court’s personal jurisdiction over the Respondent, the Court cannot proceed to the second prong of the long-arm jurisdiction test. The Court simply does not have personal jurisdiction over the Respondent under the long-arm statute.
- Even if the Petitioner had alleged sufficient jurisdictional facts in his Petition, the Court still could not establish long-arm personal jurisdiction over the Respondent because the Respondent lacks sufficient minimum contacts for the Court to do so.
- Even still, if the Petitioner had satisfied both steps to establish personal jurisdiction under the long-arm statute, the Petitioner has neither alleged nor as the Respondent committed, any of the enumerated statutory acts that would submit her to this Court’s jurisdiction.
- For the reasons set forth above, the Respondent requests the Court dismiss the Petitioner’s Petition.
- The Respondent has signed under oath an Affidavit in support of this Motion to Dismiss, which is attached hereto and incorporated by reference herein as Exhibit A.
WHEREFORE the Respondent hereby requests this Court enter an Order:
- Dismissing the Petitioner’s Petition for Injunction for Protection Against Domestic Violence; and
- Award the Respondent any additional relief this Court deems fair, just, and reasonable.
Finding a Lawyer for Injunction Cases in Tampa, FL
If you have been served with a petition for an injunction for protection or restraining order filed in the State of Florida but served on you while you reside out of state, you should contact an experienced attorney to file a motion to dismiss the injunction prior to the hearing.
You may be able to avoid coming to the State of Florida to defend the action with the help of an experienced domestic violence attorney.
Read more about fighting petitions for a protective order in Tampa or Plant City, in Hillsborough County, FL.
We have a second office in New Port Richey, and fight injunctions for a protective order in Pasco County, FL. We also represent clients in all of the surrounding counties including Hernando County, Pinellas County, and Polk County, FL.
Call us at (813) 250-0500 to find out what we can do to help you today.
This article was last updated on Wednesday, October 5, 2022.