Justia.com Opinion Summary: Getloaded Corporation, TransCore, and Roper Industries, Inc. (collectively, Getloaded), and American Timber & Steel Company, Inc. (ATSC), petitioned the Supreme Court for writs of mandamus to direct the Montgomery Circuit Court to dismiss them as defendants based on a lack of personal jurisdiction in actions filed by Plaintiffs Bishop Ivey, Carolyn Kelley, Joan Foye Wynn, Sonie Taylor, Annette Fenn, Kendra Bouier, and Jenny Simmons. The plaintiffs were representatives of the estates of passengers riding in an Alabama Department of Corrections van who died as a result of an October 2008 accident. A truck carrying lumber purchased by ATSC from Getloaded tried to pass another vehicle on the highway. The van hit the passing truck and caught fire, engulfing the van in flames killing all inside. The plaintiffs' respective complaints asserted claims against the purchasers of the lumber, the truck drivers and their trucking companies, and others who were otherwise involved in the loading and delivery of the lumber. ATSC filed an answer to the complaints in which, among other things, it pleaded lack of personal jurisdiction. In April 2009, the claims against ATSC were voluntarily dismissed without prejudice. The plaintiffs then reached a settlement with one of the trucking companies and its driver. The circuit court found that the remaining Defendants had the sufficient "minimum contacts" with the state to justify the exercise of personal jurisdiction. Upon review, the Supreme Court found Defendants did not have sufficient contact with the state in order for the circuit court to exercise personal jurisdiction over them. The Supreme Court reversed the court's decision and remanded the case to dismiss Defendants from this action.
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REL: 09/23/2011
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 2290649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2011
____________________
1100884
____________________
Ex parte American Timber & Steel Company, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: Bishop Ivey, Carolyn Kelley, Joan Foye Wynn, Sonie
Taylor, Annette Fenn, Kendra Bouier, and Jenny Simmons
v.
Lewis Trucking Company et al.)
____________________
1100885
____________________
Ex parte Getloaded Corporation, TransCore, and Roper
Industries, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: Bishop Ivey, Carolyn Kelley, Joan Foye Wynn, Sonie
Taylor, Annette Fenn, Kendra Bouier, and Jenny Simmons
v.
Lewis Trucking Company et al.)
(Montgomery Circuit Court: CV-08-90123, CV-08-901207,
CV-08-901213, CV-08-901214, CV-08-901216,
CV-08-901217, and CV-08-901218)
MURDOCK, Justice.
Getloaded Corporation, TransCore, 1 and Roper Industries,
Inc. (hereinafter collectively referred to as "the Getloaded
defendants"),
and
American
Timber
&
Steel
Company,
Inc.
("ATSC"), petition this Court for writs of mandamus directing
the Montgomery Circuit Court to dismiss them as defendants
based on a lack of personal jurisdiction in actions filed by
Bishop Ivey, Carolyn Kelley, Joan Foye Wynn, Sonie Taylor,
Annette Fenn, Kendra Bouier, and Jenny Simmons (hereinafter
collectively
referred
to
as
"the
plaintiffs").
We
have
consolidated the petitions for the purpose of writing one
opinion.
We deny ATSC's petition and grant the Getloaded
defendants' petition.
1
TransCore is a corporation; however, neither the briefs
nor the materials before us provide any indication as to its
complete name.
2
1100884 and 1100885
I.
Facts and Procedural History
ATSC is an Ohio corporation with its principal place of
business in Ohio.
sale
of
lumber
ATSC's primary business is the purchase and
and
timber
products
for
the
commercial-
construction industry.
The Getloaded defendants are all related entities.
Roper
Industries is a Delaware corporation with its principal place
of
business
in
Florida.
Roper
Industries
is
the
parent
corporation of TransCore and either the parent corporation or
grandparent corporation of Getloaded Corporation.
infra.
TransCore is a Delaware corporation with its principal
place of business in Pennsylvania.
parent
See note 3,
corporation
Corporation.
or
a
sister
See note 3, infra.
TransCore is either the
corporation
of
Getloaded
Getloaded Corporation is a
Virginia corporation with its principal place of business in
that state.
In late September or early October 2008, ATSC sold some
lumber owned by it and located at a facility operated by Texas
Forest Products, Inc., 2 in Gilmer, Texas, to Barfield Fence,
a business located in Apopka, Florida.
2
Eric Duffey, the
Texas Forest Products, Inc., treats and stores lumber
owned by ATSC.
3
1100884 and 1100885
shipping-traffic manager for ATSC, attempted through his usual
contacts to find a carrier for
$2,000.
the
the
lumber at a price of
When those avenues of contact failed, Duffey listed
proposed
shipment
and
requested
shipping
quotes
on
Getloaded.com, a Web site to which ATSC is a subscriber, or
"member," and which the plaintiffs alleged is "operated" by
the Getloaded defendants. 3
In part, the Web site includes a
3
Getloaded.com was formerly owned by Getloaded.com, LLC.
Getloaded Acquisition Corporation purchased Getloaded.com,
LLC, and thereafter dissolved the limited liability company.
According to deposition testimony from Bonnie Davis (who
testified that she was a customer-support supervisor with
Getloaded Acquisition Corporation), in July 2008 TransCore,
which is owned by Roper Industries, purchased Getloaded
Acquisition Corporation.
Davis also stated, however, that
Getloaded.com was itself owned by TransCore.
In
their
amended
complaint,
the
plaintiffs
named
TransCore, Roper Industries, Getloaded.com, LLC, and Getloaded
Acquisition
Corporation
as
defendants.
Nevertheless,
Getloaded Corporation appeared in the action in conjunction
with the other Getloaded defendants (i.e., TransCore and Roper
Industries). In the Getloaded defendants' motion to dismiss
for lack of personal jurisdiction, see discussion, infra, they
asserted that Getloaded Acquisition Corporation had changed
its name to Getloaded Corporation and that Getloaded.com, LLC,
was no longer "in existence and did not own any interest in
Getloaded.com at the time the events at issue in this lawsuit
occurred." They further asserted that Getloaded Corporation
"operates" Getloaded.com, that TransCore is an "affiliate"
corporation
of
Getloaded
Corporation,
and
that
Roper
Industries is Getloaded Corporation's parent corporation.
We note that the plaintiffs did not contest the foregoing
assertions, and no contention is made that Getloaded
4
1100884 and 1100885
"load board" on which truckers can advertise that their trucks
are available and shippers and brokers can advertise that they
have loads that need to be transported.
The Web site also has
a message board that allows truckers, shippers, and brokers to
communicate with one another.
After
seeing
ATSC's
post,
a
representative
of
Lewis
Trucking Company ("Lewis"), which is located in Georgia and
which is also a member of Getloaded.com, contacted Duffey.
Thereafter, ATSC and Lewis agreed that Lewis would transport
the lumber from Texas to Florida for ATSC's asking price of
$2,000.
site
to
Duffey used "the Federal Motor Carrier SafeStat" Web
research
Lewis's
United
States
Department
of
Transportation motor carrier, or "MC," number before he agreed
to
Lewis's
transporting
ATSC's
materials.
The
Web
site
apparently is operated by the Department of Transportation,
and anyone can use the site to conduct research on a carrier,
Corporation is not a proper party in this case or as to the
present petition filed by the Getloaded defendants. We also
note that an affidavit from Paul Soni, vice president and
controller
for
Roper
Industries,
which
the
Getloaded
defendants submitted in conjunction with their motion to
reconsider the denial of their motion to dismiss, avers that
both Getloaded Corporation and TransCore are wholly owned
subsidiaries of Roper Industries, implies that Getloaded.com
is owned by Getloaded Corporation, and states that TransCore
operates a Web site that competes with Getloaded.com.
5
1100884 and 1100885
provided the researcher has the carrier's MC number, its legal
name, and its domicile.
According to Duffey, research based
on MC numbers commonly is used to confirm whether a carrier's
"authority is in effect, ... insurance is still up to date,
and that they
problems."
don't have ... a lot of violations or ...
Duffey agreed that carriers on "Safestat" are
assigned "SEA safety numbers" between 1 and 100 and that as a
carrier's SEA safety number "approache[s] 100, you're about as
unsafe as you can get."
He admitted that he was aware that
Lewis had a SEA safety number of 98.22 when he decided ATSC
would utilize Lewis's services.
According to Duffey, he made
the decision to use Lewis despite its poor SEA safety number
because Lewis had not had a safety violation for two years.
There is no evidence indicating that Duffey made the decision
to use Lewis in reliance upon any representation made by any
of the Getloaded defendants on the Web site.
We note that the safety record of a carrier could be
determined by using "links" found on Getloaded.com to connect
to the Web sites of one or more other companies who advertise
on
the
Getloaded
site. 4
Also,
4
Bonnie
Davis,
a
customer-
For example, Getloaded.com included a link to a service
that advertised on the Web site and was called CarrierWatch.
6
1100884 and 1100885
support
supervisor
for
the
Web
site,
see
note
3
supra,
testified that she and fellow employees would provide, upon
request,
information
"SafeStat" Web site.
to
Getloaded.com
members
from
the
We note that the plaintiffs alleged in
their complaint that despite its poor safety record, Lewis was
allowed to join Getloaded.com as a member and "list itself as
a safe, qualified common carrier available to shippers and/or
brokers."
defendants
The plaintiffs further alleged that the Getloaded
"made
no
effort
to
inquire
into
the
accident
history, vehicle history, and/or driver's history despite the
fact other similar Web sites, including those operated by the
[Getloaded
defendants 5 ],
routinely
undertake
such
an
investigation before allowing ... Lewis ... to be listed as a
safe hauler of freight on Getloaded.com."
Andrew Carter, an employee of Lewis, drove the 18-wheel
tractor-trailer truck that carried the lumber shipment for
ATSC; the truck was owned by Lewis.
Carter apparently picked
CarrierWatch purportedly allowed a shipper or broker to
confirm, among other things, a carrier's safety rating,
possession
of
appropriate
insurance
certificates,
and
authority to serve as a carrier.
5
TransCore apparently operates a Web site that competes
with Getloaded.com, but it is unclear if that is the site to
which the complaint refers.
7
1100884 and 1100885
up the lumber from Texas Forest Products on October 2, 2008.
The lumber was scheduled for delivery to Barfield Fence on
October 6, 2008.
On October 3, 2008, Carter was driving the
loaded truck west on Alabama Highway 82 in Montgomery County,
Alabama.
At
the
same
time,
an
Alabama
Department
of
Corrections ("ADOC") van was traveling east on Highway 82.
The ADOC van was carrying six applicants for employment with
ADOC from the Bullock County Correctional Facility to the
Draper Correctional Facility in Elmore County.
The van was
being driven by an ADOC corrections officer.
The plaintiffs allege that approximately four miles west
of the Bullock County line, Carter attempted to pass another
18-wheel tractor-trailer truck being driven by Johnny Nunez
for Swift Transportation Company ("Swift").
Although the
trucks were in a no-passing zone, Nunez allegedly signaled
Carter that it was clear to pass.
While attempting to execute
the pass, the truck driven by Carter hit the ADOC van in a
frontal-impact collision.
The van subsequently was engulfed
in fire, and all six passengers and the driver of the ADOC van
were killed in the accident.
8
1100884 and 1100885
The plaintiffs are representatives of the estates of the
occupants
of
the
ADOC
van
who
October 3, 2008, accident.
died
as
a
result
of
the
The plaintiffs filed separate
actions in the Montgomery Circuit Court between October 31,
2008,
and
November
3,
2008.
The
complaints asserted claims against
plaintiffs'
respective
Lewis, Carter, Nunez, and
Swift.
In five of the actions, the plaintiffs also asserted
claims
against
ATSC
for
allegedly
lumber into the Lewis truck. 6
improperly
loading
the
The lumber allegedly shifted
when Carter attempted to avoid the accident, which, in turn,
contributed to his losing control of the truck.
ATSC filed an
answer to the complaints in which, among other things, it
pleaded lack of personal jurisdiction.
claims
against
prejudice.
ATSC
were
voluntarily
In April 2009, the
dismissed
without
The plaintiffs then reached a settlement with
Swift and Nunez.
In July 2010, all the plaintiffs filed a consolidated
motion to amend their respective complaints.
court granted the motion.
The circuit
On August 30, 2010, the plaintiffs
6
Specifically, the plaintiffs' allegations of improper
loading were asserted against ATSC doing business as Midwest
Wood Products, Inc., which apparently has an office in Texas.
9
1100884 and 1100885
filed a consolidated amended complaint that "reallege[d] all
paragraphs
of
their
Complaints"
and
defendants
added
and ATSC as defendants.
the
Getloaded
In part, the amended
complaint alleged that ATSC "owed a duty to members of the
traveling public to use reasonable care to investigate and
evaluate the competence and safety record of any carrier hired
to transport freight" and that it had negligently or wantonly
breached that duty.
It also alleged that ATSC had negligently
entrusted a lumber load to Lewis "knowing that [Lewis] and its
drivers were unfit and dangerous" for performing such a task.
As to the Getloaded defendants, the amended complaint
alleged that they operated the Getloaded.com Web site; that
they "owed or assumed a duty to members of the traveling
public to use reasonable care to investigate and evaluate the
competence and safety record of any carrier allowed to be
listed
for
hire
on
its
[sic]
Web
site";
and
that
they
"negligently or wantonly breached that duty."
In
September
2010,
ATSC
and
the
Getloaded
defendants
filed motions to dismiss the amended complaints for lack of
personal jurisdiction, along with evidentiary materials in
support of their motions.
The plaintiffs filed a motion for
10
1100884 and 1100885
discovery as to the jurisdiction issue.
Though the materials
before us do not reflect the ruling of the circuit court on
that
motion,
the
parties
thereafter
conducted
discovery
concerning the circuit court's personal jurisdiction over ATSC
and the Getloaded defendants.
opposition
to
the
motions
The plaintiffs then filed an
to
dismiss,
with
supporting
documentation.
On March 11, 2011, the circuit court held a hearing on
the motions to dismiss for lack of personal jurisdiction.
On
March 31, 2011, the circuit court entered an order denying the
motions
and
stating
that
"[ATSC]
and
the
[Getloaded
defendants] had sufficient minimum contacts with the State of
Alabama to justify the exercise of in personam jurisdiction."
The Getloaded defendants filed a "Motion to Reconsider and
Renewed Motion to Dismiss," including additional supporting
evidence.
The circuit court denied the motion.
Thereafter,
ATSC and the Getloaded defendants filed the present petitions
seeking
writs
dismiss
the
of
mandamus
claims
directing
against
them
jurisdiction.
11
the
for
circuit
lack
of
court
to
personal
1100884 and 1100885
II.
Standard of Review
The writ of mandamus is a drastic and extraordinary writ,
to be
"issued only when there is: 1) a clear legal right
in the petitioner to the order sought; 2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; 3) the lack of
another adequate remedy; and 4) properly invoked
jurisdiction of the court."
Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503
(Ala. 1993).
Also, it is well settled that
"a petition for a writ of mandamus is the proper
device by which to challenge the denial of a motion
to dismiss for lack of in personam jurisdiction. See
Ex parte McInnis, 820 So. 2d 795 (Ala. 2001); Ex
parte Paul Maclean Land Servs., Inc., 613 So. 2d
1284, 1286 (Ala. 1993). '"An appellate court
considers de novo a trial court's judgment on a
party's motion to dismiss for lack of personal
jurisdiction."' Ex parte Lagrone, 839 So. 2d 620,
623 (Ala. 2002) (quoting Elliott v. Van Kleef, 830
So. 2d 726, 729 (Ala. 2002)). Moreover, '[t]he
plaintiff bears the burden of proving the court's
personal jurisdiction over the defendant.' Daynard
v. Ness, Motley, Loadholt, Richardson & Poole, P.A.,
290 F.3d 42, 50 (1st Cir. 2002)."7
7
Of course, an appellate court must give deferential
consideration to any findings of fact made by a trial court
based on evidence received ore tenus in connection with a
determination as to the nature and extent of a foreign
defendant's contacts with the forum state.
12
1100884 and 1100885
Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866
So. 2d 519, 525 (Ala. 2003).
"'"'In considering a Rule
12(b)(2), Ala. R. Civ. P., motion
to dismiss for want of personal
jurisdiction,
a
court
must
consider as true the allegations
of the plaintiff's complaint not
controverted by the defendant's
affidavits, Robinson v. Giarmarco
& Bill, P.C., 74 F.3d 253 (11th
Cir.
1996),
and
Cable/Home
Communication Corp. v. Network
Productions, Inc., 902 F.2d 829
(11th Cir. 1990), and "where the
plaintiff's complaint and the
defendant's affidavits conflict,
the ... court must construe all
reasonable inferences in favor of
the plaintiff." Robinson, 74 F.3d
at 255 (quoting Madara v. Hall,
916 F.2d 1510, 1514 (11th Cir.
1990)).'"
"'Wenger Tree Serv. v. Royal Truck &
Equip., Inc., 853 So. 2d 888, 894 (Ala.
2002) (quoting Ex parte McInnis, 820 So. 2d
795, 798 (Ala. 2001)). However, if the
defendant makes a prima facie evidentiary
showing that the Court has no personal
jurisdiction, "the plaintiff is then
required to substantiate the jurisdictional
allegations in the complaint by affidavits
or other competent proof, and he may not
merely reiterate the factual allegations in
the complaint." Mercantile Capital, LP v.
Federal Transtel, Inc., 193 F. Supp. 2d
1243, 1247 (N.D. Ala. 2002) (citing Future
Tech. Today, Inc. v. OSF Healthcare Sys.,
218 F.3d 1247, 1249 (11th Cir. 2000)). See
13
1100884 and 1100885
also Hansen v. Neumueller GmbH, 163 F.R.D.
471, 474-75 (D. Del. 1995) ("When a
defendant files a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(2), and
supports that motion with affidavits,
plaintiff is required to controvert those
affidavits with his own affidavits or other
competent evidence in order to survive the
motion.") (citing Time Share Vacation Club
v. Atlantic Resorts, Ltd., 735 F.2d 61, 63
(3d Cir. 1984)).'
"Ex parte Covington Pike Dodge, Inc., 904 So. 2d
226, 229-30 (Ala. 2004)."
Ex parte Bufkin, 936 So. 2d 1042, 1045 (Ala. 2006).
III.
Analysis
Both ATSC and the Getloaded defendants contend that the
circuit court erred in concluding that they possessed the
minimum contacts necessary for the circuit court to exercise
personal jurisdiction over them.
court's
decision
as
to
They argue that the circuit
personal
jurisdiction
could
not
properly be based on what is known as "general jurisdiction"
or what is known as "specific jurisdiction." 8
We agree with
8
This Court stated in Elliott v. Van Kleef, 830 So. 2d
726, 730-31 (Ala. 2002):
"'Two types of contacts can
basis for personal jurisdiction:
contacts and specific contacts.
contacts, which give rise to
personal jurisdiction, consist
14
form a
general
General
general
of the
1100884 and 1100885
ATSC and the Getloaded defendants as to the issue of general
jurisdiction. 9
For
the
sake
of
brevity,
we
limit
our
defendant's contacts with the forum state
that are unrelated to the cause of action
and
that
are
both
"continuous
and
systematic." Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414
n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404
(1984); [citations omitted].
Specific
contacts, which give rise to specific
jurisdiction, consist of the defendant's
contacts with the forum state that are
related to the cause of action.
Burger
King Corp. v. Rudzewicz, 471 U.S. 462,
472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528
(1985). Although the related contacts need
not be continuous and systematic, they must
rise to such a level as to cause the
defendant to anticipate being haled into
court in the forum state. Id.'
"Ex parte Phase III Constr., Inc., 723 So. 2d 1263,
1266 (Ala.1998) (Lyons, J., concurring in the
result). Furthermore, this Court has held that, for
specific in personam jurisdiction, there must exist
'a clear, firm nexus between the acts of the
defendant and the consequences complained of.' Duke
v. Young, 496 So. 2d 37, 39 (Ala. 1986). See also
Ex parte Kamilewicz, 700 So. 2d 340, 345 n. 2 (Ala.
1997)."
9
In relation to the State of Alabama, both ATSC and the
Getloaded defendants clearly lack "continuous and systematic
general business contacts" of the nature the United States
Supreme Court recently reaffirmed are necessary for the
exercise of so-called "general jurisdiction" over a foreign
corporation. Goodyear Dunlop Tires Operations, S.A. v. Brown,
___ U.S. ___, ___, 131 S. Ct. 2846, 2853-54 (2011) (further
explaining that "[f]or an individual, the paradigm forum for
15
1100884 and 1100885
discussion to an analysis of the issue of so-called "specific
jurisdiction."
"The extent of an Alabama court's personal
jurisdiction over a person or corporation is
governed by Rule 4.2, Ala. R. Civ. P., Alabama's
'long-arm rule,' bounded by the limits of due
process under the federal and state constitutions.
Sieber v. Campbell, 810 So. 2d 641 (Ala. 2001).
Rule 4.2(b), as amended in 2004, states:
"'(b) Basis for Out-of-State Service.
An appropriate basis exists for service of
process outside of this state upon a person
or entity in any action in this state when
the person or entity has such contacts with
this state that the prosecution of the
action against the person or entity in this
state
is
not
inconsistent
with
the
constitution
of
this
state
or
the
Constitution of the United States ....'
"In accordance with the plain language of Rule
4.2, both before and after the 2004 amendment,
Alabama's long-arm rule consistently has been
interpreted by this Court to extend the jurisdiction
of Alabama courts to the permissible limits of due
process. Duke v. Young, 496 So. 2d 37 (Ala. 1986);
DeSotacho, Inc. v. Valnit Indus., Inc., 350 So. 2d
the exercise of general jurisdiction is the individual's
domicile; for a corporation, it is an equivalent place, one in
which the corporation is fairly regarded as at home").
We
note that neither ATSC nor the Getloaded defendants have an
office in Alabama or employees or property in Alabama, nor
have they registered to do business in Alabama. Although ATSC
and Getloaded Corporation have in the past engaged in some
business transactions involving Alabama residents or materials
located here, those contacts do not approach the type of
relationship with a forum necessary for the exercise of
general jurisdiction.
16
1100884 and 1100885
447 (Ala. 1977).
As this Court reiterated in Ex
parte McInnis, 820 So. 2d 795, 802 (Ala. 2001)
(quoting Sudduth v. Howard, 646 So. 2d 664, 667
(Ala. 1994)), and even more recently in Hiller
Investments Inc. v. Insultech Group, Inc., 957 So.
2d 1111, 1115 (Ala. 2006): 'Rule 4.2, Ala. R. Civ.
P., extends the personal jurisdiction of the Alabama
courts to the limit of due process under the federal
and state constitutions.' ...
"This Court discussed the extent of the personal
jurisdiction of Alabama courts in Elliott v. Van
Kleef, 830 So. 2d 726, 730 (Ala. 2002):
"'This Court has interpreted the due
process
guaranteed
under
the
Alabama
Constitution to be coextensive with the due
process guaranteed under the United States
Constitution.
See Alabama Waterproofing
Co. v. Hanby, 431 So. 2d 141, 145 (Ala.
1983), and DeSotacho, Inc. v. Valnit
Indus., Inc., 350 So. 2d 447, 449 (Ala.
1977). ...
"'The Due Process Clause of the
Fourteenth Amendment permits a forum state
to subject a nonresident defendant to its
courts
only
when
that
defendant
has
sufficient "minimum contacts" with the
forum state.
International Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S. Ct.
154, 90 L. Ed. 95 (1945).
The critical
question with regard to the nonresident
defendant's
contacts
is
whether
the
contacts are such that the nonresident
defendant "'should reasonably anticipate
being haled into court'" in the forum
state. Burger King Corp. v. Rudzewicz, 471
U.S. 462, 473, 105 S. Ct. 2174, 85 L. Ed.
2d
528
(1985),
quoting
World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286,
17
1100884 and 1100885
295, 100 S.
(1980).'"
Ex
parte
DBI,
Inc.,
Ct.
23
559,
So.
62
3d
L.
Ed.
635,
2d
490
643-44
(Ala.
2009)
(emphasis omitted).
In
DBI,
this
Court
closely
reexamined
United
Supreme Court precedent as to in personam jurisdiction.
doing, we noted that the United States
In so
Supreme Court had
stated:
"'[T]he constitutional touchstone remains
whether
the
defendant
purposefully
established "minimum contacts" in the forum
State.
Although it has been argued that
foreseeability of causing injury in another
State should be sufficient to establish
such
contacts
there
when
policy
considerations so require, the Court has
consistently
held
that
this
kind
of
foreseeability
is
not
a
"sufficient
benchmark"
for
exercising
personal
jurisdiction. Instead, "the foreseeability
that is critical to due process analysis
... is that the defendant's conduct and
connection with the forum State are such
that he should reasonably anticipate being
haled into court there." In defining when
it is that a potential defendant should
"reasonably
anticipate"
out-of-state
litigation, the Court frequently has drawn
from the reasoning of Hanson v. Denckla,
357 U.S. 235, 253 (1958):
"'"The unilateral activity of
those who claim some relationship
with
a
nonresident
defendant
cannot satisfy the requirement of
18
States
1100884 and 1100885
contact with the forum State.
The application of that rule will
vary with the quality and nature
of the defendant's activity, but
it is essential in each case that
there be some act by which the
defendant
purposefully
avails
itself
of
the
privilege
of
conducting activities within the
forum State, thus invoking the
benefits and protections of its
laws."
"'This
"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.
"'Jurisdiction in these circumstances
may not be avoided merely because the
defendant did not physically enter the
forum State. Although territorial presence
frequently
will
enhance
a
potential
19
1100884 and 1100885
defendant's affiliation with a State and
reinforce the reasonable foreseeability of
suit there, 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, thus obviating the need for physical
presence within a State in which business
is conducted. So long as a commercial
actor's efforts are "purposefully directed"
toward residents of another State, we have
consistently rejected the notion that an
absence of physical contacts can defeat
personal jurisdiction there.'"
23 So. 3d at 652-53 (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 473-76 (1985) (emphasis omitted)).
The DBI
Court continued:
"Significantly, the Supreme Court in Burger
quoted from World-Wide Volkswagen [Corp.
Woodson, 444 U.S. 286 (1980)], as follows:
King
v.
"'Thus "[t]he forum State does not exceed
its powers under the Due Process Clause if
it asserts personal jurisdiction over a
corporation that delivers its products into
the stream of commerce with the expectation
that they will be purchased by consumers in
the
forum
State"
and
those
products
subsequently injure forum consumers.'
"471 U.S. at 473, 105 S.Ct. 2174 (quoting World-Wide
Volkswagen, 444 U.S. at 297-98, 100 S.Ct. 559)."
23 So. 3d at 653 (emphasis added).
noted:
20
Further, the DBI Court
1100884 and 1100885
"Once the Supreme Court determined in Burger
King that minimum contacts had been established, the
Court
discussed
other
factors
that
could
be
considered in establishing jurisdiction.
"'Once it has been decided that a
defendant purposefully established minimum
contacts within the forum State, these
contacts may be considered in light of
other factors to determine whether the
assertion of personal jurisdiction would
comport with "fair play and substantial
justice."
Thus courts in "appropriate
case[s]" may evaluate "the burden on the
defendant," "the forum State's interest in
adjudicating the dispute," "the plaintiff's
interest
in
obtaining
convenient
and
effective relief," "the interstate judicial
system's interest in obtaining the most
efficient resolution of controversies," and
the "shared interest of the several States
in
furthering
fundamental
substantive
social policies."
These considerations
sometimes
serve
to
establish
the
reasonableness of jurisdiction upon a
lesser showing of minimum contacts than
would otherwise be required.'"
23 So. 3d at 653 (quoting Burger King, 471 U.S. at 476-77
(footnotes and citations omitted)).
The DBI Court then applied the foregoing principles to
the
Korean
seat-belt-manufacturer
defendant
in
that
case,
stating:
"DBI first argues that it has not purposefully
directed any activities toward Alabama and that it
cannot be subject to jurisdiction in Alabama simply
because it placed a product into the stream of
21
1100884 and 1100885
commerce. DBI maintains that it does not know how
many of its seat belts are placed in automobiles
that are destined for Alabama and that it is unable
to determine how much revenue it derives from seat
belts in vehicles delivered to Alabama. ...
DBI
contends, Leytham must prove that DBI purposefully
availed itself of the privilege of doing business in
Alabama, and, DBI says, there is no evidence before
this Court that establishes that DBI purposefully
directed any activities toward Alabama.
DBI
maintains there is no evidence in this record
showing that it knew its products were being
marketed in Alabama. The evidence, DBI says, shows
only
that
it
knew
that
its
products
were
incorporated into automobiles being sold by Kia
Motors in the North American market. Therefore, DBI
concludes, it had no reason to anticipate being sued
in Alabama.
"Leytham points out that DBI contracted with a
New Jersey company to test its seat belts to obtain
a label stating that the seat belts complied with
the FMVSS [United States Federal Motor Vehicle
Safety Standards], which rendered the seat belts
marketable in the United States.
Furthermore,
Leytham
says,
DBI
entered
into
a
claims-indemnification contract with Kia Motors; it
maintains insurance coverage against risks or losses
occurring in the United States; and it retains
defense counsel here. Leytham argues that because
DBI designed its seat belts to comply with the FMVSS
and
because
it
knew
that
Kia
Motors
would
incorporate its seat belts into automobiles that
would be sold nationally in the United States, DBI
should have known that some of those automobiles
would be sold in Alabama. Should any of those seat
belts prove defective, Leytham says, DBI should have
anticipated that it could be sued in Alabama.
"After
considering
all
the
facts
and
circumstances presented in this case, we conclude
22
1100884 and 1100885
that
DBI
purposefully
availed
itself
of
the
privilege of doing business in the Alabama market so
that exercising jurisdiction over it would not
offend the requirements of due process.
"Although DBI has never had a physical presence
in Alabama, being physically present in a state is
not required in order for a state court to have
personal jurisdiction over a defendant. Burger King,
471 U.S. at 476, 105 S. Ct. 2174. DBI knew that its
seat belts were incorporated into automobiles sold
by Kia Motors in the United States.
It is not
subject to reasonable dispute that it is generally
known that a product such as a mass-produced
automobile is marketed on a broad spectrum and is
not a boutique product fit for only a narrow class
of consumers. Likewise, an automobile manufacturer
is involved in the sales of its products on a
national as opposed to a regional basis.
Perhaps
the supplier of a part to a snow-plow manufacturer
could reasonably say it did not anticipate that its
product would be sold in Alabama, but, clearly,
moderately priced, fuel-efficient automobiles, such
as those manufactured by Kia Motors, are destined
for sale in all 50 states in this country.
Kia
Motors has nine dealerships in Alabama.
DBI, by
choosing to enter into a contractual relationship
with Kia Motors pursuant to which DBI would turn a
profit by supplying an essential component part
vital
to
the
safety
of
passengers
for
such
automobiles under the circumstances here described,
cannot
reasonably
assert
ignorance
of
these
realities of the marketplace.
"....
"Under
the
stream-of-commerce
test,
as
articulated in World-Wide Volkswagen and Burger
King, we conclude that the trial court correctly
held that an Alabama court can exercise personal
jurisdiction over DBI.
As previously noted, the
United
States
Supreme
Court
stated
in
both
23
1100884 and 1100885
World-Wide Volkswagen and Burger King that '"[t]he
forum State does not exceed its powers under the Due
Process Clause if it asserts personal jurisdiction
over a corporation that delivers its products into
the stream of commerce with the expectation that
they will be purchased by consumers in the forum
State" and those products subsequently injure forum
consumers.' 471 U.S. at 473, 444 U.S. at 297-98.
"The automobile containing the seat belt that
Leytham alleges malfunctioned and contributed to
Stabler's death did not find its way to Alabama
randomly and fortuitously.
To the contrary, a
dealer acting for a manufacturer with which DBI had
significant ties sold the vehicle in Alabama to an
Alabama resident who was driving on an Alabama
highway when she died as a result of the accident
that is the subject of this lawsuit.
In this
respect,
the
circumstances
here
are
totally
different from those in World-Wide Volkswagen, where
an automobile purchased in New York from a New York
dealer by New York residents happened to be involved
in an accident in Oklahoma.
"As the Supreme Court stated in World-Wide
Volkswagen,
the
foreseeability
crucial
to
a
due-process analysis is not the 'mere likelihood'
that a product will find its way into the forum
state but that a defendant's conduct and its
connection with the forum state 'are such that he
should reasonably anticipate being haled into court
there.'
444 U.S. at 297, 100 S. Ct. 559.
In
selling seat belts compliant with the FMVSS to Kia
Motors, DBI should have foreseen that a certain
percentage of the automobiles manufactured by Kia
Motors would be distributed to the Kia dealerships
in Alabama and sold in Alabama. Therefore, we hold
that it would have been reasonable for DBI to
anticipate being haled into court in Alabama.
Indeed, DBI purchased insurance to protect itself in
such event."
24
1100884 and 1100885
23 So. 3d at 654-56 (emphasis added).
As noted above, the plaintiffs' claims as to ATSC include
the
allegation
that
ATSC
"owed
a
duty
to
members
of
the
traveling public to use reasonable care to investigate and
evaluate the competence and safety record of any carrier"
hired by ATSC to transport freight.
The plaintiffs assert
that ATSC failed to fulfill that duty and, among other things,
was negligent in hiring Lewis to transport its products.
By
incorporating the claims asserted in the original complaints,
the plaintiffs also alleged that ATSC negligently loaded the
Lewis truck, which, they say, contributed to Carter's loss of
control of the truck.
these
claims
but,
We do not address the viability of
instead,
assume
for
purposes
of
this
proceeding that the complaint alleges cognizable duties and
violations of duties by ATSC that led to the accident in
question.
The question we address then is whether it would
violate due-process rights for ATSC to be required to address
the viability of, and other issues concerning the merits of,
those claims in an Alabama court. 10
10
In light of the above-
Compare Board of Trs., Sheet Metal Workers' Nat'l
Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1035 (7th
Cir. 2000) (explaining that "[w]hether the defendant is liable
under ERISA is the subject to be litigated following service;
25
1100884 and 1100885
emphasized principles recognized in DBI, we conclude that it
would not.
As noted, the plaintiffs' action as to ATSC is based on
allegations that ATSC acted tortiously in hiring Lewis to haul
its lumber from Texas to Florida and in loading the Lewis
truck.
It cannot reasonably be contended that ATSC did not
expect that that shipment would traverse Alabama.
Similarly,
it was foreseeable that, if ATSC failed to properly load its
it is not a condition precedent to personal jurisdiction");
C.S.B. Commodities, Inc. v. Urban Trend (HK) Ltd., 626 F.
Supp. 2d 837, 842-43 (N.D. Ill. 2009) (stating that the
defendant's
"motion
to
dismiss
for
lack
of
personal
jurisdiction must be considered first" because "[i]f the court
finds it lacks personal jurisdiction over [the defendant], it
will become unnecessary to consider his motion to dismiss for
failure to state a claim upon which relief can be granted").
Cf. Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.
3d 1216, 1220 (Ala. 2010) ("[A]lthough questions may exist
regarding the viability under Alabama law of the particular
legal theory asserted by BCBSAL ... , if we assume that theory
to be viable for purposes of our standing inquiry, it is easy
to see that BCBSAL has 'the required personal stake' to assert
that theory."); Voyager Ins. Cos. v. Whitson, 867 So. 2d 1065,
1079 (Ala. 2003) (Johnstone, J., concurring in part and
dissenting in part) ( "'[T]he question is not whether the
plaintiff or plaintiffs have stated a cause of action or will
prevail on the merits, but rather whether the requirements of
Rule 23[, Fed. R. Civ. P.,] are met.
"The determination
whether there is a proper class does not depend on the
existence of a cause of action. A suit may be a proper class
action, conforming to Rule 23, and still be dismissed for
failure to state a cause of action."'" (quoting Miller v.
Mackey Int'l, Inc., 452 F.2d 424, 427 (5th Cir. 1971))).
26
1100884 and 1100885
products onto the truck it had hired or to properly vet the
trucking company it had hired to haul the load, a risk would
be posed to members of the traveling public along the way.
As we recognized in DBI:
"'The protection against inconvenient
litigation is typically described in terms
of "reasonableness" or "fairness." We have
said that the defendant's contacts with the
forum State must be such that maintenance
of the suit "does not offend 'traditional
notions of fair play and substantial
justice.'" The relationship between the
defendant and the forum must be such that
it is "reasonable ... to require the
corporation to defend the particular suit
which is brought there." Implicit in this
emphasis
on
reasonableness
is
the
understanding that the burden on the
defendant, while always a primary concern,
will in an appropriate case be considered
in
light
of
other
relevant
factors,
including the forum State's interest in
adjudicating the dispute; the plaintiff's
interest
in
obtaining
convenient
and
effective relief, at least when that
interest is not adequately protected by the
plaintiff's power to choose the forum; the
interstate judicial system's interest in
obtaining the most efficient resolution of
controversies; and the shared interest of
the
several
States
in
furthering
fundamental substantive social policies.'"
23 So. 3d at 650 (quoting World Wide Volkswagen, 444 U.S. at
292).
Consistent with the above-quoted general principles,
including
the
"other
relevant
27
factors"
noted,
we
cannot
1100884 and 1100885
conclude that the claims alleged against ATSC are such that it
would
"offend
'traditional
notions
of
fair
play
and
substantial justice'" for ATSC to be required to appear in
this forum to address the merits of the claims against it.
We
reach
a
different
defendants, however.
are
foreign
conclusion
as
to
the
Getloaded
As noted above, the Getloaded defendants
corporations
with
their
respective
principal
places of business in states other than Alabama.
They own no
property
agents,
in
Alabama
and
maintain
no
offices,
or
employees here; they do no business on a regular basis in this
State.
For
specific
purposes of the plaintiffs' effort to demonstrate
jurisdiction
in
relation
to
the
claims
alleged
against the Getloaded defendants in this case, the Getloaded
defendants have no meaningful contacts with Alabama unless
contacts sufficient for that purpose may be attributed to them
as
a
result
of
the
operation
of
the
Web
site
or
some
shortcoming in the way in which the Web site was operated.
Assuming the viability of the plaintiffs' legal theory ––
that the Getloaded defendants had a duty to the traveling
public
to
investigate
and
to
publish
on
the
Web
site
information regarding the competence of carriers who made
their
availability
for
hire
28
known
on
that
site
––
any
1100884 and 1100885
connection between the Getloaded defendants and the State of
Alabama resulting from the fact that they did not fulfill that
duty
as
to
Lewis,
and
plaintiffs
that
the
eventually
manifested
from
risk
the
posed
itself
in
fact
by
as
Lewis
Alabama,
alleged
and
would
its
by
the
drivers
not
be
an
appropriate basis for Alabama courts to exercise jurisdiction
over the Getloaded defendants.
This is so because, unlike
ATSC, the Getloaded defendants did not arrange for the loading
of the Lewis truck or for Lewis to "carry" a product from
Texas to Florida.
awareness
Indeed, the Getloaded defendants had no
whatsoever
of
the
carriage
arrangement
eventually brought Carter onto Alabama's highways.
that
Thus,
unlike the defendant in DBI, the Getloaded defendants cannot
be said to have had an "expectation" that anything they did
could create a risk for the traveling public within the State
of Alabama.
Compare DBI, 23 So. 3d at 655 (holding that in
personam jurisdiction may be exercised over a nonresident
defendant that "'"delivers its products into the stream of
commerce with the expectation that they will be purchased by
consumers in the forum State"'" (quoting Burger King, 471 U.S.
at 473, quoting in turn World-Wide Volkswagen, 444 U.S. at
298)).
Carter's presence in Alabama, where he posed a risk to
29
1100884 and 1100885
the
traveling
public,
was
a
result
of
decisions
parties other than the Getloaded defendants.
made
by
As this Court
has acknowledged, the necessary contact with a forum state
cannot
be
the
result
merely
of
"'"unilateral
another party or a third person."'"
activity
of
Ex parte DBI, 23 So. 3d
at 653 (quoting Burger King, 471 U.S. at 475, quoting in turn
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 416 (1984)).
Based on the foregoing, we cannot say that the Getloaded
defendants' alleged contacts with Alabama and with the events
that gave rise to the plaintiffs' claims were such that it
would
comport
with
"traditional
notions
of
fair
play
and
substantial justice" for them to be required to defend against
the plaintiffs' claims in this State.
IV.
Considering
context
of
the
ATSC's
cause
Conclusion
alleged
of
acts
action
and
alleged
omissions
against
in
the
it,
and
applying the principles reiterated in DBI (including such
factors as the burden on the defendant, the forum State's
interest in adjudicating the dispute, the plaintiff's interest
in obtaining convenient and effective relief, the interstate
judicial system's interest in obtaining the most efficient
30
1100884 and 1100885
resolution of controversies, and the shared interest of the
several States in furthering fundamental substantive social
policies), we conclude that ATSC's due-process rights are not
violated by requiring it to address in this forum the merits
of the claims against it.
We cannot, however, reach the same
conclusion as to the Getloaded defendants.
deny
ASTC's
petition.
petition
and
grant
the
Accordingly, we
Getloaded
defendants'
The circuit court is instructed to dismiss the
Getloaded defendants from this action based on a lack of in
personam jurisdiction.
1100884 --
PETITION DENIED.
1100885 --
PETITION GRANTED; WRIT ISSUED.
Malone, C.J., and Woodall, Bolin, and Wise, JJ., concur.
Murdock, J., concurs specially.
31
1100884 and 1100885
MURDOCK, Justice (concurring specially).
I agree with the analysis in the main opinion.
Although
the parties do not address it in their briefs, I also find
noteworthy a consideration adopted by courts in at least one
state:
"Zeunert v. Quail Ridge Partnership, 102 Ill. App.
3d 603, 608, 58 Ill. Dec. 242, 245, 430 N.E.2d 184,
187 (1st Dist. 1981) (citation omitted)[,] teaches
[that] causes of action must be minimally viable
before they may justify assertion of personal
jurisdiction:
"'When a defendant challenges jurisdiction,
a court will make a preliminary inquiry as
to
whether
the
complaint
states
a
legitimate cause of action "to insure that
acts or omissions which form the basis of
a cause of action that is patently without
merit
will
not
serve
to
confer
jurisdiction."'"
Club Assistance Program, Inc. v. Zukerman, 594 F. Supp. 341,
350 (N.D. Ill. 1984).
Application of this criterion in the
present case would yield the same results as are reached by
the main opinion as to each of the parties.
32
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