In the Matter of the Disciplinary Hearing Regarding the Peace Officer License of Stephen Joseph WOOLLETT a/k/a Stephen Joseph Engles.
*830 Hubert H. Humphrey, III, Attorney General, Jacquelyn Albright, Assistant Attorney General, St. Paul, for appellant.
Harry D. Hohman, Appleton, for respondent.
Appellant, the Minnesota Board of Peace Officer Standards and Training ("the Board"), appeals from a court of appeals decision ordering the Board to license respondent, Stephen Joseph Woollett, as a Minnesota peace officer. In the Matter of the Disciplinary Hearing Regarding the Peace Officer License of Stephen Joseph Woollett a/k/a Stephen Joseph Engles, 527 N.W.2d 569 (Minn.App.1995). The Board voted unanimously to revoke Woollett's peace officer license eligibility due to Woollett's 1981 felony conviction of third-degree assault, which violated the Board's administrative rules, Minn.R. 6700.0601, subp. 1(G) and 6700.0100, subp. 21 (1993). Woollett appealed the Board's decision, claiming that his felony conviction had reverted to a misdemeanor under Minn.Stat. § 609.13, subd. 1(2) (1994) after he successfully completed his 6-month term of probation. The court of appeals subsequently held in Woollett's favor. We reverse.
Stephen Joseph Woollett was born in 1958, married Diane Engles in 1979, and changed his last name to Engles at that time. On March 20, 1981, Woollett, then known as Stephen Engles, appeared before District Court Judge Paul Hoffman in Benton County and pleaded guilty to a felony charge of third-degree assault. The charge resulted from a 1980 incident in which he assaulted a 5-year-old girl at a party in the girl's residence. The complaint against Woollett alleged that he slapped the child to stop her from crying, and when the crying continued, he grabbed her leg and forcefully twisted it. The child's mother took her to the St. Cloud Hospital, where she was diagnosed with facial contusions and a fractured right femur. Woollett later admitted to a Benton County deputy sheriff that he had injured the girl, and he was charged with third-degree assault under Minn.Stat. § 609.223 (1980), punishable at that time by up to three years of imprisonment and a $3,000 fine.
I have not imposed sentence. I have stayed the staying the imposition of sentence means that you have not been sentenced. You can truthfully say in regard to this charge you have not been sentenced for a felony. If things go well, you will be discharged. It will be treated as a misdemeanor. If things don't go well, I may * * * bring you back in here and after hearing you, give you three years in prison.
Woollett then commented to Judge Hoffman, "I am in law enforcement right now." Judge Hoffman explained: "Well, this is exactly what you want then because it's not going to be on your record or it's handled the best way we could for you." Judge Hoffman apparently intended to invoke Minn.Stat. § 609.13, subd. 1 (1971), which provided: "Notwithstanding a conviction is for a felony: (1) * * * (2) The conviction is deemed to be for a misdemeanor if the imposition of the sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a sentence."
*831 Woollett completed his probation requirements, and was discharged in September 1981. In 1984, he and his wife divorced, and Woollett changed his last name from Engles back to Woollett. In the fall of 1985, he enrolled in a 2-year law enforcement training course at Hibbing Area Vocational-Technical Institute. After completing his degree, Woollett moved to Arizona and applied for a position as a deputy sheriff. The sheriff's office in Arizona denied his application after discovering Woollett's felony conviction through a fingerprint check, and Woollett returned to Minnesota.
After his return to Minnesota, Woollett obtained a bachelor's degree in criminal justice from Bemidji State University, graduating in May 1992. He then completed the skills portion of his law enforcement training and applied to the Board for a peace officer license. Also in May 1992, Woollett sought a job at Prairie Correctional Facility in Appleton, Minnesota. At the request of the correctional facility, the Bureau of Criminal Apprehension conducted a criminal history check for "Stephen Joseph Woollett" and found no criminal record. The Board notified Woollett by letter on June 25, 1992 of his successful completion of its examination and licensing requirements. When Prairie Correctional Facility requested a copy of Woollett's license, the Board completed another background check. This time Woollett's felony conviction was discovered. Accordingly, the Board initiated disciplinary proceedings against Woollett, and held an informal hearing on the issue before its Investigation Committee on March 30, 1993. Woollett and his attorney contacted Judge Hoffman, who wrote a letter to the Board in support of Woollett's argument that his felony conviction was actually a misdemeanor.
The Board requested an administrative hearing, which took place on January 20, 1994. After the hearing, the administrative law judge issued a written report recommending that the Board grant Woollett's license. In his memorandum, the administrative law judge expressed his opinion that Judge Hoffman's intent was clear regarding Woollett's conviction, and that Minn.Stat. § 609.13, subd. 1(2) governed Woollett's situation. Notwithstanding the recommendation, the Board voted unanimously on May 20, 1994 to revoke Woollett's eligibility for a peace officer license, citing his 1981 felony conviction as a violation of Minn.R. 6700.0601, subp. 1(G) (1993).
Woollett appealed the Board's decision to the court of appeals, which ordered the Board to reinstate Woollett's eligibility. The court determined that Woollett's felony conviction became a misdemeanor under section 609.13 once Woollett was discharged from probation without a prison sentence, and therefore his judgment of conviction could not be used by the Board to deny Woollett's licensure under the Board's administrative rules. Furthermore, the court noted that although section 609.13 did not explicitly state that it applied to peace officer license applicants, this did not bar its use in Woollett's case. 527 N.W.2d at 572.
It is believed desirable not to impose the consequences of a felony if the judge decides that the punishment to be imposed will be no more than that provided for misdemeanors or gross misdemeanors.
See Minn.Stat. § 609.13, subd. 1 advisory committee cmt., reprinted in Minn.Stat.Ann. § 609.13 (West 1987). The court of appeals held that the Board could not deny Woollett's peace officer license under its administrative rules because Woollett's felony conviction met the requirements of section 609.13 and was therefore deemed to be a misdemeanor. Applying the legal maxim that an "administrative agency may not adopt a rule that conflicts with a statute," the court of appeals ordered the Board to reinstate Woollett's eligibility. 527 N.W.2d at 571, 573 (quoting J.C. Penney Co. v. Commissioner of Economic *832 Sec., 353 N.W.2d 243, 247 (Minn.App. 1984)).
The Board is authorized by Minn.Stat. §§ 626.84-.855 (1994) to regulate the selection, training and licensing of peace officers in Minnesota. See Minn.R. 6700.0200 (1994). Accordingly, the Board has devised and published a number of administrative rules governing the training and licensing of peace officers. See Minn.R. ch. 6700 (1994). The Board is specifically required to adopt rules establishing "[m]inimum standards of physical, mental, and educational fitness which shall govern the recruitment and licensing of peace officers within the state." Minn.Stat. § 626.843, subd. 1(d) (1994). Pursuant to this legislative grant of authority, the Board has set forth several grounds for the denial of a license to an applicant. "[H]aving been convicted of a felony in any state or federal jurisdiction" is one ground for denial of licensure. Minn.R. 6700.0601, subp. 1(G) (1994). The phrase "conviction of a felony" is further defined as "a person [who] has been charged with a crime punishable by more than one year and * * * the person was convicted of that crime regardless of a stay of imposition or stay of execution." Minn.R. 6700.0100, subp. 21 (1993).
Accordingly, the Board argues that it acted within its statutory authority when it established rules prohibiting convicted felons from becoming licensed peace officers, even when the felony conviction is subsequently deemed a misdemeanor. We agree. The Board's rules prohibit any person who has been convicted of a felony from acquiring a peace officer license. Therefore, because Woollett was "convicted of a felony" in 1981 in violation of Rule 6700.0601, subp. 1(G), he cannot become a licensed peace officer. The fact that he was sentenced for a misdemeanor does not alter the fact that his conduct, which seriously injured a 5-year-old girl, warranted a felony conviction. To protect the public from unqualified law enforcement officers and to maintain confidence in Minnesota's peace officer licensing system, we hold that the Board has the authority to enact a blanket prohibition against the licensing of applicants who have been convicted of a felony. And under the rules applicable in Woollett's case, a stay of imposition or stay of execution of his sentence does not change the fact that Woollett was convicted of a felony.
Woollett asserts that Judge Hoffman's commentary regarding the nature of his sentence reveals the judge's intent not to impose the consequences of a felony. Although Judge Hoffman may have thought that a stayed felony sentence would permit Woollett to pursue a law enforcement career, he merely informed Woollett that "you have not been sentenced for a felony." (emphasis added). If Woollett was under the impression that he had not been convicted of a felony, this was not the case. The record reflects that a felony conviction for third-degree assault was entered against Woollett, then known as Stephen Engles, on March 20, 1981. Thus, his felony conviction provided sufficient grounds to revoke his licensure eligibility under the Board's rules.
Prior decisions by this court and the court of appeals have established that section 609.13 does not require that a felony conviction with a stayed sentence be treated as a misdemeanor for all purposes. In State v. *833 Moon, for example, we held that a mandatory firearms restriction following the defendant's discharge from probation was properly imposed, despite the effect of section 609.13 upon the defendant's felony conviction. 463 N.W.2d 517, 519 (Minn.1990). In Moon, the defendant was ordered to comply with a statute which prohibited the shipment, transportation, possession or receipt of a firearm by persons convicted of a "crime of violence" for a period of ten years after discharge from probation or parole. Minn.Stat. § 609.165 (1990). Moon claimed that because his felony theft conviction was deemed a misdemeanor after his successful completion of a probationary term, he had not been convicted of a "crime of violence" under the statute, and therefore need not comply with the firearms restriction. Id. at 518. See Minn.Stat. § 624.712, subd. 5 (1990). We disagreed with Moon, and determined that the legislature intended to apply the firearms restriction based upon the nature of the offense committed by the defendant, rather than the actual sentence imposed by the trial court. Id. at 519.
Similarly, the court of appeals has upheld the use of felony convictions where sentencing was stayed under section 609.13 for the purposes of computing criminal history scores under Minnesota Sentencing Guidelines II.B.1, and impeaching the defendant at trial under Minn.R.Evid. 609(c). State v. Clipper, 429 N.W.2d 698, 701 (Minn.App. 1988); State v. Skramstad, 433 N.W.2d 449, 452-53 n. 1 (Minn.App.1988). Like the Board's rules, the provisions of the Sentencing Guidelines and the Rules of Evidence at issue in Clipper and Skramstad specifically addressed the treatment of felony convictions with stayed sentences in subsequent criminal prosecutions. Clipper, 429 N.W.2d at 701; Skramstad, 433 N.W.2d at 452 & n. 1. These provisions required that the offender would be impeached on the witness stand and sentenced commensurate with the nature of his or her previous conduct, rather than the type of sentence ultimately imposed. Furthermore, the defendants in Clipper and Skramstad did not establish that the statutes or rules at issue in each case were beyond any statutory authority granted to the relevant agency or rule-making body. Accordingly, the convictions were properly treated as felonies, rather than misdemeanors.
This analysis is applicable to Woollett's dispute with the Board. Section 609.13 does not require felony convictions where guilt is adjudicated, but sentencing is stayed, to be treated as misdemeanors in every conceivable situation. We are mindful of the court of appeals' observation that section 609.13 does not expressly restrict its application to any particular situation, and are aware that the cases discussed above have diminished its effect. In addition, we agree that the rehabilitation of criminal offenders and the minimization of barriers to their reemployment is an important goal. However, in light of the serious nature of Woollett's criminal offense, we feel that the Board should be permitted to bar him, or any other applicant with a felony conviction, from becoming a peace officer. Furthermore, Woollett's argument that the statute and the Board's rules conflict, and that we should therefore prohibit enforcement of the Board's rules, is not persuasive in light of Moon, Clipper and Skramstad.
The Board serves a unique function in regulating the licensing and training of all peace officers in Minnesota. We note that the Board receives special treatment from the legislature in the form of an express exemption from the policy and provisions of the Criminal Offenders Rehabilitation Act which prohibits the disqualification of applicants from public employment on the basis of *834 a prior criminal conviction. See Minn.Stat. ch. 364 (1994). The Board and other law enforcement agencies are excused from compliance with the Act's purpose of encouraging the employment of criminal offenders. Minn. Stat. § 364.09 (1994). In light of the important public interests involved in this case, the Board's enforcement of minimum standards for the recruitment and licensing of qualified peace officers outweighs Woollett's desire to pursue a career in public law enforcement. Therefore, we reverse the decision of the court of appeals and uphold the Board's revocation of Woollett's license eligibility.
 This statute exists in substantially the same form today. See Minn.Stat. § 609.13, subd. 1 (1994).
 Rule 6700.0100 was revised by the Board in 1994, and "conviction" is now defined as "a person has been charged with a crime and the person was found guilty of that crime, regardless of length of or imposition or execution of any sentence received, any deferred finding of guilt or imposition of sentence by the court, any continuance for dismissal granted by the court, or any expungement of the offense records or conviction." Minn.R. 6700.0100, subp. 9a (Supp. 1994). However, the parties agree that the revised rule does not apply to Woollett's current application.
 This is unlike the California statute after which section 609.13 was patterned. The Advisory Committee Comment to section 609.13 states that the statute was modeled after "the California law which has worked successfully." See Minn. Stat.Ann. § 609.13 (West 1987). While California law is not binding on this court, a comparison of the two statutes is instructive. Section 17(b) of the California Penal Code provides that a crime punishable by either imprisonment in the state prison or the county jail "is a misdemeanor for all purposes" if the court imposes punishment other than a state prison term, or "grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." Cal.Penal Code § 17(b)(1) and (b)(3) (West Supp.1995). Upon a request by California's Commission on Peace Officer Standards and Training, the California Attorney General recently issued an opinion as to the effect of section 17(b) on the Commission's licensing of peace officers. 76 Op. Cal. Att'y Gen. 270 (1993). The Attorney General opined that the Commission's power to revoke a peace officer license when an officer is convicted of a felony did not extend to convictions under section 17(b) which are to be treated as misdemeanors "for all purposes" unless the conduct itself involved moral turpitude or some other indication of the applicant's unfitness to be a peace officer. Id. at 275. Thus, while a blanket prohibition would be inappropriate in light of the purposes of section 17(b), case-by-case analysis of an applicant's conduct would permit denial of licensure by the California Commission on an individual basis.


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The claimant was represented by Edward Piazza, Esq., Del Sole & Del Sole, 900 Chapel Street, P.O. Box 405, New Haven, CT 06502-0405.
The respondent was represented by Philip M. Schulz, Esq., Office of the Attorney General, P.O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.
This Petition for Review from the December 5, 1997 Finding and Dismissal of the Commissioner acting for the Third District was heard August 21, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 5, 1997 Finding and Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner concluded that the claimant’s injury on March 6, 1995, which occurred while the claimant was hanging her coat immediately prior to the start of the work day, did not arise out of and in the course of her employment. The trial commissioner concluded that the act of hanging up her coat was a personal activity which was not “incidental” to the claimant’s employment. In support of her appeal, the claimant contends that the facts as found by the trial commissioner support the conclusion that the claimant’s injury arose out of and in the course of the employment.
The trial commissioner found the following relevant facts. The claimant was employed as a school teacher by the respondent employer. The claimant’s work hours were 9:30 A.M. to 5:30 P.M. (10/14/97 TR. at p. 5). On March 6, 1995, the claimant reported to work at approximately 9:20 A.M. and went to an area referred to as the “isolation room.” The claimant testified that when she was hired she was told to hang her coat in the isolation room. When the claimant entered the isolation room she put her purse and coat down and went to the ladies room. When she returned she picked up her coat and turned to put it on the coat rack when she felt something snap in her back and felt pain in her back. The uncontradicted evidence indicates that the claimant immediately notified her supervisor regarding the injury. (Id. at p. 9). At the time of her injury the claimant had not yet commenced her teaching duties that day.
The employer contested the claim on the basis that the injury occurred prior to the start of the claimant’s work day and that she was performing a personal task which was not incidental to her employment. In support of her appeal, the claimant contends that the use of the coat rack was a permitted activity which was incidental to her employment. The claimant further contends that the coat rack was provided by the employer as a mutual benefit to both the employer and the employee.
It is well settled that “[i]n order to come within the course of the employment, an injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” McNamara v. Hamden, 176 Conn. 547, 550-51 (1979). “An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or the conditions under which it is required to be performed.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), affirmed, 229 Conn. 587 (1994), quoting Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972); Bell v. U. S. Home Care Certified of Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 294, 1792 CRB-1-93-8 (April 21, 1995). The question of whether an injury meets these criteria is factual in nature and is committed to the trial commissioner’s discretion. Tovish, supra, 605.
Kaplan v. State of Connecticut/Department of Health Services, 14 Conn. Workers’ Comp. Rev. Op. 296, 297-98, 2012 CRB-1-94-4 (Sept. 11, 1995).
First, we will address the question of whether the claimant was within the period of her employment at the time of the injury. Our Supreme Court explained the McNamara decision as follows: “‘[t]he exact time [of injury] is not significant’ for purposes of compensation, as long as [the] injury takes place on [the] premises and in close temporal proximity to [the] work day.” Mazzone v. Connecticut Transit Co., 240 Conn. 788, 794 (1997) (emphasis added). In McNamara, supra, the claimant was injured while playing ping pong on the employer’s premises five minutes prior to the start of his work day. The court held that “he was, according to the definition developed in workmen’s compensation law, within the period of employment, regardless of the fact that it was five minutes prior to the commencement of the official work day. The exact time is not significant, so long as the employee is on the premises reasonably close to the start or finish of the work day.” McNamara, supra, at 551 (emphasis added). Accordingly, in the instant case we conclude as a matter of law that the claimant’s act of hanging up her coat immediately prior to the start of her work day occurred within the period of her employment.
Secondly, we will address the issue of whether the claimant was at a place she may reasonably have been at the time of the accident. In the instant case, the uncontroverted evidence indicates that the claimant was told by her employer to hang her coat in the isolation room and that there was no area available to hang her coat in the classroom. (10/14/97 TR. at p. 6-8, 11). Moreover, the claimant was hanging up her coat at a reasonable time, approximately at 9:20 A.M., immediately prior to her 9:30 A.M. start time. Under these uncontroverted facts, we conclude that as a matter of law that the claimant was at a place she may reasonably have been at the time of the accident.
Thirdly, we will address the third prong of the “in the course of the employment” test, which is whether the claimant was “fulfilling the duties of the employment or doing something incidental to it.” In McNamara, supra, the court explained that activities involving personal comfort may “fulfill the requirements of place and time, without being of benefit to the employer; and yet compensation may be awarded in such instances, because the injury had occurred on the premises as the result of a customary activity sanctioned by the employer through approval or acquiescence.” Id. at 553-4 (citations omitted) (emphasis added). Furthermore, the court stated, “It is generally held sufficient that the activity is an accepted and normal one, since it thereby becomes a regular incident and condition of the employment.” Id. at 555 (citations omitted).
In the instant case, the uncontroverted evidence indicates that the claimant was told by her employer to hang her coat in the isolation room; that there was no area available to hang her coat in the classroom; and that she could not work while wearing a winter coat. (10/14/97 TR. at p. 6-8, 11). Under these circumstances, we conclude that as a matter of law the claimant’s need to hang her winter coat in the isolation room was an act incidental to her employment. See Mazzone, supra (the court concluded that as a matter of law, eating lunch on an unused bus on the employer’s premises was incidental to the claimant’s employment).
Finally, we will address the issue of whether the injury arose out of the employment. This requirement “refers to the origin and cause of the accident.” McNamara, supra, at 550. “An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or the conditions under which it is required to be performed.” Tovish, supra, at 607. We have already determined that the claimant’s injury occurred in the course of her employment. As discussed above, the use of the coat rack in the isolation room was ordered by the employer and was incidental to the employment. Accordingly, we must conclude that the claimant’s injury arose out of her employment.

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Roger S. Hanson (argued) of Hanson & Milman, Beverly Hills, Cal., for plaintiff-appellant.
Richard G. Brungard, Deputy County Counsel (argued), Los Angeles, Cal., for defendants-appellees.
Before KOELSCH, HUFSTEDLER and KILKENNY, Circuit Judges.
This matter has a long history. In 1961 plaintiff-appellant Imbler was convicted on a murder charge in Los Angeles Superior Court and sentenced to death. The California Supreme Court affirmed. People v. Imbler, 57 Cal. 2d 711, 21 Cal. Rptr. 568, 371 P.2d 304 (1962). Thereafter, Imbler's state habeas corpus petition was denied following an evidentiary hearing. In re Imbler, 60 Cal. 2d 554, 35 Cal. Rptr. 293, 387 P.2d 6 (1963). A subsequent writ set aside the death penalty, In re Imbler, 61 Cal. 2d 556, 39 Cal. Rptr. 375, 393 P.2d 687 (1964); and when the state declined to prosecute another 'penalty trial,' Imbler was given a life sentence.
In 1969 the United States District Court, concluding that Imbler's conviction was secured in part by testimony the prosecution knew, or had strong reason to know, was perjured, granted him a writ of habeas corpus. Imbler v. Craven, 298 F. Supp. 795, 809 (1969). We affirmed, Imbler v. Craven, 424 F.2d 631 (9th Cir. 1970), cert. denied, 400 U.S. 865, 91 S. Ct. 100, 27 L. Ed. 2d 104.
Imbler then brought this suit for damages. So far as need be noticed, his allegations in substance are that the defendant Pachtman, the district attorney who prosecuted the criminal charges on behalf of the State of California, had knowingly, maliciously, etc., used perjured testimony to secure a conviction and hence was liable in damages for violation of his, Imbler's, civil rights. The district judge dismissed Imbler's complaint as to Pachtman without leave to amend; he ruled that Pachtman, as a prosecuting attorney, enjoyed an immunity from suit for acts committed 'in the performance of duties constituting an integral part of the judicial process . . .', Marlowe v. Coakley, 404 F.2d 70 (9th Cir. 1968); see Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965); and that as a matter of law the acts complained of came within a quasi-judicial prosecutorial function to which immunity attached. Imbler appeals.1 We affirm.
'It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The jurisdiction for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Judged as res nova, we should not hesitate to follow the path laid down in the books.' Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949).
Although appellant's 22 page amended complaint, with 23 pages of exhibits, is admittedly repetitious and in places ambiguous, there is no question but that it charges appellee, Pachtman, with knowingly, wilfully and maliciously using eight different items of false material testimony in securing appellant's initial conviction. If this is true, I believe that appellee violated appellant's procedural due process rights, and that he should be stripped of his official or representative character and subjected in his person to the consequences of his individual conduct.
'Under the criteria developed by precedents of this Court, 1983 would be drained of meaning were we to hold that the acts of a governor or other high executive officer has 'the qualify of a supreme and unchangeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the federal government.' Sterling v. Constantin, 287 U.S. 378, 397 (53 S. Ct. 190, 77 L. Ed. 375) (1932).' 94 S. Ct. at 1692.
Aside from my view that Scheuer is controlling, the cases cited by the majority, in my opinion, are clearly distinguishable. For example, in Ney v. State of California, 439 F.2d 1285 (CA9 1971), the appellant charged the district attorney, or his deputy, with knowingly using altered tapes. The facts revealed, however, that the district attorney's deputy actually used the tapes and, therefore, if the district attorney could be sued at all, he would be liable only on a theory of respondent superior. In Ney, this court stressed that the allegation of fact supporting the purported misconduct was based on '. . . much conclusionary language . . ..' 439 F.2d at 1287. In the instant case, the factual allegations charge the district attorney with engaging in specific instances of misconduct wholly reprehensible to the integrity of the judicial process.
'the purpose of according judicial immunity is to protect the integrity of the judicial process. It is not to shield lawyers or judges from liability for the invasion of another's federally secured constitutional rights, when the alleged invasion did not occur during the performance of acts that are an integral part of the judicial process.' 433 F.2d at 743.
To now hold, on our facts, that the knowing, wilful and malicious use of perjured testimony to gain a conviction, even though accomplished during the course of a trial, constitutes an integral part of the judicial process, flies in the very face of the integrity sought to be protected by judicial and quasi-judicial immunity.
The allegations in Marlowe v. Coakley, 404 F.2d 70 (CA9 1968) charged the prosecuting attorney with '. . . knowingly and wilfully, or with gross negligence, present(ing) perjured testimony to the grand jury . . ..' Needless to say, there is a monumental distinction between charging an officer with gross negligence in connection with the presentation of perjured testimony and charging him with knowingly, wilfully and maliciously using perjured testimony to obtain a conviction. Consequently, the decision of the Marlowe court could well rest on the failure of the complainant to clearly charge wilful misconduct in presenting the perjured testimony. Cf. Ney v. State of California, supra, 439 F.2d at 1287. The alternative does not equate with wilful action. I decline to hold that the shield of immunity should rest on the brow of a district attorney who knowingly, wilfully and maliciously utilizes perjured testimony to obtain a conviction. This conduct should not be condoned as an integral part of the judicial process.
Clark v. State of Washington, 366 F.2d 678 (CA9 1966), recognizes the rule that a prosecuting attorney enjoys immunity under the Civil Rights Act only insofar as his prosecuting functions are concerned. At the risk of being repetitive, I again stress that appellee's acts, as charged in the amended complaint, had nothing to do with his legitimate prosecutory functions.
In Agnew v. Moody, 330 F.2d 868 (CA9 1964), cert. denied 379 U.S. 867, 85 S. Ct. 137, 13 L. Ed. 2d 70, the court there sidestepped the contention that the doctrine of official immunity did not apply where the wrongful act was of an extraordinary character, as that phrase was used in Tenney v. Brandhove, 341 U.S. 367, 378-379, 71 S. Ct. 783, 95 L. Ed. 1019 (1951), by saying, 'if such an indefinite exception to the immunity rule exists, we are satisfied that appellant's case does not fall within it.' 330 F.2d at 869. Scheuer, supra, makes it clear that the doctrine of official immunity does not apply in cases where the wrongful act is of an extraordinary character.
Hilliard v. Williams, 465 F.2d 1212 (CA6 1972), cert. denied 409 U.S. 1029, 93 S. Ct. 461, 34 L. Ed. 2d 322, is closely in point. There, the court, in a civil rights action, recognized the general rule that a prosecuting attorney, when acting in his official capacity, is immune from a suit for damages. The court then goes on to hold that the doctrine of quasi-judicial immunity, normally shielding a prosecuting attorney, should not be extended to the situation where a complaint charges that the officer deliberately suppressed material evidence which resulted in the conviction of the appellant. The court emphasized that such wilful conduct was '. . . outside (the officer's) quasi-judicial capacity and beyond the scope of 'duties constituting an integral part of the judicial process." 465 F.2d at 1218.
On the charges before us, I would hold that appellee acted entirely outside the scope of his jurisdiction and should not be permitted to shelter himself from liability by a plea that he was acting under the immunity of his office. Not to be forgotten is the high responsibility accepted by a prosecuting officer when he enters upon the duties of his office. For example: (1) he is required to recognize that in our system of justice, the accused is to be given the benefit of all reasonable doubt; (2) his decisions during the course of the prosecution must be fair to all, including the defendant; (3) he has a duty of timely disclosure to the defense of all available evidence known to him that tends to help the defendant, and (4) it is his duty to seek justice, not pervert it by placing a conviction above the constitutional rights of the accused. It is time to recognize that prosecutors are not entirely above the law which holds other individuals financially accountable for their intentional misdeeds.
Needless to say, I express no opinion as to the merits of appellant's claims. I only say that on the basis of the allegations in the amended complaint, he is entitled to have a full-fledged judicial inquiry.
More importantly, the distinction is clearly inconsistent with our prior cases. In Robichaud v. Ronan, supra, the court indicated that a prosecutor's immunity is absolute when engaged in quasi-judicial activities, noting that no suit for malicious prosecution could be brought regardless of the existence of malice or even willfulness on the part of the prosecuting attorney. See 351 F.2d at 536. Equally in point is Marlowe v. Coakley, supra; the dissent's 'monumental distinction' of Marlowe is spurious. The complaint there alleged that the prosecuting attorney knowingly and willfully, or with gross negligence, presented perjured testimony to the grand jury investigating plaintiff's activities and that he suppressed from the grand jury exculpating evidence within his knowledge, again willfully and deliberately. In ruling on the district court's dismissal under Rule 12(b) (6), the court necessarily had to evluate the claim assuming that the charges of willful perjury and suppression were true. Notwithstanding these allegations, the court held that the district attorney, in presenting evidence to the grand jury, was acting within the scope of his duty to advise and present information to the grand jury, and that this function is an integral part of the judicial process. In short, the dissent's approach to prosecutorial immunity has been rejected in this circuit.

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As active litigators, the team at Lipcon, Margulies, Alsina & Winkleman, P.A. has experience at all phases of personal injury claims. One such stage is the discovery process. In this motion to compel better responses, our maritime attorneys ask the Court to order defendants to provide more information that is critical to the Plaintiff’s lawsuit. By working to ensure that our client’s obtain all necessary discovery in their cases, we ensure that our clients obtain fair results.
COMES NOW, the Plaintiff, JOHN DOE, as Personal Representative of the Estate of JANE DOE (“Plaintiff”), by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, hereby moves to compel Defendants, ROYAL CARIBBEAN CRUISES LTD. (“Royal Caribbean” or “RCL”) and HARTLEY’S UNDER SEA ADVENTURES, LTD. (“Hartley”) to provide better responses to Plaintiff’s jurisdictional discovery and relies in good faith on the following memorandum of law.
The parties discussed Defendants’ discovery responses and were able to reach agreements on some of the issues. The remaining issues are addressed herein and Plaintiff respectfully requests this Honorable Court enter an order compelling Defendants to provide better responses to the requests specified below.
It is well established that issues of jurisdiction are proper for discovery. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n. 13 (1978). Eleventh Circuit precedent indicates that jurisdictional discovery is highly favored before resolving motions to dismiss for want of personal jurisdiction. Eaton v. Dorchester Dev., Inc., 692 F. 2d 727, 731 (11th Cir. 1982). Specifically, in Majd-Pour v. Georgiana Community Hosp., Inc., the Eleventh Circuit stated that “[a]lthough the plaintiff bears the burden of proving the court’s jurisdiction, the plaintiff should be given the opportunity to discover facts that would support his allegations of jurisdiction.” Majd-Pour, 724 F.2d 901, 903 (11th Cir. 1984); see also Blanco v. Carigulf Lines, 632 F.2d 656, 658 (5th Cir. 1980) (“Plaintiff is not required to rely exclusively upon a defendant’s affidavit for resolution of the jurisdictional issue where that defendant has failed to answer plaintiff’s interrogatories specifically directed to that issue. To hold otherwise would permit an advantage to a defendant who fails to comply with the rules of discovery.”).
Herein, in support of its Motion to Dismiss for lack of personal jurisdiction, Hartley alleges, inter alia, that it 1) does not operate, conduct, engage in or carry on a business or business venture in Florida; 2) does not have an office or agency in Florida and is not licensed in Florida; 3) does not use or possess any real or personal property in Florida; 4) does not own, use, possess or hold a mortgage or lien on any real property in Florida; 5) does not have a contract with Royal Caribbean; 6) does not advertise in Florida; 7) never had Royal Caribbean or Bermuda Onsite as its agent or employee; 8) never had a partnership or joint venture with Royal Caribbean or Bermuda Onsite; 9) never shared profits with Royal Caribbean or Bermuda Onsite; and 10) was never paid by Royal Caribbean for the tickets sold for the excursion. [D.E. 31-1].
Accordingly, pursuant to the aforementioned Eleventh Circuit precedent, the Plaintiff propounded jurisdictional discovery upon Defendants in order to refute Hartley’s allegations and establish this Court’s jurisdiction over Hartley. Defendants’ responses to Plaintiff’s jurisdictional discovery requests, however, are lacking information and their objections are without merit. Therefore, Plaintiff respectfully requests this Honorable Court enter an order compelling Defendants to provide better responses to Plaintiff’s jurisdictional discovery.
As discussed in further detail below, Hartley’s responses to Plaintiff’s Jurisdictional Interrogatories No.’s 1, 3, 6, 13, 14, and 15[b] are improper and its objections are without merit.
Indicate the total gross revenues and net income of Hartley’s Under Sea Adventures, Ltd (and/or its agents and/or intermediaries) in the years 2006, 2007, 2008, 2009, 2010, 2011, and 2012. For each year, itemize the source of such revenues by activity.
Objection. This interrogatory is objected to as overbroad, beyond the scope of discovery relevant to jurisdiction, and not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, the interrogatory is not narrowly tailored for the purpose of jurisdictional discovery. Defendant also objects to this interrogatory as the term “intermediaries” is undefined.
This Court has previously held that “financial records can shed significant light on the relationship between a party and a forum and, thus, whether due process would be offended by exercising jurisdiction over a party.” Ochoa v. Empresas ICA, S.A.B. de C.V., 11-23898-CIV, 2012 WL 3260324 (S.D. Fla. 2012). As in Ochoa, such records reasonably could lead to evidence of Hartley’s contacts with this District because they could evidence the type, extent and frequency of Hartley’s business in this District and, accordingly, offer relevant evidence for resolving the Court’s jurisdiction over Hartley, a threshold consideration in this case. Further, based on the information provided here, the Plaintiff can calculate what percentage of Hartley’s business is derived from its contacts in Florida and/or the U.S.
Contrary to Hartley’s objection, the interrogatory is also sufficiently limited in time. A review of jurisdiction cases by other courts shows that contacts are commonly assessed over a period of years prior to the filing of a complaint. See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir. 1996) (reviewing defendant’s contacts with forum state over a six year period and cited approvingly in Woods v. Nova Companies Belize Ltd., 739 So. 2d 617, 621 (Fla. 4th DCA 1999); Wilson v. Belin, 20 F.3d 644, 650-51 (5th Cir. 1994) (analyzing defendant’s contacts with forum state over a five year period); see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 409-11 (1984) (reviewing contacts over a seven year period prior to the filing of the complaint). Accordingly, Hartley should be compelled to answer Plaintiff’s Jurisdictional Interrogatory No. 1 as it is relevant, sufficiently limited, and discoverable.
State the total share of gross revenues of Hartley’s Under Sea Adventures, Ltd (and/or its agents and/or intermediaries) in the years 2006, 2007, 2008, 2009, 2010, 2011 and 2012 derived from its United States operations (including but not limited to: Florida). For each year provide the source of the information (ex. annual reports, stockholders reports).
Objection. This interrogatory is objected to as overbroad, beyond the scope of discovery relevant to jurisdiction, and not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, this interrogatory is not narrowly tailored for the purpose of jurisdictional discovery as it seeks to obtain information relating to the entire United States, as opposed to limiting the information to Florida. Also, Defendant objects to this interrogatory as the term “intermediaries” is undefined. Without waiving said objections, zero percent of the gross revenues are derived from Defendant’s United States operations as Defendant has no United States operations.
The financial information is relevant to determine the extent that Hartley’s business is derived from its contacts in Florida and/or the United States. Contrary to Hartley’s objection, its contacts with the Unites States as a whole (and not simply Florida) is relevant and discoverable. Pursuant to this Honorable Court prior holding, in cases arising under federal law, Rule 4(k)(2) of the Federal Rules of Civil Procedure provides a basis for the assertion of personal jurisdiction on an aggregation of the defendant’s nationwide contacts, even where a foreign defendant would not be subject to jurisdiction in any individual state, provided that two conditions are met. See Khon v. Libertad 54, Ltd., Case No. 11-CV021830-Cooke/Turnoff (S.D. Fla. Oct. 24, 2012) [D.E. 105] (citing Barrocos of Florida, Inc. v. Elmassian, No. 11-CV-22393, 2012 WL 1622988, at *6 (S.D. Fla. May 9, 2012)) (emphasis added); see also Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000).
Herein, as in Kohn, the Plaintiff’s causes of action arise under federal law because the Plaintiff alleges negligence under, inter alia, the Death on the High Seas Act. Hartley’s contacts with the U.S. (and not just Florida) is therefore relevant as it goes to the Court’s ability to exercise jurisdiction over Hartley through Rule 4(k)(2). Further, because national contacts are relevant to an inquiry proceeding under Rule 4(k)(2), discovery as to same is appropriate in this case. Khon, supra (citing Bluewater Trading, LLC v. Fountaine Pajor, S.A., 2008 WL 2705432, at *2-3 (S.D. Fla. Jul. 9, 2008)).
Furthermore, the interrogatory is also limited in time for the same reasons and case law discussed in Interrogatory No. 1. Accordingly, Hartley should be compelled to answer Plaintiff’s Jurisdictional Interrogatory No. 3 as it is relevant, sufficiently limited, and discoverable.
State the total share of gross revenues of Hartley’s Under Sea Adventures, Ltd (and/or its agents and/or intermediaries), in the years 2006, 2007, 2008, 2009, 2010, 2011 and 2012, derived from its operations with other U.S. based cruise lines cruise other than [Royal Caribbean] (i.e. Carnival, Celebrity Cruises , NCL, Regent Seven Seas, etc.). For each year provide the source of the information (ex. annual reports, stockholders reports).
Objection. This interrogatory is objected to as overbroad, beyond the scope of discovery relevant to jurisdiction, and not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, this interrogatory is not narrowly tailored for the purpose of jurisdictional discovery as it seeks to obtain information relating to the entire United States, as opposed to limiting the information to Florida. Also, Defendant objects to this interrogatory as the term “intermediaries” is undefined. Additionally, Defendant objects to the interrogatory as written since there appear to be missing words, leaving the Defendant unclear as to what information the interrogatory seeks.
The total share of gross revenues that Hartley derived from its operations with U.S.-based cruise lines (other than Royal Caribbean) is relevant to determine the amount of business Hartley derives from its relationship with such cruise lines – many of which are based in Florida and others which are based in the United States. As discussed, Hartley’s contacts with the U.S. is relevant as it goes to the Court’s ability to exercise jurisdiction over Hartley through Rule 4(k)(2) which allows the Court to consider the foreign defendant’s contacts with the United States as a whole and not simply its contacts with the forum state. See Khon v. Libertad 54, Ltd., Case No. 11-CV021830-Cooke/Turnoff (S.D. Fla. Oct. 24, 2012) [D.E. 105]; Barrocos of Florida, Inc. v. Elmassian, No. 11-CV-22393, 2012 WL 1622988, at *6 (S.D. Fla. May 9, 2012); Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000); see also Bluewater Trading, LLC v. Fountaine Pajor, S.A., 2008 WL 2705432, at *2-3 (S.D. Fla. Jul. 9, 2008)).
Upon information and belief, discovery will reveal that Hartley derives a substantial amount of money from passengers booking its excursion from U.S.-based cruise lines on a monthly basis and that these cruise lines, in turn, send Hartley (and/or its agents) a portion of such amount on a monthly basis. Therefore, the information requested is relevant to establish that Hartley maintains continuous and systematic business contacts with Florida and/or the U.S. Furthermore, contrary to Hartley’s objection, the interrogatory is not overbroad as it is sufficiently limited to only cruise lines. The interrogatory is also sufficiently limited in time for the same reasons and case law discussed in Interrogatory No. 1.
Accordingly, Hartley should be compelled to answer Plaintiff’s Jurisdictional Interrogatory No. 6 as it is relevant, sufficiently limited, and discoverable.
State the total amount of passengers from Royal Caribbean (and/other cruise lines) who booked a shore excursion operated by Hartley’s Under Sea Adventures, Ltd (and/or its agents and/or intermediaries)in the years 2006, 2007, 2008, 2009, 2010, 2011 and 2012. For each year provide the source of the information (ex. Annual reports). Please specify the name of the cruise line and the origin of the ship.
The amount of passengers that have booked Hartley’s shore excursion in the years indicated is relevant to determine the amount of business Hartley derives from passengers. The total share of gross revenues that Hartley derived by selling its excursions to passengers is relevant to determine the amount of business Hartley derives from its relationship with a Florida-based entity – Royal Caribbean. This Court, in Kilma v. Carnival Corp., 08-20335-CIV, 2008 WL 4559231 (S.D. Fla. Oct. 10, 2008), has stated that business relationships between a non-resident excursion operator and Florida-based cruise lines may be one of the factors considered to establish general jurisdiction under Florida’s long-arm statute. Id. at *3. It is undisputed that Royal Caribbean is an entity with its principal place of business in Florida. As stated, the Plaintiff believes discovery will reveal that Hartley derives a substantial amount of money from passengers booking its excursion from Royal Caribbean cruises on a monthly basis and that Royal Caribbean, in turn, sends Hartley (and/or its agents) a portion of such amount on a monthly basis. Therefore, the information requested is relevant to establish that Hartley maintains continuous and systematic general business contacts with Florida.
In addition, contrary to Hartley’s objection, the interrogatory is not overbroad as it is sufficiently limited to only those passengers booking Hartley’s excursion on Royal Caribbean cruises. The interrogatory is also sufficiently limited in time for the same reasons and case law discussed in Interrogatory No. 1. Lastly, the term “cruise line” is self-explanatory—it is a company that operates cruise ships.
Accordingly, Hartley should be compelled to answer Plaintiff’s Jurisdictional Interrogatory No. 13 as it is relevant, sufficiently limited, and discoverable.
State the total amount of United States residents and/or citizens who booked a shore excursion operated by Hartley’s Under Sea Adventures, Ltd (and/or its agents and/or intermediaries) in the years 2006, 2007, 2008, 2009, 2010, 2011 and 2012. For each year provide the source of the information (ex. Annual reports).
Objection. This interrogatory is objected to as overbroad, beyond the scope of discovery relevant to jurisdiction and not reasonably calculated to lead to the discovery of admissible evidence. This interrogatory is not narrowly tailored for the purpose of jurisdictional discovery as it seeks to obtain information relating to the entire United States, as opposed to limiting the information to Florida. Furthermore, Defendant objects to this interrogatory as the term “intermediaries” is undefined. Additionally, information related to Royal Caribbean passengers that engaged in a shore excursion with Defendant, regardless of where the individuals are residents or citizens, has no bearing on the issue of whether a Florida court can exercise jurisdiction over Defendant. Without waiving said objection, Defendant did not operate a shore excursion for Royal Caribbean. Bermuda Onsite operated the shore excursion and hired Defendant in Bermuda, as an independent contractor to provide helmet diving tours in Bermuda. Bermuda Onsite did not notify Defendant of the residency or citizenship for individuals that purchased a ticket from Bermuda Onsite.
As stated, the amount of passengers that have booked Hartley’s shore excursion in the years indicated is relevant to determine the amount of business Hartley derives from U.S. passengers. Specifically, upon information and belief, discovery will reveal that cruise lines derive a substantial amount of money from passengers booking Hartley’s excursion on a monthly basis and that these cruise lines, in turn, send Hartley a portion of such amount on a monthly basis. Therefore, the information requested is relevant to establish that Hartley maintains continuous and systematic business contacts with Florida and/or the U.S. through cruise line passengers. As discussed above, Hartley’s contacts with the U.S. is relevant as it goes to the Court’s ability to exercise jurisdiction over Hartley through Rule 4(k)(2) which allows the Court to consider the foreign defendant’s contacts with the United States as a whole and not simply its contacts with the forum state. See Khon v. Libertad 54, Ltd., Case No. 11-CV021830-Cooke/Turnoff (S.D. Fla. Oct. 24, 2012) [D.E. 105]; Barrocos of Florida, Inc. v. Elmassian, No. 11-CV-22393, 2012 WL 1622988, at *6 (S.D. Fla. May 9, 2012); Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000); see also Bluewater Trading, LLC v. Fountaine Pajor, S.A., 2008 WL 2705432, at *2-3 (S.D. Fla. Jul. 9, 2008)).
Accordingly, Hartley should be compelled to answer Plaintiff’s Jurisdictional Interrogatory No. 14 as it is relevant, sufficiently limited, and discoverable.
State the names, telephone numbers and address of all entities located and/or with a principal place of business in the United States (including but not limited to Florida) which entered into a contract and/or agreement with Hartley’s Under Sea Adventures, Ltd (and/or its agents and/or intermediaries) in the years 2006, 2007, 2008, 2009, 2010, 2011 and 2012. For each contract, indicate a) its purpose, b) the name of the officers and/or representatives which signed each contract, c) the amounts to be paid under the contract, and d) the contract’s place of performance.
Objection. This interrogatory is objected to as overbroad, beyond the scope of discovery relevant to jurisdiction and not reasonably calculated to lead to the discovery of admissible evidence. This interrogatory is not narrowly tailored for the purpose of jurisdictional discovery as the request is not limited to the State of Florida. Furthermore, Defendant objects to this interrogatory as the term “intermediaries” is undefined.
Whether Hartley contracts with entities to work on its behalf in the United States is clearly relevant to determine its contacts with the U.S. and to determine whether Hartley is conducting business in the U.S. through agents. As discussed above, Hartley’s contacts with the U.S. is relevant as it goes to the Court’s ability to exercise jurisdiction over Hartley through Rule 4(k)(2) which allows the Court to consider the foreign defendant’s contacts with the United States as a whole and not simply its contacts with the forum state. See Khon v. Libertad 54, Ltd., Case No. 11-CV021830-Cooke/Turnoff (S.D. Fla. Oct. 24, 2012) [D.E. 105]; Barrocos of Florida, Inc. v. Elmassian, No. 11-CV-22393, 2012 WL 1622988, at *6 (S.D. Fla. May 9, 2012); Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000); see also Bluewater Trading, LLC v. Fountaine Pajor, S.A., 2008 WL 2705432, at *2-3 (S.D. Fla. Jul. 9, 2008)). The contracts are also relevant to determine whether there is a forum selection clause and where performance was required.
Accordingly, Hartley should be compelled to answer Plaintiff’s Jurisdictional Interrogatory No. 15[b] as it is relevant, sufficiently limited, and discoverable.
As discussed in further detail below, Hartley’s responses to Plaintiff’s Jurisdictional Requests for Production No.’s 4, 5, 6, 7, 8, 10, 16, 18, 21, 23, 24, 25, 26, 32, 33, 34, 42, 46, 47, 48, 49 and 50 are improper and its objections are without merit.
The parties conferred in an attempt to narrow the issues and, as evident from footnote 1 above, they reached agreement on many requests. One of the objections that Hartley maintains to the requests below is that they seek information relating to the entire United States, as opposed to limiting the information to Florida. As discussed above, however, the Plaintiff maintains that Hartley’s contacts with the U.S. is relevant as it goes to the Court’s ability to exercise jurisdiction over Hartley through Rule 4(k)(2) which allows the Court to consider the foreign defendant’s contacts with the United States as a whole and not simply its contacts with the forum state. See Khon v. Libertad 54, Ltd., Case No. 11-CV021830-Cooke/Turnoff (S.D. Fla. Oct. 24, 2012) [D.E. 105]; Barrocos of Florida, Inc. v. Elmassian, No. 11-CV-22393, 2012 WL 1622988, at *6 (S.D. Fla. May 9, 2012); Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000); see also Bluewater Trading, LLC v. Fountaine Pajor, S.A., 2008 WL 2705432, at *2-3 (S.D. Fla. Jul. 9, 2008)).
In light of the same objection for all requests for production, the Plaintiff discusses the relevancy of the requests by grouping them into subject matters for convenience and efficiency.
Plaintiff’s Requests No.’s 4, 6, 7, 8, and 10 seek Hartley’s agreements and/or contracts with individuals and/or companies (including cruise lines) based in Florida and/or the United States. Whether Hartley contracts and/or pays individuals and/or companies (including cruise lines) to work on its behalf in the United States is clearly relevant to determine its contacts with the U.S. and to determine whether Hartley is conducting business in the U.S. through agents. These contracts are also relevant to determine whether there is a forum selection clause and where performance was required.
Plaintiff’s Request No. 5 seeks applications or proposals filled out and/or submitted by Hartley to U.S.-based cruise lines. In response, Hartley objects on grounds that the request is irrelevant and overbroad.
Th[e] “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts, or of the “unilateral activity of another party or a third person”[.] Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a “substantial connection” with the forum State. Thus where the defendant “deliberately” has engaged in significant activities within a State, or has created “continuing obligations” between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by “the benefits and protections” of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.
Rudzewicz, 471 U.S. 462, 475-76, 105 S. Ct. 2174, 2183-84, 85 L. Ed. 2d 528 (1985) (internal citations omitted) (emphasis added).
Therefore, the information and documents Plaintiff seeks in this request is relevant to show that Hartley itself created a “substantial connection” with the United States, “deliberately” engaged in significant activities within the Unites States, and/or created “continuing obligations” between itself and U.S.-based entities (e.g., Royal Caribbean, Celebrity Cruises, Carnival, NCL, Princess Cruise Lines, etc.). Furthermore, the request is sufficiently limited in scope by requesting only applications to cruise lines, and it is also sufficiently limited in time to the period of 2006 to present.
Accordingly, because the request is relevant and not overbroad, Hartley should be compelled to produce responsive documents to Plaintiff’s Jurisdictional Request No. 5.
Plaintiff’s Requests No.’s 8, 42, 46, 47, 48, and 49 seek records of money transfers and invoices between Hartley and entities located in Florida and/or the U.S. (including cruise lines). These documents are relevant to determine whether Hartley has business relationships with U.S. entities and, if so, the extent of business Hartley conducts with such entities. With regard to Request No. 8, specifically, contrary to Hartley’s objection, it is not a duplicate of Request No. 6 because No. 8 requests “invoices” and No. 6 does not. Furthermore, Requests No.’s 48 and 49 are not duplicates either – No. 48 requests records evidencing payments by Defendant and No. 49 requests records evidencing payments to Defendant.
Plaintiff’s Requests No.’s 16, 23, 24 and 26 seek Hartley’s financial and tax records. As discussed above, “financial records can shed significant light on the relationship between a party and a forum and, thus, whether due process would be offended by exercising jurisdiction over a party.” Ochoa v. Empresas ICA, S.A.B. de C.V., 11-23898-CIV, 2012 WL 3260324 (S.D. Fla. 2012). As in Ochoa, such records reasonably could lead to evidence of Hartley’s contacts with this District because they could evidence the type, extent and frequency of Hartley’s business in this District and, accordingly, offer relevant evidence for resolving the Court’s jurisdiction over Hartley, a threshold consideration in this case.
Plaintiff’s Request No.’s 21 and 33 seek information of Hartley’s bank accounts located in the United States. Whether Hartley maintains a bank account in the United States is clearly relevant to determine the extent of Hartley’s contacts in the U.S. The bank account records may also lead to information concerning the extent of Hartley’s business contacts in Florida and/or the U.S.
Plaintiff’s Request No. 25 seeks records of Hartley’s payroll tax records. Hartley’s pay roll records are relevant to determine whether any of Hartley’s employees are based in Florida and/or the U.S. which goes to its contacts and the extent of business it conducts in Florida and/or the U.S. through agents.
Plaintiff’s Request No. 32 seeks information concerning the location of Hartley’s offices. The Plaintiff is entitled to know where Hartley maintains offices.
Plaintiff’s Request No. 34 seeks records regarding the purchase of any vessels and/or marine equipment by Hartley in and/or from the United States. These are relevant to determine whether Hartley owns and/or operates any vessels and, if so, whether and how often such vessel(s) travel to and/or from Florida and/or the U.S. These requests are also relevant to refute Hartley’s affidavit [D.E. 31-1] that it does not use or possess real or personal property in Florida.
Request No. 50 – Documents regarding Business Operations in the U.S.
Plaintiff’s Request No. 50 seeks documents pertaining to Hartley’s business operations in the United States. This request is clearly related to whether Hartley conducts business in the U.S. which is relevant under the Court’s Rule 4(k)(2) analysis.
As discussed in further detail below, Royal Caribbean’s objections to Plaintiff’s Jurisdictional Interrogatories No.’s 1 and 2 are without merit.
State the total share of gross revenues of ROYAL CARIBBEAN CRUISES, LTD., in the years 2006, 2007, 2008, 2009, 2010, 2011 and 2012 derived by selling Hartley’s Under Sea Adventures excursions to cruise passengers. For each year provide the source of the information.
RCL objects to Interrogatory No. 1 on the grounds that it is overbroad, irrelevant, unduly burdensome, harassing and not reasonably calculated to lead to discovery of admissible evidence. The total revenues RCL may have derived from selling tickets for a shore excursion operated by a foreign independent contractor with no physical presence in Florida and who did not engage in business activities in Florida, has no bearing on the issue of whether the Court can assert jurisdiction over said independent contractor. The grounds supporting this objection should apply with greater force to Plaintiff’s specific inquiry requesting “the total share of gross revenues” which requires a comparison between the aforementioned total and the gross revenues RCL derived from its entire operations over a seven year period.
Moreover, for the reasons articulated in Co-defendants [sic] motion to dismiss plaintiff’s Amended Complaint for lack of personal jurisdiction and failure to effect service of process (plaintiff has not even served Hartley through the mandatory channels, ie. Hague Convention for Service Abroad) and supporting memoranda, RCL contends Plaintiff has failed to establish he is entitled to jurisdictional discovery.
The total share of gross revenues that Royal Caribbean derived by selling Hartley’s excursions to passengers is relevant to determine the amount of business Hartley derives from its relationship with a Florida-based entity – Royal Caribbean. As stated above, the Plaintiff believes that discovery will reveal that Royal Caribbean derives a substantial amount of money from passengers booking Hartley’s excursion on a monthly basis and that Royal Caribbean, in turn, sends Hartley (and/or its agents) a portion of such amount on a monthly basis. Therefore, the information requested is relevant to establish that Hartley maintains continuous and systematic business contacts with Florida. The information is also relevant to refute Hartley’s affidavit [D.E. 31-1] that it does not share profits with Royal Caribbean.
Furthermore, contrary to Royal Caribbean’s objection, the interrogatory is not overbroad as it is sufficiently limited to only those excursion(s) provided by Hartley. The interrogatory is also sufficiently limited in time for the same reasons and case law discussed in Section II(A) above. In addition, Royal Caribbean’s objection that the request is unduly burdensome is meritless because it fails to comply with this Court’s Local Rules. Local Rule 26.1(g)(3)(A) provides that a party is required to “show specifically how a discovery request is… unduly burdensome… by submitting evidence or offering evidence which reveals the nature of the burden.” Henderson v. Holiday CVS, LLC, No. 09-80909-CIV, 2010 WL 3153979, *2 (S.D. Fla. Aug. 9, 2010) (citation omitted) (emphasis added); see also Guzman v. Irmadam, Inc., 249 F.R.D. 399 (S.D. Fla. 2008). Herein, Royal Caribbean has not offered any evidence to support the alleged burden and, thus, such claim should be considered meritless pursuant to Henderson.
Accordingly, Royal Caribbean should be compelled to answer Plaintiff’s Jurisdictional Interrogatory No. 1 as it is relevant, sufficiently limited, and discoverable.
State the total amount of ROYAL CARIBBEAN CRUISES, LTD. passengers who booked a shore excursion operated by Hartley’s Under Sea Adventures, Ltd., in the years 2006, 2007, 2008, 2009, 2010., 2011 and 2012. For each year provide the source of the information (ex. Annual reports). For each year provide a breakdown of the passengers who originally boarded the ROYAL CARIBBEAN CRUISES, LTD. ship in the United States.
RCL adopts herein the objections and arguments it raised in response to interrogatory No. 1. The number of RCL passengers that brooked the subject shore excursion during the applicable period, regardless of where they started their cruise, has no bearing on the issue of whether Florida Courts can exercise jurisdiction over Hartley.
Similar to Interrogatory No. 1, the amount of passengers that have booked Hartley’s shore excursion(s) in the years indicated is relevant to determine the amount of business Hartley derives from passengers. The total share of gross revenues that Royal Caribbean derived by selling Hartley’s excursions to passengers is relevant to determine the amount of business Hartley derives from its relationship with a Florida-based entity – Royal Caribbean. This Court, in Kilma v. Carnival Corp., 08-20335-CIV, 2008 WL 4559231 (S.D. Fla. Oct. 10, 2008), stated that business relationships between a non-resident excursion operator and Florida-based cruise lines may be one of the factors considered to establish general jurisdiction under Florida’s long-arm statute. Id. at *3. It is undisputed that Royal Caribbean is an entity with its principal place of business in Florida. As stated, the Plaintiff believes discovery will reveal that Royal Caribbean derives a substantial amount of money from passengers booking Hartley’s excursion on a monthly basis and that Royal Caribbean, in turn, sends Hartley (and/or its agents) a portion of such amount on a monthly basis. Therefore, the information requested is relevant to establish that Hartley maintains continuous and systematic general business contacts with Florida.
In addition, contrary to Royal Caribbean’s objection, the interrogatory is not overbroad as it is sufficiently limited to only those passengers booking Hartley’s excursion(s). The interrogatory is also sufficiently limited in time for the same reasons and case law discussed above. Furthermore, Royal Caribbean fails to offer any evidence to support the alleged burden and, thus, such claim should be considered meritless pursuant to Henderson. Henderson, supra (a party is required to “show specifically how a discovery request is… unduly burdensome… by submitting evidence or offering evidence which reveals the nature of the burden”).
Accordingly, Royal Caribbean should be compelled to answer Plaintiff’s Jurisdictional Interrogatory No. 2 as it is relevant, sufficiently limited, and discoverable.
As discussed in further detail below, Royal Caribbean’s objections to Plaintiff’s Jurisdictional Requests for Production No.’s 3, 5, 6 and 7 are without merit.
Any and all e-mails, memoranda and/or correspondence between Hartley’s Under Sea Adventures, Ltd (and/or its agents and/or intermediaries) and CELEBRITY CRUISES, INC. AND/OR ROYAL CARIBBEAN CRUISES, LTD.
After a reasonable search and inquiry of its records in the manner and location where such records are ordinarily maintained, RCL has not located correspondence between RCL or Celebrity and Hartley. RCL objects to the terminology memoranda on the grounds it is vague and ambiguous. RCL further objects to the request for correspondence between RCL and any other entity besides Hartley on the grounds that the request is not reasonably calculated to lead to discovery of admissible evidence on the issue of whether the court can exercise personal jurisdiction over Hartley. This request is also overly broad as it is not limited in time and scope.
Plaintiff submits that emails, memoranda and/or correspondence between Hartley and/or Bermuda Onsite Ltd. (as Hartley’s agent) and Royal Caribbean and/or Celebrity Cruises (owned by RCL) is relevant and reasonably calculated to lead to the discovery of admissible evidence pertaining to Hartley’s general course of business with Royal Caribbean and Celebrity Cruises. The Supreme Court has stated that “it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines,” and that personal jurisdiction cannot be defeated merely because a defendant did not “physically enter” the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985); see Cable/Home Comm. Corp. v. Network Prods., Inc., 902 F.2d 829, 858 (11th Cir. 1990) (“[i]n our technologically sophisticated world permitting interstate business transactions by mail, wire and satellite signals, physical presence by the nonresident defendant is not necessary for personal jurisdiction in the forum state”); see also Exhibit Icons, LLC v. XP Companies, LLC, 609 F.Supp.2d 1282, 1293-94 (S.D. Fla. 2009) (relying on the aforementioned cases in considering defendant’s communications via telephone, email and facsimile to Florida and ultimately exercising personal jurisdiction over such defendant).

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