FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 10, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

-------------------------------------------

No. 05-11491

Non-Argument Calendar

--------------------------------------------

D.C. Docket No. 04-00309-CV-J-32-MMH

BARBARA BOND,

 

Plaintiff-Appellant, 

versus

IVY TECH STATE COLLEGE,

 Defendant-Appellee. 

----------------------------------------------------------------

Appeal from the United States District Court

for the Middle District of Florida 

----------------------------------------------------------------

(February 10, 2006)

Before EDMONDSON, Chief Judge, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
 98 percent of students at Ivy Tech are Indiana residents. Of the remaining two percent, most are 1

from states that border Indiana.

2

Plaintiff-Appellant Barbara Bond, proceeding pro se, appeals from a district

court order dismissing her civil suit for lack of personal jurisdiction and further

denying her motion to transfer the case. No reversible error has been shown; we

affirm.

Plaintiff brought suit in the Middle District of Florida against Ivy Tech State

College, a state-supported community college in Indiana and Plaintiff’s former

employer. Plaintiff alleged that Ivy Tech breached the terms of a settlement

agreement struck between the parties to sever Plaintiff’s employment. Plaintiff,

who was domiciled in Florida at the time she sued, claimed the Florida district

court had diversity jurisdiction under 28 U.S.C. § 1332. The district court,

however, dismissed the suit for lack of personal jurisdiction over Ivy State

pursuant to Fed. R. Civ. P. 12(b)(2). 

In dismissing Plaintiff’s suit, the court credited Ivy Tech’s assertions that it

did not engage in business, recruit students, maintain an office, or cause an injury

in Florida under the meaning of Florida’s long-arm statute. Ivy Tech’s campuses

are confined to Indiana, and its student population is made up almost entirely of

Indiana residents. And even accepting Plaintiff’s allegations as true, the court 1
 Parties proceeding pro se are entitled to leniency in pleading. GJR Invs., Inc. v. County of 2

Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998).

3

rejected her assertions that Ivy Tech had sufficient contacts with Florida through

mailing a limited number of student admissions packets to Florida residents,

maintaining a website, and offering distance learning courses over the Internet.

We review the district court’s dismissal for lack of personal jurisdiction de

novo and construe all reasonable inferences in favor of the plaintiff. Meier v. Sun

Int’l Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir. 2002). To determine whether

the Florida district court had personal jurisdiction over non-resident Ivy Tech, we

use a two-part analysis: 1) whether Florida’s long-arm statute provides a basis for

jurisdiction, and, if it does, 2) whether Ivy Tech had sufficient minimum contacts

with Florida such that satisfy the Fourteenth Amendment Due Process Clause’s

notions of fair play and substantial justice. Sculptchair, Inc. v. Century Arts, Ltd.,

94 F.3d 623, 626 (11th Cir. 1996). Under Florida law, the plaintiff bears the

burden of proving personal jurisdiction. Id. Even construing Plaintiff’s pleadings

leniently, the district court correctly decided that personal jurisdiction over Ivy 2

Tech is not proper under the Florida long-arm statute and would violate Due

Process.
4

As best we can tell, Plaintiff’s pleadings indicate that she believes

jurisdiction rests on Fla. Stat. §§ 48.193(1)(f), (1)(g), and (2) (Florida’s long-arm

statute). Section 48.193(1)(f) provides, in relevant part, jurisdiction over any

person “causing injury to persons or property within this state arising out of an act

or omission by the defendant outside this state,” if the defendant “was engaged in

solicitation or service activities” within Florida. Florida’s Supreme Court has held

that “the provisions of section 48.193(1)(f) contemplate personal injury or

physical property damage;” mere economic injury is insufficient to subject a nonresident defendant to personal jurisdiction in Florida under this section. Aetna

Life & Cas. Co. v. Therm-O-Disc, Inc., 511 So. 2d 992, 994 (Fla. 1997). Because

she does not allege personal injury or property damage, jurisdiction is not

available under section 48.193(1)(f).

Section 48.193(1)(g) provides jurisdiction over any person “breaching a

contract in this state by failing to perform acts required by the contract to be

performed in this state.” We have written that this section “means that there must

exist a duty to perform an act in Florida; a contractual duty to tender performance

to a Florida resident is not in itself sufficient to satisfy the statute.” Posner v.

Essex Ins. Co., Ltd., 178 F.3d 1209, 1218 (11th Cir. 1999). See also Travel

Opportunities of Fort Lauderdale, Inc. v. Walter Karl List Mgmt., Inc., 726 So. 2d
5

313, 314 (Fla. Dist. Ct. App. 1998) (“[I]t is not enough that a foreign defendant

merely contract with a Florida resident. Rather, the contract itself must require

performance in Florida.”). The settlement agreement at issue here does not require

Ivy Tech to perform acts in Florida.

Section 48.193(2) provides jurisdiction over any defendant “who is engaged

in substantial and not isolated activity within this state, whether such activity is

wholly interstate, intrastate, or otherwise...[and] whether or not the claim arises

from that activity.” Plaintiff points to Ivy Tech’s website and online class

offerings and some evidence that the school sent admissions packets to

prospective students in Florida as supporting jurisdiction under this section. 

Florida courts have held that jurisdiction is proper under this section only when

the nonresident defendant actually procures business in Florida or solicits business

through continued or sustained efforts; solicitation in a “haphazard and sporadic

manner” does not confer jurisdiction. Price v. Point Marine, Inc., 610 So. 2d

1339, 1341 (Fla. Dist. Ct. App. 1992).

Plaintiff has made only bare allegations that she has personal knowledge

that application packets were mailed to Florida residents, but she failed to provide 

details about the contacts. Ivy Tech’s uncontroverted evidence shows that 98

percent of its students are from Indiana and that the majority of the remaining
6

students are from bordering states. Even construing all reasonable inferences in

Plaintiff’s favor, nothing evidences a continuous or sustained effort to solicit

students from Florida.

Never has this Court addressed the question of whether the mere existence

of a website that is visible in a forum, by itself, confers jurisdiction over the site’s

owner. Other circuits, however, have found this circumstance insufficient to

confer jurisdiction. See, e.g., McBee v. Delica Co., Ltd., 417 F.3d 107, 124 (1st

Cir 2005) (“The mere existence of a website does not show that a defendant is

directing its business activities towards every forum where the website is 

visible. . . .”); Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d

1275, 1281 (Fed. Cir. 2005) (“[T]he ability of District residents to access the

defendants’ websites...does not by itself show any persistent course of conduct by

the defendants in the District.”) (citation omitted). 

In Revell v. Lidov, 317 F.3d 467, 470-71 (5th Cir. 2002), the Fifth Circuit

concluded held that a nonresident university’s website, which allowed users to

subscribe to a journalism review, purchase advertising, and submit electronic

admissions applications, did not subject the university to jurisdiction in Texas

when the university did not receive more than twenty internet subscriptions from

Texas residents. The Fifth Circuit concluded that though “a website is, in a sense,
 Because we conclude that the Florida long-arm statute does not provide a basis for personal 3

jurisdiction, the constitutional analysis is unnecessary. Homeway Furniture Co. of Mount Airy, Inc.

v. Horne, 822 So.2d 533, 536 (Fla. Dist. Ct. App. 2002). 

7

a continuous presence everywhere in the world,” the defendant’s contacts were

“not in any way ‘substantial.’” Id. at 471. Ivy Tech’s limited contact with Florida

via its website was similarly insubstantial.3

Plaintiff also argues on appeal that the interests of justice required the court

to transfer her case to a district court in Indiana once it found that Florida was not

the proper forum. 28 U.S.C. § 1631 states that “[w]henever a civil action is filed

in a court...and that court finds that there is a want of jurisdiction, the court shall,

if it is in the interest of justice, transfer such action or appeal to any other such

court in which the action or appeal could have been brought at the time it was

filed.” The district court refrained from transferring the case to another forum, and

we review its refusal to transfer for an abuse of discretion. Robinson v. Giarmarco

& Bill, P.C., 74 F.3d 253, 255 (11th Cir. 1996).

We cannot say that the district court abused its discretion by not transferring

this case to Indiana. Plaintiff has failed to present evidence or allege that she

could not refile the case in Indiana. The evidence further indicates that Plaintiff

knew Indiana was the proper forum when she filed suit in Florida. She filed two

motions in the Northern District of Indiana related to her settlement agreement. 
8

Only when those motions were denied did she file her case in Florida. On this

record we cannot conclude that the district court abused its discretion when it

concluded that Plaintiff’s actions “do not show the good faith that would dictate a

transfer in the ‘interest of justice.’”

For the foregoing reasons we affirm the district court’s dismissal of

Plaintiff’s civil action and refusal to transfer her claims.

AFFIRMED.