       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

 MATTHEW WARE, JESSICA BELL, TEREZA LANDRUM, CAROLINE
 WELLS, CALLI PASTOR, JAMES JACOBS and JESSE CAMBPELL,
                        Appellants,

                                    v.

                        CITRIX SYSTEMS, INC.,
                               Appellee.

                             No. 4D18-1372

                           [November 7, 2018]

  Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Jack B. Tuter, Judge; L.T. Case No.
CACE 17-018715 (07).

   James A. Gale, Samuel A. Lewis, and David M. Stahl of Cozen
O’Connor, Miami, for appellants.

   April Boyer and Yamilet Hurtado of K&L Gates LLP, Miami, for appellee.

GROSS, J.

   We confront an increasingly common factual scenario: whether Florida
can assert personal jurisdiction over the defendant employees of a Florida
company who work remotely in another state and whose contacts with
Florida are something less concrete than those of an employee physically
located in the state.

   In this case, a Florida corporation sued seven former employees who
reside in North Carolina. The employees challenged Florida’s personal
jurisdiction over them in a motion to dismiss. The two sides filed
competing affidavits. The trial court denied the defendants’ motion
without holding an evidentiary hearing. We reverse because the facts that
emerge from the clash of affidavits cannot be harmonized in order to
establish personal jurisdiction. On remand, the circuit court shall hold a
limited evidentiary hearing on the jurisdictional issue.

   The appellants here are all former employees of Citrix Systems, Inc., a
software company with its principal place of business in Broward County,
Florida. All seven appellants worked in sales at the company’s office in
Raleigh, North Carolina, and are North Carolina residents. This suit arose
when the appellants left Citrix to work for another software company,
Egnyte. Egnyte is a Delaware company with its principal place of business
in California, but the appellants all work out of its North Carolina office.

   Citrix sued the appellants in Broward County, claiming breach of
contract, misappropriation of trade secrets, unfair and deceptive trade
practices, conversion, and unjust enrichment. Citrix alleged that the
appellants had accessed confidential business information from their
Citrix ShareFile 1 accounts and later shared that information with Egnyte.

   Citrix contends that in leaving Citrix for Egnyte, the appellants violated
their non-compete agreements. Those agreements all contain the same
forum selection clause:
       I understand that this Agreement will be governed by,
       construed and enforced in accordance with the laws of the
       State of Florida, where Citrix’s corporate headquarters are
       located, without regard to its principles of conflict of laws. I
       agree that any action, suit or proceeding, including but not
       limited to any proceeding for injunctive or declaratory relief,
       arising out of this Agreement, shall be initiated only in the
       state or federal courts located in Broward County in the State
       of Florida, and I waive any objection (including objections
       regarding lack of personal jurisdiction and objection to the
       convenience of the forum) that I may now or hereafter have to
       such venue or jurisdiction in any action, suit or proceeding
       brought in any State or federal court located in Broward
       County, Florida. I hereby specifically consent to appear in the
       state and federal courts of the State of Florida and agree that
       this Agreement as well as such other contact I have had with
       the State of Florida is sufficient to provide me with notice that
       the state or federal courts located in Broward County, in the
       State of Florida, will be the forum for any action, suit or
       proceeding arising out of this Agreement.

    Citrix pleaded several bases for jurisdiction in its complaint:


1
 ShareFile is the Citrix product the appellants sold while working for Citrix. It is
an online server-based storage system that allows users to access files by logging
into a secure system from a computer. In the course of their employment with
Citrix, each of the appellants had access to a ShareFile account used to store
both professional and personal information.

                                       -2-
   •   Appellants consented to jurisdiction via the forum selection clause.
   •   Appellants “engaged in or conducted business in Florida” and “had
       substantial contacts with Florida” while employed by Citrix.
   •   A substantial part of the appellants’ tortious conduct was directed
       to Florida and caused damage in Florida and “some of the tortious
       conduct” occurred in Florida.
   •   Appellants “would have had access to and used applications and IT
       services delivered from servers and other IT resources housed in
       Florida.”
   •   Appellants breached contractual obligations to a Florida company.

   We review de novo a trial court’s denial of a motion to dismiss for lack
of personal jurisdiction. Dickinson Wright, PLLC v. Third Reef Holdings,
LLC, 244 So. 3d 303, 306 (Fla. 4th DCA 2018).

   Among its bases for jurisdiction, Citrix’s complaint pleads three
statutory grounds for long-arm jurisdiction, alleging that the appellants:
       1. Operat[ed], conduct[ed], engag[ed] in, or carr[ied] on a
       business or business venture in this state or ha[d] an office or
       agency in this state.

       2. Commit[ed] a tortious act within this state.

          ...

       7. Breach[ed] a contract in this state by failing to perform acts
       required by the contract to be performed in this state.

§ 48.193(1)(a)1-2, 7, Fla. Stat. (2017).
   The Florida Supreme Court laid out the test for long-arm personal
jurisdiction in Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla.
1989):
       In determining whether long-arm jurisdiction is appropriate
       in a given case, two inquiries must be made. First, it must be
       determined that the complaint alleges 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.
Id. at 502 (citation omitted).



                                     -3-
   This two-step process governs our analysis of this case even though
there was a forum selection clause. This is so because a forum selection
clause cannot serve as the sole basis for Florida to exercise personal
jurisdiction over an objecting non-resident defendant. McRae v. J.D./M.D.,
Inc., 511 So. 2d 540, 544 (Fla. 1987); Hatfield v. AutoNation, Inc., 915 So.
2d 1236, 1243 (Fla. 4th DCA 2005).
   Under step one of Venetian Salami, once a defendant contests the
factual allegations forming the basis for jurisdiction, the burden shifts to
the plaintiff to prove by its own affidavit or affidavits that jurisdiction
exists. Venetian Salami, 554 So. 2d at 502. “In most cases, the affidavits
can be harmonized, and the court will be in a position to make a decision
based upon facts which are essentially undisputed.” Id. at 502-03. When
the affidavits cannot be harmonized, however, the trial court must hold a
limited evidentiary hearing with regard to jurisdiction. Id.
     The trial court below denied the appellants’ motion to dismiss,
concluding that the appellants did not “adequately contest all of [Citrix’s]
jurisdictional allegations.” “For instance,” the court wrote, “the affidavits
. . . do not contest [Citrix’s] allegation the [appellants] committed tortious
acts in Florida by misappropriating confidential and proprietary
information . . . which, as alleged by [Citrix], is maintained on servers
located in Florida and to which [appellants] had access.”

    We proceed keeping in mind the principle that “a nonresident
employee-defendant who works only outside of Florida, commits no acts
in Florida, and has no personal connection with Florida will not be subject
to the personal jurisdiction of Florida courts simply because he or she is
a corporate officer or employee.” Kitroser v. Hurt, 85 So. 3d 1084, 1088
(Fla. 2012) (observing that it “may be unfair” to make an individual defend
himself in a forum in which his only relevant contacts are acts performed
outside of the forum solely for the benefit of his employer).
    In light of this principle and our observation that notions of personal
jurisdiction have evolved with the growth of technology, Le v. Tralongo,
LLC, 239 So. 3d 704, 707 (Fla. 4th DCA 2018), we consider all of the bases
for jurisdiction pled by Citrix. In doing so, we apply the first prong of
Venetian Salami—that is, whether the affidavits from the two sides can be
harmonized so as to support a finding of jurisdiction based on “essentially
undisputed” facts or whether a hearing on the facts regarding jurisdiction
is required. See Venetian Salami, 554 So. 2d at 503.
                         Forum Selection Clause
   As discussed above, a forum selection clause designating Florida as the
forum state cannot serve as the sole basis for Florida to exercise personal

                                     -4-
jurisdiction over an objecting non-resident defendant. McRae, 511 So. 2d
at 544. Thus, without more, the employees’ contractual forum selection
clauses are not enough to hale them into Broward County. We note that
“a [forum selection] clause may be considered as a factor that weighs in
favor of exercising personal jurisdiction over a nonresident defendant
where other grounds exist to exercise such jurisdiction.” Hatfield, 915 So.
2d at 1243 (citing Global Satellite Commc’n Co. v. Sudline, 849 So. 2d 466,
469 (Fla. 4th DCA 2003) (“[W]hen jurisdiction is based on the breach of a
contract in Florida coupled with a Florida venue selection clause, the
defendant has given implied consent to personal jurisdiction in the forum
State and has, in essence, conceded minimum contacts[.]”)).

                        Florida Business Contacts
   Citrix also pleads personal jurisdiction over the seven North Carolina
employees based on their various contacts with Florida over the course of
their employment. This ground for jurisdiction based on Florida business
contacts is found in section 48.193(1)(a)1, Florida Statutes. According to
Citrix, the appellants’ Florida contacts included supervision by the
company’s Florida headquarters, remote calls and conferences with
Florida, communications with the Florida office, and attendance at
training and other meetings in Florida.

   However, all seven employees denied having any meaningful or routine
contacts with Florida and generally denied Citrix’s characterization of their
relationship to the Florida office. For example, most of them claimed to
have been supervised for only a short time, if at all, by employees in the
Florida office, in almost all cases indirectly. Additionally, the appellants
claimed that their meetings in Florida were infrequent and short, with the
longest lasting just a few days. The appellants also denied any regular
video or teleconferences with Citrix’s Florida headquarters.

   Citrix, meanwhile, submitted its own affidavits from Florida employees
claiming to be the direct supervisors of the North Carolina employees.
These affidavits described routine sales phone calls and training programs
based out of Florida that the appellants were required to attend. Thus,
the parties dispute how routine the appellants’ contact with Florida was
and to what degree they interacted with the Florida office.

    Where affidavits contest the factual allegations of jurisdiction, the court
must consider whether only those harmonizable, “essentially undisputed”
allegations could support a finding of personal jurisdiction. See Venetian
Salami, 554 So. 2d at 503. Considering the appellants’ and appellee’s
dueling affidavits here, the only “essentially undisputed” allegations on the

                                     -5-
section 48.193(1)(a)1 grounds are that the appellants each had some
contact with the Florida office and that most of them traveled to Florida
one to three times as part of their work for Citrix.

   Given how little is “essentially undisputed” here, it is not proper to find
personal jurisdiction on the basis of the appellants’ Florida business
contacts; instead, an evidentiary hearing on the subject is required. See
id. Because Florida courts have ruled differently based on the extent of a
non-resident’s Florida contacts, a hearing is necessary to establish the
degree to which the appellants were engaged with business in Florida via
Citrix. See, e.g., Biloki v. Majestic Greeting Card Co., Inc., 33 So. 3d 815,
821 (Fla. 4th DCA 2010) (finding no general jurisdiction where non-
resident defendants contracted with Florida company, traveled to Florida
for one meeting, and ordered products from Florida office); Hatfield, 915
So. 2d at 1242-43 (finding “continuous and systematic general business
contact” warranting exercise of jurisdiction where evidence showed that
defendant attended meetings, regularly communicated with Florida office,
used Florida website almost daily, and attended weekly conference calls);
Ocean Chem. Trans., Inc. v. Cotton, 702 So. 2d 1272, 1272 (Fla. 1st DCA
1997) (finding that defendant-shipowner’s port stops, phone calls, and
agency relationships in Florida were insufficient to give rise to specific
personal jurisdiction); Nordmark Presentations, Inc. v. Harman, 557 So. 2d
649, 651 (Fla. 2d DCA 1990) (noting that defendant’s uncontested
attendance at two Florida meetings, assignment of work by Florida
company, supervision by Florida company, and exchange of job
information with Florida company were sufficient minimum contacts).

                             Tortious Conduct
   The appellants all generally denied misappropriating Citrix’s
confidential information. Citrix responded, essentially restating the
grounds for personal jurisdiction from its complaint and attaching
declarations from Citrix employees regarding the appellants’ various
Florida contacts throughout the course of their employment with the
company.

    However, to the degree the trial court’s order was based on the
allegations of tortious conduct in Florida, its conclusion appears to be
unsupported by the record. As discussed above, each of the appellants
denied misappropriating information and unequivocally claimed that the
appellants did not retain or share any Citrix information. All seven
appellants denied providing information to Egnyte.




                                     -6-
    To be sure, the appellants did not deny that Citrix’s information was
stored on Florida servers, but the denial of any misappropriation in the
first place is enough to bring the entire allegation of tortious conduct in or
directed at Florida into question, at least for the purpose of squaring
jurisdictional affidavits. Additionally, even if taken as true, the fact that
Citrix was injured by the appellants’ alleged conduct would not be enough
to support jurisdiction. See Consol. Energy, Inc. v. Strumor, 920 So. 2d
829, 832 (Fla. 4th DCA 2006) (“[M]ere injury in Florida resulting from a
tort committed elsewhere is insufficient to support personal jurisdiction
over a non-resident defendant.” (citation omitted)).
    While the question of whether the appellants misappropriated Citrix’s
business information is one of the ultimate merits issues in the case, it
may still be the subject of a Venetian Salami inquiry. See Holland v.
Anheuser Busch, Inc., 643 So. 2d 621, 623 n.2 (Fla. 2d DCA 1994)
(recognizing that “under certain circumstances a trial court, on a motion
to dismiss supported by affidavit, has the authority to decide ultimate
issues of fact relating to jurisdiction over the person”). On remand, the
trial court should consider whether, as a factual matter, the appellants
would have been able to access Citrix’s Florida servers to obtain
confidential business information, which could bring them under the
ambit of Florida’s long-arm statute. In doing so, it need not decide the
ultimate legal question of whether the appellants are actually liable for the
various acts alleged in Citrix’s complaint.

             Access to Florida Servers and I.T. Resources
   Citrix also claims that Florida can assert personal jurisdiction over the
appellants because they utilized Citrix’s Florida-based computer servers
and I.T. resources while working for the company. This basis for
jurisdiction has no foundation in Florida’s long-arm statute except to the
extent that it could tie in to a general allegation of Florida business
contacts, which we have already considered. As such, it is not a valid
standalone basis for extending long-arm jurisdiction. Relatedly, although
we do not reach the issue here, the Third District has warned that finding
personal jurisdiction based merely on a party’s use of computer resources
housed in a state might raise due process issues. See Pres-Kap, Inc. v.
System One, Direct Access, Inc., 636 So. 2d 1351, 1353 (Fla. 3d DCA 1994).

        Breach of Contractual Obligation to Florida Company
   Finally, Citrix asks Florida to assert personal jurisdiction based on the
appellants’ breach of their contract with Citrix, a Florida company. While
this ground for jurisdiction resembles that laid out in section
48.193(1)(a)7, Florida Statutes, it differs in one important way. Section

                                     -7-
48.193(1)(a)7 only extends jurisdiction when a party breaches a contract
“by failing to perform acts required by the contract to be performed” in
Florida. § 48.193(1)(a)7 (emphasis added).

   Here, there is no allegation that the appellants failed to perform any
acts required by their contracts to be performed in Florida. Thus, Florida
cannot assert jurisdiction based on section 48.193(1)(a)7.          Nor is
jurisdiction proper under the theory that the appellants contracted with
Citrix, a Florida company. See Wash. Capital Corp. v. Milandco, Ltd., Inc.,
695 So. 2d 838, 841 (Fla. 4th DCA 1997) (“It is not enough that a foreign
defendant merely contract with a Florida resident.”). Therefore, this
ground for jurisdiction fails.

   Citrix has claimed jurisdiction based on several facts that were
contested by the appellants’ affidavits. Once the appellants filed affidavits
denying Citrix’s factual assertions, the factual bases for jurisdiction were
sufficiently challenged so as to trigger the first prong of Venetian Salami.
Under that prong, Citrix properly presented its own affidavits supporting
jurisdiction. However, because the parties’ affidavits were irreconcilable
as to the essential facts giving rise to jurisdiction, a Venetian Salami
jurisdictional hearing was required. 554 So. 2d at 503. The trial court
erred in failing to hold the hearing and we reverse for it to hold one.

   Reversed and remanded.

DAMOORGIAN and FORST, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




                                    -8-
