Bomann Golf, Inc., Plaintiff-appellee, v. Cosmos Industries, Inc., et al., Defendants-appellants, 459 F.2d 1090 (5th Cir. 1972)

Defendants appeal from a preliminary injunction entered by the district court pursuant to the Florida Deceptive Trade Practices Act, Fla.Stat. Sec. 817.71, F.S.A. The facts, as found by the district court and supported by substantial evidence, are set out below.

Plaintiff, a Florida corporation, is a manufacturer and seller of golf equipment. In 1968, plaintiff began advertising its specialized Bomann Bomber golf club in several golf magazines and thereafter sold Bombers to more than 600 golf pros and country clubs. Pursuant to a mail order campaign already begun, in December, 1969, plaintiff contacted defendant Dynaflyte Corporation, a mail order house primarily engaged in selling golf equipment, through its chief executive officer, defendant Silver, in order to gain access to a larger mailing list. Through this contact, Dynaflyte and plaintiff embarked on what the district court found to be a joint venture based in Florida to sell Bombers by mail order, using Bomann advertising materials on Dynaflyte stationery.

In June, 1970, Dynaflyte, after a period of cooperative efforts with Bomann, mailed circulars advertising a "mystery" Bomber based on material identical to that in the Bomann advertisements. From this mailing, Dynaflyte received some 6,000 orders which it sought to fill through another manufacturer. Dynaflyte soon began receiving complaints that these new Bombers were of inferior quality and was eventually forced to send an apology letter to its customers explaining that the "mystery" manufacturer was at fault. Many of these "mystery" circulars and letters went to the same persons who had previously received the Bomann material.

The district court, after a five-day evidentiary hearing, enjoined Dynaflyte from further use of Bomann's advertising materials and prohibited its filling further orders for "Bombers" with any golf club other than the original Bomann Bomber on grounds that defendants' practices were harming plaintiff's reputation.

Defendants first urge that the service of process was defective under Florida law. Suit was filed on February 5, 1971. On February 6, 1971, plaintiff mailed a copy of the complaint and a court summons to the Florida Secretary of State. On the same day, plaintiff sent a copy of these documents to each defendant along with a Notice of Service advising defendants that process had been served on the Secretary of State that same day by mail.

Defendants first argue that under the Florida statute plaintiff was required to personally serve, rather than mail, the process papers to the Secretary of State. See Fla.Stat. Sec. 48.161, F.S.A.¹  It is not necessary to rule on this point inasmuch as defendants failed to allege this defect before the trial court prior to appeal. We, therefore, have no choice but to deem the alleged defect waived. See Marston v. American Employers Insurance Company, 1st Cir. 1971, 439 F.2d 1035; Guardian Title Company v. Sulmeyer, 9th Cir. 1969, 417 F.2d 1290.

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Secondly, defendants allege that notice of actual service on the Secretary of State was required. The old Florida nonresident service statute provided that service on the Secretary of State would be sufficient "provided, that notice of such service and a copy of the process are forthwith sent" to the defendant. Fla.Stat. Sec. 47.30. In Conway v. Spence, 119 So. 2d 426 (Fla.App.1960), involving facts similar to the instant case, the Florida court held that mailing the papers to defendants before actual service on the Secretary of State was insufficient. See also Green Manor Construction Company v. Punta Gorda Ready Mix Concrete, 159 So. 2d 255 (Fla.App.1964). This statute, however, was repealed in 1967 by Fla.Stat. Sec. 48.161, F.S.A., which provides simply that service may be made on the Secretary of State. The statute then provides, "Notice of service . . . shall be sent forthwith" to defendant.² 

The district court held that the omission of the words "provided" and "such" from the original statute had the effect of overruling Conway and making plaintiff's service sufficient in the instant case. This was based on the district court's reasoning that personal service under Sec. 48.161 is no longer a technical requirement for sufficiency of service; rather it is a procedural due process requirement, which was fulfilled in the instant case by actual notice to defendants. There are no Florida cases as yet construing Section 48.161 in this regard. In light of the great weight to be given the determination of local law by the district court in diversity cases and our own belief in the reasoning of the district court's opinion, we find no error in this construction. See Vaughn v. Chrysler Corporation, 10th Cir. 1971, 442 F.2d 619; Delduca v. United States Fidelity & Guaranty Company, 5th Cir. 1966, 357 F.2d 204; Hogue v. Pellerin Laundry Machinery Sales Company, 8th Cir. 1965, 353 F.2d 772.

Defendants further argue that the district court erred in finding that they had the minimal contacts in Florida necessary for the district court's maintaining jurisdiction over their persons and that the district court had no discretion to enter an injunction under the facts as presented. Both allegations clearly are without merit. See Local Rule 21.

Affirmed.