Precision, IBC, Inc. v. Wagner Ink, Inc. et al
MEMORANDUM OPINION AND ORDER entered. Precision's first motion to strike (Doc. 18) is DENIED; Precision's second motion to strike (Doc. 23) is GRANTED IN PART and DENIED IN PART; and the defendants' original reply brief (Doc. 21) is ST RICKEN. Having determined that this case shall proceed against Defendant Wagner Ink in this Court, the parties are ORDERED to meet and confer and file no later than May 3, 2013 a report of the parties' planning meeting pursuant to Rule 26(f). Signed by Magistrate Judge William E. Cassady on 4/19/2013. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
PRECISION IBC, INC.,
WAGNER INK, INC., ALBERT WAGNER,
MEMORANDUM OPINION AND ORDER
The parties have consented to the exercise of jurisdiction by the undersigned
Magistrate Judge for all proceedings in this Court pursuant to 28 U.S.C. § 636(c). And
presently before the Court is a motion to dismiss for lack of personal jurisdiction filed
by both named defendants, Wagner Ink, Inc. and Albert Wagner (also referred to
collectively as, simply, the defendants), which also requests, in the alternative, the
transfer of this action to the United States District Court for the Eastern District of New
The plaintiff, Precision, has filed an opposition (Doc. 17), and the
defendants have filed a reply (Docs. 21, 24-1).
As explained fully below, the Rule
12(b)(2) motion to dismiss for lack of personal jurisdiction is due to be DENIED as to
Defendant Wagner Ink, Inc. and GRANTED as to Defendant Albert Wagner.
alternative motion to transfer venue pursuant to 28 U.S.C. § 1404(a) is due to be
Precision’s Motions to Strike.
First, however, the Court must address Precision’s motions requesting the Court
strike (1) Albert Wagner’s affidavit in support of the motion to dismiss/transfer venue
(Doc. 14-2) because that “affidavit is replete with improper qualifications that are
insufficient to establish the existence of a ‘fact’ based upon personal knowledge” (see
Doc. 18); (2) the defendants’ original reply brief (Doc. 21) because it is twice the length
allowed by Local Rule 7.1(b) and presents new arguments not raised in the defendants’
principal brief (see Doc. 23); and (3) Albert Wagner’s amended affidavit (Doc. 21-1),
which Precision asserts contradicts his previous affidavit (see Doc. 23).
While the Court will exercise its discretion to consider Precision’s evidentiary
objections to Wagner’s affidavits “on an ongoing basis herein, and only to the extent
necessary to resolve the pending” motion, King v. Alabama Dep’t of Pub. Health, Civil
Action No. 09–0503–WS–C, 2010 WL 3522381, at *1 n.1 (S.D. Ala. Sept. 2, 2010),1 it
should be noted, at the outset, that Precision’s continued efforts to strike Wagner’s
affidavit(s), after Wagner filed an amended affidavit, is a waste of the Court’s and the
First, as one court noted, in the context of summary judgment, “[i]t is the
function of a court, with or without a motion to strike, to review carefully both
statements of material facts and statements of genuine issues and the headings
contained therein and to eliminate from consideration any argument, conclusions, and
assertions unsupported by the documented evidence of record offered in support of the
Rangel v. Schmidt, Cause No. 2:09–CV–071, 2011 WL 5570691, at *4 (N.D.
Ind. Nov. 16, 2011) (denying motion to strike certain paragraphs in a plaintiff’s
“Clarified Affidavit”—which, in part, asserted the affidavit contained “speculation that
[fell] outside [plaintiff’s] personal knowledge”—noting, “Motions to strike are heavily
In following this approach where two motions to strike took ”issue with literally
dozens of factual representations in plaintiff’s brief and supporting affidavits[,]” Chief Judge
Steele chose not be “becom[e] mired in ancillary evidentiary objections at the outset.” Id.
disfavored, and usually only granted in circumstances where the contested evidence
causes prejudice to the moving party.
This Court can give Rangel’s Clarified Affidavit
the credit to which it is due, without the need to employ a motion to strike.
is able to sift through the evidence and to consider each piece under the applicable
federal rules . . . .”) (citations omitted); compare id., with Serrano v. Cablevision Sys. Corp.,
863 F. Supp. 2d 157, 163 (E.D.N.Y. 2012) (noting, for example, a court may choose to
either strike or “simply decline to consider those aspects of a supporting affidavit that
do not appear to be based on personal knowledge or are otherwise inadmissible”)
Moreover, courts, rightly, frown upon continued efforts to strike affidavits where
an affiant files a second affidavit “indicating that the information contained within [the
initial] affidavit is based on his personal knowledge.”
United Steelworkers of Am.,
AFL-CIO-CLC v. Hempt Bros., Inc., 866 F. Supp. 164, 166 (M.D. Pa. 1994) (finding such
objections to be “not persuasive”)2; cf. Whitehead v. Pilgrim’s Pride Corp., No. Civ.A.
05-1323-A, 2006 WL 220834, at *2 (W.D. La. Jan. 27, 2006) (“We are perplexed by two
things surrounding Defendants’ request.
First, Defendants failed to cite any authority
in which a court refused to consider an affidavit if the declarant appeared to have
personal knowledge and to be competent, but failed to make such affirmative
Second, we are surprised Plaintiffs did not solve the problem, as is often
done, by filing a supplemental affidavit following Defendant's Motion to Strike, in
There the affiant’s original affidavit (like Wagner’s original affidavit in part)
improperly indicated that it was based on his “knowledge, information, and belief.” Id. The
affiant “filed a supplemental affidavit indicating that the information contained within the
affidavit [was] based on his personal knowledge[,]” and counsel further indicated that,
although the use of such language was improper, “they understood that the information
contained [in the original affidavit] was based on [the affiant’s] personal knowledge.” Id.
which Plaintiffs would have added language to inform us that Mr. Whitehead was
competent and had personal knowledge, if those things are in fact true.”) (emphasis
Accordingly, while the Court will “review carefully” the statements in Wagner’s
affidavit, as amended, to ensure that such statements are based on Wagner’s personal
knowledge (as it would without the benefit of motions to strike), Precision’s motions to
strike as to the affidavits are DENIED as unnecessary.
As to the defendants’ allegedly
improper initial reply brief, the Court GRANTS their motion for leave (Doc. 24) to file a
substitute, conforming reply brief (Doc. 24-1), and will only consider the arguments
they present therein. Cf. King, 2010 WL 3522381, at *1 n.1.
Therefore, Precision’s first
motion to strike (Doc. 18) is DENIED; Precision’s second motion to strike (Doc. 23) is
GRANTED IN PART and DENIED IN PART; and the defendants’ original reply brief
(Doc. 21) is STRICKEN.
Precision is a Delaware corporation that maintains its principal place of business
in Alabama (Doc. 1, compl., ¶ 1), whereas New York is the domicile of Defendant
Albert Wagner and where Defendant Wagner Ink is incorporated and maintains its
principal place of business (compare id., ¶¶ 2, 3, with Doc. 14-2, Wagner Aff., ¶¶ 1, 2).
“Precision is in the business of selling and leasing intermediate bulk containers[, also
Because the Rule 12(b)(2) motion is before the Court without an evidentiary
hearing, Precision need only establish a prima facie case of jurisdiction over Wagner Ink and
Albert Wagner. See LaSalle Bank N.A. v. Mobile Hotel Props., LLC, 274 F. Supp. 2d 1293, 1296
(S.D. Ala. 2003); accord HomeBingo Network, Inc. v. Chayevsky, 428 F. Supp. 2d 1232, 1240-41 (S.D.
Ala. 2006) (citing, inter alia, Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th
Cir. 2002)). As such, the Court will “take all allegations of the complaint that the defendant[s]
do not contest as true, and, where the parties’ affidavits conflict, the court must construe all
reasonable inferences in favor of the plaintiff.” LaSalle Bank, 274 F. Supp. 2d at 1296; accord
United States Sec. & Exch. Comm’n v. Carrillo, 115 F.3d 1540, 1542 (11th Cir. 1997).
referred to as “tanks,”] designed to store and transport hazardous and sensitive
materials like petroleum, chemicals, pharmaceuticals, and food products” (Doc. 17-1,
Wolfe Aff., ¶ 2), and, during the relevant time, Wagner Ink “was a manufacturer and
distributor of ink for use in commercial printing, generally for use by printing shops”
(Doc. 14-2, ¶ 3).4
Wagner Ink contacted Precision in January 2009 to inquire about leasing two
(Doc. 17-1, ¶ 3.)
Thereafter, over the span of more than two years, Precision
and Wagner Ink entered into three separate lease-purchase agreements: in January 2009,
for the lease of two tanks; in March 2010, for the lease of twelve tanks; and in March
2011, for the lease of fifteen tanks.
(Doc. 1, ¶¶ 11-13.)
As with the first lease-purchase
agreement, Wagner Ink contacted Precision to inquire about entering the second and
(Doc. 17-1, ¶¶ 4, 6.)
All three agreements, which “were identical
except for the quantity of Tanks, their respective execution dates, and the rental price
per month for each Tank” (Doc. 1, ¶ 14), required, among other things, that the monthly
rental fee be paid to Precision at its principal office in Fairhope, Alabama and that
Alabama law governed (id., ¶¶ 15, 16).
According to Precision, Wagner Ink was “frequently late making its monthly
rental payments” under the first agreement.
(Doc. 17-1, ¶ 3.)
Precision thus required
Wagner Ink “to pay the past due rent under the first agreement before [it] would
consider leasing Wagner Ink additional tanks.
Wagner Ink paid the past due amount
to Precision in Fairhope and assured Precision that going forward [it] would timely pay
The complaint also asserts claims against twelve fictitious party
defendants—unnamed persons or business entities that either purchased the subject tanks from
Wagner Ink and/or Albert Wagner, or were creditors of Wagner Ink and/or Albert Wagner, or
are currently in possession of the subject tanks. (Doc. 1, ¶¶ 4, 5, 6.)
the monthly rental fees in accordance with the agreements.”
(Id., ¶ 4.)
to Precision, late payments persisted, and, like before, Precision required payment of
past due rental amounts owed pursuant to the first two agreements and assurance that
payments would be timely going forward before entering into the third lease-payment
(Id., ¶ 6.)
After execution of the third agreement, Precision alleges,
Wagner Ink sent it a worthless check and ceased paying Precision the monthly rental
fees in violation of the three lease-purchase agreements; it then contacted Wagner Ink,
through its president, Albert Wagner, to demand payment of the rental fees and the
return of/payment for the tanks.
(Doc. 1, ¶¶ 22, 23; Doc. 17-1, ¶ 7.)
alleges that, in response, Wagner Ink and Albert Wagner stated that they had already
sold the tanks “to third parties and had given the proceeds of the sale to their
creditors.” (Doc. 1, ¶ 24.)
As to the named defendants, the complaint states causes of action for breach of
contract (against Wagner Ink) and, as to both Wagner Ink and Albert Wagner,
conversion, wantonness, unjust enrichment, and money had and received.
The named defendants assert that this Court lacks personal jurisdiction over
them under either a traditional Due Process analysis or pursuant to the Calder “effects”
test for intentional torts.
Precision asserts that the Court has personal jurisdiction over
both defendants pursuant to the “effects” test and that the Court may assert jurisdiction
over Wagner Ink under a traditional Due Process analysis.
Specifically, in the
introduction to its response, Precision provides:
This Court has specific personal jurisdiction over the defendants because
both Wagner Ink and Albert Wagner engaged in intentional tortious
conduct aimed at and with full knowledge that their conduct would cause
injury to an Alabama resident. The defendants’ intentional tortious
conduct alone is sufficient to establish specific jurisdiction over both
Moreover, this Court has specific jurisdiction over Wagner Ink for the
additional reason that Wagner Ink purposefully availed itself of the
privilege of conducting business in Alabama and, therefore, has sufficient
minimum contacts with Alabama to support the exercise of specific
personal jurisdiction. . . .
(Doc. 17 at 2-3 (emphasis added); see also id. at 18 (Section I.B of Precision’s argument is
titled “Wagner Ink Has Sufficient Minimum Contacts with the State of Alabama.”).)
Accordingly, based on Precision’s position and the Court’s independent review
of the pleadings and the parties’ briefing, the Court will examine whether Wagner Ink
has sufficient minimum contacts with Alabama to support specific jurisdiction pursuant
to a traditional Due Process analysis, and the Court will examine whether intentional
torts allegedly committed by both defendants justifies specific jurisdiction over each
Pursuant to that familiar analysis, a court may assert jurisdiction over a
nonresident defendant, such as Wagner Ink, “only to the extent permitted by the
long-arm statute of the forum State, and only if the exercise of jurisdiction comports
with the requirements of the Due Process Clause of the Fourteenth Amendment.”
Vermeulen v. Renault, U.S.A. Inc., 975 F.2d 746, 753 (11th Cir. 1992), opinion modified and
superseded on other grounds, 985 F.2d 1534 (11th Cir.), cert. denied sub nom. Regie Nationale
des Usines Renault S.A. v. Vermeulen, 508 U.S. 907 (1993); accord Sloss Indus. Corp. v.
Eurisol, 488 F.3d 922, 925 (11th Cir. 2007).
But where (as is the case in Alabama) the
courts of a forum State have interpreted the forum’s long-arm statute to confer
jurisdiction to the limits allowed by federal due process, see, e.g., Mutual Serv. Ins. Co. v.
Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004) (“Alabama’s long-arm statute
authorizes Alabama courts to assert jurisdiction to the fullest extent constitutionally
permissible.”), state law need not be applied, and this Court “need only ask whether the
exercise of jurisdiction over the nonresident defendant comports with due process.”
Vermeulen, 975 F.2d at 753; see also DocRX, Inc. v. DOX Consulting, LLC, 738 F. Supp. 2d
1234, 1244 (S.D. Ala. 2010) (collecting cases).
Due process requires both that a defendant have “certain minimum contacts”
with the forum state, and if such minimum contacts exist, that the exercise of
jurisdiction over a defendant “does not offend traditional notions of fair play and
Burnham v. Superior Ct. of Cal., 495 U.S. 604 (1990) (quoting
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
“In assessing a
defendant’s ‘minimum’ contacts with the forum state, courts have distinguished
between contacts establishing ‘specific’ and ‘general’ jurisdiction.”
Chatham Steel Corp.
v. Brown, 858 F. Supp. 1130, 1146 (N.D. Fla. 1994) (citations omitted).
When a cause of
action, such as this one,5 is related to or arises out of a nonresident defendant’s contacts
with the forum, the Supreme Court has held that the “‘relationship among the
defendant, the forum and the litigation’ is the essential foundation of in personam
Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 (1984)
(quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)).
Specific jurisdiction arises out of a party’s activities in the forum that are
related to the cause of action alleged in the complaint. It has long been
recognized that a court has the minimum contacts to support specific
jurisdiction only where the defendant purposely avails itself of the
General jurisdiction, which derives from a defendant’s contacts with the forum
unrelated to the litigation, see Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414-15 n.9
(1984), is not at issue here.
privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws. The requirement that there be
minimum contacts is grounded in fairness.
It assures that the
defendant’s conduct and connection with the forum State [is] such that he
should reasonably anticipate being haled into court there.
Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000) (internal
citations and quotation marks omitted), cert. denied, 534 U.S. 827 (2001); accord DocRX,
738 F. Supp. 2d at 1245 (“The Eleventh Circuit has adopted a three-part standard to
determine whether the minimum contacts requirement has been met: ‘First, the contacts
must be related to the plaintiff’s cause of action.
Second, the contacts must involve
some act by which the defendant purposely avails itself of the privilege of conducting
activities within the forum[.]
Third, the defendant’s contacts with the forum must be
such that the defendant should reasonably anticipate being haled into court there.’”)
(quoting Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1220 (11th Cir. 1999) (citation
omitted; quotation modified)).
A court “is required to make an independent factual assessment of a defendant’s
contacts with the forum when deciding whether it possesses jurisdiction over that
defendant . . . . Each case must be judged on its particular facts.”
LaSalle Bank, 274 F.
Supp. 2d at 1297 (quoting Mellon Bank (East) PSFS, Nat’l Assoc. v. Farino, 960 F.2d 1217,
1224 (3d Cir. 1992) (citation omitted)); see also Kulko v. California Super. Ct., 436 U.S. 84,
92 (1978) (“[T]he International Shoe ‘minimum contacts' test is not susceptible to
mechanical application; rather, the facts of each case must be weighed to determine
whether the requisite ‘affiliating circumstances’ are present.”) (citations omitted).
[t]his Court must conduct its Due Process inquiry “as to each defendant
separately, and for specific jurisdiction analysis, as to each claim
separately.” KVAR Energy Savings, Inc. v. Tri–State Energy Solutions, LLP,
No. 6:08–cv–85–Orl–19KRS, 2009 WL 103645, *3 (M.D. Fla. Jan. 15, 2009);
see Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274 (5th Cir. 2006)
(“A plaintiff bringing multiple claims that arise out of different forum
contacts of the defendant must establish specific jurisdiction for each
claim.”); Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d
1357, 1360 n.3 (11th Cir. 2006) (“We review personal jurisdiction as it
relates to each defendant separately. . . . There is no issue in this case that
Stubbs seeks to assert general, and not specific, jurisdiction over the
Defendants. This case involves only personal general jurisdiction and
not specific personal jurisdiction.”); Berry v. Salter, 179 F. Supp. 2d 1345,
1348 (M.D. Ala. 2001) (“These [Due Process] requirements must be met as
to each defendant.”).
DocRX, 738 F. Supp. 2d at 1245 (some citations modified).
Establishing Minimum Contacts pursuant to a Contractual Relationship
“[A]n individual’s contract with an out-of-state party alone [cannot]
automatically establish sufficient minimum contacts in the other party’s home forum.”
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985) (emphasis in original); accord
Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1268 (11th Cir. 2010)
(“[A] forum seller’s effort to sue a nonresident buyer in the seller’s home forum for
breach of contract [typically results in rejecting] jurisdiction when the buyer’s sole
contact with the forum is contracting with a resident seller who per-forms there.
follows from the two well-established propositions that neither merely contracting with
a forum resident nor the forum resident’s unilateral acts can establish sufficient
minimum contacts.”) (emphasis in original) (citing Borg-Warner Acceptance Corp. v.
Lovett & Tharpe, Inc., 786 F.2d 1055, 1063 (11th Cir. 1986)); Francosteel Corp. v. M/V Charm,
19 F.3d 624, 627-28 (11th Cir. 1994) (in stating that a contract with an out-of-state
defendant cannot, by itself, create sufficient minimum contacts, the Eleventh Circuit
noted that a contract is “ordinarily but an intermediate step serving to tie up prior
business negotiations with future consequences which themselves are the real object of
the business transaction.
The inquiry must instead focus on ‘prior negotiations,’
‘contemplated future consequences,’ ‘the terms of the contract and the parties’ actual
course of dealing.’”) (citing Burger King, 471 at 478-79); see also Rogers v. Omni Solution,
Inc., No. 10–21588–CIV, 2010 WL 4136145, at *5 (S.D. Fla. Oct. 19, 2010) (“[W]hen a
defendant literally has no contacts with a forum other than contracting with a forum’s
resident . . . , such a transaction does not provide sufficient minimum contacts to satisfy
due process requirements.”) (citing Banton Indus. v. Dimatic Die & Tool Co., 801 F.2d
1283, 1284–85 (11th Cir. 1986) (“Nor does Dimatic actively seek business in Alabama.
In fact, the contract and sale upon which Banton bases its claim arose out of Banton’s
unsolicited order of goods from Dimatic.”)); Diamond Crystal, 593 F.3d at 1271 (“Other
than merely accepting the order from the Alabama plaintiff, the transaction in Banton
involved literally no contact with the proposed Alabama forum.”) (internal citation
But, “with respect to interstate contractual obligations, . . . parties who reach out
beyond one state and create continuing relationships and obligations with citizens of
another state are subject to regulation and sanctions in the other State for the
consequences of their activities.” Burger King, 471 U.S. at 473 (internal quotation marks
and citations omitted; emphasis added); accord Browning Enter., Inc. v. Rex Iron & Mach.
Prods. Co., Inc., 504 F. Supp. 2d 1217, 1222 (N.D. Ala. 2007) (“Unlike the limited
transactions involved in Borg-Warner, Sloss involved ten purchases over a period of
several months, ‘thereby establishing a course of dealing.’”) (quoting Sloss Indus., 488
F.3d at 933).
[Accordingly,] when inspecting a contractual relationship for minimum
contacts, [courts in this Circuit] follow a “highly realistic approach” that
focuses on the substance of the transaction: prior negotiations,
contemplated future consequences, the terms of the contract, and the
actual course of dealing. Burger King, 471 U.S. at 479 (internal quotation
omitted). The focus must always be on the nonresident defendant’s
conduct, that is, whether the defendant deliberately engaged in significant
activities within a state or created continuing obligations with residents of
the forum. Id. at 480. This focus ensures that a defendant will not be
subject to jurisdiction based solely on “ ‘random,’ ‘fortuitous,’ or
‘attenuated’ contacts.” Id. at 475 (quoting Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 774 (1984)).
Diamond Crystal, 593 F.3d at 1268 (internal citations modified); see, e.g., Gencor Indus.,
Inc. v. Fort Myer Constr. Corp., No. 6:11–cv–1730–Orl–31DAB, 2012 WL 601190, at *4-5
(M.D. Fla. Feb. 23, 2012) (applying the Diamond Crystal framework to conclude, “Despite
[Defendant] FMCC’s characterization of itself as a ‘passive purchaser,’ several factors
suggest otherwise; both the terms of the contracts and the contemplated future
consequences of the transaction suggest that FMCC should reasonably anticipate
defending suit in Florida.”) (citing Burger King, 471 U.S. at 478).
Moreover, “[j]urisdiction is often found where further contacts or plus factors
connect the defendant to the jurisdiction.”
Sloss Indus., 488 F.3d at 931-33).
Diamond Crystal, 593 F.3d at 1268 (citing
While neither “plus” factors nor further contacts are
“talismans[,] . . . the plus factors indicate that the defendant ‘deliberate[ly] affiliat[ed]’
with the forum, and thus should reasonably anticipate defending a suit there.”
1269 (quoting Burger King, 471 U.S. at 482).
The following (nonexclusive) “plus”
factors were identified by the Eleventh Circuit in Diamond Crystal:
 a defendant’s initiating the contractual relationship,  visiting the
plaintiff’s factory to assess or improve quality,  sending materials to the
plaintiff for inspection or use in shipping,  participating in the
manufacturing process,  establishing a relationship by placing multiple
orders,  requiring performance in the forum,  negotiating the contract
via telefaxes or calls with the plaintiff; the list goes on.
Id. at 1268-69 (multiple footnotes with citations omitted); see also Sea Lift, Inc. v.
Refinadora Costarricense de Petroleo, S.A., 792 F.2d 989, 993-94 (11th Cir. 1986) (in a case
“raising the often difficult question of what, beyond the bare contract, must be present
to satisfy the ‘minimum contacts’ rule[,]” the Eleventh Circuit noted the following: “[a]
meeting in the forum state may constitute purposeful availment if it involves significant
negotiations of important terms”; “[a] direct solicitation by a foreign defendant of the
business of a forum resident has been held to be purposeful availment in cases where
either a continuing relationship or some in-forum performance on the part of the
plaintiff was contemplated”; and a “clause choosing forum law to govern a continuing
business relationship show[s] purposeful availment”) (collecting cases) (citations,
internal quotation marks, and footnote omitted); Pro Axess, Inc. v. Orlux Distrib., Inc., 428
F.3d 1270, 1277 (10th Cir. 2005) (even a single agreement can evidence purposeful
availment if fulfilling that agreement requires “a continuing relationship”); Power
Guardian, LLC v. Directional Energy Corp., ____ F. Supp. 2d ____, 2012 WL 4959427, at
*5-6 (M.D. Ga. Oct. 17, 2012) (“It simply cannot be said, given the discussion prior to
and surrounding the sale of the generators to the Plaintiff, that Directional Energy’s
contacts with Georgia were so cursory as to be random, fortuitous, or attenuated.
Directional Energy intentionally and deliberately engaged the forum over a period of
time for the purpose of entering a contractual relationship that would secure a sale
here.”); Rogers, 2010 WL 4136145, at *6 (“By negotiating a contract with a Florida
resident, making the alleged misrepresentation about the quality of the exhaust system
during the negotiations, shipping the goods to a dealer in Miami, and using Rogers as a
reference for the exhaust system, Omni Solution’s interactions with Rogers indicate that
it purposefully availed itself of the privilege of doing business in Florida.”) (citing Sloss
Indus., 488 F.3d at 925).
Consistent with this authority, the Court must determine whether Wagner Ink’s
contacts with the State of Alabama related to Precision’s lawsuit—based on the parties’
contractual relationship, established when Wagner Ink contacted Precision, which
resulted in three agreements over approximately two years for Wagner Ink’s lease (and
eventual purchase) of 29 tanks manufactured by Precision—are enough to say that
Wagner Ink has “purposely avail[ed] itself of the privilege of conducting activities
within the [State of Alabama], thus invoking the benefits and protections of [Alabama’s]
Consolidated Dev. Corp., 216 F.3d at 1291.
Wagner Ink’s initial purchase of two tanks from Precision in January 2009 was
not “a one-shot operation.”
Sea Lift, 792 F.2d at 994.
Instead, the actions Wagner Ink
took, including initiating contact with Precision in Alabama in 2009 and subsequently
soliciting further business from Precision—actions that ultimately caused the filing of
this lawsuit—demonstrate that Wagner Ink “reach[ed] out beyond [New York to] create
continuing relationships and obligations with [Precision, a] citizen of [Alabama,]”
subject[ing itself] to regulation and sanctions in [Alabama] for the consequences of [its]
Burger King, 471 U.S. at 473.
Evidence of Wagner Ink deliberately
affiliating with Alabama, demonstrating that it “should reasonably anticipate defending
a suit [here,]” Diamond Crystal, 593 F.3d at 1269, include that:
Wagner Ink directly solicited Precision to initiate the contractual
relationship, compare, e.g., Banton (plaintiff placed one unsolicited order
with defendant) (no purposeful availment), with, e.g., Pro Axess (defendant
solicited plaintiff’s assistance) (purposeful availment) and Brannon v.
Finance Am., LLC, 483 F. Supp. 2d 1136, 1140–41 (M.D. Ala. 2007)
(concluding that the minimum-contacts requirement was satisfied where
defendants actively targeted the plaintiffs’ business, as opposed to merely
making “an unfocused solicitation, such as an advertisement on a
nationally oriented website”);
Wagner Ink established a multi-year relationship by buying multiple
tanks pursuant to three separate agreements, compare, e.g., Banton (one
order), Borg-Warner (one order), and Browning Enter. (two to three
purchases over ten days) (no personal availment), with, e.g., Diamond
Brands (fourteen transactions in six months) and Sloss Indus. (ten purchases
over several months) (personal availment);
the agreements between Wagner Ink and Precision all included clauses
choosing Alabama’s law to govern their continuing business relationship,
see, e.g., Gold Kist, Inc. v. Baskin-Robbins Ice Cream, 623 F.2d 375, 381 n.4 (5th
Cir. 1980) (“[T]he contract between Baskin-Robbins and Gold Kist
contained a choice-of-law provision calling for the application of Georgia
law. Such a provision is a purposeful availment of the benefits and
protections of Georgia law, for it not only selects the Georgia rules of
decision but also reposes trust in the legislature and courts of Georgia in
wisely shaping the law during the entire period in which the contract is to
be in force.”).6
Moreover, the Court finds that Wagner Ink deliberately chose a contractual
relationship with Precision that subjected Wagner Ink to a continuing relationship with
an Alabama corporation.
Wagner Ink could have chosen to purchase the tanks
But, instead, it chose to enter a 36-month lease-purchase agreement for the
initial two tanks and then chose to enter into two separate 36-month lease-purchase
agreements (for an additional 27 tanks), subjecting itself to 60-months of lease payments
to an Alabama corporation.7
See, e.g., Hoag v. Sweetwater Int’l, 857 F. Supp. 1420,
The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981)
(en banc), adopted as binding precedent all decisions of the former Fifth Circuit issued before
October 1, 1981. See id. at 1209.
The uncontested declaration of Precision’s CFO provides that “[t]he vast majority
of [its] business is lease or sales[,]” but “Wagner Ink specifically requested a lease-purchase
agreement pursuant to which [it] would purchase the tanks from Precision at the expiration of
the lease. . . . [T]o accommodate Wagner Ink, . . . Precision entered into a 36-month
lease-purchase agreement[,]” which required Wagner Ink “to pay monthly rental fees to
Precision in Fairhope[.]” (Doc. 17-1, ¶ 3 (emphasis removed); see also Doc. 1, ¶ 14 (all three
contracts were lease-purchase agreement requiring monthly rental payments).)
1426-27 (D. Nev. 1994) (“[B]y executing lease and purchase agreements with Hoag,
Sweetwater created continuing contractual relationships and obligations that were
subject to the benefits and protections of Nevada law.”); cf. Davis v. Borges, CIV.A. No.
88–0493P, 1989 WL 125314, at *3 (D.R.I. May 9, 1989) (“[D]efendant MBCC’s association
with the two Rhode Island dealerships as a creditor and assignee of automobile leases
establishes a relationship that would involve continuous and systematic contacts with
Rhode Island[,]” which shows that it “availed [itself] of the privileges of conducting
activities within Rhode Island thus invoking the benefits and protections of its laws.”)
(citation and internal quotation marks omitted).
Accordingly, Defendant Wagner Ink’s motion to dismiss for lack of personal
jurisdiction is DENIED.
Establishing Minimum Contacts pursuant to the ”Effects” Test (Wagner
Ink and Albert Wagner).
The second count of Precision’s complaint, for conversion,8 is the sole intentional
tort claim alleged against Wagner Ink and Albert Wagner.
In cases involving intentional torts, the applicable “minimum contacts”
test is the “effects” test set forth by the Supreme Court in Calder v. Jones,
465 U.S. 783 (1984). Oldfield v. Pueblo de Bahia Lora, S.A., 558 F.3d at 1220
n.28 (11th Cir. 2009). “Stated in its broadest construction, the effects test
requires a showing that the defendant (1) committed an intentional tort (2)
that was directly aimed at the forum, (3) causing an injury within the
forum that the defendant should have reasonably anticipated.” Id.
(citations omitted); see also Licciardello v. Lovelady, 544 F.3d 1280, 1286 (11th
Cir. 2008) (“In Ziegler[ v. Indian River County, 64 F.3d 470, 473 (9th Cir.
1995)], the court noted that[ ] . . . ‘[i]n [a] tort case[ ] jurisdiction may
attach if an out-of-forum defendant merely engages in conduct aimed at,
“Conversion is an intentional tort . . . The intent required is not necessarily a
matter of conscious wrongdoing. It is rather an intent to exercise a dominion or control over
the goods [of the plaintiff] which is in fact inconsistent with the plaintiff’s rights.” Industrial
Techs., Inc. v. Jacobs Bank, 872 So. 2d 819, 826 (Ala. 2003) (quoting Johnson v. Northpointe
Apartments, 744 So. 2d 899, 904 (Ala. 1999)).
and having effect in, the situs state.’ The court formulated the Calder test
for personal jurisdiction as requiring a tort that was (1) intentional; (2)
aimed at the forum state; and (3) caused harm that the defendant should
have anticipated would be suffered in the forum state.” (internal citation
[J]urisdiction under Calder requires more than a finding that the
harm caused by the defendant’s intentional tort is primarily felt
within the forum. . . . [T]he Calder effects test can only be satisfied
if the plaintiff can point to contacts which demonstrate that the
defendant expressly aimed its tortious conduct at the forum, and
thereby made the forum the focal point of the tortious activity.
Simply asserting that the defendant knew that the plaintiff’s
principal place of business was located in the forum would be
insufficient in itself to meet this requirement. The defendant
must manifest behavior intentionally targeted at and focused on
the forum for Calder to be satisfied. In the typical case, this will
require some type of entry into the forum state by the defendant.
IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 265 (3rd Cir. 1998); see Far West
Capital, Inc. v. Towne, 46 F.3d 1071, 1079 (10th Cir. 1995) (“Our review of [ ]
post-Calder decisions indicates that the mere allegation that an out-of-state
defendant has tortiously interfered with contractual rights or has
committed other business torts that have allegedly injured a forum
resident does not necessarily establish that the defendant possesses the
constitutionally required minimum contacts. Instead, in order to resolve
the jurisdictional question, a court must undertake a particularized
inquiry as to the extent to which the defendant has purposely availed
itself of the benefits of the forum’s laws.”); Ashton v. Florala Mem’l Hosp.,
Civ. Act. No. 2:06cv226-ID, 2006 WL 2864413, at *10 (M.D. Ala. 2006)
(“Courts in other jurisdictions, and most recently the Supreme Court of
Alabama, however, have recognized that ‘most courts define the Calder
test as requiring something more than mere awareness that one’s
intentional acts will cause harm in the forum state.’”).
DocRX, 738 F. Supp. 2d at 1249-50 (emphasis added and some citations modified); see
also Rhodes v. Unisys Corp., 170 Fed App’x 681, 684 (11th Cir. Mar. 14, 2006) (per curiam)
(“The Calder effects test is a lens through which the connectivity between defendant,
cause of action, and forum state may be viewed[,] and, for example, an email (giving
rise to a tort cause of action) “not focused on causing injury in [the forum]” will not
trigger a Calder analysis.).9
The type of, and facts underlying the, intentional torts at issue in Calder, and in
the Eleventh Circuit’s Licciardello decision are instructive to determine what types of
intentional torts can typically be classified as “aimed at [a] forum state”—
In Calder, a libel action was brought in a California court against two
Florida defendants, a writer and the editor of the National Enquirer
Magazine. The alleged libelous article was written and edited in Florida
and published in the Florida-based national tabloid magazine. Holding
that the California court could exercise personal jurisdiction over the
Florida defendants, the Court explained that the “focal point” of the
article “concerned the California activities of a California resident,” that
the magazine’s largest circulation was in California, and that the “brunt of
the harm, in terms both of [the plaintiff’s] emotional distress and the
injury to her professional reputation,” was endured by the plaintiff in
California. Jurisdiction, thus, was proper in California based on the
“‘effects’” of the defendants’ Florida conduct in California. . . .
In Licciardello, recognizing that “[m]any courts have employed the Calder
‘effects’ test when the plaintiff’s claim involves an intentional tort,” the
Eleventh Circuit applied the effects test to determine personal jurisdiction
over a non-resident defendant alleged to have committed trademark
infringement . . . . [There, t]he Eleventh Circuit found the Calder effects test
satisfied. Licciardello, [further, involved] the use of the internet as the
vehicle through which the intentional tort was accomplished. [As, t]he
Eleventh Circuit explained,
We hold only that where the internet is used as a vehicle for the
deliberate, intentional misappropriation of a specific individual’s
See also Brennan v. Roman Catholic Diocese of Syracuse N.Y., Inc., 322 Fed. App’x
852, 853, 856 (11th Cir. Apr. 9, 2009) (per curiam) (in which the Eleventh Circuit reversed a
district court’s determination that the Syracuse Diocese did not avail itself to jurisdiction in
Florida by allegedly “intentionally inflicting emotional distress on [the plaintiff] by
‘re-victimizing’ him” because the “diocese failed to pay for his out-of-pocket expenses in breach
of their” verbal agreement to pay for the plaintiff to attend counseling in Florida related to his
recall of “a memory, suppressed for nearly four decades, of his childhood rape in Syracuse,
New York, by a Roman Catholic priest. . . . Taking Brennan’s allegations as true, we conclude
that the district court erred in finding that the diocese did not have sufficient minimum contacts
with Florida for purposes of Brennan’s breach of contract and tort claims because the diocese
orally offered to pay for his treatment in Florida and he felt all of his harm from the intentional
torts directed at him by the diocese in Florida.”) (emphasis added).
trademarked name or likeness and that use is aimed at the
victim’s state of residence, the victim may hale the infringer into
that state to obtain redress for the injury. The victim need not
travel to the state where the website was created or the infringer
resides to obtain relief.
Norment Sec. Group, Inc. v. Granger N. Inc., No. 2:08–CV–533–WKW, 2009 WL 458540, at
*12 & n.10 (M.D. Ala. Feb. 23, 2009) (in which conversion was also alleged) (quoting
Licciardello, 544 F.3d at 1288 n.8) (multiple other citations omitted); see also Denny Mfg.
Co., Inc. v. Drops & Props, Inc., Civil Action No. 09-0214-KD-M, 2010 WL 119603, at *4
(S.D. Ala. Jan. 7, 2010) (relied on by Precision) (in which this Court found that
allegations that a defendant’s president intentionally infringed the Alabama plaintiff’s
Licciardello]”—satisfied the Calder effects test: “The Court finds that Plaintiff has met the
effects test of Calder by showing that Gupta engaged in intentional conduct which were
calculated to cause injury to Denny in Alabama.”).
As stated above, the sole intentional tort alleged in this lawsuit is the named
defendants’ conversion of Precision’s tanks, already sent by Precision from Alabama to
New York. (See Doc. 1, ¶ 24.)
alleging an intentional tort.
Thus, Precision has satisfied the first prong of Calder by
See, e.g., Oldfield, 558 F.3d at 1220 n.8. Precision has also
satisfied Calder’s third prong by alleging that the intentional conversion caused it harm
in Alabama, which—given the parties’ contractual relationship—Wagner Ink and
Albert Wagner should have reasonably anticipated.
As to the second prong, whether
the defendants’ alleged tortious conduct was “directly aimed at [Alabama],” id.,
Precision provides this summary:
Precision has presented evidence establishing that Albert Wagner knew
Precision was based in Alabama, induced Precision to send numerous
tanks to New York, made misrepresentations regarding payments,
converted the tanks for his own and/or Wagner Ink’s own gain, and knew
that his actions would have a significant impact on Precision in Alabama.
Such evidence demonstrates that Wagner Ink and Albert Wagner
intentionally directed their tortious conduct (securing tanks under false
pretenses and then converting those thanks for their own benefit) at
Precision in Alabama. This Court, therefore, may properly exercise
personal jurisdiction over both the corporation (Wagner Ink) and its
president (Albert Wagner).
(Doc. 17 at 16-17.)
First, under Alabama law, “the ‘act or omission’ complained of in a conversion
action takes place where the alleged wrongful taking or retention of ownership
Ex parte Jim Walter Homes, Inc., 830 So. 2d 733, 736 (Ala. 2002) (characterizing
the holding of Ex parte Overstreet, 748 So. 2d 194, 196-97 (Ala. 1999)).10
alleged conversion of Precision’s tanks occurred in New York.
was harmed in Alabama by the alleged conversion of its tanks in New York, that, alone,
does not show that the second prong of Calder effects test—requiring the tortious
conduct be directed at the forum—is satisfied.
See, e.g., IMO Indus., 155 F.3d at 265
(“[J]urisdiction under Calder requires more than a finding that the harm caused by the
defendant’s intentional tort is primarily felt within the forum.”); Far West Capital, 46
F.3d at 1079 (“[P]ost-Calder decisions [require more than] the mere allegation that an
out-of-state defendant . . . has committed [a] business tort[ ] that [has] allegedly injured
a forum resident[.]”).
The majority of courts to examine whether conversion of a plaintiff’s property
outside the forum is enough to show that a defendant has “directly aimed [its tortious
There, the Alabama Supreme Court held the conversion of the insurance
proceeds at issue there, released through a check cut in Atlanta, Georgia, which “was issued
based on a claim of damage at a house located on real property in Fayette County[,]” Alabama
occurred when the check was cashed in Tampa, Florida; thus, Fayette County was not a proper
conduct] at the forum,” Oldfield, 558 F.3d at 1220 n.8, have concluded that it does not.
For example, in United States v. Swiss American Bank, Ltd., 274 F.3d 610 (1st Cir. 2001),
the First Circuit noted, “courts have struggled somewhat with Calder’s import.
have previously noted, Calder’s ‘effects’ test was specifically designated for use in a
Thus, whether Calder was ever intended to apply to numerous other
torts, such as conversion or breach of contract, is unclear.”
Id. at 624 (citing IMO
Indus., 155 F.3d at 261 (noting that courts, in applying Calder to non-defamation cases,
have adopted “a mixture of broad and narrow interpretations”) (other citations,
quotation marks, and footnote omitted).
The First Circuit went on,
the facts of Calder diverge widely from the facts in this[, also a conversion
and breach of contract,] case. Although Calder’s significance is based on
its ‘effects’ theory, in that case, the actual tort or injury, not just its
consequences, occurred within the forum. Compare Keeton v. Hustler
Magazine, 465 U.S. 770, 776-77 (1984) (tort of libel is generally held to occur
wherever the libelous material is circulated), with Swiss II, 191 F.3d 30, 37
(1st Cir. 1999) (legal injury of conversion occurs where conversion takes
place). Moreover, the in-forum publication of the article in Calder
provided an important contact for jurisdictional purposes; a contact that is
absent in this case, since any tortious conversion or breach of contract
occurred in Antigua.
Id. at 624-25 (internal citations modified).
Significantly, although a member of the
panel, Judge Lipez, criticized the majority’s “formulistic distinctions” in his dissent, he
That is not to say that the situs of the plaintiff’s injury is irrelevant to the
jurisdictional analysis. In cases where the injury occurred outside the
forum, the plaintiff may find it difficult to satisfy the second prong of the
Calder test, which requires a showing that the defendant’s act was
‘calculated’ to cause the harmful effects in the forum. That inquiry is
designed to determine whether the nature of the effects is such that
jurisdiction reasonably can be based on them alone, and it is here that the
government’s prima facie case for jurisdiction falters. The government
argues that ‘[Swiss American Bank (or SAB)] knew that its intentional
conduct in Antigua would cause injury to the United States government.’
That is not enough. The government must show that SAB’s actions were
‘expressly aimed’ at the United States as a forum.
Id. at 633-34 (Lipez, J., dissenting) (citing Calder, 465 U.S. at 789 (distinguishing the case
of the negligent welder); Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir. 1999)
(“Foreseeable injury alone is not sufficient to confer specific jurisdiction, absent the
direction of specific acts toward the forum.”); Burger King, 471 U.S. at 474, (“Although it
has been argued that foreseeability of causing injury in another State should be
sufficient to establish [minimum] contacts there . . . , the Court has consistently held that
this kind of foreseeability is not a ‘sufficient benchmark’ for exercising personal
jurisdiction.” (footnote omitted) (quoting World-Wide Volkswagen, 444 U.S. at 295)));
accord Norment, 2009 WL 458540, at *15 (“Moreover, at least one circuit court of appeals
has distinguished the facts of Calder on a ground salient to this case.
Calder involved a
libel claim, and, thus, the actual tort or injury, not just its consequences, occurred within
In Swiss American Bank, as here, the acts providing the predicate for the
alleged tortious conversion and breach of contract happened in the foreign jurisdiction,
not in the forum state.
In sum, on this record, the court finds that as to each
Defendant, Norment has offered only allegations and evidence of an in-forum adverse
effect felt by Norment as a result of the alleged intentional conduct of Defendants.
Accordingly, the court rejects Norment’s argument that constitutionally sufficient
contacts are satisfied based on the Calder effects test.”) (internal citations omitted); see
also Viracon, Inc. v. J & L Curtain Wall LLC, ___ F. Supp. 2d ____, 2013 WL 885465, at *5-6
(D. Minn. Mar. 8, 2013) (also rejecting the plaintiff’s attempt to invoke Calder as to its
claims for conversion: “while Calder has been described as an ‘effects’ test, more than
mere effects supported that holding.
To invoke Calder, a plaintiff must show the
defendant’s acts were performed for the very purpose of having their consequences felt
in the forum state.
In other words, the challenged conduct must be uniquely aimed at
the forum state, which requires more than knowledge that a [forum] company will
suffer consequences from the conduct.
This is all Viracon has proffered here.”)
(multiple citations and internal quotation marks omitted); Power Beverage LLC v. Side
Pocket Foods Co., C/A No. 06:12–931–TMC, 2013 WL 227875, at *6 (D.S.C. Jan. 22, 2013)
(“Here, the first element of the ‘effects test’ is satisfied because fraud and conversion are
However, the conversion claim cannot meet the second element
because the legal injury occasioned by the tort of conversion is deemed to occur where
the actual conversion takes place.
And by Power Beverages’ own allegations, the
vodka product and funds were converted in Oregon, not South Carolina.
as to the last prong of the test, the court concludes that South Carolina was is not the
focal point of the alleged tortious activity.
While Side Pocket knew Power Beverages
was a South Carolina corporation, Side Pocket did not expressly aim its alleged tortious
actions at South Carolina.
Based on the foregoing, Power Beverages has not shown
that Side Pocket expressly targeted South Carolina.”) (multiple citations and internal
quotation marks omitted); but see Flagship Interval Owner’s Ass’n, Inc. v. Philadelphia
Furniture Mfg. Co., Civil No. 09–1173 (JBS/JS), 2010 WL 1135736 (D.N.J. Mar. 22, 2010)
(exercising jurisdiction over the plaintiff’s claim for conversion because “Plaintiff has
felt the harm in New Jersey and Artone and Philadelphia Furniture expressly aimed
their allegedly tortious conduct at New Jersey, by sending their solicitation for the
deposit to New Jersey and refusing to return the money to New Jersey.”) (citing IMO
Indus., 155 F.3d at 256); Dahon N. Am., Inc. v. Hon, No. 2:11–cv–05835–ODW (JCGx), 2012
WL 1413681, at *5 (C.D. Cal. Apr. 24, 2012) (“Mobility asserts that unlike Calder,
Mobility’s alleged conversion was not expressly aimed at California because any effect
in California was insignificant.
The Court disagrees. . . . Mobility neglects the primary
effect of its intentional act—that is, Mobility’s conversion of the BIOLOGIC mark
deprived DNA, a California corporation, of its intellectual property. . . . [T]he Court
finds that Mobility’s alleged possession of DNA’s converted property establishes that
Mobility’s conduct was expressly aimed towards a California company, and therefore,
This Court cannot say that the defendants’ alleged conversion of Precision’s
tanks was directly aimed at Alabama.
The alleged conversion of property in this case
is not the same as other cases involving intentional business torts, like Licciardello and
Denny, where it is alleged that a defendant intentionally misused a plaintiff’s identity,
thus attacking the plaintiff directly where the plaintiff is domiciled.
In this regard, the
discussion in HME Providers, Inc. v. Heinrich, No. 6:09-cv-2186-Orl-31GJK, 2010 WL
557106 (M.D. Fla. Feb. 11, 2010), is instructive:
The Plaintiffs also assert that, in Licciardello and other cases, the Eleventh
Circuit has held that allegations that the defendant committed intentional
torts may support the exercise of personal jurisdiction, even where the
defendant has no other contacts with the forum. However, Licciardello
and other cases espousing this principle require that the intentional tort be
“expressly aimed at the plaintiff in the forum state.” This principle has
been held to establish sufficient minimum contacts in cases alleging
trademark infringement, such as Licciardello, and libel, such as Calder v.
Jones. But misuse of a trademarked name and libel target a plaintiff in a
way that the torts alleged here do not. The misappropriation and
conversion at issue here consist of allegations that these defendants
wrongfully used or exercised dominion over the plaintiffs’ intellectual
property and trade secrets, rather than an attack on the Plaintiffs
directly. The Plaintiffs claim to have suffered lost sales, not harm to their
reputation. Because the torts alleged to have been committed by
Healthpia Kentucky and Genesis Health were not “expressly aimed at”
the plaintiffs the way that the torts in Licciardello and Calder were, the
minimum contacts requirement has not been met.
Id. at *4 (emphasis added).11
Having already determined the corporate defendant, Wagner Ink, has
established minimum contacts with Alabama pursuant to its business relationship with
Precision, purposefully availing itself of the privilege of conducting activities in
Alabama such that Wagner Ink should reasonably anticipate defending a lawsuit here
(see supra, § III.B), the Court now concludes, because it has not been shown that the
alleged intentional tort (allegedly committed by both defendants) was directed at
Alabama, the individual defendant, Albert Wagner, lacks sufficient minimum contacts
Thus, “[b]ecause [Albert Wagner] did not purposefully direct [his]
activities at the forum state, [his] contacts are not ‘such that [he] could reasonably
anticipate being haled into court [in Alabama].’”
(quoting Vermeulen, 985 F.2d at 1546).
Norment, 2009 WL 458540, at *15
Accordingly, Defendant Albert Wagner’s
motion to dismiss for lack of personal jurisdiction is GRANTED.
Fair Play and Substantial Justice (Wagner Ink).
Having determined that Wagner Ink possesses the requisite minimum contacts
in Alabama does not conclude the personal jurisdiction analysis.
See, e.g., Professional
Locate & Recovery, Inc. v. Prime, Inc., Civil Action No. 07-0175-WS-C, 2007 WL 2333218,
*8 (S.D. Ala. Aug. 15, 2007) (“Of course, a finding of minimum contacts does not
Precision also attempts to use this Court’s decision in David’s Auto Shredding, Inc.
v. Shredder Co., LLC, Civil Action No. 08–00410–KD–B, 2009 WL 8478359 (S.D. Ala. Mar. 24,
2009), report & recommendation adopted, 2011 WL 4915155 (S.D. Ala. Oct. 17, 2011), to support its
position that the defendants’ alleged conversion was aimed at Alabama. There, however,
Magistrate Judge Bivins found Calder satisfied in important part because the individual
defendant, domiciled in Texas, allegedly “made repeated misrepresentations regarding the
status of equipment . . . [he] knew was to be used at Plaintiff’s facility in Alabama” in addition
to converting funds paid by the plaintiff for the equipment. Id. at *6 (emphasis added). Thus,
the plaintiff sufficiently alleged that the individual defendant’s actions were directed towards
doing harm to the defendant in Alabama.
conclude the personal jurisdiction analysis in and of itself; rather, personal jurisdiction
can only be exercised over one having minimum contacts with the forum if doing so
would not offend traditional notions of fair play and substantial justice.”).
“In determining whether jurisdiction comports with traditional notions of
fair play and substantial justice, the court looks at: (a) ‘the burden on the
defendant,’ (b) ‘the forum State’s interest in adjudicating the dispute,’ (c)
‘the plaintiff’s interest in obtaining convenient and effective relief,’ (d) ‘the
interstate judicial system’s interest in obtaining the most efficient
resolution of controversies,’ and (e) ‘the shared interest of the several
States in furthering substantive social policies.’” McGow v. McCurry, 412
F.3d 1207, 1216 (11th Cir. 2005) (quoting Meier ex rel. Meier v. Sun Int’l
Hotels, Ltd., 288 F.3d 1264, 1276 (11th Cir. 2002)); see Ruiz de Molina v.
Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1358 (11th Cir. 2000)
(“Once it is decided that defendants have at least minimum contacts with
a forum, the burden is on the defendants to show that the imposition of
jurisdiction in the forum is unreasonable. Several factors are relevant to
this showing: (1) the defendant’s burden; (2) the forum state’s interest; (3)
the plaintiff’s interest in convenient and effective relief; (4) the judicial
system’s interest in efficient resolution of controversies; and (5) the state’s
shared interest in furthering fundamental social policies.”).
DocRX, 738 F. Supp. 2d at 1253-1254 (internal citations modified).
Wagner Ink simply has not shown “the requisite ‘compelling case’ that
exercising jurisdiction would be unconstitutionally unfair.”
Diamond Crystal, 593 F.3d
at 1274 (quoting Burger King, 471 U.S. at 477). Wagner Ink contends that litigating this
matter in Alabama would be burdensome and that some witnesses, as well as Wagner
Ink’s documents and the allegedly converted tanks, are located outside of Alabama, but
such contentions do not amount to unconstitutional unfairness.
While “[i]t is clear to
the Court that [Wagner Ink] will feel some burden by having to come to Alabama to
defend [Precision’s] suit, that burden will not be significant given the availability of
modern transportation and communication.”
DocRX, 738 F. Supp. 2d at 1254
It is clear, moreover, that Alabama has “an important interest in
providing a forum in which [her] residents can seek redress for injuries caused by
out-of-state actors[,]” Andersen v. Sportmart, Inc., 57 F. Supp. 2d 651, 662 (N.D. Ind.
1999), especially where, as here, “the injury to plaintiff occurred in Alabama as a result
of [Wagner Ink’s] contacts with Alabama[,]” DocRX, 738 F. Supp. 2d at 1254 (citation
Accordingly, jurisdiction over Wagner Ink “comports with traditional notions of
fair play and substantial justice[.]”
McGow, 412 F.3d at 1216.
Transfer of Venue.
The resolution of the defendants’ motion to dismiss, with Wagner Ink remaining
a party to this lawsuit, leads the Court to consider Wagner Ink’s alternative request that
this matter be transferred to Eastern District of York, which Wagner Ink asserts is a
more convenient forum.
“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) (“Trial
judges are permitted a broad discretion in weighing the conflicting
arguments as to venue” under § 1404(a)). As a general matter, “[t]he
burden is on the moving party to prove that a case should be transferred.”
Irwin v. Zila, Inc., 168 F. Supp. 2d 1294, 1296 (M.D. Ala. 2001); see also In re
Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989) (“in the usual motion for
transfer under section 1404(a), the burden is on the movant to establish
that the suggested forum is more convenient”); Holmes v. Freightliner, LLC,
237 F. Supp. 2d 690, 692–93 (M.D. Ala. 2002) (observing that, under §
1404(a) analysis, defendant bears burden of demonstrating that suggested
forum is more convenient than plaintiff’s selected forum).
The relevant federal statute governing [transfer] reads as follows: “For the
convenience of 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.” 28 U.S.C. § 1404(a). Motions to transfer
pursuant to § 1404(a) are subject to a two-step analysis that examines, first,
whether the action could originally have been brought in the proposed
transferee forum, and second, whether a balancing of the convenience of
the parties and the interest of justice favors transfer in the specific case.
See, e.g., LaSalle Bank N.A. v. Mobile Hotel Properties, LLC, 274 F. Supp. 2d
1293, 1301 (S.D. Ala. 2003); C.M.B. Foods, Inc. v. Corral of Middle Georgia,
396 F. Supp. 2d 1283, 1286 (M.D. Ala. 2005); Irwin, 168 F. Supp. 2d at 1296.
If the second step is reached, a court examining whether the balance of
justice and convenience favors transfer considers a broad range of factors,
including “(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
Examination of these factors must not be performed
mechanically or by rote; rather, what is required is “individualized
case-by-case consideration of convenience and fairness.” Irwin, 168 F.
Supp. 2d at 1296; see also A.J. Taft, 291 F. Supp. 2d at 1307 (“The decision of
whether a case should be transferred under § 1404(a) is an individualized
case-by-case consideration of convenience and fairness.”) (citations
omitted); LaSalle Bank, 274 F.Supp.2d at 1301 (similar).
First Fin. Bank v. CS Assets, LLC, Civil Action No. 08–0731–WS–M, 2009 WL 1211360, at
*2 (S.D. Ala. May 4, 2009) (footnote omitted).
All Wagner Ink has shown is that the transfer of this matter to the Eastern
District of New York would be more convenient for Wagner Ink; thus, it has not
shouldered its burden to prove that this case should be transferred.
See, e.g., Pet
Friendly, Inc. v. Catapult Group, L.L.C., No. 06-0642-C, 2006 WL 3690737, at *2 (S.D. Ala.
Dec. 12, 2006).12 Accordingly, the alternative motion to transfer venue is DENIED.
The undersigned’s analysis in that matter appears equally applicable to this
There, the Court noted,
The defendants in this case have not satisfied their burden of establishing that
this case represents one of those rare situations warranting the disturbance of
plaintiff's choice of forum. The convenience of the parties amounts to a wash in
this case since it is certainly more convenient for the plaintiff, whose principal
place of business is in Fairhope, Alabama, to pursue this lawsuit in this Court,
whereas it is more convenient for defendants to defend the action in the
Northern District of Texas, where the defendants reside and where the contract
at issue was drafted and executed by defendant Peterson for Catapult. There is
no indication from the defendants that they have witnesses that will be
unavailable for trial in this Court, and while those witnesses may possibly be
outside the subpoena power of this Court, those problems would persist in
Having determined that this case shall proceed against Defendant Wagner Ink in
this Court, the parties are ORDERED to meet and confer and file no later than May 3,
2013 a report of the parties’ planning meeting pursuant to Rule 26(f).
DONE and ORDERED this the 19th day of April, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
Texas, with respect to witnesses located in Alabama (of which there are
undoubtedly several given that the main principals and employees of plaintiff
reside in the Southern District of Alabama). Given the ability to move
documents with relative ease in today’s world, the location of documents (and
other sources of proof) factor certainly does not weigh in favor of transfer to the
Eastern District of Texas. In addition, while the defendants make the allegation
that it would be more cost effective and efficient for counsel of the parties in the
Texas action to handle both actions, this does not take into consideration that it
would add that much more to the expense of plaintiff’s Alabama counsel in this
case to handle this case in Texas. Finally, there has been presented nothing to
suggest that the trial efficiency and expense to justice system factor weighs in
favor of transfer, particularly since this Court stands ready to give both parties a
full and fair hearing in an expeditious manner. All a transfer would do in this
case is shift inconvenience from the defendants to the plaintiff and therefore, this
Court must necessarily favor plaintiff’s choice of forum by denying the
defendants’ motion to transfer venue to the Eastern District of Texas.
Id. (citations omitted).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?