Remodeling Today, Inc. v. The Titan Network, LLC, et al.

Filing 29

Order allowing plaintiff the opportunity to conduct limited jurisdictional discovery for the next 35 days, that is, until 12/4/2013, as further set out. Thereafter, DLM and Bosch are to simultaneously file their supplemental arguments regarding the personal jurisdiction issue by 12/16/2013. Signed by Magistrate Judge William E. Cassady on 10/30/2013. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
REMODELING TODAY, INC. d/b/a
DANNY LIPFORD MEDIA,

:
:

Plaintiff,
vs.
THE TITAN NETWORK, LLC d/b/a
THE TITAN AGENCY, et al.,

:
:

CA 13-0428-KD-C

:

Defendants.
ORDER
In an order entered on October 10, 2013, the Court exercised the wide discretion
afforded it regarding matters of discovery to deny defendant Bosch Thermotechnology
Corporation’s motion to stay Rule 26(f) conference. (Doc. 27.)1 In the October 10, 2013
order, the undersigned specifically noted that one of the reasons it was rejecting the
defendant’s due process argument was because “the allowance of jurisdictional
discovery is not at all uncommon[.]” (Id. at 3, citing Kilma v. Carnival Corp., 2008 WL
4559231, *3 (S.D. Fla. Oct. 10, 2008) (“The discovery must be narrowly tailored to
personal jurisdiction issues[.]”).) And while the undersigned also parenthetically noted
that it was doubtful that Bosch would have to engage in any discovery “prior to a final
ruling on the pending motion to dismiss” (id. at 4 n.1), this statement was made before
the undersigned had an opportunity to substantively review Bosch’s motion to dismiss
(Doc. 2; see also Doc. 3), plaintiff’s response in opposition (Doc. 18), and the moving
1

The parties filed the Rule 26(f) report on October 29, 2013. (Doc. 28.)

defendant’s reply (Doc. 23). Having now reviewed those documents (along with all
attachments), the undersigned finds that the allowance of limited jurisdictional
discovery is necessary prior to a ruling on the pending motion to dismiss.
Although the plaintiff in this case has not “formally” requested jurisdictional
discovery by motion, it would be unfair to characterize its requests for jurisdictional
discovery as being “buried . . . in its briefs[,]” United Technologies Corp. v. Mazer, 556
F.3d 1260, 1280 (11th Cir. 2009), inasmuch as plaintiff’s initial request comes on the first
two pages of its brief (Doc. 18, at 1-2), with subsequent requests being made later in the
brief (see id. at 14 & 16).2 Moreover, “jurisdictional discovery is favored where there is
a genuine dispute concerning jurisdictional facts necessary to decide the question of
personal jurisdiction[.]” Bernardele v. Bonorino, 608 F.Supp.2d 1313, 1321 (S.D. Fla.
2009); see also Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (a
motion to dismiss for lack of personal jurisdiction “may require some limited
discovery before a meaningful ruling can be made.”); Gear, Inc. v. L.A. Gear California,
Inc., 637 F.Supp. 1323, 1328 (S.D. N.Y. 1986) (“[I]t is well-established that district courts
have the discretion to grant discovery to explore factual issues presented by the Rule
12(b)(2) motion.”). In the undersigned’s opinion, and as explained in more detail
below, this case presents a genuine dispute concerning jurisdictional facts necessary to
decide the question of personal jurisdiction; therefore, it is necessary for the
undersigned to order that limited jurisdictional discovery take place prior to entry of a
report and recommendation regarding appropriate disposition of Bosch’s motion to

2

In addition, plaintiff has requested jurisdictional discovery in the Rule 26(f)
report. (See Doc. 28, at 4-5.)

2

dismiss.
In its complaint and throughout its response in opposition to Bosch’s motion to
dismiss, plaintiff takes the position that defendant The Titan Agency (“Titan”) was
Bosch’s agent and that Bosch conducted business in the State of Alabama through its
agent Titan. (Compare Doc. 1, Exhibit A, COMPLAINT, at 1-2, 2 & 3-4 with Doc. 18, at 3,
4-5, 13-15 & 17-18 and Doc. 18, Exhibit M, Affidavit of Daniel C. Lipford, at ¶ 12 (“Peters
signed a contract with DLM on behalf of BTC on March 16, 2012 wherein the Titan
Agency represented and warranted that it was authorized to act on behalf of Bosch
Geothermal and bind BTC to the contract.”).) Bosch, quite naturally, takes a position
contrary to that of plaintiff, pointing in large measure to its contract with Titan that
expressly provides that Titan is an independent contractor. (See Doc. 3, Exhibit 1, at 2;
compare id. with Doc. 23, at 10-11 (disclaiming an agency relationship between it and
Titan).) These polar opposite positions render this Court unable to properly rule on
Bosch’s pending motion without a modicum of jurisdictional discovery given clear
Alabama law that “whether an agency [relationship] exists is determined from the facts,
not by how the parties choose to characterize their relationship [by contract, or
otherwise].” Tyson Foods, Inc. v. Stevens, 783 So.2d 804, 808 (Ala. 2000) (citation omitted);
see also Ragsdale v. Life Ins. Co. of North America, 632 So.2d 465, 468 (Ala. 1994) (“’If the
facts establish the relationship of principal and agent, the intention of the parties is
immaterial, and the character of the relationship is not affected by an agreement
between the parties that an agency does not exist, or that some other relation does
exist.’”). Indeed, “’[w]hether a relationship is an independent contractor relationship or
is a master-servant relationship depends on whether the entity for whom the work is
3

performed has reserved the right to control the means by which the work is done.’”
Tyson Food, Inc., supra, at 808, quoting Keebler v. Glenwood Woodyard, Inc., 628 So.2d 566,
568 (Ala. 1993).3 And, of course, proper determination of whether Titan was an
independent contractor of Bosch, or its agent, under Alabama law is critical to the issue
of personal jurisdiction since the activities of an agent in the forum are
attributable—that is, they may be imputed—to the “foreign” principal. See, e.g., Stubbs v.
Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1362-1363 (11th Cir. 2006).
Since personal jurisdiction over Titan in this matter is not questioned (see Doc. 17
(Titan’s answer)), a determination that Titan was Bosch’s agent would appear to beg the
question of whether personal jurisdiction exists as to Bosch. On the flipside, if Titan was
at all times an independent contractor, plaintiff’s personal jurisdiction arguments
would suffer such a severe blow that the undersigned would not expect DLM to
continue the instant action against Bosch.
In light of the foregoing, the undersigned extends to plaintiff the opportunity to
conduct limited jurisdictional discovery in this action for the next thirty-five (35) days,
that is, until December 4, 2013.4 As indicated above, the primary focus of such
discovery should be the relationship between Bosch and Titan; however, the
3

“Typically [albeit not always], the existence of an agency relationship is a
question of fact for a jury to decide.” Tyson Foods, Inc.,, supra; see also Sharpe v. AMF Bowling
Centers, Inc., 756 So.2d 874, 876 (Ala. 2000) (“’[T]he existence and scope of an agency
relationship are [normally] questions of fact to be determined by the jury.’”).
4

Given the abbreviated period allotted for jurisdictional discovery, plaintiff
should serve written discovery on Bosch and Titan not later than November 8, 2013, and the
defendants should serve their answers to such written discovery not later than November 18,
2013. Furthermore, the depositions authorized by the undersigned should be noticed and taken
between November 19, 2013 and December 3, 2013.

4

undersigned will not solely tie the limited discovery to this relationship provided the
discovery propounded/taken is “tailored to personal jurisdiction issues.” Kilma, supra,
at *3.5 Jurisdictional discovery is limited in the following manner: (1) plaintiff may
serve upon both Bosch and Titan not more than ten (10) interrogatories, ten (10)
requests for admission, and ten (10) requests for production; and (2) plaintiff may notice
and take the deposition of one representative of Bosch and one representative of Titan
anytime between November 19, 2013 and December 4, 2013. Thereafter, DLM and
Bosch are to simultaneously file their supplemental arguments regarding the personal
jurisdiction issue, with attachments, not later than December 16, 2013.6
DONE and ORDERED this the 30th day of October, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

5

In other words, plaintiff SHOULD NOT serve any written discovery—or ask
any deposition question—that touches upon the merits of this case.
6

The undersigned will not enter a comprehensive Rule 16(b) scheduling order in
this case until the completion of jurisdictional discovery and the parties have filed their
supplemental positions regarding personal jurisdiction.

5