Ex parte McInnis

• Decision Date: 02 November 2001
• Citation: 820 So.2d 795
• Parties: Ex parte Sam McINNIS, Michael Borka, and Tim Shingleton. (Re Pamela Alice Little Daniel, as administratrix of the estate of Joe Ed Daniel, deceased v. Pandora Manufacturing, Inc., et al.) Ex parte Pamela Alice Little Daniel, as administratrix of the estate of Joe Ed Daniel, deceased. (Re Pamela Alice Little Daniel, as administratrix of the estate of Joe Ed Daniel, deceased v. Pandora Manufacturing, Inc., et al.)
• Court: Alabama Supreme Court

820 So.2d 795

Ex parte Sam McINNIS, Michael Borka, and Tim Shingleton.

(Re Pamela Alice Little Daniel, as administratrix of the estate of Joe Ed Daniel, deceased v. Pandora Manufacturing, Inc., et al.)

Ex parte Pamela Alice Little Daniel, as administratrix of the estate of Joe Ed Daniel, deceased.

(Re Pamela Alice Little Daniel, as administratrix of the estate of Joe Ed Daniel, deceased v. Pandora Manufacturing, Inc., et al.)

1959.

Supreme Court of Alabama.

November 2, 2001.

Edward C. Greene of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile; and Kirk G. Warner of Yates, McLamb & Weyher, L.L.P., Raleigh, North Carolina, for Sam McInnis, Michael Borka, and Tim Shingleton.

Mark A. Ash of Smith, Anderson, Blount & Dorsett, Raleigh, North Carolina, for Sam McInnis.

Joseph M. Brown, Jr., David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile; Thomas R. Dolven of Dewhirst & Weeks, L.L.P., Denver, Colorado; and Bayless E. Biles and Taylor D. Wilkins, Jr., of Wilkins, Bankester, Biles & Wynne, Bay Minette, for Pamela Alice Little Daniel.

JOHNSTONE, Justice.

Petitioners-defendants Sam McInnis, Michael Borka, and Tim Shingleton petition this Court for a writ of mandamus to direct the trial judge to vacate her order denying these defendants' Rule 12(b)(2), Ala. R. Civ. P., motions to dismiss for want of personal jurisdiction and to direct her to enter an order granting these motions. We deny mandamus relief to the defendants McInnis and Shingleton but grant mandamus relief to the defendant Borka.

Anticipating the possibility that this Court might grant the writ of mandamus sought by the petitioner-defendants, the plaintiff Pamela Alice Little Daniel has filed her own petition for a writ of mandamus to direct the trial judge to vacate an order granting these defendants' motions to strike certain evidentiary materials submitted by the plaintiff in opposition to these defendants' Rule 12(b)(2) motions to dismiss. The plaintiff asks that, if we grant these defendants relief by directing the trial judge to vacate her order denying these defendants' Rule 12(b)(2) motions, we also direct the trial judge to consider the plaintiff's evidentiary materials in a further consideration of these defendants' Rule 12(b)(2) motions. The plaintiffs petition for a writ of mandamus is moot in part and denied in part.

Pamela Alice Little Daniel, as the administratrix of her husband's estate, sued Sam McInnis, Michael Borka, Tim Shingleton, Snap Products, Inc., Snap Automotive Products, Inc., and other foreign corporations for tortiously formulating, manufacturing, labeling, and distributing a product named "Fix-a-Flat Non-Explosive Formula," which, the plaintiff alleges, killed her husband Joe Ed Daniel, and for thereby wrongfully causing his death. Each of the defendants McInnis, Borka, and Shingleton, all residents of North Carolina, filed a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss the claims against him for lack of personal jurisdiction on the ground that he did "not have sufficient or minimal personal contacts to confer personal jurisdiction over him, individually or as an officer of Snap, in the courts of Alabama in this action"; and each of these defendants filed an affidavit in support of his motion to dismiss. Thereafter, the plaintiff filed an amended complaint, and the defendant Shingleton filed a supplemental affidavit. The parties agreed that these three defendants could refrain from answering the plaintiff's complaint as amended until after these defendants' Rule 12(b)(2) motions to dismiss were finally decided.

In hearing and denying these three defendants' Rule 12(b)(2) motions, the trial judge considered only those facts alleged in the plaintiff's complaint and amended complaint and those facts sworn in the four affidavits filed by the defendants. The trial judge refused to consider the evidentiary materials submitted by the plaintiff.

In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiff's complaint not controverted by the defendant's affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and "where the plaintiff's complaint and the defendant's affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff." Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)). "For purposes of this appeal [on the issue of in personam jurisdiction] the facts as alleged by the ... plaintiff will be considered in a light most favorable to him [or her]." Duke v. Young, 496 So.2d 37, 38 (Ala.1986).

A denial of a Rule 12(b)(2) motion to dismiss for want of personal jurisdiction is interlocutory and preliminary only. After such a denial, the continuation of personal jurisdiction over a defendant who appropriately persists in challenging it in the defendant's answer to the complaint and by motion for summary judgment or at trial depends on the introduction of substantial evidence to prove the plaintiff's jurisdictional allegations in the plaintiff's complaint. Hunt v. BP Exploration Co. (Libya) Ltd., 492 F.Supp. 885, 895 (N.D.Tex.1980); Speir v. Robert C. Herd & Co., 189 F.Supp. 436 (D.Md.1960); Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated § 12.3 (3d ed.1996); and Wright and Miller, Federal Practice and Procedure: Civil § 1351 at 568 (1969). See also Ex parte Sekeres, 646 So.2d 640, 642 (Ala.1994)(Houston, J., concurring specially)

.

A writ of mandamus is an extraordinary remedy which requires a showing of (a) a clear legal right in the petitioner to the order sought, (b) an imperative duty on the respondent to perform, accompanied by a refusal to do so, (c) the lack of another adequate remedy, and (d) the properly invoked jurisdiction of the court. Ex parte Bruner, 749 So.2d 437, 439 (Ala.1999). "Because the order of the trial court was interlocutory, a writ of mandamus is an appropriate remedy for the petitioners in this case." Ex parte Paul Maclean Land Servs., Inc., 613 So.2d 1284, 1286 (Ala.1993).

"A corporate agent who personally participates, albeit in his or her capacity as such agent, in a tort is personally liable for the tort." Sieber v. Campbell, 810 So.2d 641, 645 (Ala.2001). See also Bethel v. Thorn, 757 So.2d 1154, 1158 (Ala. 1999),

and Ex parte Charles Bell Pontiac-Buick-Cadillac-GMC, 496 So.2d 774, 775 (Ala.1986). Likewise, corporate agent status does not insulate the agent personally from his or her jurisdictional contacts with a state or from personal jurisdiction in the state. Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984); Sieber, supra; Sudduth v. Howard, 646 So.2d 664, 668 (Ala.1994); and Duke, 496 So.2d at 40.

The plaintiff's amended complaint pleads the manner of Mr. Daniel's death and pleads the personal participation of the defendants McInnis, Borka, and Shingleton in the formulation, manufacture, labeling, and distribution of the product which killed Mr. Daniel. These three defendants' own affidavits supply the remaining facts necessary to an analysis of the issue of the personal jurisdiction of the Alabama court over them.

On June 4, 1997, Mr. Daniel was killed by the explosion of Snap Fix-a-Flat Non-Explosive Formula ("the product") inside a motor grader tire mounted on its rim. He had been welding a small lug to the rim when the heat of the welding ignited the product, and the consequent explosion propelled fragments of the tire and components of the rim assembly into him and thereby decapitated him. The tire had previously been inflated with two cans of the product.

At the time the two cans of the product were manufactured, labeled, and distributed, a transferable label system was commonly available, known and used in the tire-inflator industry. Typically, a removable warning label would be affixed to the tire-inflator can with instructions to peel the label off the can and to transfer the label to whatever tire was inflated with the contents of the can. The product which killed Mr. Daniel was not manufactured or distributed with any such label, and consequently the tire which exploded had not been labeled with such a warning, even though the propellant contained in the product was explosive dimethyl ether ("DME"), known at the time to have caused injuries and deaths like Mr. Daniel's. (The name of the propellant dimethyl ether bears remembering because its explosive nature is important to the rationale of this case.) Rather, the cans used to inflate the tire involved in Mr. Daniel's death were marked "Fix-a-Flat NON-EXPLOSIVE FORMULA." (Capitalization in original.) The pleadings allege that "Mr. Daniel, and the individuals who previously purchased and injected the `fix-a-flat NON-EXPLOSIVE FORMULA' tire inflator product into the subject motor grader tire, were disarmed by the product's labeling into believing the motor grader tire did not have to be removed from the rim before the tacking procedure was performed."

The pleadings allege that, "[p]rior to June 4, 1997," McInnis, Borka, and Shingleton (among other defendants) "formulated, manufactured, labeled, packaged, sold, supplied and/or distributed the `fix a flat NON-EXPLOSIVE FORMULA' tire inflator/sealant involved in the accident made the basis of this suit." The ostensible corporate source of the product was Snap Products, Inc. The product was marketed "throughout the United States, including the state of Alabama." In April 1995, over two years before Mr. Daniel's death, the defendants McInnis, Borka, and Shingleton formed Snap Automotive Products, Inc., and purchased Snap Products, Inc., from its then owners, the "Bishop Estate" in Hawaii. "Defendant Snap Automotive Products, Inc. is a Delaware corporation with its principal residence...