Continental Motors, Inc. v. Jewell Aircraft, Inc. et al

Filing 23

Order granting in part denying in part 3 MOTION to Dismiss, as set out. The 11 MOTION for Leave to File Exhibits Under Seal is granted and those exhibits will be maintained under seal. This action will proceed against defendant Jewell Aircraft, Inc. (John Jewell and John Jewell Aircraft, Inc. terminated.) Answer due from Jewell Aircraft, Inc. on 8/10/2012. Signed by Chief Judge William H. Steele on 7/30/2012. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CONTINENTAL MOTORS, INC.,
Plaintiff,
v.
JEWELL AIRCRAFT, INC., et al.,
Defendants.

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CIVIL ACTION 12-0221-WS-C

ORDER
This matter comes before the Court on defendants’ Motion to Dismiss (doc. 3). The
Motion has been extensively briefed and is now ripe for disposition.
I.

Relevant Background.
The case of Larry Crouch, et al. v. Teledyne Continental Motors, Inc., Civil No. 10-0072-

KD-N (the “Crouch Action”), was something of a cause célèbre in this District Court. During
the 20 months that the Crouch Action was active on Judge DuBose’s docket, the parties racked
up more than 400 docket entries, culminating in a three-week jury trial that spanned from July
18, 2011 through August 5, 2011. Although those proceedings concluded (at least, insofar as
this District Court is concerned) some time ago, the instant litigation emerged as a spin-off from
the Crouch Action when the parties herein could not agree as to who must foot the bill for the
seven-digit attorney’s fees accrued by the defendant in that case.
At issue in the Crouch Action was whether Teledyne Continental Motors (“Continental”)
was liable for a November 2006 airplane accident in Bardstown, Kentucky, which resulted in
serious permanent injuries to Larry Dale Crouch and Teddy Lee Hudson. According to the First
Amended Complaint in the Crouch Action, Continental had manufactured and sold a magneto
that was installed as the ignition source for the subject aircraft’s engine in March 2005.1 The
1

A magneto produces an electrical current that provides a continuous ignition
source to an aircraft engine for production of power.

Crouch plaintiffs maintained that the aircraft had lost power and crashed when a fractured engine
mount flange had caused the magneto to become displaced, thereby disrupting the ignition
source to that engine.
The First Amended Complaint in the Crouch Action alleged, inter alia, that Continental
(by and through its agents, servants, employees and contractors) had negligently designed,
engineered, tested, manufactured and installed the magneto.2 In July 2011, Judge DuBose
entered a pair of orders identifying four claims joined for trial between the plaintiffs and
Continental, to-wit: (i) whether the magneto housing flange sold by Continental was
unreasonably dangerous, giving rise to strict liability for its failure; (ii) whether Continental
negligently failed to warn potential users that the magneto was unreasonably dangerous after the
product was sold; (iii) whether Continental breached a warranty by providing a product that was
not merchantable and fit for its intended use; and (iv) whether Continental was liable to the
plaintiffs “for negligent installation of the magneto by John Jewell and/or Jewell Aircraft, Inc.
(Jewell),” on the theory that John Jewell and/or Jewell Aircraft, Inc. negligently installed the
magneto and were acting as Continental’s agents at that time. (See Civil Action No. 10-0072KD-N, at docs. 320, 325.) At the close of the plaintiffs’ case during the trial of the Crouch
Action, however, those plaintiffs “withdrew the Negligent Installation Claim in open court.”
(Doc. 1-1, ¶ 43.) The Crouch Action went to the jury on the other three claims, all of which
sought to impose liability on Continental for its own acts and omissions, as contrasted with the
negligent installation claim, which had sought to hold Continental vicariously liable for the
actions of a third party (i.e., John Jewell and/or Jewell Aircraft, Inc.). The jury found in
Continental’s favor on all of those claims and causes of action, awarding the Crouch plaintiffs
nothing. (Id., ¶ 44.)
Having been vindicated by the verdict following a bruising, grueling, drawn-out legal
struggle in the Crouch Action, Continental celebrated its victory by initiating new litigation
2

Although the parties have not filed copies of those pleadings herein, the Court
takes judicial notice of the contents of pleadings from the Crouch Action, all of which are a
matter of public record and are maintained on file by the Clerk of Court. See generally Cash Inn
of Dade, Inc. v. Metropolitan Dade County, 938 F.2d 1239, 1243 (11th Cir. 1991) (“A district
court may take judicial notice of public records within its files relating to the particular case
before it or other related cases.”); United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987)
(“A court may take judicial notice of its own records and the records of inferior courts.”).

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seeking recovery of its Crouch Action attorney’s fees.3 The defendants in this action consist of
Jewell Aircraft, Inc. (“JA”), John Jewell Aircraft, Inc. (“JJA”), and John Jewell (“Mr. Jewell”)
(collectively, the “Jewell Defendants”), and were neither Crouch Action plaintiffs nor parties to
the Crouch Action (as it was litigated in this judicial district).4
The Complaint in this case – which was initially filed in Mobile County Circuit Court
prior to being removed to this District Court on diversity grounds – alleges three causes of action
against the Jewell Defendants. The first two claims sound in breach of contract, and are centered
on a Product Support Agreement (the “Agreement”) entered into between Continental and JA on
or about January 1, 2005. Neither JJA nor Mr. Jewell was a signatory to the Agreement. By the
terms of that Agreement, JA “agrees to indemnify and hold [Continental] harmless from and
against all claims, demands, obligations and liabilities … to the extent that such claims,
demands, obligations or liabilities have resulted from or arisen out of any act or omission of
[JA], its officers, agents, representatives, servants, or employees.” (Doc. 1-1, ¶ 26 & Exh. A at
¶ 21.)5 Continental contends that all three of the Jewell Defendants “have breached the Produce
3

The court file does not reflect the precise amount of attorney’s fees expended by
Continental in connection with the Crouch Action. Nonetheless, it appears that such figure
stretches comfortably into the millions of dollars. In a Motion for Award of Fees and Costs filed
in the Crouch Action in August 2011 after the jury verdict, Continental claimed that “the total
amount of fees and costs incurred to date in the defense of this case is $2,090,633.” (Civil
Action 10-0072, doc. 396, at 26.) No doubt that amount marched ever-higher thereafter, thanks
to post-trial motion practice and the appeal of the jury verdict in that case. Incidentally, Judge
DuBose denied Continental’s claim for an award of attorney’s fees from the Crouch plaintiffs,
reasoning that those plaintiffs had not conducted themselves in a manner that was “tantamount to
bad faith” so as to expose them to the narrow fee-shifting provisions of 28 U.S.C. § 1927. (Civil
Action 10-0072, doc. 411, at 3.)
4

To be technically accurate, the named plaintiff in this case is “Continental Motors,
Inc.,” rather than “Teledyne Continental Motors, Inc.,” which was the named defendant in the
Crouch Action. However, the Complaint in this case identifies Continental Motors, Inc. as the
successor in interest to Teledyne Continental Motors, Inc. (Doc. 1-1, ¶ 1.) That proposition does
not appear to be controversial or contested, at least not at the Rule 12(b) stage. For purposes of
this Order, then, the Court will refer to both the predecessor and the successor entity
interchangeably as “Continental,” so as to avoid any misleading implication that the Crouch
Action defendant and this action’s plaintiff are not the same entity.
5

Of some importance for the instant Motion to Dismiss, the Agreement included a
forum-selection / choice-of-law provision stating, in part, as follows: “[T]he performance of the
parties shall be construed and governed according to the laws of the State of Alabama …. By
(Continued)
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[sic] Support Agreement by and through their failure and/or refusal to indemnify, defend and
hold [Continental] harmless in regards to the Crouch and Hudson Plaintiffs’ claims against
[Continental].” (Doc. 1-1, ¶ 50.) In a separate claim, Continental brings a cause of action
against all Jewell Defendants under Kentucky law for common-law indemnity. All defendants
now seek dismissal of all claims against them on multiple grounds.
II.

Legal Standard for Motion to Dismiss.
On a motion to dismiss for failure to state a claim, “the court construes the complaint in

the light most favorable to the plaintiff and accepts all well-pled facts alleged … in the complaint
as true.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009); see also Speaker
v. U.S. Dep’t of Health and Human Services Centers for Disease Control and Prevention, 623
F.3d 1371, 1379 (11th Cir. 2010) (“In ruling on a 12(b)(6) motion, the Court accepts the factual
allegations in the complaint as true and construes them in the light most favorable to the
plaintiff.”); Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010) (similar).
To withstand Rule 12(b)(6) scrutiny, plaintiffs must plead “enough facts to state a claim
to relief that is plausible on its face,” so as to “nudge[] their claims across the line from
conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (citation omitted). Thus, minimum pleading standards “require[] more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. As the Eleventh Circuit has explained, Twombly/Iqbal principles
require that a plaintiff plead a facially plausible claim to relief, whose allegations are “enough to
raise a right to relief above the speculative level.” Speaker, 623 F.3d at 1380 (citations omitted).
The factual content of the complaint must “allow[] the court to draw the reasonable inference

executing this Agreement, each party consents that personal jurisdiction in the State of Alabama
may be obtained against any party not present in the State of Alabama through service upon it by
certified mail or the equivalent method of postal delivery …. Each party further agrees that any
action or arbitration brought under or relating to this Agreement or to the dealings between the
parties will be brought and conducted only in Alabama.” (Doc. 1-1, Exh. A, at ¶ 36.)

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that the defendant is liable for the misconduct alleged.” Id. (citations omitted); see also
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 958 (11th Cir. 2009) (“A plaintiff must provide
enough factual allegations, which are assumed to be true, to raise a right to relief above the
speculative level.”).
More generally, it bears emphasis that Rule 12(b)(6) is a low threshold for a plaintiff to
overcome. This Court cannot and will not dismiss a claim merely because recovery on the
merits at trial appears doubtful or dubious. See, e.g., Speaker, 623 F.3d at 1380 (“a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely”) (citation omitted). A Rule
12(b)(6) motion is not a vehicle for forecasting the plaintiff’s likelihood of success on the merits,
and jettisoning claims based on such predictions.
III.

Analysis.
The Jewell Defendants have now jointly moved to dismiss the Complaint in its entirety

on the following grounds: (i) personal jurisdiction is lacking as to JJA and Mr. Jewell; (ii)
dismissal (or alternatively, transfer) of this action is warranted under the doctrine of forum non
conveniens and/or 28 U.S.C. § 1404(a); and (iii) the Complaint fails to state a claim on which
relief can be granted. Each of these arguments will be considered in turn.6
6

In a footnote, defendants also state in conclusory terms that the doctrines of
collateral estoppel or res judicata somehow forbid Continental from bringing indemnity claims
against them. (See doc. 3, at 4 n.1.) Movants not having fleshed out this argument or lent it any
substance, this Court will not undertake to develop it on their behalf. See, e.g., Vision Bank v.
Merritt, 2010 WL 5474161, *4 (S.D. Ala. Dec. 8, 2010) (“If Merritt wishes to pursue such a
legal theory, it is incumbent on him to perform the necessary research and develop that
argument, rather than stating it in the vaguest of outlines and expecting this Court to fill in the
gaps.”); York v. Day Transfer Co., 525 F. Supp.2d 289, 301 n.10 (D.R.I. 2007) (“It is not enough
merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's
work, create the ossature for the argument, and put flesh on its bones.”) (citation omitted);
Federal Ins. Co. v. County of Westchester, 921 F.Supp. 1136, 1139 (S.D.N.Y. 1996) (“Under the
adversary system, it is counsel's responsibility to explain why these points have legal merit; the
Court does not serve as counsel's law clerk.”). Leaving aside these principles, the Court does not
perceive how the Crouch Action could reasonably be deemed to preclude Continental from
asserting indemnity claims against the Jewell Defendants at this time; after all, such claims likely
would have been premature had they been interposed in the Crouch Action directly. See, e.g.,
King v. Capital Amusement Co., 130 So. 799, 800 (Ala. 1930) (for contract of indemnity against
liability, “the indemnitee’s case arises on the contract when the liability is fixed and
ascertained”); Choice Building, Inc. v. Complete Landscape Service, Inc., 955 So.2d 437, 441
(Continued)
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A.

Whether Personal Jurisdiction Lies as to JJA and Mr. Jewell.
1.

The Parties’ Positions as to Personal Jurisdiction.

Without question, personal jurisdiction properly lies as to defendant JA, the signatory of
the Agreement with Continental. In that Agreement, JA expressly agreed that any litigation
brought under or relating to that Agreement was to be brought and conducted solely in Alabama.
In that same clause, JA consented to personal jurisdiction in Alabama. Such forum-selection
clauses are routinely upheld as valid and enforceable. See, e.g., Polaris Sales, Inc. v. Heritage
Imports, Inc., 879 So.2d 1129, 1132 (Ala. 2003) (describing “well-established law of Alabama
that forum-selection clauses will be enforced so long as they are not unfair or unreasonable under
the circumstances”).7 Defendant JA has not suggested otherwise; to the contrary, defendants
wisely concede that “JA does not dispute personal jurisdiction in this case.” (Doc. 17, at 16.)
However, defendants JJA and Mr. Jewell argue that there is no personal jurisdiction as to
them because (i) they were not signatories to the Agreement; and (ii) they lack the requisite
minimum contacts with the State of Alabama. On the latter point, JJA and Mr. Jewell make a
factual showing, inter alia, that JJA is a Mississippi corporation; that Mr. Jewell is a Mississippi
resident; that JJA has never done business in Alabama, has never had agents or employees in
Alabama, has never advertised or provided services in Alabama, and has never maintained an
office in Alabama; that Mr. Jewell has never done business in Alabama; and that all of JJA’s
work on the aircraft at issue in the Crouch Action was performed in Mississippi, in connection
with which the aircraft never passed through or over Alabama. (Jewell Aff. (doc. 3, Exh. A,
¶¶ 1, 5-12.)

(Ala.Civ.App. 2006) (indemnitee’s indemnity action does not accrue until trial court first
adjudicates its liability in the underlying action).
7

Of course, forum selection clauses may form the basis for the proper exercise of
personal jurisdiction in the designated forum over all parties to a contract. See, e.g., Ex parte
Trinity Automotive Services, Ltd., 974 So.2d 1005, 1010 (Ala.Civ.App. 2006) (explaining that
litigant may give consent to a court’s personal jurisdiction via “an agreement by both parties to a
contract that they will submit to the courts of a particular forum a dispute arising from the
contract”); Branch Banking and Trust Co. v. W.K. Brent Broaderip, 2010 WL 3955794, *4 (S.D.
Ala. Sept. 21, 2010) (“it is well-settled that parties may consent to personal jurisdiction through
forum selection clauses in contractual agreements”) (citations and internal marks omitted).

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Plaintiff’s response to these personal jurisdiction arguments is twofold. First, Continental
maintains that JJA and Mr. Jewell are bound by JA’s contractual consent to personal jurisdiction
because all of the Jewell Defendants are alter egos of each other. Second, Continental asserts
that even under a traditional minimum contacts analysis, personal jurisdiction is properly
exercised over JJA and Mr. Jewell in this District Court without regard to the terms of the
Agreement.
2.

“Alter Ego” Theory of Personal Jurisdiction.

In plaintiff’s view, the exercise of personal jurisdiction is proper as to JJA and Mr. Jewell
because JA contractually assented to personal jurisdiction, and the Agreement is properly
extended to cover both JJA and Mr. Jewell as JA’s alter ego.8 The “alter ego” analysis is a nonstarter at this time, as a matter of law. To be sure, Continental correctly identifies a line of
Alabama precedents in which courts have pierced the corporate veil where a defendant is an alter
ego of another entity.9 Those same decisions stress, however, that “[p]iercing the corporate veil
… is not a power that is exercised lightly.” Gilbert v. James Russell Motors, Inc., 812 So.2d
1269, 1273 (Ala.Civ.App. 2001). In advancing this argument, Continental offers evidence and
allegations that JA controls and dominates over its wholly- owned subsidiary, JJA. But mere
control and dominion does not suffice to trigger alter ego status. In that regard, Alabama law is
clear that the corporate veil cannot be pierced unless the dominant corporation (a) misused that
control, and (b) proximately caused harm to the plaintiff through such misuse. See, e.g., Heisz v.
Galt Industries, Inc., --- So.3d ----, 2012 WL 29190, *11 (Ala. Jan. 6, 2012) (reaffirming that
8

In its brief, Continental suggests that examination of the alter-ego issue at the
Rule 12(b)(6) stage is impermissible because the Complaint specifically pleads that JA, JJA and
Mr. Jewell are alter egos of each other, and well-settled law obliges courts to accept well-pleaded
facts in the Complaint as true for Rule 12(b)(6) purposes. (Doc. 10, at 39-40.) The Court
disagrees. Whether an “alter ego” relationship exists between or among these defendants is not
an unvarnished statement of fact to be accepted at face value on a motion to dismiss, but is
instead a legal conclusion entitled to no deference in a Rule 12(b)(6) analysis. See Edwards v.
Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010) (although well-pleaded facts are accepted as
true on a motion to dismiss, “[w]e are not, however, required to accept the labels and legal
conclusions in the complaint as true”).
9

All parties appear to be in agreement that Alabama law governs the “alter ego”
discussion in this case; therefore, the Court follows suit, without conducting sua sponte a choiceof-law analysis that the parties neither solicited nor developed.

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mere domination and control are insufficient basis to pierce corporate veil, and that “there still
must be evidence that that control was misused before the corporate veil can be pierced”); Kwick
Set Components, Inc. v. Davidson Industries, Inc., 411 So.2d 134, 137 (Ala. 1982) (to establish
liability under “instrumentality doctrine,” the “essential elements” are that “the dominant
corporation must have controlled the subservient corporation, and … the dominant corporation
must have proximately caused plaintiff harm through misuse of this control”).10
Continental has not addressed these prerequisites for piercing the corporate veil in any
meaningful way. It has not alleged, much less shown, that JA misused its control over JJA, that
such misuse of control harmed Continental, or that any injustice or inequitable consequences
ensued. There is no allegation, for example, of trickery or deception by JA as to the entity with
which Continental was doing business. To the contrary, the undisputed evidence is that
Continental knew the difference between JA and JJA, had separate business relationships with
each of them, and required each of them to sign separate agreements, reflecting their respective
functions and relationships with Continental. (Doc. 17, Exh. E, at ¶¶ 2, 5.) Continental has not
alleged, and apparently cannot allege in good faith, that it was fooled or misled into thinking that
JA would perform all installation services related to the Agreement when in fact it intended to
have JJA perform some of those services, all as a scheme to dodge JA’s indemnity obligations
specified in the Agreement. After all, that Agreement on its face was not focused on installation
of products, but instead contemplated a distribution arrangement. The Agreement’s recitals
confirm that “[JA] desires to engage in the business of selling certain new and rebuilt
[Continental] piston aircraft engine series and replacement parts.” (Doc. 3, Exh. B, at 3.)11
10

See also Shelton v. Clements, 834 So.2d 775, 781 (Ala.Civ.App. 2002) (“[A]
party seeking to pierce the corporate veil must show fraud in asserting the corporate existence or
must show that recognition of the corporate existence will result in injustice or inequitable
consequences.”) (citations omitted); Gilbert, 812 So.2d at 1274 (to pierce corporate veil on alter
ego / instrumentality theory, plaintiff must show “complete control and domination,” that
individual or entity “misused that control,” and that “misuse of that control was the proximate
cause of harm or unjust loss” to the plaintiff); South Alabama Pigs, LLC v. Farmer Feeders, Inc.,
305 F. Supp.2d 1252, 1258 (M.D. Ala. 2004) (“Even when the corporation appears to be an alter
ego, in order to pierce the corporate veil, there must be the added elements of misuse of control
and harm or loss resulting from it.”) (citations and internal marks omitted).
11

This language is important, because it confirms that Continental understood from
the outset that JA would be distributing parts purchased from Continental to other entities and
(Continued)
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Simply put, there is no reason to think that JA engaged in an elaborate subterfuge by misusing its
control and dominion to have JJA install a magneto that Continental reasonably expected JA to
install, all to the unjust or unfair detriment of Continental’s indemnity rights under the
Agreement.12
More fundamentally, the record establishes (with no contrary showing by Continental)
that the magneto that was the centerpiece of the Crouch Action was ordered and paid for by JA,
not by JJA or Mr. Jewell. (Doc. 17, Exh. E, at ¶¶ 3-4 & Exh. 1.)13 JA purchasing a magneto
under the Agreement cannot rationally be viewed as a misuse of control by JA, which misuse

facilities for installation. As such, Continental could not reasonably have understood that JA
would be installing all of the Continental parts it purchased itself, or that the Agreement’s
indemnity protections would extend to installation of every single product JA purchased.
Nothing about this fact pattern suggests that Continental was hoodwinked through JA’s misuse
of the corporate form into believing that it was receiving contractual indemnity protection that it
actually was not receiving. Continental understood JA to be a distributor, so it could not
plausibly have believed it was receiving indemnity protection for the installation of every single
product it sold to JA under the Agreement. From an equity/fairness standpoint, Continental was
no worse off from JA’s dealings with JJA on the magneto than it would have been if JA had sold
the magneto to an unrelated entity for installation in Crouch’s aircraft. That said, as discussed
infra, nothing about the Agreement would preclude JA from owing an indemnity obligation to
Continental for any parts that it (or its officers, representatives or agents) ultimately installed.
12

At best, Continental’s theory may be that JJA received a parts discount reserved
for JA under the Agreement because of JA’s misuse of control. But this case has nothing to do
with parts discounts. More to the point, the harm driving this lawsuit is Continental’s protection
or lack of protection under the indemnity clause, not the purchase price of the magneto.
13

In response, Continental counters that JJA and Mr. Jewell actually purchased the
magneto, not JA. (Doc. 10, at 22.) Review of plaintiff’s string of record citations on page 22 of
its brief concerning this proposition, however, does not support it. To the contrary, the record
shows that Continental invoiced JA for the magneto, and that JA cut a check for it. And even if
plaintiff’s version of the facts were accurate, they would show that JA was purchasing parts from
Continental and then distributing them to JJA and Mr. Jewell, not that JA had no involvement in
the transaction. Again, the Court cannot discern what was fraudulent, inequitable or an abuse of
control in this arrangement, particularly as it relates to Continental’s rights under the indemnity
clause. Continental has not made or developed such an argument, and this Court cannot and will
not do so on a litigant’s behalf. See Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir.
2011) (“district courts cannot concoct or resurrect arguments neither made nor advanced by the
parties”); Merritt, 2010 WL 5474161, at *4 (“If Merritt wishes to pursue such a legal theory, it is
incumbent on him to perform the necessary research and develop that argument ….”).

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proximately caused losses to Continental, as needed to activate alter-ego liability. As such, there
is no indication of any kind of sleight of hand, fraud or inequitable conduct by the Jewell
Defendants that might warrant the extraordinary and rare measure of piercing the corporate veil
to hold JJA and Mr. Jewell contractually bound by JA’s consent to personal jurisdiction in a
Product Support Agreement that they never executed.14
3.

Minimum Contacts Theory of Personal Jurisdiction.

In the alternative, Continental contends that personal jurisdiction may properly be
exercised over JJA and Mr. Jewell in Alabama under a traditional “minimum contacts”
analysis.15

14

Continental places heavy weight on the Alabama decision of Kwick Set
Components, Inc. v. Davidson Industries, Inc., 411 So.2d 134 (Ala. 1982), going so far as to
proclaim that “[t]he instant facts are virtually identical to those in Kwick Set.” (Doc. 10, at 22.)
Inspection of that decision reveals otherwise. A critical component of the Kwick Set analysis
was the presence of an “apparent scheme here of the dominant corporation to avoid payment of
the subservient corporation’s debts while benefiting from the use of the goods causing that debt,”
thereby leaving the supplier/plaintiff holding the bag. 411 So.2d at 137. Specifically, Kwick Set
involved allegations that the dominant corporation had purchased goods through the name of a
defunct subservient corporation that it controlled, used those goods for its own benefit, and then
refused to pay the ensuing invoices sent to the subservient corporation. Thus, Kwick Set
involved an obvious, glaring misuse of control by the dominant corporation, resulting in clear
harm to the plaintiff, which was shipping goods for the dominant corporation’s benefit but not
getting paid because the dominant corporation hid behind the defunct subservient one. That is
not our situation at all. Here, JA ordered the magneto for Crouch’s benefit and paid Continental
for the magneto. That it may have subsequently distributed the magneto to JJA or Mr. Jewell for
installation on Crouch’s aircraft simply does not evince the sort of misuse of control (or harm to
Continental) that might justify the extreme, rare, and disfavored step of piercing the corporate
veil to hold JJA and Mr. Jewell to contractual personal jurisdiction concessions they never made.
15

For purposes of the personal jurisdiction analysis, the Court recognizes and
adheres to the burden-shifting framework adopted by the Eleventh Circuit. Thus, Continental
“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) (citation omitted). “Where, as here, the defendant challenges jurisdiction
by submitting affidavit evidence in support of its position, the burden traditionally shifts back to
the plaintiff to produce evidence supporting jurisdiction.” Id. (citations and internal quotation
marks omitted). “Where 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. (citation omitted). “It goes without saying that, where the defendant challenges the court’s
exercise of jurisdiction over its person, the plaintiff bears the ultimate burden of establishing that
(Continued)
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Absent contractual acquiescence to personal jurisdiction, “[w]hen a defendant challenges
personal jurisdiction, the plaintiff has the twin burdens of establishing that personal jurisdiction
over the defendant comports with (1) the forum state’s long-arm provision and (2) the
requirements of the due-process clause of the Fourteenth Amendment to the United States
Constitution.” Matthews v. Brookstone Stores, Inc., 469 F. Supp.2d 1056, 1060 (S.D. Ala. 2007)
(citations omitted); see also Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d
1162, 1166 (11th Cir. 2005) (similar). In Alabama, this inquiry collapses into a single question
because Alabama’s long-arm statute permits its courts to exercise personal jurisdiction to the full
extent permitted by the Due Process Clause. See Sloss Industries Corp. v. Eurisol, 488 F.3d 922,
925 (11th Cir. 2007) (“the two inquiries merge, because Alabama’s long-arm statute permits the
exercise of personal jurisdiction to the fullest extent constitutionally permissible”); Avocent
Huntsville Corp. v. Aten Int’l Co., Ltd., 552 F.3d 1324, 1329 (Fed. Cir. 2008) (“Alabama’s longarm statute permits service of process as broad as the permissible limits of due process.”)
(citation and internal quotation marks omitted). Accordingly, the operative query is whether the
exercise of personal jurisdiction over defendants JJA and Mr. Jewell in Alabama comports with
constitutional safeguards.
Due process authorizes the exercise of personal jurisdiction when “(1) the nonresident
defendant has purposefully established minimum contacts with the forum” and “(2) the exercise
of jurisdiction will not offend traditional notions of fair play and substantial justice.” U.S. S.E.C.
v. Carrillo, 115 F.3d 1540, 1542 (11th Cir. 1997); see also Diamond Crystal Brands, Inc. v. Food
Movers Int’l, Inc., 593 F.3d 1249, 1267 (11th Cir. 2010) (similar). The minimum contacts
analysis varies depending on whether the type of jurisdiction asserted is general or specific. In
that regard, facts supporting personal jurisdiction “may be general, which arise from the party’s
contacts with the forum state that are unrelated to the claim, or specific, which arise from the
party’s contacts with the forum state that are related to the claim.” Nippon Credit Bank, Ltd. v.
Matthews, 291 F.3d 738, 747 (11th Cir. 2002). Continental invokes both specific and general
jurisdiction with respect to these defendants.

personal jurisdiction is present.” Oldfield v. Pueblo de Bahia Lora, S.A., 558 F.3d 1210, 1217
(11th Cir. 2009).

-11-

“Specific jurisdiction refers to jurisdiction over causes of action arising from or related to
a defendant’s actions within the forum.” PVC Windoors, Inc. v. Babbitbay Beach Const., N.V.,
598 F.3d 802, 808 (11th Cir. 2010) (citation and internal quotation marks omitted). Specific
jurisdiction is properly found where (i) the defendant’s contacts with the forum state are related
or give rise to the plaintiff’s cause of action, (ii) the contacts involve some act by which the
defendant purposefully avails himself of the privilege of conducting activities within the forum,
and (iii) the defendant’s contacts with the forum are such that he should reasonably anticipate
being haled into court there. See, e.g., Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210,
1220-21 (11th Cir. 2009); McGow v. McCurry, 412 F.3d 1207, 1214 (11th Cir. 2005). The only
contact identified by Continental in support of a “specific jurisdiction” analysis is that “John
Jewell and JJA purchased the subject Magneto pursuant to a contact with the State of Alabama –
the March 17, 2005 Magneto order.” (Doc. 10, at 26.)
Plaintiff’s efforts to hinge specific jurisdiction on that allegation are unavailing. As a
threshold matter, once again, the record citations provided by Continental do not establish that
JJA or Mr. Jewell ordered the subject magneto, whereas the record unambiguously confirms that
Continental invoiced JA (not the other defendants) for that item and that JA (not the other
defendants) paid for it. Thus, this “contact” with Alabama by JJA and Mr. Jewell appears to be
nothing more than a mirage, because it was actually an Alabama contact by JA. Of course, “we
may not ascribe the forum contacts of one co-defendant to another in determining the existence
of personal jurisdiction.” Fraser v. Smith, 594 F.3d 842, 852 (11th Cir. 2010).
More importantly, even if plaintiff had come forward with an adequate showing that JJA
and Mr. Jewell were actually the ones to order the magneto, plaintiff has failed to show that its
indemnity causes of action against JJA and Mr. Jewell arise from their purchase of a magneto
from Continental in Alabama. To the contrary, the purchase of the magneto is merely a
background fact that does not inform any of Continental’s claims asserted herein. In plain
English, Continental is not suing JJA and Mr. Jewell because it thinks they ordered a magneto
from it in Alabama; rather, Continental is suing JJA and Mr. Jewell because it thinks they

-12-

installed the magneto in Mississippi for a Kentucky customer in a manner that gives rise to an
indemnity obligation as a matter of contract or common law.16
The “relatedness” element of specific jurisdiction defies encapsulation in a rigid test, but
“must hew closely to the foreseeability and fundamental fairness principles forming the
foundation upon which the specific jurisdiction doctrine rests.” Oldfield, 558 F.3d at 1224
(opining that “but-for” causation is not sufficient). In that regard, “our inquiry must focus on the
direct causal relationship among the defendant, the forum, and the litigation.” Id. at 1223
(citation and internal quotation marks omitted); see also Diamond Crystal, 593 F.3d at 1267 (for
purposes of specific jurisdiction analysis, plaintiff must show that defendant purposefully
established contacts in forum state and that there is “a sufficient nexus between those contacts
and the litigation”). A defendant’s mere act of ordering a part from a supplier in Alabama would
neither make it foreseeable or fundamentally fair for that defendant to be haled into court in
Alabama by that supplier based on allegations that the defendant did not install the part correctly
in Mississippi for a Kentucky-based aircraft. See generally Fraser, 594 F.3d at 851 (although
16

It may be useful to contrast the circumstances of this case with one in which the
purchase of a magneto from Continental in Alabama would support specific jurisdiction.
Suppose Continental’s claims against JJA and Mr. Jewell sounded in fraud, on the theory that
they had misrepresented themselves as being JA when they ordered the magneto. In that event,
their purported act of ordering the magneto from Continental in Alabama would indeed create a
basis for the exercise of specific personal jurisdiction over them in this forum. But that is not
what Continental is alleging. The alleged wrongful conduct giving rise to Continental’s claims
against these defendants is their installation of the magneto, which happened in Mississippi, not
the ordering of the magneto in Alabama. The basis of the Crouch Action’s negligent installation
claim was not that JJA or Mr. Jewell were parties to the Product Support Agreement with
Continental (they weren’t), but that the Jewell Defendants had negligently installed the magneto
and were acting as Continental’s agent. Again, that installation happened in Mississippi, and
therefore cannot support exercise of specific personal jurisdiction over JJA and Mr. Jewell in this
forum. Another way to frame this conclusion is as follows: Without question, the Crouch
Action plaintiffs could not have sued JJA and Mr. Jewell in Alabama on a specific jurisdiction
theory for their alleged negligent installation of the magneto in Mississippi for a Kentucky-based
aircraft. That being the case, how can Continental sue JJA and Mr. Jewell in Alabama on a
specific jurisdiction theory to recover its attorney’s fees expended in the Crouch Action, where
there is no contract or consent to personal jurisdiction as to those two defendants? Plaintiff has
not satisfactorily answered this question. All JJA and Mr. Jewell did was install a magneto
(purchased by JA from Continental) in Mississippi. Their liability, if any, to Continental arises
from their actions in Mississippi, not any meager contacts they may have had with Alabama.
That fact is antithetical to a finding of specific personal jurisdiction.

-13-

non-resident defendant’s purchase of goods in forum state “might support the exercise of specific
jurisdiction over [that defendant] on contractual claims arising directly from that transaction,” it
does not render the defendant amenable to suit in that state for claims that “have only an
attenuated causal connection to the purchase itself”); Borg–Warner Acceptance Corp. v. Lovett
& Tharpe, Inc., 786 F.2d 1055, 1059 (11th Cir. 1986) (holding that “a mere one-time purchaser
of goods from a seller in the forum state cannot be constitutionally subject to the exercise of
[specific] personal jurisdiction by the courts of the forum state” on a contractual claim). That is
to say, these defendants could not have had fair warning that they were subject to suit in
Alabama based on their installation of a part on an aircraft in Mississippi, merely because of
their attenuated (at best) contact with Alabama in ordering the subject part from a vendor in that
state.
Given the extremely limited (and perhaps even nonexistent) nature of JJA and Mr.
Jewell’s contacts with Alabama related or giving rise to this indemnity litigation, the Court finds
that personal jurisdiction may not properly be exercised over these defendants in this matter on a
theory of specific jurisdiction. A mere one-time order of a magneto from Continental in
Alabama would not have caused JJA and Mr. Jewell reasonably to anticipate they could be sued
in Alabama for alleged indemnity obligations arising from their installation of the magneto in
Mississippi, particularly where the subject aircraft was flown to Kentucky after the Jewell
Defendants completed their work, without ever passing through Alabama. (Doc. 3, Exh. 3, at ¶
11.)17 Under the circumstances, exercise of specific jurisdiction over these defendants would not
comport with fundamental fairness principles.
Plaintiff’s invocation of general personal jurisdiction principles fares no better. “The due
process requirements for general personal jurisdiction are more stringent than for specific
personal jurisdiction, and require a showing of continuous and systematic general business
contacts between the defendant and the forum state.” Meier ex rel. Meier v. Sun Int’l Hotels,
Ltd., 288 F.3d 1264, 1274 (11th Cir. 2002) (citations omitted); see also HomeBingo Network, Inc.
17

See generally Pease v. Kelly Aerospace, Inc., 2008 WL 2516454, *5 (M.D. Ala.
June 20, 2008) (no specific jurisdiction against defendant that allegedly performed faulty work
on a product manufactured in Alabama, where the alleged faulty work that formed the basis of
plaintiffs’ claims was performed in California, thousands of miles from the Alabama border, and
defendant did not ship the product to Alabama after completing work).

-14-

v. Chayevsky, 428 F. Supp.2d 1232, 1241 (S.D. Ala. 2006) (“General personal jurisdiction arises
when a defendant maintains continuous and systematic contacts with the forum state even when
the cause of action has no relation to those contacts.”).
According to Continental, general personal jurisdiction may properly be exercised over
JJA and Mr. Jewell because they have customers in Alabama with whom they did $35,000 to
$62,0000 in business per year between 2004 and 2006, because they systematically purchased
products from Continental, and because they advertised in three national publications and a
website. (Doc. 10, at 28.)18 Remarkably, plaintiff’s 45-page brief cites not a single authority
deeming these types of contacts sufficient to satisfy the stringent test for general jurisdiction.
Ample case law shows otherwise. For starters, the mere existence of occasional sales to
customers in the forum state is not enough to establish general personal jurisdiction, at least not
without a showing of substantiality that has not been made here. See, e.g., Associated Transport
Line, Inc. v. Productos Fitosanitarios Proficol El Carmen, S.A., 197 F.3d 1070, 1075 (11th Cir.
1999) (opining that defendant’s nine sales to the forum state are constitutionally insufficient to
give rise to general jurisdiction, and recognizing that “[g]eneral jurisdiction has been found
lacking even where a company … regularly solicited business and derived more than 26% of its
income from the forum”); Northern Ins. Co. of New York v. Construction Navale Bordeaux, 2011
WL 2682950, *5 (S.D. Fla. July 11, 2011) (no general jurisdiction even though defendant had
made 20 sales in forum state, had appeared at two trade shows in forum state per year, and had
done industry advertising in the forum state).19
18

Other than the raw dollar amount, Continental provides no information
concerning the frequency or numerosity of those sales in the forum state. In that regard, the
record shows that JJA deals or dealt in expensive aircraft services. Furthermore, the exhibits on
which Continental purports to rely for the cited dollar amounts are simply aggregated lists of
customers and sales figures. Plaintiff has not provided any breakdown or summary chart of the
information on which it relies, just the (largely unhelpful) raw data. By all appearances, the cited
sales to customers in Alabama could amount to no more than a handful of sales per year. This
hardly appears substantial, especially when compared to JJA’s apparent total sales in the millions
of dollars. (Doc. 10, Exh. G, at 27.)
19

In that regard, Continental relies on the fact that JJA sold $43,000 in goods and
services to Alabama customers in the 2003-2004 period. (Doc. 10, at 28.) Even assuming the
accuracy of that figure, plaintiff’s own exhibits show total JJA sales of $933,000 for that period.
(Doc. 11, Exh. 4.) That 4.6% of JJA’s gross sales were to Alabama customers is not a tenable
basis for asserting general personal jurisdiction over it.
-15-

Similarly, the fact that JJA purchased materials from Continental in Alabama on an
ongoing basis is woefully inadequate to satisfy the strict general jurisdiction test. See Goodyear
Dunlop Tires Operations, S.A. v. Brown, --- U.S. ----, 131 S.Ct. 2846, 2857, 180 L.Ed.2d 796
(2011) (“mere purchases made in the forum State, even if occurring at regular intervals, are not
enough to warrant a State’s assertion of general jurisdiction over a nonresident corporation in a
cause of action not related to those purchase transactions”) (internal marks omitted);
Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292 (11th Cir. 2000) (“[M]erely
purchasing materials, even if done regularly, is not contact sufficient to support personal
jurisdiction.”).
And the existence of a general informational website and sporadic national
advertisements accessible to (but not directly targeted at) residents of the forum state is similarly
insufficient to support a finding of general jurisdiction. See Fraser, 594 F.3d at 847 (“the mere
existence of a website that is visible in a forum and that gives information about a company and
its products is not enough, by itself, to subject a defendant to personal jurisdiction in that forum”)
(citations omitted); Sherritt, 216 F.3d at 1292 (“Placing advertisements in a newspaper is not a
sufficient connection to the forum for in personam jurisdiction.”); Charlie Fowler Evangelistic
Ass’n, Inc. v. Cessna Aircraft Co., 911 F.2d 1564, 1566 (11th Cir. 1990) (defendant’s basic
listings in The Aviation Telephone Directory were not “purposely directed” activities at Florida
residents, and even if they were advertisements, “they are not enough, without more, to provide
contacts which comport with due process”); Matthews, 469 F. Supp.2d at 1064 (“A purely
passive informational website such as that operated by D & M lacks jurisdictional
significance.”).
Thus, each of these items taken in isolation is insufficient to constitute the kind of
substantial contacts to the forum to trigger general personal jurisdiction over JJA. Nor is there
any reason (much less legal argument or authority presented by plaintiff) to think that
consideration of these contacts in the aggregate would alter the constitutional due-process
analysis in any meaningful way. This is particularly true when the contacts on which
Continental relies are juxtaposed against JJA’s uncontroverted factual showing that JJA “has
never had either an agent or employee in Alabama,” “has never provided services in Alabama,”
“has never attempted to qualify to do business in Alabama,” and “has never maintained offices in
Alabama.” (Doc. 3, Exh. C, at ¶ 7.) These facts, taken in tandem with Continental’s relatively
-16-

slender showing of sales, purchases, and advertisements, establish that plaintiff has not met its
stringent burden of showing the kinds of continuous and systematic contacts necessary for the
exercise of general personal jurisdiction over JJA by this District Court.
As for defendant Mr. Jewell, Continental simply lumps him in with JJA for purposes of
the minimum contacts analysis, with no discussion or recitation of his contacts with the forum
state. (Doc. 10, at 26-28.) This approach is improper. Pursuant to the fiduciary shield doctrine
embraced by Alabama courts, “jurisdiction over individual officers and employees of a
corporation may not be predicated on the court’s jurisdiction over the corporation itself,” but
instead “there must be a showing that the individual officers engaged in some activity that would
subject them to the state’s long-arm statute before in personam jurisdiction can attach.” Ex parte
Kohlberg Kravis Roberts & Co., 78 So.3d 959, 974 (Ala. 2011) (citations omitted); see also
South Alabama Pigs, LLC v. Farmer Feeders, Inc., 305 F. Supp.2d 1252, 1260 (M.D. Ala. 2004)
(“An officer who has never been in Alabama, nor conducted personal business in the state
through an alter ego or through personal agents, may not be subjected to jurisdiction in
Alabama.”); U.S. Pharmaceutical Corp. v. Breckenridge Pharmaceutical, Inc., 2010 WL
3731112, *4 (N.D. Ga. Sept. 16, 2010) (“To exercise personal jurisdiction over a corporation’s
officer acting in his official capacity, the officer’s personal conduct must establish minimum
contacts with the forum state.”).20
More broadly, the U.S. Supreme Court has explained that “jurisdiction over an employee
does not automatically follow from jurisdiction over the corporation which employs him ….
Each defendant’s contacts with the forum State must be assessed individually.” Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 781 n.13, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). This
kind of defendant-specific contacts analysis has not been performed by Continental here. In
particular, plaintiff has made no showing that Mr. Jewell’s personal conduct would amount to the
kind of continuous and systematic contacts with Alabama to subject him to personal jurisdiction
20

The Court is aware, of course, that Alabama’s fiduciary shield doctrine is not an
absolute rule, but is subject to certain nuances and exceptions, such as where individual
defendants “allegedly engaged in tortious activity directed toward the State of Alabama.”
Kohlberg, 78 So.3d at 977. But Continental has presented neither argument nor authority for any
of those exceptions here, and indeed seems to have treated the entire personal jurisdiction query
as to Mr. Jewell as a mere afterthought. This is not sufficient to satisfy its burden.

-17-

in this state; instead, plaintiff would simply wave its hand and suggest in the vaguest of terms
that since there is personal jurisdiction over JJA (which there is not), there must be personal
jurisdiction over Mr. Jewell too.21
Inasmuch as plaintiff has not met its burden of demonstrating that the exercise of
personal jurisdiction over JJA and Mr. Jewell in Alabama would be constitutionally permissible,
the Court will dismiss plaintiff’s claims against both of these defendants for want of jurisdiction.
B.

Whether Dismissal or Transfer to Another Forum is Appropriate.

Next, JA (now the only remaining defendant) urges the Court either to dismiss this action
pursuant to the doctrine of forum non conveniens or to transfer it to the U.S. District Court for
the Northern District of Mississippi pursuant to 28 U.S.C. § 1441.22
As an initial matter, the notion that dismissal of this case is warranted on a forum non
conveniens theory because JA believes it would have been preferable for Continental to sue it in
Mississippi is a fundamental misapplication of that doctrine. Abundant case law makes clear
21

At best, in the fact section of its brief, Continental alleges that Mr. Jewell had
certain professional contacts with Alabama in his official capacity with JJA and/or JA, and that
he “attended at least one TCM seminar in Fairhope, Alabama.” (Doc. 10, at 15-18 & n.7.) Such
a showing falls well short of the continuous and systematic personal contacts necessary to
exercise general personal jurisdiction over him. This is particularly true when plaintiff’s
threadbare facts concerning Mr. Jewell’s contacts with Alabama are considered alongside
unrebutted evidence that Mr. Jewell resides in Mississippi, has never maintained an address or
telephone in Alabama, has never provided services or maintained offices in Alabama, has never
had an Alabama bank account, and has never owned or leased property in Alabama. (Doc. 3,
Exh. C, at ¶ 12.) The facts and plaintiff’s factual allegations simply do not support the exercise
of general personal jurisdiction over Mr. Jewell in this forum.
22

JA intermittently characterizes its venue argument as asserting that “venue is
improper in Alabama.” (Doc. 17, at 18.) This label jumbles two separate issues. The first,
whether venue is proper, is governed by 28 U.S.C. § 1391, and cannot seriously be challenged
here. After all, JA signed the Agreement, expressly consenting to venue in Alabama. Under the
circumstances, it could not plausibly be argued by JA that venue is improper in Alabama. The
second doctrine, forum non conveniens or a § 1404(a) transfer, applies where venue is proper in
the plaintiff’s selected forum, but where another forum might be more convenient for the parties
and the court. See generally Ford v. Brown, 319 F.3d 1302, 1306-07 (11th Cir. 2003) (explaining
that forum non conveniens doctrine “authorizes a trial court to decline to exercise its jurisdiction,
even though the court has venue, where it appears that the convenience of the parties and the
court, and the interests of justice indicate that the action should be tried in another forum”)
(citation omitted). Defendants’ argument focuses on the convenience of the forum, not the
propriety of venue, and therefore will not be examined through the § 1391 lens.

-18-

that forum non conveniens neither contemplates nor authorizes dismissal when a § 1404(a)
transfer to another domestic forum is available.23
The remaining question, then, is whether transfer is appropriate under § 1404(a). That
statute provides that, “[f]or the convenience of the parties and witnesses, in the interest of justice,
a district court may transfer any civil action to any other district or division where it might have
been brought or to any district or division to which all parties have consented.” 28 U.S.C. §
1404(a). “District courts have broad discretion in deciding whether to transfer an action to a
more convenient forum.” A.J. Taft Coal Co. v. Barnhart, 291 F. Supp.2d 1290, 1307 (N.D. Ala.
2003) (citation omitted); see also England v. ITT Thompson Industries, Inc., 856 F.2d 1518,
1520 (11th Cir. 1988). “[I]n the usual motion for transfer under section 1404(a), the burden is on
the movant to establish that the suggested forum is more convenient.” In re Ricoh Corp., 870
F.2d 570, 573 (11th Cir. 1989).
JA’s attempt to shift the venue of this action from this District to the Northern District of
Mississippi is unpersuasive for a host of reasons. First, it is well-settled the plaintiff’s choice of
forum (in this case, Continental’s decision to file suit in a state court found in the Southern
District of Alabama) is entitled to substantial weight and will not lightly be cast aside. See, e.g.,
Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996) (“The plaintiff’s choice of
forum should not be disturbed unless it is clearly outweighed by other considerations.”);
Bartronics, Inc. v. Power-One, Inc., 510 F. Supp.2d 634, 637 (S.D. Ala. 2007) (“a plaintiff’s
23

See, e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 722, 116 S.Ct. 1712,
135 L.Ed.2d 1 (1996) (“to the extent we have continued to recognize that federal courts have the
power to dismiss damages actions under the common-law forum non conveniens doctrine, we
have done so only in cases where the alternative forum is abroad”) (citations and internal
quotation marks omitted); Bacon v. Liberty Mut. Ins. Co., 575 F.3d 781, 783 (8th Cir. 2009) (“To
the extent that there is an alternative federal forum, the district court lacked the power of
dismissal because with its enactment in 1948, § 1404(a) superseded the common law doctrine of
forum non conveniens insofar as transfer to another federal district court is possible.”) (citation
and internal marks omitted); In re Compania Naviera Joanna S.A., 531 F. Supp.2d 680, 684
(D.S.C. 2007) (“Under the common law doctrine of forum non conveniens, a district court will
dismiss an action only if transfer to the proper alternative forum cannot be accomplished via 28
U.S.C. §1404,” such as “when the more convenient, alternative forum is in another country”);
Faurecia Exhaust Systems, Inc. v. Walker, 464 F. Supp.2d 700, 709 (N.D. Ohio 2006) (“Since
the enactment of the federal transfer statute, 28 U.S.C. § 1404(a), the doctrine of forum non
conveniens has continuing application only where the alternative forum is outside of the United
States.”).

-19-

choice of forum should be honored so long as venue is proper there, unless substantial
countervailing considerations militate to the contrary”).
Second, that deference is magnified where, as here, the parties agreed to a forumselection clause (the validity and enforceability of which as JA has not been challenged) fixing
venue in this forum.24 See, e.g., P & S Business Machines, Inc. v. Canon USA, Inc., 331 F.3d
804, 807 (11th Cir. 2003) (recognizing choice of forum clause as “a significant factor that figures
centrally in the district court’s calculus” for a § 1404(a) motion) (citation omitted); Ricoh, 870
F.2d at 573 (“the venue mandated by a choice of forum clause rarely will be outweighed by other
1404(a) factors”); ASD Specialty Healthcare, Inc. v. Letzer, 2010 WL 2952573, *3 (M.D. Ala.
July 26, 2010) (“while a valid forum selection clause i[s] not dispositive of a § 1404(a) motion to
transfer venue, the movant carries a considerably heavier burden in seeking transfer outside of
the district mandated by such a clause”) (footnote omitted); E & H Steel Contracting, Inc. v.
Turner Constr. Co., 2006 WL 1731153, *3 (M.D. Ala. June 23, 2006) (explaining that the
burden is on “the party opposing the enforcement of the forum selection clause … to show that
the contractual forum is sufficiently inconvenient” that it should not be honored) (citation and
internal quotation marks omitted). JA contractually agreed to litigate any disputes with
Continental brought under or relating to the Agreement (whose indemnity clause Continental
seeks to enforce in this action) in Alabama. Now JA asks this Court to transfer the action to
Mississippi, but it makes neither argument nor evidentiary showing that the forum selection
clause is unenforceable or should not be honored. Under the circumstances, the Court declines
JA’s invitation to “encourage parties to violate their contractual obligations, the integrity of
which are vital to our judicial system.” Ricoh, 870 F.2d at 573.
Third, even under a traditional § 1404(a) balancing test, JA has failed to establish that the
proposed new forum is more convenient than Continental’s selected forum. In this analysis,
once it is established that the action could originally have been brought in the proposed
transferee forum (which it could have been, inasmuch as JA resides there and a substantial part
of the events giving rise to the claim occurred there), courts examine “whether a balancing of the
24

Recall that the Agreement executed by JA and Continental (and containing the
indemnity clause that Continental seeks to enforce herein) specifies that “[e]ach party further
agrees that any action … brought under or relating to this Agreement or to the dealings between
the parties will be brought and conducted only in Alabama.” (Doc. 3, Exh. B, at ¶ 36.)

-20-

convenience of the parties and the interest of justice favors transfer in the specific case.” Baker
v. RBS Worldpay, Inc., 2010 WL 4065074, *2 (S.D. Ala. Oct. 15, 2010). In performing such
analysis, relevant factors include “(1) the convenience of the witnesses; (2) the location of
relevant documents and the relative ease of access to sources of proof; (3) the convenience of the
parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of
unwilling witnesses; (6) the relative means of the parties; (7) a forum’s familiarity with the
governing law; (8) the weight accorded a plaintiff’s choice of forum; and (9) trial efficiency and
the interests of justice, based on the totality of the circumstances.” Manuel v. Convergys Corp.,
430 F.3d 1132, 1135 n.1 (11th Cir. 2005).
As to witnesses, it is not at all clear that Alabama is an inconvenient forum, given that (i)
certain witnesses are already in this district, and (ii) others are located nearby in an adjacent
state.25 As to convenience of parties, to the extent that JA would prefer to litigate in its home
state, surely there will be some inconvenience attendant to defending itself in Alabama; however,
as the Eleventh Circuit has recognized, “modern methods of transportation and communication
have lessened the burden of defending a suit in a foreign jurisdiction.” Mutual Service Ins. Co.
v. Frit Industries, Inc., 358 F.3d 1312, 1320 (11th Cir. 2004). This is particularly true where, as
here, JA is based in a neighboring state to the forum, such that vast geographic distances (and the
associated inconveniences and expenses of same) are not in play here. As to other factors,
Continental has stated (without opposition from JA) that all or most of the relevant documents
are already found in this judicial district, that this Court will be more familiar with the governing
Alabama law to which the parties agreed than a Mississippi court would be, that the forumselection clause fixes an Alabama forum, and that JA has consented to an Alabama forum.

25

JA diminishes its own convenience argument by acknowledging that
Continental’s “case should not be witness intensive.” (Doc. 3, at 13.) Indeed, it appears that
most of the witnesses will be Continental employees or attorneys (testifying about the indemnity
agreement and the fees accrued), on the one hand, and JA employees or representatives, on the
other. Continental is based in Alabama, JA in Mississippi. To transfer venue to Mississippi
would thus not unambiguously be more convenient for all, but would merely shift the
inconvenience from JA to Continental. This is not a viable reason for a § 1404(a) transfer. See
Baker, 2010 WL 4065074, at *4 (“where a transfer merely shifts the inconvenience from one
party to another, Plaintiff’s choice of forum should remain”) (citation omitted).

-21-

After careful consideration, the Court concludes that JA has not met its heavy burden
under § 1404(a) of showing that the desired transferee forum is so much more convenient than
Alabama that it should override both the forum-selection clause to which it agreed and plaintiff’s
choice of forum. In fact, the Court is far from convinced that the Southern District of Alabama
is, on balance, any less convenient as a forum for trial than the Northern District of Mississippi
would be, even without the significant considerations of the forum-selection clause and
plaintiff’s choice of forum in accordance with that clause. Accordingly, defendant’s request for
dismissal or transfer of venue on a convenience theory is denied.
C.

Whether the Complaint States a Claim against JA.

Defendant JA also seeks dismissal of the Complaint under Rule 12(b)(6), arguing that (i)
JA owed no duty under the Agreement to indemnify Continental for the actions of another
company, and (ii) Alabama law does not allow for recovery of attorney’s fees in these
circumstances. The Court will address each of these arguments in turn.26
26

Defendant’s Motion to Dismiss is silent as to Count III of the Complaint, which is
common-law indemnity cause of action asserted under Kentucky law. According to the wellpleaded allegations of the Complaint, JA participated in the attachment of the magneto to the
Crouch/Hudson aircraft in the spring of 2005. (Doc. 3, Exh. A, at ¶ 18 (“The AVCO Engine …
was overhauled in March and April 2005 … by Defendants Jewell Aircraft, Inc., John Jewell
Aircraft, Inc., [and] John Jewell.”).) And Count III alleges that, under Kentucky law, JA and the
other defendants had a duty to use correct and up-to-date parts in securing the magneto to that
engine, then “breached this duty … by, among other things, negligently attaching the Magneto to
the AVCO Engine accessory case.” (Id., ¶ 59.) Thus, Continental maintains in Count III that JA
owes it a Kentucky common-law duty of indemnification because Continental was “exposed to
liability” in the Crouch Action through JA’s negligent acts. Again, the Motion to Dismiss does
not address whether Count III states a claim. For that reason, the Court will not embark sua
sponte on a Rule 12(b)(6) analysis of that claim at this time. Nor do movants ameliorate this
omission via a single-paragraph afterthought in their reply, wherein they state that “[i]n the
absence of citations of law or of specific predicate facts, [Continental] has truly stated a claim for
which no relief can be granted. This Court can ignore [Continental]’s references to Kentucky
law.” (Doc. 17, at 20.) This is a new, previously available argument which a movant cannot
properly raise for the first time in a reply brief. See, e.g., Essex Ins. Co. v. Foley, 827 F. Supp.2d
1326, 1330 (S.D. Ala. 2011) (“Essex’s election not to advance in its principal brief readily
available [legal] arguments … precludes it from propounding those contentions in its Reply.”);
Sharpe v. Global Sec. Int’l, 766 F. Supp.2d 1272, 1294 n.26 (S.D. Ala. 2011) (“Because it is
improper for defendant to raise this new argument in its reply brief, that argument will not be
considered.”). Besides, as the movant in a Rule 12(b)(6) motion, JA bears the burden of
explaining why Count III is legally deficient, with citations to authority as appropriate. In lieu of
doing so, JA has merely provided a conclusory reassurance that it thinks “[t]his Court can
(Continued)
-22-

According to JA, a “plain reading” of the indemnity clause in the Agreement “provides
that JA may only be required to indemnify [Continental] for its actions, not for the actions of
another company, such as JJA.” (Doc. 3, at 16.) This detail is significant, says JA, because JJA
and not JA actually installed the magneto on the aircraft. But this argument fails at the Rule
12(b)(6) stage for at least three reasons. First, far from merely seeking to hold JA liable for the
wrongful conduct of someone else, the Complaint alleges that JA participated in the engine
overhaul and magneto installation that led to the Crouch Action against Continental. (Doc. 3,
Exh. A, at ¶¶ 18, 21.) JA’s disagreement with the factual accuracy of that allegation is not a
cognizable legal basis for Rule 12(b)(6) relief. See, e.g., Edwards v. Prime, Inc., 602 F.3d 1276,
1291 (11th Cir. 2010) (on a Rule 12(b)(6) motion, “[w]e take the factual allegations in the
complaint as true and construe them in the light most favorable to the plaintiffs”); Harper v.
Lawrence County, Ala., 592 F.3d 1227, 1232 n.10 (11th Cir. 2010) (“In reviewing a complaint,
we accept all well-pleaded factual allegations as true and construe the facts in the light most
favorable to the plaintiff.”) (citation omitted).
Second, JA overlooks express language in the indemnity provision wherein JA agreed to
indemnify Continental for claims that “have resulted from or arisen out of any act or omission of
[JA], its officers, agents, representatives, servants or employees.” (Doc. 3, Exh. A, at ¶ 26.) If
JJA or John Jewell was acting as JA’s “agent” or “representative” in that installation process,
then JA is or may be contractually obligated to indemnify Continental for claims arising from
ignore” the claim without a more detailed exposition of Kentucky law by Continental. Such an
argument disregards JA’s burden as a 12(b)(6) movant, and improperly would impose on
plaintiff a duty preemptively to provide a comprehensive legal discourse on the viability of a
claim that the defendant never even challenged in its Motion to Dismiss. The Court will not turn
the applicable burden on its head, as is implicit in JA’s suggestion. See, e.g., Gulf Offshore
Logistics, LLC v. Bender, 2010 WL 500448, *2 (S.D.Ala. Feb. 9, 2010) (“Because the defendant
presented a Rule 12(b)(6) motion ..., he at all times bore the burden of demonstrating entitlement
to dismissal.”); Superior Energy Services, LLC v. Boconco, Inc., 2010 WL 1267173, *5
(S.D.Ala. Mar. 29, 2010) (“When attacking a complaint in a motion filed pursuant to Rule
12(b)(6), the moving party bears the burden to show that the complaint should be dismissed for
failure to state a claim upon which relief may be granted.”). If defendant contends that Count III
does not state an actionable claim for relief under Kentucky law or otherwise, then it must state
why, and not merely wait until its reply to criticize the plaintiff for not unilaterally presenting a
legal brief supporting the viability of such a claim under Kentucky law in the absence of any
prior challenge by movant.

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same. Thus, the plain language of the indemnity clause refutes JA’s position that it never agreed
to indemnify Continental for claims arising from the conduct of JJA or Mr. Jewell, but only
promised to indemnify Continental for JA’s own wrongful acts. Moreover, a fair reading of the
factual allegations of the Complaint is that Continental seeks to hold JA liable under the
indemnity provision for the actions of JJA and/or Mr. Jewell as its agents or representatives, as
well as for JA’s own conduct. Whether, as a factual matter, any such agency or representative
relationship existed in this case is not amenable to disposition at the pleadings stage.
Third, and more generally, JA’s advocacy of a crabbed, narrow reading of the
Agreement’s indemnity clause cannot be reconciled with the broad contractual language at issue.
In its briefs, JA imputes all manner of narrowing principles to the indemnity language, such as (i)
the indemnity clause does not apply because JA was not sued in the underlying proceedings; (ii)
the Crouch Action plaintiffs did not assert that JA did anything wrong; (iii) the Crouch Action
had nothing to do with the Agreement or JA’s responsibilities under same; and (iv) the
Agreement only provides for indemnity “for acts and omissions related to JA’s actions as
distributor under the Agreement.” (Doc. 3, at 15-16; doc. 17, at 9.) Again, the indemnity clause
to which JA agreed is quite broad. It says that JA must indemnify Continental for all claims “to
the extent that such claims, demands, obligations or liabilities have resulted from or arisen out of
any act or omission of [JA], its officers, agents, representatives, servants, or employees.” It does
not specify that the indemnity obligation attaches only if JA was also a party defendant in the
underlying action, if the plaintiffs in the underlying action specifically alleged wrongdoing by JA
(as opposed its agents, representatives, and so on), or if the underlying action was based on the
distributor relationship between JA and Continental or JA’s conduct in its capacity as distributor.
The indemnity clause will be read in accordance with its plain language, and will not be
rewritten now simply because JA wishes it were more tightly circumscribed and less open-ended
than it is.
As a separate ground for seeking dismissal, JA also predicates its Rule 12(b)(6) motion
on Alabama law of indemnity, more specifically those principles set forth in Stone Bldg. Co. v.
Star Elec. Contractors, Inc., 796 So.2d 1076 (Ala. 2000). There appears to be no dispute that
Alabama law applies to Counts I and II (the contractual indemnity claims); after all, the
Agreement provides that it “shall be construed and governed according to the laws of the State of
Alabama, United States of America.” (Doc. 3, Exh. B, at § 36.) In Stone, the Alabama Supreme
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Court reaffirmed the proposition that a contractual indemnification provision authorizes recovery
of attorney’s fees only where “one is defending claims predicated solely upon another
defendant’s negligence; however, where one is defending for his own benefit, an award of
attorney fees will not be allowed.” Stone, 796 So.2d at 1092 (citation omitted). In other words,
“an indemnitee is precluded from recovering attorney fees where the indemnitee has been
required to defend accusations which encompass his own separate wrongful acts.” Id. (citation
omitted).
What does that mean in the context of this case? JA takes the extreme position that Stone
forbids indemnity on any of the underlying claims litigated in the Crouch Action. Continental
occupies the opposite extreme, that Stone allows indemnity on all of these claims. Predictably,
the truth lies somewhere in between. Recall that Continental defended itself in the Crouch
Action on four triable claims. Three were based exclusively on Continental’s alleged
wrongdoing. (Doc. 3, Exh. A, at ¶ 44.)27 The fourth was the negligent installation claim in
which the Crouch Action plaintiffs sought to hold Continental liable for the alleged negligent
installation of the magneto by the Jewell Defendants. Certainly, nothing about the Alabama rule
in Stone would preclude Continental from seeking to recover attorney’s fees pertaining to a
negligent installation claim, which on its face was “predicated solely on [the indemnitor’s]
negligence,” not that of Continental. Stated differently, the negligent installation claim (as the
parties have explained it in their filings here) did not involve allegations that Continental had
committed wrongful acts; rather, it sought to hold Continental liable solely for the alleged
wrongdoing of the Jewell Defendants. Stone does not impede the ability of plaintiff’s
indemnification claim for attorney’s fees to proceed under Alabama law, insofar as the negligent
installation claim is concerned.28
27

By Continental’s admission, those claims sounded in “(1) negligence (regarding
[Continental]’s alleged post-sale failure to warn …), (2) breach of warranty, and (3) strict
liability.” (Id.) The negligence claim alleged that Continental breached a duty to warn potential
users that the magneto was unsafe. The breach of warranty claim alleged that Continental sold a
magneto that was neither merchantable nor fit for its intended use. And the strict liability claim
alleged that Continental’s magneto was an unreasonably dangerous product.
28

As to the negligent installation claim, JA’s Rule 12(b)(6) argument is, evidently,
that such claims “were not submitted to the jury.” (Doc. 3, at 17.) Indeed, JA would impute
some importance to the fact that the Crouch Action plaintiffs ultimately withdrew their claim
(Continued)
-25-

That said, the three Crouch Action claims that did go to the jury fall squarely within the
Stone prohibition on indemnification of attorney’s fees accrued by an indemnitee in defending
against claims based on his own alleged wrongdoing. In a moment of candor, Continental
effectively admits its overreach, stating that “it may eventually be determined that [Continental]
is not entitled to recover the fees and expenses incurred solely in its defense of the claims
exclusive to [Continental].” (Doc. 10, at 44.) But Continental hastens to add, via footnote, that
it is making no such concession at this time. Why not? The rule set forth in Stone is not
ambiguous, and its application to Continental’s allegations in the Complaint is not a close
question. To support its position, Continental weakly suggests that “this determination is factspecific and not proper for a Rule 12(b)(6) Motion.” (Doc. 10, at 37.) But the Court is accepting
the allegations of the Complaint as pleaded by Continental. There are no factual determinations
to be made in assessing whether the Crouch Action claims for negligence, breach of warranty,
and strict liability were “accusations which encompass[ed] [Continental’s] own separate
wrongful acts,” and were not “predicated solely on [JA]’s negligence.” Stone, 796 So.2d at
1092. Without question, those claims did indeed encompass Continental’s own allegedly
wrongful acts, and Continental was defending those claims for its own benefit. Thus, Stone
clearly forbids Continental from recovering its attorney’s fees as to those claims. Nor does
Continental suggest that Stone is not good law or that it is distinguishable in any meaningful
way. Simply put, there is no reasonable basis for deeming the Crouch Action claims that
reached a jury to be amenable to indemnification of attorney’s fees under Alabama law.

against Continental for the Jewell Defendants’ negligent installation of the magneto, and
proceeded to judgment solely on claims of Continental’s own wrongdoing. (Id. at 15.) But why
does that matter? Nothing in Stone or any other Alabama authority cited by JA would draw that
kind of distinction. Besides, Continental incurred substantial attorney’s fees in defending against
that vicarious liability cause of action before it was withdrawn very late in the underlying
proceedings. (Doc. 3, Exh. A, at ¶¶ 37-43.) The mere fact that the Crouch Action plaintiffs did
not litigate the vicarious liability claim through to jury verdict would not appear to negate
Continental’s ability to obtain indemnification from JA under the plain language of the
Agreement for defense costs relating to that claim prior to its withdrawal. To the extent that
defendants’ position is otherwise, they have not developed it in any meaningful way. This Court
will not do so on their behalf. See, e.g., Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir.
2011) (“Our adversarial system requires it; district courts cannot concoct or resurrect arguments
neither made nor advanced by the parties.”).

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Accordingly, the Motion to Dismiss will be granted as to Counts I and II insofar as those claims
seek recovery of defense costs pertaining to the negligence, breach of warranty and strict liability
claims in the Crouch Action.29
To summarize this lengthy Rule 12(b)(6) analysis, the Court finds that Counts I and II
state a claim against JA upon which relief can be granted insofar as plaintiff seeks
indemnification of attorney’s fees and other defense costs expended on the negligent installation
cause of action in the Crouch Action.30 The Court further finds, however, that Counts I and II do
29

In so ruling, the Court has considered Continental’s conclusory suggestion that “if
it is determined that but for the negligence of the Defendants there would have [sic] no accident
and no claims against CMI [sic] first place, then Defendants should have to indemnify CMI for
amounts that it would have otherwise not incurred.” (Doc. 10, at 44 n.19.) Plaintiff does not
elaborate on this argument, much less present any legal authority suggesting that Alabama courts
have recognized or would recognize a “but/for causation” exception to the very clear rule in
Stone. Even if JA’s wrongdoing was the but/for cause of the airplane crash that precipitated the
Crouch Action, the fact remains that the negligence, breach of warranty, and strict liability
claims that went to the jury involved “accusations which encompass [Continental’s] own
separate wrongful acts.” Stone, 796 So.2d at 1092. As such, an award of attorney’s fees to
Continental on an indemnity claim against JA is plainly not permissible under the plain language
of Stone. The Court will not unilaterally read into Stone a sprawling “but/for causation”
exception that would effectively eviscerate Stone, particularly in the absence of any citation or
explanation by Continental why it would be proper under Alabama law to reduce Stone to
functional insignificance in that manner.
30

In its reply brief, JA proffers a pair of additional arguments as to why the
contractual indemnity claims relating to the negligent installation cause of action should be
dismissed. As indicated supra, presenting previously available new arguments in a reply brief is
improper; therefore, these contentions will not be considered. Even if they were examined on
the merits, the result would not change. JA’s first new argument is to recite certain statements
that Continental made in the Crouch Action, such as that it viewed the Crouch plaintiffs’ claims
as “meritless” and “frivolous,” and that it vehemently disagreed that Mr. Jewell was acting as its
agent during the magneto installation process. (Doc. 17, at 5-8.) But JA does not explain the
legal significance of these statements, or why it believes they bear on the pending Motion to
Dismiss in this action. This Court will neither speculate as to what JA’s point may have been
nor “fill in the gaps” with legal doctrines that JA may or may not have intended to invoke. JA’s
second new argument in its reply brief is that Continental “never made a demand for
indemnification on JA, so [Continental] cannot recover anything.” (Doc. 17, at 8.) This
argument ignores the plain text of the Complaint, which alleges that Continental made just such a
demand for indemnification on JA’s counsel in April 2010, and that JA refused. (Doc. 3, Exh.
A, at ¶¶ 34-36.) Perhaps JA does not believe that factual allegation in the Complaint is accurate.
But basic hornbook law teaches that a Rule 12(b)(6) motion is not the proper vehicle for a
defendant to quarrel with well-pleaded factual allegations of a complaint.

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not state a claim against JA under Alabama law insofar as plaintiff seeks indemnification of
attorney’s fees and other defense costs expended on the remaining causes of action in the Crouch
Action that went to trial, as to all of which Continental was defending for its own benefit against
allegations encompassing its own allegedly wrongful acts. 31
IV.

Conclusion.
For all of the following reasons, it is hereby ordered as follows:
1.

For cause shown, Plaintiff’s Motion for Leave to File Exhibits Under Seal (doc.
11) is granted, and the exhibits appended thereto will be maintained under seal
in the court file;

2.

The Motion to Dismiss (doc. 3) is granted as to defendants John Jewell Aircraft,
Inc. and John Jewell, and the Complaint is dismissed against them for lack of
personal jurisdiction;

3.

The Motion to Dismiss is further granted as to the portion of Counts I and II in
which plaintiff seeks recovery of attorney’s fees and other costs incurred in
defense of the negligence, breach of warranty and strict liability claims in the
underlying action, and those aspects of Counts I and II are dismissed for failure to
state an actionable claim for contractual indemnity under Alabama law;

4.

The Motion to Dismiss is denied in all other respects as to all other claims;

5.

The Clerk of Court is directed to terminate John Jewell Aircraft, Inc. and John
Jewell as parties defendant to this action;

6.

This action will proceed against defendant Jewell Aircraft, Inc. as to Count III in
its entirety, and the portions of Counts I and II seeking indemnity of attorney’s
fees and defense costs incurred by plaintiff in defending against the negligent
installation cause of action in the underlying case; and

7.

Jewell Aircraft, Inc. is ordered to file its answer to the Complaint on or before
August 10, 2012.

31

Because this Order makes no determination of whether JA will or will not
ultimately be found liable on the contractual indemnity claims, the Court leaves for another day
the potentially thorny question of how to disentangle which attorney’s fees were incurred in
defending against the negligent installation claim (and are potentially recoverable herein) versus
those incurred in defending against the other claims (which are not).

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DONE and ORDERED this 30th day of July, 2012.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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