Opinion
Charles A. Hardin of Hardin & Hughes, LLP, Tuscaloosa, for appellant.
R. Bernard Harwood and Chad L. Hobbs of Rosen Harwood, P.A., Tuscaloosa, for appellee.
This case was originally assigned to another Justice on this Court. It was reassigned to Justice Wise on January 19, 2011.
The plaintiff, Branded Trailer Sales, Inc. (" Branded" ), appeals from a judgment of the Tuscaloosa Circuit Court, granting a motion to dismiss asserting lack of personal jurisdiction filed by one of the defendants, Universal Truckload Services, Inc. (" Universal" ). We reverse and remand.
Facts and Procedural History
In its complaint instituting the underlying action, Branded alleged that, in late March or early April 2008, a customer contacted Branded about having flatbed trailers designed and manufactured to haul
In its brief to this Court, Universal asserts that subsequent discovery in the case, involving another defendant, Liddell Trailers, LLC, indicated that the customer was General Electric Company.
wind towers; that Universal was a trucking company that was in the business of hauling wind towers for that customer; that Universal needed to purchase trailers that were specially manufactured to haul wind towers; and that Branded subsequently contacted Universal. Branded is a Louisiana corporation; Universal is a Michigan corporation. Branded further alleged that it subsequently contacted Liddell Trailers, LLC (" Liddell" ), which is an Alabama corporation, and several other manufacturers of trailers about the cost of designing and manufacturing such specialized trailers; that it presented Universal with several different options; that Universal chose Liddell to design and manufacture the trailers; and that Branded entered into a contract with Liddell that provided that Liddell would design and manufacture the trailers at a cost to Branded of $168,680 each. Branded further alleged that it entered into a contract with Universal that provided that Universal would purchase two trailers from it at a price of $244,465.84 each; that Universal had the option to order up to eight more trailers; and that the first two trailers were to be delivered to Universal by the first week of August 2008.
Branded's subsequent pleadings and the affidavit it submitted in support of those pleadings included allegations that Universal initiated contact with Branded and asked Branded to locate a company that would design and manufacture flatbed trailers to haul wind towers.
Branded alleged that, " [s]oon thereafter," Liddell notified Branded that the cost of the trailers would be increased, that the completion date for the trailers would be extended, and that it would not build the trailers in accordance with the previously agreed upon design. Branded also alleged that Universal subsequently terminated the agreement to purchase the trailers from Branded. Branded further alleged that it subsequently learned that Universal and Liddell entered into an agreement pursuant to which Universal would purchase directly from Liddell the trailers it had agreed to design and manufacture; that Universal and Liddell excluded Branded from the agreement; that Liddell delivered the first two trailers to Universal in late December 2008 or early January 2009; and that Branded did not receive a sales commission based on the transaction.
On February 2, 2009, Branded filed a complaint in the Tuscaloosa Circuit Court, alleging that Universal and Liddell had each " intentionally interfered with contract and the business relationship between [Branded] and the other Defendant, without justification, to make the transaction relating to the trailers more financially rewarding" ; that Liddell had violated the Alabama Sales Representatives Commission Act; that Universal had engaged in fraud because it " innocently, recklessly or intentionally misrepresented that it would purchase the two (2) trailers to be manufactured by Liddell through [Branded]" ; that Liddell had engaged in fraud because it " innocently, recklessly or intentionally misrepresented that it would manufacture the two (2) trailers to be purchased by Universal through [Branded]" ; that Liddell breached its contract with Branded when it did not deliver the trailers; and that Universal breached its contract with Branded when it refused to purchase the trailers from Branded.
On March 23, 2009, Universal filed a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for lack of personal jurisdiction. On May 28, 2009, Universal filed a brief in support of its motion to dismiss and a supporting affidavit from Mike Peterson, the director of Risk Management for Universal. In that affidavit, Peterson stated:
On May 29, 2009, Branded filed a response to Universal's motion to dismiss, as well as a motion to strike its brief and
Peterson's affidavit; it also filed a motion pursuant to Rule 56(f), Ala. R. Civ. P., asking the court to treat Universal's motion to dismiss as one for a summary judgment and to allow it to conduct additional discovery. In support of its May 29, 2009, response, Branded attached an affidavit from Wayne Ostrander. In his affidavit, Ostrander stated:
In Branded's Rule 56(f) motion, Branded stated that it had filed a motion to strike Universal's brief in support of the motion to dismiss and to strike Peterson's affidavit. It then stated:
On June 2, 2009, the trial court conducted a hearing on Universal's motion to dismiss. However, the record does not include a transcript of that hearing. On June 17, 2009, Universal filed a supplemental brief in support of its motion to dismiss and a second affidavit from Peterson. On that same date, Branded filed a response to Universal's brief in support of its motion to dismiss. That response also included a request for additional time to conduct discovery. In that request, Branded stated:
On June 29, 2009, the trial court entered the following order:
On July 29, 2009, the trial court entered an order certifying its June 29, 2009, order as a final judgment. This appeal followed.
The trial court also noted that Branded's claims against Liddell were still pending and that the case would proceed as to those claims.
Standards of Review
Discussion
Branded argues that the trial court erred in granting Universal's motion to dismiss without first giving it the opportunity to conduct jurisdictional discovery. We note:
Brown v. ABUS Kransysteme GmbH, 11 So.3d 788, 795 (Ala.2008).
In Ex parte Bufkin, 936 So.2d 1042, 1047-48 (Ala.2006), this Court addressed the issue whether a plaintiff was entitled to jurisdictional discovery:
Similarly, in this case, Branded has alleged sufficient facts that could establish a colorable claim of personal jurisdiction against Universal.
In its response to Universal's motion to dismiss, Branded alleged the following facts:
On the date this opinion was released the Web sites referenced in paragraphs 1 and 2 of Branded's response were still available.
Further, in its response to Universal's brief in support of its Rule 12(b)(2) motion, Branded alleged:
On the date this opinion was released, all but two of the Web sites referenced in Branded's response were still available. The Web sites that are no longer available are http:// www. alabama trucking. org/ docs/ ATA_ summer 3 Q 06_ web. pdf and http:// loads. goutsi. com 8080/ wntv 5/ BKLoad Selections.
In this case, Branded made detailed assertions regarding its theories of personal jurisdiction, and it presented evidence to support those assertions. See Ex parte United Ins. Cos., 936 So.2d 1049 (Ala.2006) (holding that a plaintiff raising a civil-conspiracy claim was entitled to jurisdictional discovery because she presented detailed pleadings regarding the corporate relationship of the defendants and regarding the role each defendant allegedly played in the civil conspiracy). Therefore, this was not a situation where Branded's discovery request was " ‘ based upon " bare," " attenuated," or " unsupported" assertions of personal jurisdiction’ " or a situation where Branded's claim appeared to be " ‘ " clearly frivolous." ’ " Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 468 (Ala.2003). Further, unlike the request in Ex parte Troncalli, Branded's discovery request did not consist of mere conjecture and surmise. See United Ins. Cos., supra. Rather, Branded has
Ex parte Bufkin, 936 So.2d at 1047. For these reasons, the trial court exceeded its discretion when it granted Universal's motion to dismiss without first providing Branded an opportunity to conduct jurisdictional discovery.
Conclusion
The trial court exceeded its discretion when it granted Universal's motion to dismiss without first providing Branded an opportunity to conduct jurisdictional discovery. Accordingly, we reverse the trial court's judgment dismissing Branded's claims against Universal on the basis that the court did not have personal jurisdiction over Universal, and we remand this case for the trial court to allow Branded to conduct discovery on the limited issue of personal jurisdiction.
Because of our disposition of this appeal on the jurisdictional discovery issue, we pretermit discussion of the remaining claims Branded raises on appeal.
REVERSED AND REMANDED.
COBB, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, and MAIN, JJ., concur.