488 F.3d 922 (11th Cir. 2007), 05-15890, Sloss Industries Corp. v. Eurisol

Docket Nº:05-15890.
Citation:488 F.3d 922
Party Name:SLOSS INDUSTRIES CORPORATION, Plaintiff-Appellee, v. EURISOL, Defendant-Appellant.
Case Date:June 08, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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488 F.3d 922 (11th Cir. 2007)



EURISOL, Defendant-Appellant.

No. 05-15890.

United States Court of Appeals, Eleventh Circuit

June 8, 2007

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Matthew Todd Lowther, R. Bruce Barze, Jr., Balch & Bingham, LLP, Birmingham, AL, for Eurisol.

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Christopher D. Cobb, Laura C. Nettles, Lloyd, Gray & Whitehead, P.C., Birmingham, AL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Alabama, D.C. Docket No. 05-00459-CV-AR-S

Before CARNES and MARCUS, Circuit Judges, and JORDAN, [*] District Judge.

JORDAN, District Judge.

Sloss Industries Corporation, an Alabama company, manufactures and sells slag wool, a fibrous form of blast furnace slag that resembles asbestos and is used for insulation and similar applications.1 Starting in mid-2004, Eurisol SARLy, 2 a French limited liability company, began placing orders with Sloss for slag wool. When Eurisol failed to pay for certain of the shipments, Sloss filed a federal lawsuit in the Northern District of Alabama against Eurisol and its managing director, Jean Claude Ferrarin. Eurisol and Mr. Ferrarin, despite having been served with process, did not timely appear or respond to Sloss' complaint. As a result, about six weeks after service was effected, the district court entered a default judgment against Eurisol and Mr. Ferrarin on liability, and set a trial on damages before a jury. Five weeks later, a jury awarded Sloss $324,551.82 in damages against Eurisol and Mr. Ferrarin.

A month or so following the jury verdict, Eurisol and Mr. Ferrarin filed a motion requesting that the judgment be set aside, arguing first (under Rule 60(b)(4)) that the district court lacked personal jurisdiction over them, and second (under Rule 60(b)(1)) that the default judgment on liability should be set aside due to excusable neglect. The district court denied the motion.

Eurisol and Mr. Ferrarin then filed a motion to alter, amend, or vacate the judgment. The district court granted the motion as to Mr. Ferrarin - finding that Sloss had not presented any viable theory as to how Mr. Ferrarin could be held individually liable for Sloss' breach of contract - but denied the motion as to Eurisol. Eurisol now appeals. We affirm, concluding that Eurisol was subject to specific personal jurisdiction in Alabama, and that the district court did not abuse its discretion in refusing to set aside the default judgment.


Rule 60(b)(4) allows a litigant - even one who does not initially appear - to collaterally attack a judgment on the ground that it is void due to lack of personal jurisdiction. See, e.g., Hazen Research, Inc. v. Omega Minerals, Inc., 497F.2d 151, 154 (5th Cir. 1974). This is because "[a]n in personam judgment entered without personal jurisdiction over a defendant is void as to that defendant." Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987). See also Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) (generally a judgment is void if the district court lacked subject-matter jurisdiction, lacked personal jurisdiction over the parties, or acted inconsistent with due process). Accord Jackson v. Fie Corp., 302 F.3d 515, 522-23 (5th Cir. 2002); Thos. P. Gonzalez Corp. v. Consejo Nacional de Produccion de Costa Rica, 614 F.2d 1247, 1255-56 (9th Cir. 1980).

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The district court's determination that personal jurisdiction could constitutionally be exercised over Eurisol is subject to plenary review. See, e.g., McGow v. McCurry, 412 F.3d 1207, 1214 n.2 (11th Cir. 2005). The fact that the district court was addressing Eurisol's Rule 60(b)(4) motion when it ruled on personal jurisdiction does not convert the standard of review into a more deferential one: "Unlike motions pursuant to other subsections of Rule 60(b), Rule 60(b)(4) motions leave no margin for consideration of the district court's discretion as the judgments themselves are by definition either legal nullities or not. Therefore, [w]e review de novo ... a district court's ruling upon a Rule 60(b)(4) motion to set aside a judgment as void, because the question of the validity of a judgment is a legal one." Burke, 252 F.3d at 1263 (citations and quotation marks omitted).


Personal jurisdiction generally entails a two-step inquiry. First, we determine whether the exercise of jurisdiction is appropriate under the forum state's long-arm statute. See Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996). Second, we examine whether exercising jurisdiction over the defendant would violate the Due Process Clause of the Fourteenth Amendment, which requires that the defendant have minimum contacts with the forum state and that the exercise of jurisdiction not offend "traditional notions of fair play and substantial justice." Id. (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). In this case, the two inquiries merge, because Alabama's long-arm statute permits the exercise of personal jurisdiction to the fullest extent constitutionally permissible. See Ala. R. Civ. P. 4.2(b); Sieberv. Campbell, 810 So.2d 641, 644 (Ala. 2001).

Everyone agrees that this case involves only the concept of specific jurisdiction, that is, jurisdiction arising "out of a party's activities in the forum state that are related to the cause of action alleged in the complaint." McGow, 412 F.3d at 1214 n.3 (internal quotation marks omitted). In a case involving specific jurisdiction, a defendant's contacts with the forum state must satisfy three criteria: they "must be related to the plaintiffs cause of action or have given rise to it;" they must involve "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum;" and they "must be such that the defendant should reasonably anticipate being haled into court there." Id. at 1214.3

With these general concepts in mind, we turn to Eurisol's contacts with Alabama. Understanding that a minimum contacts analysis is "immune to solution by checklist," Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 499 (5th Cir. 1974) (quotation marks omitted), and that contacts must be viewed both quantitatively and qualitatively, we discuss in detail the dealings between Eurisol and Sloss in 2004.4


Eurisol, as noted earlier, is a French company. It does not have any offices,

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officers, employees, or agents in Alabama. It does not own any real property in Alabama. It is not licensed or authorized to do business in Alabama, does not do business in Alabama, and does not have any customers in Alabama. It sells all of its goods in Europe. It does not solicit business in Alabama. Other than Sloss, it does not have any suppliers in Alabama.

On June 29, 2004, Eurisol sent an e-mail to Sloss asking for a price quote on a 40-foot container of slag wool to be delivered to France. The next day, Sloss sent Eurisol a ten-pound sample of slag wool, and provided Eurisol with the requested price quote. From July 5 to July 12, Eurisol and Sloss exchanged numerous e-mails and phone messages concerning matters such as Eurisol's opinion of the sample slag wool, the specifications and makeup of the slag wool Eurisol was looking for, the storage capacity of the shipping containers that would be used, the size of Sloss' bales of slag wool, the price of the slag wool, and the cost of shipping the containers to France.

Sloss approved Eurisol as a customer in July. On July 13, Eurisol placed an order with Sloss, by facsimile, for five containers of slag wool, consisting of about 52 bales per container. On that same day, Sloss and Eurisol sent each other e-mails concerning the payment terms initially proposed by Eurisol, and the companies ultimately agreed that Eurisol would make payment within 45 days of the date of the ocean bill of lading. On July 15, Eurisol, again by facsimile, placed an order for another five containers of slag wool. On July 20, Eurisol sent an e-mail to Sloss indicating that the initial orders of slag wool had not been received, and that Eurisol needed the wool so it could fulfill orders from its own customers. Two days later, Sloss responded by e-mail that it was working around the clock and delaying shipments to other customers in order to provide Eurisol with the slag wool it had ordered. In late July, Sloss and Eurisol exchanged more e-mails seeking to confirm how many containers Eurisol had ordered.

On August 13, Eurisol, by e-mail, informed Sloss that it would place another order the following week. Several days later, Eurisol, by facsimile, placed an order for another ten containers of slag wool. On August 20, Eurisol sent Sloss an e-mail concerning the first shipment of slag wool that it had received. According to Eurisol, the fiber was not regular in color, as some bales were darker than others, and the fibers in the wool were too thin. Eurisol asked Sloss to see if it could "improve the quality, the color, and [the] thickness" of the fibers. Sloss responded that same day, by e-mail. Sloss indicated that it thought Eurisol used the slag wool for fire proofing, but inquired if there were other uses so it could produce the "best fiber" for Eurisol. In reply, again by e-mail, Eurisol said that it manufactured products for fireproofing and thermal insulation, and that it needed a "regular fiber (quality and color)" because it applied its products through spraying. As to quality, Eurisol indicated that it needed slag wool with resilience ("not short, not thin"). Eurisol also stated that Sloss might be using too little oil in the slag wool, and that, for its applications, it needed 0.2% of oil in the wool. Eurisol asked what Sloss was going to do to provide better a quality product.

Sloss, by e-mail on August 23, informed Eurisol that it could make the diameter of the fibers larger, and that the color...

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