          Case: 12-14858   Date Filed: 09/17/2013   Page: 1 of 25


                                                         [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14858
                      ________________________

                  D.C. Docket No. 9:11-cv-81138-KLR



JUAN MELGAREJO,


                                                           Plaintiff-Appellant,

                                  versus


PYCSA PANAMA, S.A.,


                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                           (September 17, 2013)
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Before HULL and MARTIN, Circuit Judges, and HINKLE, ∗ District Judge.

PER CURIAM:

       Plaintiff-Appellant Juan Melgarejo appeals the dismissal of his complaint for

lack of personal jurisdiction over Defendant-Appellee Pycsa Panama, S.A. After

careful review, and with the benefit of oral argument, we affirm.

                     I. FACTS AND PROCEDURAL HISTORY

       This appeal involves Florida’s Long Arm Statute. See Fla. Stat. § 48.193.

Under subsection (2), courts in Florida have “general jurisdiction” over a non-

resident defendant if that defendant engages in “substantial and not isolated”

activity in Florida, whether or not the cause of action arose from that Florida

activity. Id. § 48.193(2). But, even if a defendant does not engage in substantial

activity in Florida, Florida courts have specific jurisdiction over a defendant if the

asserted cause of action “arises from” that defendant’s “conducting” or “carrying

on” a business in Florida or having “an office or agency” in Florida. Id.

§ 48.193(1)(a)(1) (emphasis added).

       With that background, we set forth some information about the parties and

then describe the events that gave rise to Melgarejo’s cause of action here,

highlighting the facts relevant to our personal jurisdiction analysis. 1



       ∗
         Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
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A.     The Parties

       Defendant Pycsa Panama, S.A. (“Pycsa”) is a Panamanian corporation

whose headquarters are in Panama City, Panama. It is a wholly owned subsidiary

of Pycsa International, Limited (“Pycsa International”), a Cayman Islands

corporation. Pycsa International is owned by Mayford Development, Limited

(“Mayford Development”), a Bahamas corporation.

       In 1994, Panama’s Ministry of Public Works awarded a contract to

defendant Pycsa to design, construct, maintain, and operate a tollway around

Panama City, Panama. This project consisted of two segments—the Northern

Corridor and the Panama-Colon Highway, also referred to as the Madden

Segment. 2 All work for the project was to be conducted in Panama.




       1
         The evidence before the district court included, inter alia: (1) the 1997 employment
agreement between plaintiff Melgarejo and defendant Pycsa; (2) an April 2012 affidavit of
Charles Haddad, the chief executive officer of Pycsa since 2009; (3) the April 2012 and June
2012 affidavits of Maximo Haddad, the president of a company owned by the same parent
company as Pycsa and the former president of Pycsa; (4) an affidavit submitted by plaintiff
Melgarejo; (5) a copy of a complaint filed by Pycsa in another case in the Southern District of
Florida; and (6) an affidavit of a Panamanian attorney stating his opinion that the Panama
judicial system is corrupt. We base our description of the facts on these materials and the district
court’s findings of fact.
       2
          In an affidavit, Pycsa’s current chief executive officer stated that the two parts of the
tollway project were the “Northern Corridor” and the “Panama-Colon Highway.” However,
other record evidence states that the two parts were the “Northern Corridor” and the “Madden
Project” or “Madden Segment.” Nothing in the record addresses this discrepancy. However, in
its brief to this Court, Pycsa agrees that the tollway project consisted of the “Northern Corridor”
and the “Madden Segment.” Accordingly, we assume that the “Panama-Colon Highway” and
the “Madden Segment” refer to the same project.
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      Plaintiff Melgarejo is a professional engineer who holds a Ph.D. from the

University of Michigan. He became a full-time resident of Florida in 1989. From

1989 until 1996, Melgarejo lived in Orlando, Florida, and in 1996, Melgarejo

moved to Singer Island, Florida. From 1991 until 2002, he also maintained a home

in Mexico City, Mexico. Since 2002, Melgarejo has lived with his family in

Weston, Florida.

B.    The 1997 Employment Agreement

      On October 6, 1997, plaintiff Pycsa hired defendant Melgarejo to serve as its

“Director” and to manage the Panama tollway project. Pycsa and Melgarejo

entered into an employment agreement (the “agreement”), which required

Melgarejo to “devote [his] time and effort to managing Construction of the Project

. . . necessary to efficiently bring the Project to Completion and into Operation.”

The agreement defined “Completion” as “the later of Completion . . . of the

Northern Corridor and Completion . . . of the Madden Segment.” The agreement

required Melgarejo to “follow all directions of [Pycsa’s] board of directors” and

“inform the board of directors of [Pycsa’s] affairs.” The agreement provided that

Panamanian law governed.

      Under the agreement, plaintiff Melgarejo was to receive $250,000 (in United

States currency) upon completion of the Northern Corridor and that same amount

upon completion of the Madden Segment. Additionally, Melgarejo was entitled to

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$500,000 (in United States currency) if other debt-service related criteria were met.

The agreement required that defendant Pycsa provide Melgarejo with: (1) “an

automobile in Panama”; (2) “air transport . . . to and from [his] home to Panama”;

(3) “lodging in Panama”; and (4) reimbursements for all “travel, business and other

expenses reasonably incurred in connection with [his] services to [Pycsa].”

Compensation under the agreement was to be “paid only from [bond]

Distributions.”

      It is undisputed that the parties signed the agreement at the Panamanian

Consulate in New York, New York. However, there is conflicting evidence as to

where the parties negotiated the agreement prior to signing it.

      In affidavit testimony, plaintiff Melgarejo stated that he “negotiated [the

agreement] in New York City, Palm Beach, Florida, and Panama in meetings and

telephone conversations with Max Haddad, then President of PYCSA, and

PYCSA’s New York counsel, David Spencer.” 3 Melgarejo stated that, during the

course of these negotiations, he “met with Mr. Spencer in New York City (and not

just at the Panamanian Consul, but on U.S. soil), with Max Haddad at his home in

Palm Beach, Florida, and also in Panama.” Melgarejo claimed that he “spoke with

Mr. Spencer many times by telephone from [Melgarejo’s] home in Singer Island,

Florida, as well as from [his] home in Mexico City, Mexico.”


      3
          Melgarejo is Maximo Haddad’s nephew.
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      In contrast, Maximo Haddad stated that he, as Pycsa’s president, signed the

employment agreement and never met “with [Melgarejo] in Florida or New York

to discuss or negotiate the terms of the contract.” In particular, Haddad stated that

“[a]ll negotiations between Pycsa and Melgarejo prior to the signing of the contract

were conducted in Panama or Mexico City.” Haddad acknowledged that he had a

home in Florida, but stated that his primary residence was in Panama City, Panama

and that he spent only “limited time” at his Florida residence.

C.    2001 Termination of the Agreement and 2010 Panama Suit

      From 1997 until 2001, plaintiff Melgarejo performed his work under the

agreement. During that time, all of the work that Melgarejo did for defendant

Pycsa occurred in either Panama or Mexico. On July 1, 2001, he voluntarily

resigned his position with Pycsa. After Melgarejo did so, it is undisputed that

Pycsa did not pay him any of the sums set forth in the agreement. At some point,

Pycsa informed Melgarejo that it would not pay him for his work.

      On approximately July 30, 2010, over nine years after he voluntarily

terminated the agreement, Melgarejo filed a complaint in Panamanian court (the

“Panama suit”). In the Panama suit, Melgarejo claimed that Pycsa had breached

the agreement. He sought to recover compensation allegedly owed under the

agreement. As of 2012, that lawsuit remained pending in Panama and the parties

had filed responses and begun discovery. However, Melgarejo testified in an

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affidavit that he “[did] not believe that [he] can obtain a fair hearing or justice from

the Panamanian courts against PYCSA because [he] [is] not wealthy or as well-

connected as . . . PYCSA.”

D.    Melgarejo’s 2011 Federal Complaint

      Over a year after filing the Panama suit, on October 12, 2011, Melgarejo

filed a complaint in the United States District Court for the Southern District of

Florida (the “federal complaint”). Melgarejo’s federal complaint contained three

anticipatory breach of contract claims, each one based on the agreement. For all

claims, Melgarejo sought a total of $1,000,000—the maximum compensation

possible under the agreement. The claims and requested relief in Melgarejo’s

federal complaint are substantially identical to the claims and requested relief in

Melgarejo’s Panama suit.

      Melgarejo’s federal complaint alleged that the district court had personal

jurisdiction over defendant Pycsa in Florida because: (1) Pycsa had “an office or

agency in [Florida]”; (2) Pycsa “utilized its affiliate office in Miami, Florida to

receive mail in the United States in connection with the subject matter of Dr.

Melgarejo’s contract with PYCSA and to coordinate portions of the project that Dr.

Melgarejo managed”; and (3) Pycsa had “purposefully availed itself of the benefits

and protections of [the Southern District of Florida] by filing a lawsuit in [the]

district in connection with the project, styled Pycsa Panama, S.A. v. Tensar Earth

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Techno, U.S. District Court for the Southern District of Florida, Civil Action No.:

1:06-cv-20624-ASG” (the “Tensar case”). For these reasons, Melgarejo contended

that personal jurisdiction existed over defendant Pycsa under Florida’s Long-Arm

Statute, Fla. Stat. § 48.193(1)(a).

      The federal complaint alleged that “[Pycsa] has sufficient continuous and

systematic contacts with Florida so that general jurisdiction exists and Panama is

not an available alternative forum because Panama’s judicial system is corrupt and

its problems would preclude [Melgarejo] the fair and reasonably expeditious

adjudication of his claims.”

E.    Pycsa’s Motion to Dismiss for Lack of Personal Jurisdiction

      Defendant Pycsa responded with a motion to dismiss for lack of personal

jurisdiction under Federal Rule of Civil Procedure 12(b)(2), or in the alternative,

on forum non conveniens grounds.

      Defendant Pycsa’s evidence, attached to its motion, showed that Pycsa: (1)

“has never had an office, sales representative, agent or employees in Florida”; (2)

“has no mailing address or telephone number or listing in Florida”; (3) “owns no

real property in the United States”; (4) “does not have a bank account in Florida”;

(5) “has never had a banking relationship with any United States institution with

the exception of the Bank of New York, solely in connection with the Indenture




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dated October 6, 1997”; and (6) “has never owned any of the bonds issued by any

U.S. institution.”

      Although Pycsa itself did not have “an office or agency” in Florida, Pysca

acknowledged that “it did utilize in the past an affiliate’s office as a matter of

convenience for the limited purpose of receiving U.S. correspondence and

facilitating the procurement of materials for shipment abroad.” That “affiliate”

was MHMS Incorporated (“MHMS”).

      In an affidavit, Pycsa’s former president, Maximo Haddad, stated that he has

served as the president of MHMS since 2002. Haddad’s affidavit states that: (1)

MHMS is an Arizona corporation, which owns and operates an office complex in

California; (2) Pycsa International, a Cayman Islands corporation, owns both Pycsa

and MHMS; but (3) MHMS “does not conduct, and has never conducted, business

with or for [defendant] Pycsa”; and (4) MHMS “has never conducted business with

[plaintiff] Melgarejo” and “has no involvement with toll road projects located in

Panama.”

      In his affidavit, Haddad acknowledged that “MHMS did lease and maintain

a small office located at 200 So. Biscayne Blvd., 27th Floor, Miami, Florida, from

May 2003 until August 2008, which was used for the company’s business.” But,

“[t]o the best of his knowledge, the office was never used by Pycsa . . . or . . .




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Melgarejo, other than Pycsa receiving mail or ordering some materials for use in

Panama.”

      Regarding MHMS’s office in Florida, Pycsa emphasized that: (1) “MHMS

did not perform any business activities on behalf of Pycsa”; (2) MHMS “is a

completely separate entity from Pycsa”; (3) MHMS “has no ties to Pycsa other

than a shared corporate parent”; and (4) MHMS’s activity in Florida cannot be

attributed to Pycsa.

      Defendant Pycsa’s motion also addressed its lawsuit in Florida: the Tensar

case. Pycsa filed that lawsuit against Tensar, the manufacturer of retaining wall

systems, alleging claims based on the failure of Tensar’s retaining walls. Pycsa

pointed out that the Tensar case involved a completely different subject matter than

the employment contract in dispute with Melgarjo. Pycsa further argued that its

contacts with Florida were insufficient to satisfy the due process test for personal

jurisdiction.

F.    Melgarejo’s Response in Opposition to Pycsa’s Motion to Dismiss

      In response to Pycsa’s motion to dismiss, plaintiff Melgarejo filed a copy of

Pycsa’s complaint in the Tensar case. The Tensar case involved claims of products

liability, negligence, negligent hiring, and negligent supervision. Each claim was

based on the collapse of two Tensar retaining walls that Pycsa used in constructing




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the Northern Corridor (which was one of the projects that Melgarejo managed

between 1997 and 2001).

      Pycsa’s Tensar complaint alleged that, in 2002, Tensar approached Pycsa

about providing retaining walls for the Northern Corridor project. Melgarejo had

already left Pycsa in 2001. Pycsa hired Tensar in 2002 and used Tensar retaining

walls at places in Panama. In 2003 and 2004, two of those retaining walls

collapsed.

      In its Tensar complaint, Pycsa stated that it was a Panamanian corporation

with its principal place of business in Panama, but that, during “all times relevant

hereto, Pycsa utilized its affiliate office in Miami, Florida to receive mail in the

United States and to coordinate the procurement and shipment of U.S. materials,

including those materials utilized by Tensar in implementing the . . . retaining wall

system at issue herein.”

      Thus, Melgarejo argued that personal jurisdiction over Pycsa was

appropriate under Florida’s Long-Arm Statute “because Pycsa used its affiliate’s

office in Miami to receive mail and procure supplies in connection with the

construction of the Panamanian toll roads that are the subject of Dr. Melgarejo’s

contract claim.” Melgarejo also asserted that the Due Process Clause was satisfied

because Pycsa had “conducted, engaged in and carried on business in Florida in

connection with building the Panamanian toll roads.”

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G.    District Court’s Personal Jurisdiction Order

      The district court granted defendant Pycsa’s motion to dismiss for lack of

personal jurisdiction over Pycsa in Florida. The district court quoted subsection

1(a)(1) of Fla. Stat. § 48.193, which provides that Florida courts have personal

jurisdiction over a non-resident defendant when the claims arise from the non-

resident defendant’s operating or carrying on a business within Florida, or having

an “office or agency” in the state. Fla. Stat. § 48.193(1)(a)(1). The district court

concluded that, under Florida’s Long-Arm Statute, there was no specific personal

jurisdiction over defendant Pycsa because plaintiff Melgarejo’s claims “do not

arise out of Pycsa’s business activities in Florida.” The district court made a

finding that “MHMS is a completely separate company and is only affiliated with

Pycsa in that they share a common corporate parent” and “MHMS’s office was

used by Pycsa sparingly in the past, but never for any meetings, negotiations, or

supervision of the contract involving Pycsa and [Melgarejo].”

      The district court also found that Florida’s Long-Arm Statute did not allow

for general personal jurisdiction over Pycsa in Florida because “Pycsa’s minimal

use of an affiliate’s office to perform ministerial tasks unrelated to the

[employment] contract in no way amount[ed] to the level of ‘substantial and not

isolated activity’ within [Florida] that is required to establish general jurisdiction

over a foreign, non-resident defendant.”

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      Although the district court found statutory jurisdiction under Florida law

lacking, it also rendered an alternative holding that exercising personal jurisdiction

over Pycsa in Florida would violate the Fourteenth Amendment’s Due Process

Clause. This was because “Pycsa does not conduct, engage in, or carry on business

in Florida” and plaintiff Melgarejo’s claims “do not arise out of any activities

Pycsa performed (or failed to perform) in Florida.” Thus, there was no “reasonable

basis for Pycsa to anticipate being haled into court in Florida.” The district court

concluded that exercising personal jurisdiction over defendant Pycsa in Florida

would not comport with “fair play and substantial justice” because “Pycsa would

be greatly burdened by having to come from Panama to defend a lawsuit in

Florida.” This was particularly true when Melgarejo could “easily and effectively

obtain relief in Panama for his alleged damages, seeing as he has already

commenced litigation in Panama arising out of the same subject matter.”

      The district court thus dismissed Melgarejo’s complaint for lack of personal

jurisdiction and did not consider Pycsa’s alternative ground for dismissal—forum

non conveniens.

      Melgarejo timely appealed.

                                 II. DISCUSSION

A.    Personal Jurisdiction Questions




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       We consider two questions in resolving whether personal jurisdiction exists.

See Mutual Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir.

2004). 4 “First, we determine whether the exercise of jurisdiction is appropriate

under the forum state’s long-arm statute.” Id. “Second, we examine whether the

exercise of personal jurisdiction over the defendant would violate the Due Process

Clause of the Fourteenth Amendment to the United States Constitution . . . .” Id.

The Due Process Clause “requires that the defendant have minimum contacts with

the forum state and that the exercise of jurisdiction over the defendant does not

offend traditional notions of fair play and substantial justice.” Id. (internal

quotation marks and citations omitted).

B.     Florida’s Long-Arm Statute

       Because Florida is the forum state, we start our analysis with Florida’s

Long-Arm Statute. See Fla. Stat. § 48.193. “Florida’s long-arm statute is to be

strictly construed.” Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th

Cir. 1996).


       4
         “[T]he issue of whether personal jurisdiction is present is a question of law and subject
to de novo review.” Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th Cir.
2009). “Findings of fact that bear on personal jurisdiction are reviewed for clear error.” Merial
Ltd. v. Cipla Ltd., 681 F.3d 1283, 1292 (11th Cir. 2012). A plaintiff seeking to establish
personal jurisdiction over a nonresident defendant “bears the initial burden of alleging in the
complaint sufficient facts to make out a prima facie case of jurisdiction.” United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). In a case like this one, where a defendant
challenges personal jurisdiction “by submitting affidavit evidence in support of its position, the
burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction.” Id.
(internal quotation marks and citation omitted).
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       On appeal, plaintiff Melgarejo relies only on subsection (1)(a)(1) of

Florida’s Long-Arm Statute, which, as noted before, provides that courts may

exercise personal jurisdiction over a non-resident defendant “for any cause of

action arising from” any of the following acts: “[o]perating, conducting, engaging

in, or carrying on a business or business venture in [Florida] or having an office or

agency in [Florida].” Id. § 48.193(1)(a)(1). 5 Thus, to establish personal

jurisdiction under Fla. Stat. § 48.193(1)(a)(1), the cause of action must arise from

the defendant’s business activity.

       Because the reach of Florida’s Long-Arm Statute “is a question of Florida

law,” this Court, sitting in diversity jurisdiction, is required to construe the statute

“as would the Florida Supreme Court.” United Techs., 556 F.3d at 1274 (internal

quotation marks and citation omitted). We are also bound to adhere to the

interpretations of Florida’s Long-Arm Statute offered by Florida’s District Courts

of Appeal “[a]bsent some indication that the Florida Supreme Court would hold

otherwise.” Id. (internal quotation marks and citation omitted).

       The Florida Supreme Court has explained that determining whether

jurisdiction is appropriate under Florida’s Long-Arm Statute is a separate inquiry

from determining whether exercising personal jurisdiction comports with the Due

       5
        While before the district court Melgarejo argued for general jurisdiction under Fla. Stat.
§ 48.193(2), he apparently has abandoned those arguments on appeal. Thus, we consider only
whether specific personal jurisdiction exists under Fla. Stat. § 48.193(1)(a)(1). To the extent that
Melgarejo does attempt to make a general jurisdiction argument, such an argument is meritless.
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Process Clause. See Internet Solutions Corp. v. Marshall, 39 So. 3d 1201, 1207

(Fla. 2010) (“[T]he federal due process analysis is not built into Florida’s long-arm

statute . . . .”); see also Cable/Home Commc’n Corp. v. Network Prods., Inc., 902

F.2d 829, 856 (11th Cir. 1990).

      Accordingly, “[t]he mere proof of any one of the several circumstances

enumerated in [Florida’s Long-Arm Statute] as the basis for obtaining jurisdiction

of nonresidents does not automatically satisfy the due process requirement of

minimum contacts.” Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla.

1989). In short, the Due Process Clause “imposes a more restrictive requirement”

than does Florida’s Long-Arm Statute. Internet Solutions, 39 So. 3d at 1207

(internal quotation marks and citation omitted).

C.    Florida Long-Arm Statute Analysis

      With these background principles in mind, we turn to whether defendant

Pycsa was conducting business in Florida and whether Melgarejo’s claims arise

from that business.

      To establish that a defendant is “conducting” or “carrying on a business” for

the purposes of Fla. Stat. § 48.193(1)(a)(1), “the activities of the defendant must be

considered collectively and show a general course of business activity in the state

for pecuniary benefit.” Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d




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1247, 1249 (11th Cir. 2000) (applying Fla. Stat. § 48.193(1)(a)(1) in diversity

jurisdiction case).

      We previously identified factors relevant to whether a plaintiff has shown a

defendant’s “general course of business activity,” including: (1) “the presence and

operation of an office in Florida,” (2) “the possession and maintenance of a license

to do business in Florida,” (3) “the number of Florida clients served,” and (4) “the

percentage of overall revenue gleaned from Florida clients.” Horizon Aggressive

Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1167 (11th Cir. 2005)

(applying Fla. Stat. § 48.193(1)(a)(1) in diversity jurisdiction case) (citing Milberg

Factors, Inc. v. Greenbaum, 585 So. 2d 1089, 1091 (Fla. 3d DCA 1991); Hobbs v.

Don Mealey Chevrolet, Inc., 642 So. 2d 1149, 1153 (Fla. 5th DCA 1994);

Sculptchair, 94 F.3d at 628). It is undisputed that, during the relevant period,

Pycsa had no Florida business license, served no Florida clients, and thus did not

glean any revenue from Florida clients.

      Melgarejo places great weight on the first factor and cites Pycsa’s statement

in the Tensar lawsuit (and its subsequent admission in this lawsuit) about having an

“affiliate office in Miami.” Melgarejo contends that this statement reveals that

Pycsa had an office in Florida. The record, however, shows that this was not the

case. Although MHMS had a small Miami office, the district court found that

Pycsa conducted only occasional and insignificant business operations from

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MHMS’s Miami office. Pycsa’s use of the MHMS office does not establish the

sort of “general course of business activity” necessary for personal jurisdiction

under Fla. Stat. § 48.193(1)(a)(1). See Future Tech., 218 F.3d at 1249.

Additionally, MHMS’s Miami business operations are not attributed to Pycsa, as

MHMS and Pycsa are separate corporate entities whose only connection is a

common corporate parent.

      Moreover, even though Pycsa did conduct some business through MHMS’s

Miami office, there is nothing in the record linking those business operations with

Melgarejo’s cause of action in this case. Florida’s Long-Arm Statute requires that

a plaintiff’s claim “aris[e] from” a non-resident defendant’s Florida-based business

operations. Fla. Stat. § 48.193(1)(a). Florida’s First District Court of Appeal has

explained that although the term “‘arising from’ is broad,” it nevertheless “requires

a ‘direct affiliation,’ ‘nexus,’ or ‘substantial connection’ to exist between the basis

for the cause of action and the business activity.” Citicorp Ins. Brokers (Marine),

Ltd. v. Charman, 635 So. 2d 79, 82 (Fla. 1st DCA 1994) (internal quotation marks

omitted). The record reveals only that Pycsa used MHMS’s office to receive mail

and order some materials for use in Panama. There is no evidence that the mail or

materials received in that affiliate office had anything to do with Melgarejo’s

employment contract. The district court did not, and we cannot infer from these




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facts that the mail that Pycsa received or the materials that it ordered were

substantially connected to Melgarejo’s employment with Pycsa.

      Melgarejo also contends that he was Pycsa’s “agent” within the meaning of

the Florida statute and that personal jurisdiction over Pycsa exists because

Melgarejo performed business activities on Pycsa’s behalf in Florida. Notably,

Melgarejo did not raise this argument before the district court. “It is well

established in this circuit that, absent extraordinary circumstances, legal theories

and arguments not raised squarely before the district court cannot be broached for

the first time on appeal.” Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009).

Even if we were to consider the merits of this argument, we would reject it.

Nothing in the record suggests that Melgarejo was Pycsa’s agent in Florida or that

he conducted any business for Pycsa there.

      Next, plaintiff Melgarejo argues that personal jurisdiction exists because his

claims arise from an employment contract between a non-resident defendant and a

Florida resident, which, according to Melgarejo, was partially negotiated in

Florida. This argument also fails. Even if we “construe all reasonable inferences”

in favor of Melgarejo, see Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d

1264, 1269 (11th Cir. 2002), and accept as true his statement that some contract

negotiations occurred in Florida, this fact alone does not establish that Pycsa was

conducting or carrying on a business in Florida, as Fla. Stat. § 48.193(1)(a)(1)

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requires, see Future Tech., 218 F.3d at 1249. 6 In Sculptchair, we held that the non-

resident defendant was not “carrying on a business or business venture in Florida”

when her only ties to Florida were “a series of telephone conversations with [the

president of the plaintiff-company’s] Florida office and a one-hour meeting to

facilitate a contract to be performed wholly in Canada.” 94 F.3d at 628. Similarly

here, even if some Pycsa official visited Florida for the specific purpose of

negotiating with Melgarejo, “[w]e have no difficulty concluding that [Pycsa’s]

limited . . . activities fail to qualify as carrying on a business or business venture in

Florida.” See id.7

       To the extent that Melgarejo raises an additional argument that by filing a

complaint in Florida, Pycsa subjected itself to personal jurisdiction in Florida as to

future claims involving a similar subject-matter, this argument also fails. 8


       6
        And there was no evidence that Melgarejo personally ever went to the affiliate office and
no evidence that any negotiation for his employment agreement occurred in that affiliate office.
       7
        The district court rejected this argument, stating: “[t]he contract was negotiated between
Maximo Haddad and [Melgarejo] in meetings held in Panama and Mexico, and Pycsa denies that
any negotiations involving this contract ever took place in Florida.” We could construe this
statement as an implied finding of fact that contract negotiations did not occur in Florida. Based
on the undisputed facts in the record—the agreement pertained to construction projects in
Panama, Pycsa had no employees or more than de minimis business operations in Florida, the
agreement was not signed in Florida, Pycsa’s counsel was not located in Florida—we would not
then say that the finding was clearly erroneous. See Merial Ltd., 681 F.3d at 1292. However,
even without construing the district court’s order as containing such a finding of fact, the
argument fails.
       8
        It is unclear from Melgarejo’s briefs on appeal whether or not he attempts to assert such
an argument. On the one hand, Melgarejo points out that Pycsa sued Tensar in Florida and
argues that “it [is] fair to litigate in Florida today what was litigated yesterday, unless there is
something today that makes Florida an inconvenient forum.” However, Melgarejo also
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       It is well-settled under Florida law that filing suit in Florida subjects a party

to jurisdiction regarding “such lawful orders which are thereafter entered with

respect to the subject matter of the action.” Trs. of Columbia Univ. in the City of

N.Y. v. Ocean World, S.A., 12 So. 3d 788 (Fla. 4th DCA 2009) (internal quotation

marks and citation omitted). However, “[a] current defendant’s prior decision to

bring a suit in Florida should not act indefinitely as a sword of Damocles hanging

perilously over the head of that defendant if [it] later challenges jurisdiction in a

separate suit (albeit a suit arising from the same subject matter).” Gibbons v.

Brown, 716 So. 2d 868, 870 (Fla. 1st DCA 1998).

       In Gibbons, the state appellate court held that, by bringing claims in Florida

state court based on a car accident that had occurred in Canada, the non-resident

defendant, Gibbons, had not subjected herself to personal jurisdiction in Florida

regarding all future claims based on that same car accident. Id. at 870–71. The

state appellate court found that there was no personal jurisdiction based on two

facts: (1) Gibbons had filed her suit two years earlier; and (2) plaintiff Brown, had

not been a party to Gibbons’s earlier action. Id. at 871.




acknowledges that “[s]uing in Florida is not by itself a basis for continuing jurisdiction over the
plaintiff in a later case.” Melgarejo’s statements are difficult to reconcile. Construing his briefs
liberally, we address any argument that he may attempt to make regarding the effect of the
Tensar case in our personal jurisdiction analysis.
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      Similarly here, Pycsa filed its Tensar lawsuit more than five years before

Melgarejo filed his complaint in this case. Moreover, Melgarejo was not a party to

the Tensar case. Accordingly, the Tensar case does not “act indefinitely as a sword

of Damocles hanging perilously over” Pycsa’s head, precluding it from

successfully contesting personal jurisdiction in future cases like this one. See

Gibbons, 716 So. 2d at 870.

      Because the district court properly concluded there is no basis for specific

personal jurisdiction under Fla. Stat. § 48.193(1)(a)(1), we do not reach the second

question of the personal jurisdiction analysis—whether such an exercise of

personal jurisdiction would be constitutional. See Madara v. Hall, 916 F.2d 1510,

1514 (11th Cir. 1990) (“Only if both prongs of the analysis are satisfied may a

federal or state court exercise personal jurisdiction over a nonresident defendant.”).

D.    Forum Non Conveniens Issue

      We also do not address Pycsa’s alternative grounds for dismissal: the forum

non conveniens doctrine. The district court held that there was no personal

jurisdiction, and we find no error in that decision.

      On appeal, Melgarejo maintains that “[t]he District Court abused its

discretion by granting [Pycsa’s] motion to dismiss under the doctrine of forum non

conveniens.” Melgarejo further maintains that the district court erred by failing to

consider evidentiary materials that he submitted which were relevant to the forum

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non conveniens issue, including affidavits and documents describing corruption in

Panama’s court system. Melgarejo is wrong. The district court properly declined

to rule on the forum non conveniens issue. It is settled that “the doctrine of forum

non conveniens can never apply if there is absence of [personal] jurisdiction.”

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 67 S. Ct. 839, 841 (1947). By

finding a lack of personal jurisdiction, the district court necessarily concluded that

the doctrine of forum non conveniens did not apply and, thus, did not need to

consider evidence relevant to that issue. 9

       Because the district court lacked personal jurisdiction over Pycsa, we also

decline to consider issues relevant only to the forum non conveniens analysis, such

as the availability of “an adequate alternative forum” and whether a plaintiff can

“reinstate [its] suit in the alternative forum without undue inconvenience or

prejudice.” See Galbert v. W. Caribbean Airways, 715 F.3d 1290, 1295 (11th Cir.

2013).

E.     District Court’s Failure to Hold an Evidentiary Hearing

       The district court ruled on Pycsa’s motion to dismiss without holding an

evidentiary hearing to resolve disputed jurisdictional facts. Melgarejo argues that

this is reversible error. We disagree.

       9
        The district court did discuss whether Melgarejo could bring his claims in an alternative
forum and the burden on Pycsa of having to litigate the case in Florida. These issues are
potentially relevant in a forum non conveniens analysis. However, the district court discussed
them under the rubric of due process, not forum non conveniens.
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       This Court has previously explained that “when a defendant moves to

dismiss for lack of personal jurisdiction, an evidentiary hearing is not required.”

Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 n.6 (11th Cir. 2004).

When a district court does not hold a hearing, “the plaintiff must establish a prima

facie case of personal jurisdiction” by presenting “sufficient evidence by way of

affidavits or deposition testimony to survive a motion for a directed verdict.” Id.

A district court then “must construe the allegations in the complaint as true if they

are not contradicted by [the] defendant’s evidence.” Id. When there is conflicting

evidence, “the district court must construe all reasonable inferences in favor of

[the] plaintiff.” Id.

       The district court followed this procedure here. After Pycsa challenged

personal jurisdiction, the district court gave Melgarejo an opportunity to respond

with evidentiary materials sufficient to establish a prima facie case of personal

jurisdiction. Although there was conflicting evidence, the district court did not fail

to “construe all reasonable inferences in favor of [Melgarejo].” See id.

Accordingly, the district court did not err by failing to hold an evidentiary hearing.

       Alternatively, any error based on the district court’s failure to conduct an

evidentiary hearing was harmless. Had the district court conducted a hearing and

found credible Melgarejo’s testimony that contract negotiations occurred in




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Florida, that finding would not have changed the district court’s personal

jurisdiction analysis, for the reasons that we discussed above.

                                 III. CONCLUSION

      In sum, we affirm the district court’s dismissal for lack of personal

jurisdiction.

      AFFIRMED.




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