King v. General Motors Corporation et al

Filing 18

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 04/18/12. (CVA)

FILED
2012 Apr-18 AM 09:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
HUBERT GLYNN KING, as the
Personal Representative of the
Estate of Willie Lyle King,
Deceased,
Plaintiff,
vs.
GENERAL MOTORS
CORPORATION, et al.,
Defendants.

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Civil Action Number
5:11-cv-2269-AKK

MEMORANDUM OPINION
Before the court is General Motors of Canada, Ltd.’s (“GM Canada”)
motion to dismiss Hubert Glynn King’s (“King”) complaint for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), or, in the
alternative, motion for a judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c) or Summary Judgment pursuant to Rule 56. Doc. 11. For
the reasons stated herein, GM Canada’s motion for summary judgment is due to be
GRANTED.
I.

FACTUAL AND PROCEDURAL HISTORY

This litigation arises from the death of King’s wife, Willie Lyle King, in an
automobile accident occurring on November 16, 2008. King alleges that, as he
and his wife drove their 2001 Chevrolet Silverado from Tuscaloosa, Alabama to
Page 1 of 33

Madison County, Alabama on Interstate 65, he “maneuvered his vehicle to avoid
hitting a deer crossing the road when the vehicle left the roadway and struck a
tree.” Doc. 1, at 13. The collision killed Willie Lyle King. Id. On November 15,
2010, King filed suit against General Motors Corporation (“GM Corporation”),
Bill Heard Chevrolet, Inc.-Huntsville (“Bill Heard Chevrolet”), and eighteen (18)
fictitious parties including “those entities who or which manufactured or
assembled the General Motors vehicle involved in the occurrence made the basis
of this lawsuit, any component part thereof, or any attendant equipment used or
available for use therewith.” See id. at 11-12. Moreover, King provided that “the
identities of the fictitious party defendants herein are otherwise unknown to the
plaintiff at this time or, if their names are known to plaintiff, their identities as
proper party defendants are not known to the plaintiff at this time and their true
names will be substituted by amendment when ascertained.” Id. at 12. King, as
the personal representative of his wife’s estate, alleges negligence and violations
of Alabama’s Extended Manufacturer’s Liability Doctrine, and seeks punitive
damages pursuant to Alabama’s Wrongful Death Act. See id. at 14-16. King also
seeks compensatory damages for mental anguish. See id. at 16.
On May 10, 2011, while this action was still pending in the Circuit Court of
Madison County, Alabama, King substituted GM Canada for all fictitious parties.
Id. at 10. King asserts that he performed such substitution “[u]pon information
received by counsel for Plaintiff regarding the proper identity of the manufacturer
of the subject vehicle.” Doc. 15, at 3.
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After King amended his complaint, GM Canada removed the case from
Madison County to this court on June 24, 2011 pursuant to 28 U.S.C. §§ 1332,
1441, and 1446. Doc. 1, at 1-2. In its notice of removal, GM Canada first asserted
that “because plaintiff filed this action after both [GM Corporation and Bill Heard
Chevrolet] filed petitions for Chapter 11 bankruptcy . . . this action as to these
entities is void ab initio.” Id. at 2-3 (citing id. at 19-54) (bankruptcy petitions of
GM Corporation and Bill Heard Chevrolet). GM Canada further contends that it is
a Canadian Corporation with its principle office and place of business in Ontario,
Canada, doc. 12, at 33, and that it “does no business in the United States,
including the State of Alabama, and does not maintain any office, agency, or
representative there. GM Canada is not qualified, registered, licensed, or
authorized to do business in Alabama. GM Canada does not have any officers,
employees, or agents stationed to work for it in Alabama.” Id. GM Canada admits
that, prior to GM Corporation’s bankruptcy filing, it operated as a wholly-owned
subsidiary of GM Corporation. Id. at 34. Currently, GM Canada operates as a
wholly-owned subsidiary of General Motors Holdings LLC. Id.
While GM Canada is a wholly-owned subsidiary, “GM Canada has always
had its own Board of Directors and Officers, performed its own accounting, and
been responsible for its own financial performance.” Id. Additionally, prior to
GM Corporation’s bankruptcy, GM Canada manufactured vehicles and component
parts in Canadian plants and then sold these products to GM Corporation in
Canada, with transfer of title also occurring in Canada. Id. GM Corporation, in
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turn, imported and distributed these vehicles in the United States. Id. at 34-35. As
it relates to the vehicle at issue here, GM Canada assembled the 2001 Chevrolet
Silverado in Canada and subsequently sold it to GM Corporation in Canada. Id. at
35. “GM Canada did not design the 2001 Chevrolet Silverado . . . GM Canada
also did not advertise or market the subject vehicle and did not distribute or sell it,
or any of its component parts, to the decedent or plaintiffs in this action or to any
dealership or member of the general public in Alabama or elsewhere.” Id.
On the other hand, King maintains that GM Canada operates “‘under the
auspices of GM [Corporation].’” Doc. 15, at 4 (quoting doc. 15-7, at 6). King
contends that the same corporate representatives assist both GM Corporation and
GM Canada in litigation matters. Id. at 5 (citing doc. 15-7, at 9). Moreover, “GM
[Corporation], who designed the subject vehicle platform, oversees the production
of vehicles at GM Canada, promulgates standards and demonstrates the assembly
of various components of the vehicle.” Id. (citing doc. 15-7, at 27). Finally, King
alleges that GM Canada “specifically manufactured” the vehicle at issue “to be in
compliance with the Federal Motor Vehicle Safety Standards” as opposed to
complying with Canadian safety standards. Id. at 6 (citing doc. 12, at 61).
Furthermore, King’s Silverado had VIN #2GCEC19T411183134. Doc. 1, at
13. GM Canada contends that, pursuant to regulations issued by the National
Highway Traffic Safety Administration (“NHTSA”), “the first three characters of a
VIN number must identify the manufacturer of the vehicle using its unique World
Manufacturer Identifier, or WMI code.” Doc. 12, at 13 (citing 49 C.F.R.
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565.6(a)). Accordingly, “2GC” refers to GM Canada as the Silverado’s
manufacturer. Id. The Silverado also contains a certification label on the driver’s
door edge, which provides the standard “GM logo,” the vehicle’s VIN number,
that “General Motors of Canada LTD” manufactured the vehicle, the date of
manufacture, and that the vehicle “conforms to all applicable U.S. Federal Motor
Vehicle Safety Standards in effect on the date of manufacture shown above.” See
doc. 12, at 61. King does not dispute that “[t]here was a sticker on the inside of
the driver’s side door on the wrecked vehicle that contains” this information. Doc.
15, at 9 n.2.
On November 22, 2011, GM Canada filed the current motion seeking to
dismiss for lack of personal jurisdiction or, in the alternative, for a judgment in its
favor due to an expired statute of limitations. Doc. 11. This motion is fully
briefed, docs. 15, 16, and ripe for review.
II.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(2), “‘[a] plaintiff seeking the
exercise of personal jurisdiction over a nonresident defendant bears the initial
burden of alleging in the complaint sufficient facts to make out a prima facie case
of jurisdiction.’” Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593
F.3d 1249, 1257 (11th Cir. 2010) (quoting United Techs. Corp. v. Mazer, 556 F.3d
1260, 1274 (11th Cir. 2009)). If the nonresident defendant “‘challenges
jurisdiction by submitting affidavit evidence in support of its position, “the burden
traditionally shifts back to the plaintiff to produce evidence supporting
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jurisdiction.”’” Id. (quoting Mazer, 556 F.3d at 1274 (quoting Meier ex rel. Meier
v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002))). If “‘the plaintiff’s
complaint and supporting evidence conflict with the defendant’s affidavits, the
court must construe all reasonable inferences in favor of the plaintiff.’” Id.
(quoting Meier, 288 F.3d at 1269).
Moreover, “[j]udgment on the pleadings is appropriate when there are no
material facts in dispute, and judgment may be rendered by considering the
substance of the pleadings and any judicially noticed facts.” Hawthorne v. Mac
Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998) (citing Fed. R. Civ. P.
12(c)). The court must “accept the facts in the complaint as true” and “view them
in the light most favorable to the nonmoving party.” Id. As such, the “complaint
must not be dismissed ‘unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.’” Id.
(quoting Slagle v. ITT Hartford, 102 F.3d 494, 497 (11th Cir. 1996)).
Finally, under Federal Rule of Civil Procedure 56(a), summary judgment is
proper “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” To support a summary
judgment motion, the parties must cite to “particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, interrogatory answers, or other
materials.” Id. The moving party bears the initial burden of proving the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
Page 6 of 33

(1986). The burden then shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at
324 (citation and internal quotation marks omitted). A dispute about a material
fact is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). However,
“mere conclusions and unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th
Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Furthermore, “[a] mere ‘scintilla’ of evidence supporting
the opposing party’s position will not suffice; there must be enough of a showing
that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d
1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
III.

ANALYSIS

As an initial matter, GM Corporation and Bill Heard Chevrolet are due to be
DISMISSED without prejudice based on their status as Chapter 11 debtors. See
doc. 1, at 19-54.1 On June 1, 2009, GM Corporation filed Chapter 11 bankruptcy
1

King acknowledges GM Corporation and Bill Heard Chevrolet’s bankruptcy status.
Doc. 15, at 3, 9.
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in the United States Bankruptcy Court of the Southern District of New York, case
number 09-50026. Id. at 19. On September 28, 2008, Bill Heard Chevrolet filed
Chapter 11 bankruptcy in the United States Bankruptcy Court of the Northern
District of Alabama, case number 08-83028-JAC11. Id. at 43. “A debtor who has
filed for Chapter 11 bankruptcy enjoys an automatic stay against actions to
enforce, collect, assess or recover claims against the debtor or against property of
the estate.” United States v. White, 466 F.3d 1241, 1244 (11th Cir. 2006) (citing
11 U.S.C. § 362(a)). Accordingly, “‘[a]ctions taken in violation of the automatic
stay are void and without effect.’” Id. (quoting Borg-Warner Acceptance Corp. v.
Hall, 685 F.2d 1306, 1308 (11th Cir. 1982) (alteration in original)). Therefore,
King’s claims against GM Corporation and Bill Heard Chevrolet are void and
without effect. The court now turns to King’s claims against GM Canada.
A.

Personal Jurisdiction
The court first finds that it may exercise personal jurisdiction over GM

Canada. “A federal court sitting in diversity may exercise jurisdiction over a
nonresident defendant to the same extent as a court of that state.” Ruiz de Molina
v. Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1355 (11th Cir. 2000).
“Alabama permits its courts to exercise jurisdiction over nonresidents to the fullest
extent allowed under the Due Process Clause of the Fourteenth Amendment to the
Constitution.” Id. at 1355-56 (citing Martin v. Robbins, 628 So. 2d 614, 617 (Ala.
1993)); see also Ala. R. Civ. P. 4.2(b). The Fourteenth Amendment’s due process
clause generally “permits a court to summon a non-resident to defend himself in
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the forum so long as that person has some ‘minimum contacts’ with that state, and
the exercise of personal jurisdiction over the defendant would not offend
‘traditional notions of fair play and substantial justice.’” Ruiz de Molina, 207 F.3d
at 1356 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Williams
Elec. Co. v. Honeywell, Inc., 854 F.2d 389, 392 (11th Cir. 1988)). “In resolving a
motion for summary judgment based upon lack of personal jurisdiction, the court
is required to accept as true the allegations of plaintiff’s complaint, and deny the
motion if these allegations state a prima facie case of jurisdiction.” Ruiz de
Molina, 207 F.3d at 1356. Moreover, “[w]here, as here, the defendant submits
affidavits contrary to the allegations in the complaint, the burden shifts back to the
plaintiff to produce evidence supporting personal jurisdiction, unless the
defendant’s affidavits contain only conclusory assertions that the defendant is not
subject to jurisdiction.” Stubbs v. Wyndham Nassau Resort and Crystal Palace
Casino, 447 F.3d 1357, 1360 (11th Cir. 2006).
GM Canada submits the affidavit of Geoffery Bailey (“Bailey”), Manager of
Regulatory and Cross Vehicle Programs, see doc. 12, at 32-38, to refute King’s
claim of personal jurisdiction over GM Canada. Bailey testified that GM Canada
was originally formed under the laws of Canada and maintains its principal office
and place of business in Canada. Id. at 33. Bailey further provides that GM
Canada “does no business in the United States, including the State of Alabama,”
“is not qualified, registered, licensed, or authorized to do business in Alabama,”
“does not have any officers, employees, or agents stationed to work for it in
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Alabama,” and “no one is authorized by GM Canada to accept service of process
in Alabama.” Id.
Bailey admits that GM Canada was a wholly owned subsidiary of GM
Corporation, but GM Canada “has always had its own Board of Directors and
Officers, performed its own accounting, and been responsible for its own financial
performance.” Id. at 34. Bailey states that GM Canada assembles and sells
automotive vehicles and parts in Canada but “has never sold or distributed
automotive vehicles or component parts in the United States of America, including
Alabama.” Id. Rather, GM Canada sold vehicles to GM Corporation, “the
transfer of title for which occurred in Canada,” and GM Corporation “was
responsible for their importation into the United States, their distribution within
the United States, as well as service and sales support, throughout the United
States, including Alabama.” Id. at 34-35. Furthermore, Bailey contends that GM
Corporation, as opposed to GM Canada, “was also responsible for the crash
testing and component testing done to certify compliance of the imported vehicles
with applicable United States Federal Motor Vehicle Safety Standards.” Id. at 35.
Accordingly, for the allegedly defective vehicle in question, Bailey provides:
The subject 2001 Chevrolet Silverado was assembled by GM Canada
in Canada and then sold to [GM Corporation] in Canada. GM
Canada did not design the 2001 Chevrolet Silverado, including its
side structure and door hinges. GM Canada also did not advertise or
market the subject vehicle and did not distribute or sell it, or any of its
component parts, to the decedent or plaintiffs in this action or to any
dealership or member of the general public in Alabama or elsewhere.
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Id.
In response to this affidavit and GM Canada’s motion, King focuses on GM
Canada’s relationship with GM Corporation. King asserts that “GM Canada is a
wholly owned subsidiary of GM [Corporation]. GM Canada manufactured and
assembled the side steel structure of the subject vehicle, which was done in
conjunction with GM design and testing employees before being distributed to
Alabama.” Doc. 15, at 6. In support, King offers the deposition transcript of
Anthony Melocchi, a GM Canada corporate representative, taken in separate
litigation in the United States District Court for the Eastern District of Texas. See
doc. 15-7. King provides that Melocchi testified that “GM [Corporation], who
designed the subject vehicle platform, oversees the production of vehicles at GM
Canada, promulgates standards and demonstrates the assembly of various
components of the vehicle.” Doc. 15, at 5 (citing doc. 15-7, at 27). Moreover,
GM Corporation and “GM Canada employees both perform checks on the body
structure during assembly of the vehicles manufactured in Canada.” Id. And as
such, the “GM Canada plant follows requirements to assemble vehicles during the
process of design and development of GM” Corporation—meaning, the vehicle at
issue “was specifically manufactured to be in compliance with the Federal Motor
Vehicle Safety Standards (‘FMVSS’) by GM Canada for distribution in the U.S.,
and not the Canada Motor Vehicle Safety Standards (‘CMVSS’), to be distributed
in Canada.” Id. at 6. Finally, King contends that GM Canada previously
consented to personal jurisdiction in other United States courts. Id. at 8.
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Therefore, King asserts that GM Canada maintains the following “contacts” with
Alabama as it relates to the current litigation: (1) GM Canada manufactured the
vehicle in question and at the time was a wholly owned subsidiary of GM
Corporation, the entity that purportedly designed and sold the vehicle to an
Alabama dealership; (2) GM Canada manufactured the vehicle to comply with
U.S. federal regulations; and (3) GM Canada previously consented to personal
jurisdiction within the United States. Accordingly, King concludes that the
relevant law “unequivocally subject[s] GM Canada to personal jurisdiction of this
Court.” Id. at 6.
The Due Process Clause accepts two types of personal jurisdiction—
“general” and “specific” personal jurisdiction. See Goodyear Dunlop Tires
Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853 (2011). King neglects to assert
the type of personal jurisdiction that this court purportedly maintains over GM
Canada, but the court assumes King relies on a theory of specific personal
jurisdiction.2 As it relates to constitutionally “minimum contacts” for specific

2

“General” personal jurisdiction exists over a corporation where “the continuous
corporate operations within a state [are] so substantial and of such a nature as to justify suit
against it on causes of action arising from dealings entirely distinct from those activities.”
Goodyear Dunlop, 131 S. Ct. at 2853 (quotation marks and citations omitted). Put simply, the
state must be “one in which the corporation is fairly regarded as at home.” Id. at 2853-54
(suggesting a corporation’s domicile, place of incorporation, and principal place of business as
the paradigm bases for the exercise of general jurisdiction). Here, King presents no evidence that
Alabama is GM Canada’s domicile, place of incorporation, or principal place of business.
Moreover, King fails to demonstrate that the current facts are analogous to Perkins v. Benguet
Consol. Min. Co., 342 U.S. 437 (1952)—the Supreme Court’s only decision finding “general
jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in
the forum.” Goodyear Dunlop, 131 S. Ct. at 2856 (quotation marks and citation omitted). And
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personal jurisdiction, “the defendant’s contacts with the applicable forum must
satisfy three criteria.” Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1546
(11th Cir. 1993). “First, the contacts must be related to the plaintiff’s cause of
action or have given rise to it.” Id. (citing Burger King Corp. v. Rudzewicz, 471
U.S. 462, 472 (1985). “Second, the contacts must involve ‘some act by which the
defendant purposefully avails itself of the privilege of conducting activities within
the forum . . . , thus invoking the benefits and protections of its laws.’” Id.
(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958) (alteration in original)).
“Third, the defendant’s contacts with the forum must be ‘such that [the defendant]
should reasonably anticipate being haled into court there.’” Id. (quoting WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (alteration in
original)).
GM Canada argues that it never “purposefully availed” itself to the privilege
of conducting activities in Alabama based on the Supreme Court’s recent holding
in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011). See doc. 12, at
18-22. The court disagrees. In McIntyre, Justice Kennedy, writing for four
justices, attempted to clarify the due process standard for specific personal
jurisdiction over nonresident defendants and resolve “decades-old questions left
open in Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S.
102 (1987).” McIntyre, 131 S. Ct. at 2785. These open questions from Asahi

indeed, GM Canada is in no sense “home” in Alabama. See id. at 2857.
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concern the extent a court may exercise personal jurisdiction over a product
manufacturer when the manufacturer places its product in the “stream-ofcommerce,” and through national or international commercial channels, the
product reaches the forum state. See id. at 2787-88. Justice Kennedy held that a
“defendant’s transmission of goods permits the exercise of jurisdiction only where
the defendant can be said to have targeted the forum; as a general rule, it is not
enough that the defendant might have predicted that its goods will reach the forum
State.” Id. at 2788 (emphasis added).
Justice Breyer, writing for two justices, concurred in the judgment, but
relied on preexisting case law “that a single sale of a product in a State does not
constitute an adequate basis for asserting jurisdiction over an out-of-state
defendant, even if that defendant places his goods in the stream of commerce, fully
aware (and hoping) that such a sale will take place.” Id. at 2792. Moreover,
Justice Breyer’s concurrence agreed in rejecting the “absolute” argument that, as a
general rule, “a producer is subject to jurisdiction for a products-liability action so
long as it knows or reasonably should know that its products are distributed
through a nationwide distribution system that might lead to those products being
sold in any of the fifty states.” Id. at 2793 (emphasis added). Perhaps most
importantly, both Justice Breyer and Justice Kennedy’s opinions appear to focus
on the “contemporary commercial circumstances,” id. at 2794 (Breyer, J.,
concurring), or the “economic realities of the market the defendant seeks to serve,”
id. at 2790.
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The facts in McIntyre, however, differ significantly from the facts here
because, purportedly, the McIntyre defendant could only predict that its product
might reach the forum state. In McIntyre, the plurality focused on three key
“contacts” that the English manufacturer maintained with the forum state, New
Jersey. Id. at 2786. “First, an independent company agreed to sell J. McIntyre’s
machines in the United States. J. McIntyre itself did not sell its machines to
buyers in this country beyond the U.S. distributor;” second, while J. McIntyre
officials attended conventions to advertise its machines in the United States, these
conventions never occurred in New Jersey;” and third, “no more than four
machines . . . including the machine that caused the injuries that are the basis for
this suit, ended up in New Jersey.” Id. The plurality found that such contacts
failed to demonstrate that the defendant manufacturer, J. McIntyre, sought to serve
the New Jersey market, or, put differently, that “J. McIntyre purposefully availed
itself of the New Jersey market.” Id. at 2790. Thus, the plurality held that New
Jersey exercising jurisdiction over J. McIntyre “would violate due process.” Id. at
2791. Justice Breyer’s concurrence agreed in the result, but also stated that in the
interest of “defendant-focused fairness,” it “might appear fair in the case of a large
manufacturer which specifically seeks, or expects, an equal-sized distributor to
sell its product in a distant State” for that distant State to exercise personal
jurisdiction over the large manufacturer.” Id. at 2793 (Breyer, J., concurring).
Taking the facts presented in the light most favorable to King, the
“contemporary commercial circumstances” and “economic realities of the market”
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GM Canada “seek[s] to serve,” reveal that this court may exercise jurisdiction.
Unlike the manufacture in McIntyre who utilized an independent U.S. distributor
that merely distributed four machines to the state of New Jersey, GM Canada
utilized its parent corporation to distribute hundreds, if not thousands, of vehicles
to the state of Alabama, including the vehicle at issue.3 While the court certainly
recognizes that GM Canada is a separate and distinct entity from GM Corporation,
there is no doubt that GM Canada “seeks to serve” Alabama when it specifically
manufactures GM vehicles, in compliance with federal regulations, and designed
by its parent corporation who actively sold these vehicles to an Alabama
dealership. Indeed, GM Canada cannot plead ignorance of the markets it
explicitly targets and serves when its parent corporation directly sells the
manufactured products to these markets. See doc. 12, at 34.4 GM Canada
possesses more than some vague awareness that its products might reach U.S.
markets—it manufacturers vehicles, such as the one at issue, to comply with
federal regulations. See doc. 15-7, at 27; doc. 15, at 6. This equates
manufacturing a product “in anticipation of sales in” Alabama. See Asahi, 480
U.S. at 113. Moreover, GM Canada specifically sold its products to GM

3

The dissent in McIntyre recognized the importance that “economic realities” played in
the majority opinions. 131 S. Ct. at 2795 (Ginsberg, J., dissenting) (asserting that the majority
opinions allow certain foreign industrialists to avoid “the jurisdiction of our state courts, except
perhaps in States where its products are sold in sizeable quantities”) (emphasis added).
4

Put differently, the court refuses to allow GM Canada to “Pilate-like wash its hands of a
product by having independent distributors market it,” McIntyre, 131 S. Ct. at 2795 (Ginsberg, J.,
dissenting), especially where GM Canada’s “independent distributor” is its parent corporation.
Page 16 of 33

Corporation for distribution in the United States. See doc. 12, at 34-35. While
GM Canada and GM Corporation may not have created a written distribution
agreement, the sale to GM Corporation was clearly not a sale to an end-user.
Indeed, the court finds that this commercial relationship mirrors an example
provided by Justice O’Connor in Asahi of a manufacturer “marketing the product
through a distributor who has agreed to serve as the sales agent in the forum
State.” 480 U.S. at 112.5
Thus, this is not the type of case described by the plurality in McIntyre
where “a small Florida farm might sell crops to a large nearby distributor, for
example, who might then distribute them to grocers across the country.” 131 S.
Ct. at 2790. Nor is this “an Appalachian potter[] who sells his product (cups and
saucers) exclusively to a large distributor, who resells a single item (a coffee mug)
to a buyer from a distant State (Hawaii).” Id. at 2793 (Breyer, J., concurring).

5

The Alabama Supreme Court similarly found in Ex Parte DBI, Inc., 23 So. 3d 635, 65455 (Ala. 2009), that a foreign seatbelt manufacturer was subject to personal jurisdiction in
Alabama courts. The court reasoned that “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.” Id.
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Here, GM Canada, the entity who built certain vehicles for GM Corporation to
distribute specifically in the United States, including Alabama, cannot genuinely
maintain that it does not serve the Alabama market. Stated differently, if not
Alabama, what market does GM Canada serve? As one of these vehicles gave rise
to the current cause of action, the economic realities of GM Canada and GM
Corporation’s commercial relationship establish sufficient “minimum contacts”
with Alabama to demonstrate a targeting of Alabama’s commercial automobile
market and evidence that GM Canada purposefully availed itself to the benefits
and privileges of this market. See McIntyre, 131 S. Ct. at 2790.
A due process analysis regarding personal jurisdiction also requires the
court to consider the “reasonableness” of exercising jurisdiction. Asahi, 480 U.S.
at 113. “A court must consider the burden on the defendant, the interests of the
forum State, and the plaintiff’s interest in obtaining relief. It must also weigh in
its determination ‘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.’” Id. (quoting World-Wide
Volkswagen, 444 U.S. at 292). Here, GM Canada concludes without analysis that
the exercise of jurisdiction in Alabama would not be fair or reasonable. See doc.
12, at 22-23. The court notes that exercising jurisdiction over an international
entity must be performed with care; however, given GM Canada’s relationship
with its former parent corporation, the court finds it reasonable to exercise
jurisdiction. Moreover, the plaintiff and forum’s interests are high in this case as
Page 18 of 33

the incident occurred in Alabama to an Alabama resident. Compare Asahi, 480
U.S. at 114. Accordingly, the court finds that exercising jurisdiction in this case
comports with due process and GM Canada’s motion to dismiss for lack of
personal jurisdiction is DENIED.
B.

Statutory Limitations Period6
However, the applicable statute of limitations bars King’s claims against

GM Canada, and accordingly, the court will GRANT GM Canada’s motion for
summary judgment. Where, as here, a personal representative files suit for “the
wrongful act, omission, or negligence” causing death, Alabama law imposes a two
year limitations period “from and after the death of the testator or intestate.” Ala.
Code § 6-5-410(d).7 Moreover, it “is well settled that the time limitation set out in
§ 6-5-410(d) is part of the substantive cause of action and that it is not subject to
any provision intended to temporarily suspend the running of a limitations period.
The two-year period is not a limitation against the remedy only, because after two
years the cause of action expires.” Ex parte FMC Corp., 599 So. 2d 592, 594

6

As both parties present evidence outside of the pleadings regarding the statute of
limitations issue, see doc. 12, at 12-14; doc. 15, at 4-6, 13, the court utilizes a summary judgment
standard of review.
7

To the extent that King brings a separate claim for personal mental anguish as a result of
GM Canada’s purported negligence and violation of the Alabama Extended Manufacturer’s
Liability Doctrine, see doc. 1, at 16, the applicable statute of limitations is also two years, and the
analysis remains unchanged. See Locke v. Ansell Inc., 899 So. 2d 250, 251 n.2 (Ala. 2004).
However, the court doubts King’s ability to seek personal damages when he filed suit solely in
his capacity “as the personal representative of the estate of Willie Lyle King.” Doc. 1, at 11
(emphasis added). See e.g., Williams v. Nolin, 484 So. 2d 428, 429-30 (Ala. 1986)
(differentiating between suits filed in one’s personal as opposed to representative capacity).
Page 19 of 33

(Ala. 1992).
However, as King’s amendment occurred before removal, the Alabama
Rules of Civil Procedure allow, in certain circumstances, including the limitation
period for Alabama’s wrongful death statute, “relation back” when amending
complaints. See Ala. R. Civ. P. 15(c). See also Ala. Code § 6-5-410(d); FMC
Corp., 599 So. 2d at 594. Alabama’s relation back rule provides that:
An amendment of a pleading relates back to the date of the original
pleading when
(1) relation back is permitted by the law that provides the statute of
limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading, except as may be otherwise provided in
Rule 13(c) for counterclaims maturing or acquired after pleading, or
(3) the amendment, other than one naming a party under the party’s
true name after having been initially sued under a fictitious name,
changes the party or the naming of the party against whom a claim is
asserted if the foregoing provision (2) is satisfied and, within the
applicable period of limitations or one hundred twenty (120) days of
the commencement of the action, whichever comes later, the party to
be brought in by amendment (A) has received such notice of the
institution of the action that the party will not be prejudiced in
maintaining a defense on the merits, and (B) knew or should have
known that, but for a mistake concerning the identity of the proper
party, the action would have been brought against the party, or
(4) relation back is permitted by principles applicable to fictitious
party practice pursuant to Rule 9(h).
Ala. R. Civ. P. 15(c) (emphasis added). In turn, Alabama Rule of Civil Procedure
Page 20 of 33

9(h) provides that: “When a party is ignorant of the name of an opposing party and
so alleges in the party’s pleading, the opposing party may be designated by any
name, and when that party’s true name is discovered, the process and all pleadings
and proceedings in the action may be amended by substituting the true name.”
Here, it is undisputed that King amended his complaint to substitute GM
Canada for the eighteen fictitious parties after the applicable two year limitation
period. See doc. 15, at 9-10; doc. 12, at 12. Willie Lyle King died on November
16, 2008, doc. 15, at 2, and as such, the § 6-5-410(d) limitation period ended on
November 16, 2010. While King filed his original complaint naming the fictitious
parties on November 15, 2010—within the limitation period—King amended the
complaint to add GM Canada on May 10, 2011—nearly six months after the
limitation period expired. See doc. 1, at 10-11. Accordingly, the pertinent
question before this court is whether King’s May 10, 2011 amendment, which
added GM Canada, relates back to the November 15, 2010 original pleading date.8
GM Canada contends that relation back is not available to King pursuant to Ala.
R. Civ. P. 15(c)(4) and Rule 9(h). Doc. 12, at 24-28. King, however, asserts that
relation back is available here because he satisfies Ala. R. Civ. P. 15(c)(3). Doc.

8

The court notes that King’s original November 15, 2010 complaint may not have been
valid in-and-of-itself because King filed the original suit against two bankrupt entities—GM
Corporation and Bill Heard Chevrolet. While not raised by GM Canada in its initial motion,
King’s original complaint was likely void ab initio, and therefore, King has no valid complaint
for which to “relate back.” See Dudley v. Dudley, No. 2100377, 2011 WL 6117922, at *2 (Ala.
Civ. App. 2011) (finding “[v]iolations of the [bankruptcy] automatic stay are void for all
purposes. Their ineffectiveness is permanent, not temporary.”) (citations omitted).
Page 21 of 33

15, at 8-13. As such, before addressing the merits, the court must first determine
the proper subsection of Rule 15(c) at issue.
King improperly focuses on Alabama Rule of Civil Procedure 15(c)(3), see
doc. 15, at 9-14, because the proper relation back analysis with fictitious party
practice involves Rule 15(c)(4) and Rule 9(h).9 See Kinard v. C.A. Kelly and Co.,
Inc., 469 So. 2d 133, 135 (Ala. 1985) (finding that Ala. R. Civ. P. 9(h) and
15(c)(4) apply when the amendment substitutes a defendant’s true name for a
fictitious name as opposed to changing the party against whom a claim is
asserted). The plain language of Rule 15(c)(3) unequivocally applies to amended
pleadings “other than one naming a party under the party’s true name after having
been initially sued under a fictitious name.” Ala. R. Civ. P. 15(c)(3) (emphasis

9

Accordingly, King’s reliance on Krupski v. Costa Crociere, 130 S. Ct. 2484 (2010), and
Ex Parte Novus Utils., Inc., No. 1101127, 2011 WL 6004618 (Ala. 2011), is misplaced. See doc.
15, at 8-13. The Alabama Supreme Court in Novus specifically addressed Ala. R. Civ. P.
15(c)(3), not Rule 15(c)(4). 2011 WL 6004618, at *8. Moreover, the Alabama Supreme Court
noted that the United States Supreme Court’s holding in Krupski applied to Rule 15(c)(3). Id.
The court finds it disingenuous to argue that a Rule 15(c)(3) analysis also applies to Alabama’s
“fictitious party” practice, when the plain language of Rule 15(c)(3) unequivocally excludes
fictitious parties from its parameters. And indeed, the analysis regarding Rule 15(c)(4) and
15(c)(3) differ significantly. Compare Ex Parte Mobile Infirmary Ass’n, 74 So. 3d 424, 428
(Ala. 2011), with Novus, 2011 WL 6004618. Again, King explicitly utilized fictitious parties
under Rules 15(c)(4) and 9(h). See doc. 1, at 10. Accordingly, while Krupski does state that Fed.
R. Civ. P. 15(c)(1)(C) “plainly sets forth an exclusive list of requirements for relation back, and
the amending party’s diligence is not among them,” 130 S. Ct. at 2496, where, as here, the proper
“relation back” analysis must proceed under Ala. R. Civ. P. 15(c)(4) and 9(h), the amending
party “must have been ignorant of the true identity of the defendant and must have used due
diligence in attempting to discover it.” Ex Parte Nationwide Ins. Co., 991 So. 2d 1287, 1291
(Ala. 2008) (quotation marks and citations omitted). See also Mobile Infirmary, 74 So. 3d at 428
(holding that, when questioning the propriety of relation back for fictitiously named defendants,
“the answer to that question depends upon the plaintiff’s conduct”).
Page 22 of 33

added).10 And indeed, here, rather than changing party-defendant GM Corporation
to GM Canada, King explicitly “substitutes GENERAL MOTORS OF CANADA,
LTD., for fictitious parties, 1-18.” Doc. 1, at 10 (emphasis added). Put
differently, the Amended Complaint, id., attempts to pursue claims against both
GM Corporation and GM Canada. See Kinard, 468 So. 2d at 135 (“An
amendment pursuant to Rule 9(h) substituting the defendant’s true name for a
fictitious one is not an amendment changing the party against whom a claim is
asserted.”).
Consequently, in order to invoke the relation back principles under Rule
15(c)(4) and Rule 9(h), “the original complaint must [first] ‘adequately describe
the fictitiously named defendant and state a claim against such defendant.’” Ex
Parte Nationwide Ins. Co., 991 So. 2d 1287, 1291 (Ala. 2008) (quoting Fulmer v.
Clark Equip. Co., 654 So. 2d 45, 46 (Ala. 1995)). Second, “a party ‘must have
been ignorant of the true identity of the defendant and must have used due
diligence in attempting to discover it.’” Id. (quoting Pearson v. Brooks, 883 So. 2d
185, 191 (Ala. 2003)). The parties do not dispute the first factor, but GM Canada
asserts that King failed to exercise due diligence in ascertaining its identity as the
manufacturer of the vehicle in question. The proper “standard for determining
10

The 1995 committee comments further provide that the current form of the applicable
Rule 15 subsections “more clearly preserves the separate basis for relation back under Alabama
fictitious party practice pursuant to Rule 9(h).” Ala. R. Civ. P. 15, committee comments to
October 1, 1995, Amendment to Rule 15 (emphasis added).

Page 23 of 33

whether a party exercised due diligence in attempting to ascertain the identity of
the fictitiously named defendant ‘is whether the plaintiff knew, or should have
known, or was on notice, that the substituted defendants were in fact the parties
described fictitiously.’” Id. (quoting Davis v. Mims, 510 So. 2d 227, 229 (Ala.
1987)). To aid in this determination, Alabama courts “look[] to, among other
things, whether the plaintiff has conducted formal or informal discovery.” Ex
parte Tate & Lyle Sucralose, Inc., No. 1100404, 2011 WL 4507333, at *3 (Ala.
2011). Finally, the Alabama Supreme Court instructs that “the purpose of Rule
9(h) is not to toll the statutory period of limitations to give plaintiffs more time to
formulate a cause of action, but to extend the time in emergency situations where
the plaintiff knows he has been injured and has a cause of action against some
person or company, but cannot determine through due diligence the party’s name.”
Pearson, 883 So. 2d at 191.
For example, in Ex Parte Nationwide, plaintiff and Verner Lee Herron
(“Herron”) had an automobile accident on September 1, 2000. 991 So. 2d at 1289.
Nationwide insured plaintiff’s vehicle, and the insurance policy included
uninsured/underinsured-motorists coverage. In August 2002, plaintiff sued
Herron and included fictitiously named defendants such as “those persons or
entities which issued and/or owe benefits and coverage pursuant to uninsured
and/or underinsured motorists to Plaintiff.” Id. In June 2007, nine months after
the applicable statutory period expired, plaintiff moved the trial court “to
substitute Nationwide for one of the fictitiously named defendants listed in the
Page 24 of 33

complaint.” Id. Nationwide moved to dismiss, claiming that the applicable statute
of limitations barred plaintiff’s claims, and plaintiff could not properly invoke
relation back because she failed to exercise due diligence in ascertaining
Nationwide’s identity. Id. at 1290. While the trial court denied Nationwide’s
motion, the Alabama Supreme Court reversed, and concluded that, under Ala. R.
Civ. P. 15(c)(4) and 9(h), plaintiff’s “amendment to substitute Nationwide for a
fictitiously named defendant does not relate back to the date of her original
complaint because she knew or should have known Nationwide’s identity at the
time of her accident.” Id. at 1291. The court found that, even if it were to assume
that plaintiff did not actually know of Nationwide’s identity, “[plaintiff] could
have discovered Nationwide’s identity and the existence of UIM coverage simply
by examining her policy.” Id.
Similarly, in Fulmer, the court considered a plaintiff who sued a coemployee and a fictitiously named manufacturer after a forklift accident. 654 So.
2d at 45. Plaintiff amended his complaint to substitute the forklift manufacturer,
Clark Equipment Company (“Clark”), for the fictitious party, but did so after the
applicable statute of limitations expired. Plaintiff argued that the amendment
should relate back to the original complaint because he “persistently stuck with
discovery until Clark [Equipment] was correctly added” and “put forth much effort
to identify the manufacturer” by asking co-employees about the forklift’s
manufacturer. Id. at 46 (alteration in original). However, after learning that
“Clark” built the forklift, plaintiff “still did nothing calculated to determine the full
Page 25 of 33

name of the manufacturer.” Id. The court agreed with Clark that plaintiff failed to
exercise the requisite due diligence in ascertaining the identity of the forklift
manufacturer because “Clark Equipment forklifts have their names clearly listed
on the nameplate,” and plaintiff’s employer maintained “an operator’s manual and
a parts manual, each of which provides the name of the manufacturer.” Id.
Therefore, the court concluded that plaintiff’s “amendment substituting Clark
Equipment Company does not relate back to the date of the original complaint,
and any action against Clark Equipment is barred by the applicable statute of
limitations.” Id.
Most recently in Ex Parte Mobile Infirmary Association, 74 So. 3d 424
(Ala. 2011), the court reaffirmed these principles regarding relation back for
Alabama’s fictitious party practice. In Mobile Infirmary, plaintiff, as the personal
representative of his deceased wife, sued Infirmary Health Systems, Inc. (“IHS”)
and several fictitiously named defendants for causing the death of his wife. Id. at
427. One week after Alabama’s wrongful death statute of limitations expired,
plaintiff served on IHS several interrogatories seeking to ascertain the “proper
legal entity for the hospital commonly known as the Mobile Infirmary Medical
Center.” Id. IHS responded, identifying “Mobile Infirmary” as the correct legal
entity. Seventeen days after the limitations period expired, Plaintiff attempted to
amend his complaint to substitute Mobile Infirmary for one of the fictitious
defendants. Id. The court held that, because plaintiff “failed to use due diligence
in determining the true identity of Mobile Infirmary as the fictitiously named
Page 26 of 33

defendant, . . . the amended complaint did not relate back to the filing of the
original complaint.” Id. at 428. The court reasoned that, “when [plaintiff] filed
the original complaint, [his wife’s] family had possessed her medical records for
20 months, and [plaintiff] had possessed [her] medical records for at least 3
months, including various paperwork from Mobile Infirmary, which indicated that
[the deceased] had been admitted to the Medical Center, had undergone surgery
there, and had been treated there following her surgery.” Id. at 429. As such, a
“reasonably diligent plaintiff possessing that information should have at least
attempted to identify the corporation doing business as Mobile Infirmary Medical
Center and include it as a defendant.” Id. (emphasis added). Finally, the court
concluded that where a “‘plaintiff knows the identity of the fictitiously named
parties or possesses sufficient facts to lead to the discovery of their identity at the
time of the filing of the complaint, relation back under fictitious party practice is
not permitted and the running of the limitations period is not tolled.’” Id. at 430
(quoting Clay v. Walden Joint Venture, 611 So. 2d 254, 256 (Ala. 1992)).
The plaintiff in Mobile Infirmary also argued that relation back is proper
because defendant Mobile Infirmary was not prejudiced in the delay. Specifically,
plaintiff asserted that Mobile Infirmary suffered no prejudice because its counsel
possessed knowledge of this suit in his role as counsel for IHS. Id. The court
squarely rejected this argument stating that, in Alabama’s fictitious party practice,
“prejudice becomes a consideration only when an amendment would otherwise
relate back to the time of filing; lack of prejudice to the non-amending party will
Page 27 of 33

not make an otherwise improper relation back proper, where due diligence by the
amending party is lacking.” Id. (emphasis added).
Finally, Crabtree v. BASF Building Systems, LLC, No. 2091044, 2011 WL
2573382 (Ala. Civ. App. 2011), also sheds light on the due diligence required for
relation back of an untimely amendment in Alabama’s fictitious party practice. In
this slip-and-fall case, plaintiff filed suit against a named defendant and five
fictitious defendants, including, as one of the fictitious parties, the entity that
applied the substance that coated the parking deck at issue. Id. at *1. Three
months later, plaintiff served interrogatories and requests for production on the
named defendant. Subsequently—but still within the applicable statutory
limitation period—plaintiff served on the named defendant a second set of
interrogatories seeking to ascertain “the name of the material applied to the
parking deck, the name of the manufacturer of that material, and the date that the
material had been applied to the deck . . . .” Id. Through this discovery, plaintiff
learned that polyurethane coating had been applied to the parking deck and the
identities of the contractor and subcontractor hired to install this coating. Id. at *2.
Plaintiff also learned that Degussa Corporation (“Degussa”) manufactured the
polyurethane coating. Two days before the statutory period elapsed, plaintiff
amended his complaint to substitute the contractor and subcontractor for fictitious
parties. Id. During the discovery period, plaintiff also subpoenaed non-party
Degussa for information relevant to the manufacture of the polyurethane coating.
On June 9, 2006, four months after the statutory limitations period expired,
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plaintiff learned—through discovery from the subcontractor—that Degussa
actually “had been involved in the application of the polyurethane material on the
parking deck” at issue. Id. (emphasis in original). Accordingly, plaintiff sought to
amend his complaint to substitute Degussa for a fictitious party. The court found
this amendment proper under the relation back principles for fictitious parties
because plaintiff “exercised reasonable diligence in substituting” Degussa. Id. at
*3. In finding such, the court rejected Degussa’s argument that plaintiff failed to
exercise due diligence by not amending the complaint as soon as plaintiff
discovered that Degussa manufactured the polyurethane. Id. at *4. The court held
that where “the manner that a certain product was applied . . . is alleged to have
thereafter proximately caused an injury, the mere manufacturer of the material that
was subsequently applied incorrectly is not, ipso facto, a proper defendant.” Id.
In applying the law to the facts here, the exercise of reasonable due
diligence would have revealed, prior to the complaint being filed, that GM Canada
manufactured the vehicle in question, given that such information is visibly listed
on the vehicle’s door. Doc. 12, at 61. See Bowen v. Cummings, 517 So. 2d 617,
618 (Ala. 1987) (“Fictitious party practice should not be abused and it was not
intended for use whenever it is merely inconvenient for the plaintiff to learn the
name of the true defendant.”). And indeed, King provides in his brief that “[t]here
was a sticker on the inside of the driver’s side door on the wrecked vehicle that
contains the information that General Motors of Canada LTD manufactured the
vehicle, next to GM’s trademarks, and further states that the vehicle was
Page 29 of 33

manufactured in compliance with the U.S. FMVSS.” Doc. 15, at 9 n.2. Similar to
Ex Parte Nationwide, where plaintiff “could have discovered Nationwide’s
identity . . . simply by examining her policy,” 991 So. 2d at 1291, King could have
discovered GM Canada’s identity as the manufacturer simply by inspecting the
certification label located on the vehicle that gave rise to this suit.11 As King’s
theory of liability is based on the negligent or defective manufacture of the subject
vehicle, see doc. 1, at 14-15, he cannot reasonably claim ignorance of GM
Canada’s identity at the time of filing the complaint when GM Canada is explicitly
listed as the “manufacturer” on the vehicle’s door. See Ex Parte Nationwide, 991
So. 2d at 1291. Cf. Crabtree, 2011 WL 2573382 (plaintiff excused from not
amending his complaint upon knowledge of a product’s manufacturer only
because plaintiff’s theory of liability was unrelated to the product’s manufacture).
Similar to the plaintiffs in Mobile Infirmary and Fulmer, King possessed the
vehicle and its attached certification label for almost twenty four (24) months prior
to the statutory limitation period expiring, and he should have at least attempted to
file suit against this entity clearly listed as the manufacturer. See Mobile
Infirmary, 74 So. 3d at 429; Fulmer, 654 So. 2d at 46.

11

GM Canada also contends that the “VIN number of the subject truck unequivocally
identifies GM Canada as the manufacturer of the subject vehicle.” Doc. 12, at 25. To support
this argument, GM Canada maintains that an individual can utilize the first three characters of a
VIN number to identify the manufacturer through the NHTSA’s website. Id. at 13. Finding the
“certification label” located on the vehicle’s door sufficient to award summary judgment, the
court offers no opinion on whether a reasonably diligent plaintiff would need to utilize the
NHTSA’s website.
Page 30 of 33

Moreover, King offers no evidence of any reasonable attempt to ascertain
the identity of the fictitiously named defendants after the statutory period expired.
See generally doc. 15. As it relates to adding GM Canada, King provides: “[u]pon
information received by counsel for Plaintiff regarding the proper identity of the
manufacturer of the subject vehicle, GM Canada was substituted for fictitious
parties 1-18,” doc. 15, at 3; “[o]nly through information later obtained by Plaintiff
was it discovered that GM was in bankruptcy and the proper defendant was GM
Canada,” id. at 9; “[w]hen the proper defendant was ascertained, it was substituted
and served accordingly,” id. at 13; “Plaintiff made every reasonable attempt to
ascertain this information, which was ultimately revealed by Defendant,” id. at 14.
However, under Alabama’s fictitious party practice, King is required to present
evidence of due diligence in ascertaining the fictitious party’s true identity. See
Ex Parte Nationwide, 991 So. 2d at 1291. Although King claims to have “made
every reasonable attempt to ascertain this information,” he glosses over the key
fact in this case—i.e., if King indeed acted with reasonable due diligence, the
identity of GM Canada should have been known from day one. Critically, King
provides the court with no information to explain why he could not discern GM
Canada’s identity before the statute ran or what steps taken, if any, that ultimately
led King to discover that GM Canada was the fictitious party it could not identify
prior to the expiration of the statute. The court is simply left with six
months—from November 15, 2010 until May 10, 2011, see doc. 1, at 10-11—after
the statutory period expired, of inactivity until presumably some entity informed
Page 31 of 33

King of GM Canada’s existence. As such, Alabama law dictates that the court
find that King failed to exercise reasonable due diligence in ascertaining the true
identity of the fictitious defendants, and the May 10, 2011 amendment substituting
GM Canada does not relate back to the original complaint.
Finally, King argues that this court should not bar his claims against GM
Canada because “the real parties in interest were sufficiently alerted to the
proceedings.” Doc. 15, at 12-13. However, King added GM Canada through
fictitious party practice, and the Alabama Supreme Court unequivocally stated that
prejudice, or the lack thereof, to an added defendant “becomes a consideration
only when an amendment would otherwise relate back to the time of filing; lack of
prejudice to the non-amending party will not make an otherwise improper relation
back proper, where due diligence by the amending party is lacking.” Mobile
Infirmary, 74 So. 3d at 430. The court finds that King failed to exercise due
diligence in determining the identity of GM Canada both before and after filing
the original complaint; accordingly, under Alabama law, the court cannot excuse
this lack of due diligence because GM Canada may not have been prejudiced by
King’s untimely amendment.
For the aforementioned reasons, by separate order, the court will GRANT
GM Canada’s motion for summary judgment and DISMISS King’s claims against
GM Canada with prejudice.

Page 32 of 33

DONE the 18th day of April, 2012.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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