The opinion
JOHNSON, Circuit Judge,
dissenting:
I dissent from the decision of the majority that appellant did not have sufficient minimum contacts with the state of Florida to support the exercise of personal jurisdiction by a federal district court sitting in diversity. To decide whether the exercise of jurisdiction comports with the requirements of due process, this Court must determine whether the defendant “has purposefully availed himself of the benefits and protection of the forum state’s laws, whether the forum state has any special interest in exercising jurisdiction, and whether the convenience of the parties favors litigating in another state.” Austin v. North American Forest Products, 656 F.2d 1076, 1089 (5th Cir.1981) (citing Product Promotions, Inc. v. Cousteau, 495 F.2d 488 (5th Cir.1974)). 1
This Court has recognized that the purposeful availment prong of the Product Promotions test may be satisfied even if the defendant performs no physical acts within the forum state, as long as his contacts with the forum were “ ‘deliberate, rather than fortuitous, so that the possible need to invoke the benefits and protections of the forum’s laws was reasonably forese eable, if not foreseen, rather than a surprise’.” Austin, supra, at 1089-90 (quoting Product Promotions, supra, at 496 ) (footnotes omitted). In Marathon Metallic Building Co. v. Mountain Empire Construction Co., 653 F.2d 921 (5th Cir.1981) (per curiam), the Court determined that the purposeful availment prong was satisfied when the defendant entered a contract that specifically provided that it would be governed by the laws of the forum state. Id. at 923 . In this case, both the franchise agreement and the lease signed by appellant and Burger King specifically provided that the laws of Florida would govern their interpretation. Thus, appellant has purposefully availed himself of the benefits and protections of Florida’s laws.
The forum state has a special interest in exercising jurisdiction when the contract in dispute calls for the application of the forum state’s laws. See Marathon, supra, at 923 (forum has interest when contract requires application of forum’s laws); Product Promotions, supra, at 498 (forum has interest when its laws will be “of some relevance in resolving the suit”). Thus, Florida here has a special interest in exercising jurisdiction over appellant.
Finally, no great imbalance of convenience here argues for one forum over the other. Appellant cannot successfully argue that, because a large corporation sues him as an individual, the inconvenience to him can defeat personal jurisdiction. See Marathon, supra, at 923 .
*1514 Ignoring this binding precedent, the majority opinion questions whether appellant had reasonable notice of the possibility that he would be haled into court in Florida and whether he was adequately prepared for that contingency, and it warns that a determination that jurisdiction exists in this case may mean that consumers, nonresident purchasers whom the majority likens to appellant, also will be subjected to the jurisdiction of foreign courts simply because they have purchased goods under contracts requiring them to remit payment to the foreign state. In raising this specter, the majority does not give proper weight to the recognized fact that appellant was a senior partner in a Michigan accounting firm, who for five months conducted negotiations with Burger King over the terms of the franchise and lease agreements, and who obligated himself personally to contracts requiring over time payments that exceeded $1 million. Appellant, who clearly does not resemble the average consumer, signed contracts that explicitly provided that Florida law would govern their interpretation. He therefore had reasonable notice of the possibility that he would be sued under the contracts in the state of Florida, and he should have been adequately prepared for that contingency.
. The Eleventh Circuit Court of Appeals has adopted the case law of the former Fifth Circuit handed down as of September 30, 1981, as its governing body of precedent, which is binding unless and until overruled or modified by this Court en banc. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).