Brown v. Abus Kransysteme Gmbh

• Decision Date: 12 December 2008
• Docket Number: 1071184.
• Citation: 11 So.3d 788
• Parties: Felicia D. BROWN, as dependent widow and personal representative of the estate of Jeremiah Brown, deceased v. ABUS KRANSYSTEME GMBH.
• Court: Alabama Supreme Court

11 So.3d 788

Felicia D. BROWN, as dependent widow and personal representative of the estate of Jeremiah Brown, deceased v. ABUS KRANSYSTEME GMBH.

1071184.

Supreme Court of Alabama.

December 12, 2008.

Thomas P. Willingham of Alvis & Willingham, L.L.P., Birmingham; and Allen Richard Stoner, Decatur, for appellant.

Jackson H. Ables III and Brandi M. Smith of Daniel Coker Horton & Bell, P.A., Jackson, Mississippi, for appellee.

WOODALL, Justice.

Felicia D. Brown, as dependent widow and personal representative of the estate of Jeremiah Brown, deceased, appeals from a judgment dismissing for lack of in personam jurisdiction her product-liability action against ABUS Kransysteme GmbH ("ABUS"), a limited liability company organized under the laws of the Federal Republic of Germany and the manufacturer of the component part of a crane that allegedly malfunctioned, resulting in the death of her husband. We affirm.

I. Factual Background

On August 2, 2006, Jeremiah Brown was operating a crane for his employer Steel Related Technology New, LLC ("SRT"). The crane was manufactured by Wolverine Crane & Service, Inc. ("Wolverine"), a Michigan corporation, and was equipped with a hoist manufactured by ABUS bearing serial number 78838. He was killed when a wire rope on the hoist snapped, allowing a beam to fall on him. On October 4, 2006, Felicia Brown sued ABUS and others asserting claims under the Alabama Extended Manufacturer's Liability Doctrine and other theories.

On December 20, 2006, ABUS moved to dismiss the claims against it, arguing that it "lack[ed] minimum contacts with the State of Alabama sufficient to permit an exercise of in personam jurisdiction consistent with the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States." In support of its motion, ABUS filed the affidavit of Lothar Bühne, a managing partner of ABUS. The affidavit stated, in pertinent part:

"3. ABUS does not have any contacts with the State of Alabama.

"4. ABUS has no offices, factories, real or personal property, product inventory, bank accounts, or assets of any kind in the United States of America or in the State of Alabama.

"5. ABUS has no employees or regular agents anywhere in the United States of America and no employees or agents whatsoever in the State of Alabama.

"6. ABUS' sole representative on the North American continent is located in the Commonwealth of Canada, and only handles sales in Canada. ABUS has never had any sales representative relations with any person or entity in the State of Alabama.

"7. ABUS has not designed, manufactured for, or sold any ABUS product, including wire rope product, to the employer of plaintiff's decedent.

"8. ABUS did not send the crane or hoist product described in the complaint into the United States of America or into the State of Alabama.

"9. ABUS has had no contacts in or with or any presence in or any involvement with the State of Alabama.

"10. ABUS has never purposefully availed itself of any privilege, benefit or protection afforded by the laws of the State of Alabama."

On February 1, 2007, Brown moved to continue consideration of ABUS's motion to dismiss, asserting that resolution of the question of personal jurisdiction should be deferred until she could "conduct jurisdictional discovery." More specifically, Brown contended:

"[J]urisdictional discovery might shed information on how the ABUS hoist got to Alabama, whether it was designed for the American market, whether it was designed for the specific Alabama application for which it was being used, the extent of ABUS' `subsidiary and partner' distribution network in the United States, whether it or its network is servicing the Decedent's employer's needs and whether it is otherwise aiming its activities to a multi-state market that includes Alabama."

On March 7, 2007, the trial court granted Brown's motion.

On March 21, 2007, ABUS's counsel sent a letter to Brown's counsel; that letter states:

"Yesterday I received a copy of [Brown's] Amended Complaint and just today received a copy of [Brown's] First Set of Interrogatories and Requests for Production of Documents.... Given that ABUS has a pending motion to dismiss based on personal jurisdiction ABUS will not be participating in any discovery not relating to its personal jurisdiction defense."

(Emphasis added.)

On approximately April 10, 2007, Brown sent ABUS a "notice of [Ala. R. Civ. P.] 30(b)(6) deposition of corporate representative of defendant [ABUS] and request for production of documents under [Ala. R. Civ. P.] 30(b)(5)" (hereinafter "the deposition notice"). The deposition notice contained 50 paragraphs with subparagraphs describing the requested information and documents. Approximately 24 of the paragraphs sought information regarding the sales of ABUS's products "in the United States," as well as information regarding ABUS's business contacts "in the United States" or "in North America." Examples of these paragraphs are as follows:

"1. Testimony and documents regarding all relationships, agreements and/or contracts, including but not limited to distribution agreements, service contracts, and/or sales agreements, [ABUS has] with any natural person, corporation, partnership, proprietorship, association, organization, group of persons, or any governmental body or subdivision thereof, company or other business entity in the United States.

"....

"4. Testimony and documents related to the distribution of ABUS ... products, including any crane, hoist, gantry, accessory, component part, spare part, or other item manufactured, produced, designed and/or distributed by ABUS ... or any of its subsidiaries, including but not limited to the ABUS ... crane/hoist which bears Serial Number 78838 (`the subject crane'), in the United States.

"5. Testimony and documents, including but not limited to invoices, receipts, sales records, sales ledgers, and/or electronically stored information, relating to the sales of ABUS Kransysteme GmbH products made to any natural person, corporation, partnership, proprietorship, association, organization, group of persons, or any governmental body or subdivision thereof, company or other business, in the United States.

"6. Testimony and documents which evidence, refer or relate to all payments received directly or indirectly, from any person, company or other business entity in the United States for the purchase of your products, including but not limited to the subject crane.

"7. Testimony and documents, including but not limited to all invoices, receipts, records, electronically stored information, or other documentation, regarding shipment, directly or indirectly, of your products to the United States."

(Emphasis added.) The deposition notice also sought "[t]estimony and documents, including but not limited to agreements and/or contracts, describing and/or reflecting [ABUS's] relationship with [EMH, Inc., an Ohio corporation, whose principal place of business is Cleveland, Ohio]."

On approximately April 17, 2007, ABUS sent Brown a letter, stating, in pertinent part:

"In reviewing the proposed deposition topics, I noticed that a number of these topics have no relevance to any contacts of ABUS within the State of Alabama, and some of the other topics are in part not related to Alabama jurisdiction. Obviously, I will be filing objections to those topics and/or parts. If you disagree with those objections and want Judge Thompson¹ to review validity of those, I will be glad to cooperate with you in getting a hearing scheduled to address that before the deposition on jurisdictional contacts.

"....

"In view of this information, if you would like to revise the topic list and limit it to personal jurisdiction contacts only, instead of using the current topic list, ... the deposition can probably be expedited to some further degree."

(Emphasis in original.)

On May 25, 2007, ABUS filed a notice of objections to the deposition notice. Typical of the objections was the response to paragraph six, which stated, in pertinent part: "ABUS objects to the topic as overly broad insofar as it seeks information not relevant to alleged contacts by ABUS with the State of Alabama." (Emphasis added.)

On September 6, 2007, Brown took the deposition of Karl Rudolph Vom Stein, who was in charge of ABUS's exports. During the deposition, however, ABUS's counsel instructed Vom Stein not to answer questions from Brown's counsel regarding ABUS's nationwide sales or business operations. On September 27, 2007, Brown filed a motion to compel ABUS "to fully and completely respond to [her deposition notice]."

However, on November 19, 2007, before the trial court ruled on Brown's motion to compel, ABUS filed a 23-page affidavit of Vom Stein, in which, as Brown concedes, he "gave detailed facts ... concerning topics foreclosed by ABUS' counsel during his deposition." Brown's brief, at 20. According to Vom Stein, for example, the only entity in the United States authorized to sell ABUS's products is EMH, Inc. ("EMH"). The pertinent facts of the affidavit were succinctly summarized by the trial court as follows:

"[Vom Stein] identifie[d] hoist number 78838 as a model GM 7000 and state[d] that this ABUS model is not authorized for sale to anyone in the United States. In addition, Mr. Vom Stein reiterate[d] that neither ABUS, nor its sole distributor in the United States, [EMH], sold hoist number 78838 to any party to this civil litigation and that ABUS did not sell, deliver, install, service or maintain this hoist in the State of Alabama and did not sell any replacement parts for this hoist in the United States or the State of Alabama.

"Instead, according to Mr. Vom Stein, ABUS manufactured hoist number 78838 in Germany in the year 2000 pursuant to a special order by its former customer, Kaverit Steel and Cranes, Ltd. (hereinafter `Kaverit'), a Canadian-based crane manufacturer. Mr. Vom Stein further state[d] the sale of hoist ...