Ex Parte Puccio, 1031938.

• Decision Date: 09 September 2005
• Docket Number: 1031938.
• Citation: 923 So.2d 1069
• Court: Alabama Supreme Court
• Parties: Ex parte John PUCCIO. (In re Richard Grant and Abigayle Grant v. Cambridge Credit Counseling Corporation et al.)

Page 1069

923 So.2d 1069

Ex parte John PUCCIO.

(In re Richard Grant and Abigayle Grant v. Cambridge Credit Counseling Corporation et al.)

1031938.

Supreme Court of Alabama.

September 9, 2005.

William P. Cobb II and Louis M. Calligas of Balch & Bingham, LLP, Montgomery and Kenneth G. Menendez and Jeffery R. Saxby of Epstein, Becker & Green, P.C., Atlanta, Georgia, for petitioner.

Submitted on petitioner's brief only.

BOLIN, Justice.

John Puccio petitions this Court for a writ of mandamus ordering the trial court to grant his Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss him as a defendant in an action brought by Richard Grant and Abigayle Grant on the basis that the trial court lacks personal jurisdiction over him.

On October 22, 2003, the Grants sued Cambridge Credit Counseling Corporation, Puccio, Jessica Spence, and several fictitiously named parties in the Montgomery Circuit Court, seeking damages and injunctive relief arising out of the Grants' participation in a debt-management program offered by Cambridge Credit for the payment of credit-card debt.¹ On June 1, 2004, the Grants filed a motion for leave to amend their complaint.² On June 2, 2004, Puccio moved to dismiss the complaint on the ground that as to him the trial court lacked personal jurisdiction. Puccio attached to his motion to dismiss an affidavit, stating that he had no bank accounts or other financial interests in Alabama and that he had never personally spoken to the Grants. He also stated that he had executed the service agreement between the Grants and Cambridge Credit in the course and scope of his duties as president of Cambridge Credit. On June 8, 2004, the trial court granted the Grants' motion to amend. In their amended complaint, the Grants asserted Cambridge Credit was an alter ego of Puccio. On June 25, 2004, Puccio filed a motion entitled "Supplement to Motion to Dismiss," again addressing whether Puccio had minimum contacts with Alabama so as to subject him to jurisdiction here and addressing the alter-ego argument raised in the Grants' amended complaint. On July 6, 2004, Puccio filed a "Notice of Filing Corrected Exhibit 1 to Motion to Dismiss." To that filing Puccio attached a certified copy of a motion to dismiss with attachments, which he had filed in the United States District Court when the action had been removed to the federal court. One of the attachments is a signed affidavit by Puccio, which contains substantially the same factual averments as the affidavit he filed on June 2, 2004. However, the affidavit attached to the July 6, 2004, filing was not a sworn affidavit.³ At a hearing on July 7, 2004, the parties addressed the minimum-contacts argument and the alter-ego argument. The trial court denied the motion to dismiss on August 19, 2004. Puccio timely filed his petition on September 27, 2004.

A petition for a writ of mandamus is the appropriate remedy by which to challenge an interlocutory order on the issue of personal jurisdiction, and a writ will issue only upon a showing of "(a) a clear legal right in the petitioner to the order sought, (b) an imperative duty upon 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 McInnis, 820 So.2d 795, 798 (Ala. 2001).

"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)."

Ex parte McInnis, 820 So.2d at 798.

In Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 230 (Ala.2004), this Court stated:

"[I]f the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, `the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.' Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002)(citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D.Del.1995)(`When a defendant files a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.') (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984))."

In his motion to dismiss filed on June 2, 2004, Puccio argued that, as a corporate officer of Cambridge Credit, he lacked sufficient minimum contacts with Alabama to satisfy the requirements of personal jurisdiction. However, Puccio's motion to dismiss the original complaint is moot because the Grants subsequently amended their complaint. An amended complaint supersedes the previously filed complaint and becomes the operative pleading, unless it subsequently is modified. Grayson v. Hanson, 843 So.2d 146 (Ala.2002). Puccio's June 2, 2004, motion to dismiss is addressed solely to the original complaint, and the original complaint has been superseded. See Holley v. St. Paul Fire & Marine Ins. Co., 396 So.2d 75 (Ala.1981)(noting that once an amended pleading is interposed, the original pleading no longer performs any function and any subsequent motion by an opposing party should be directed to the amended pleading); see also Kentucky Press Ass'n, Inc. v. Kentucky, 355 F.Supp.2d 853 (E.D.Ky.2005)(plaintiff's amended complaint superseded the original complaint, making moot the motion to dismiss the original case); In re Colonial Ltd. P'ship Litig., 854 F.Supp. 64, 80 (D.Conn. 1994)("It frequently happens in the district court that a plaintiff amends its complaint while a motion to dismiss is pending. A court then . . . may . . . deny[ ] the motion as moot. . . ."). Accordingly, Puccio's June 2, 2004, motion to dismiss is moot. That result, however, did not prevent Puccio from filing a motion to dismiss the amended complaint on June 25, 2004, in response to the amended complaint.⁴ In his second motion to dismiss based on lack of personal jurisdiction, he discusses the minimum-contacts and alter-ego arguments. We note that Puccio filed an affidavit in support of his first motion to dismiss disputing that he had had the necessary minimum contacts with Alabama to form a basis for personal jurisdiction over him. We also recognize that after he filed his second motion to dismiss, Puccio, on July 6, 2004, filed a certified copy of an unsworn affidavit. Even if the court could have considered that affidavit, the substance of that affidavit does not address the allegations that Cambridge Credit was the alter ego of Puccio.

Due-process concerns are satisfied when a nonresident defendant has "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Alabama's long-arm rule, Rule 4.2, Ala. R. Civ. P., "extends the personal jurisdiction of Alabama courts to the limits of due process under the federal and state constitutions." Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002). A party's contacts with the forum state can be either general or specific.

"`General contacts, which give rise to general personal jurisdiction, consist of the defendant's contacts with the forum state that are unrelated to the cause of action and that are both "continuous and systematic." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)[citations omitted]. Specific contacts, which give rise to specific jurisdiction, consist of the defendant's contacts with the forum state that are related to the cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id.'"

Elliott, 830 So.2d at 730.

In Thames v. Gunter-Dunn, Inc., 373 So.2d 640 (Ala.1979), this Court held that officers of an out-of-state bank, who had never been in Alabama and who had conducted no personal business either through the use of the corporation as an alter ego or through personal agents in this state, were not subject to the jurisdiction of Alabama courts. With regard to the alter-ego theory, the Court stated:

"In this case there was no allegation that the corporate entity was a sham or a facade intended only to protect the individual appellees. Nor was there a showing that the appellees engaged in any business for personal gain or profit or any transaction which was outside the scope of their employment with the bank. Thus the corporation could not be said to have acted as an agent of the individual appellees so as to become their alter egos and to warrant personal jurisdiction over them."

373 So.2d at 642.

Ex parte Sekeres, 646 So.2d 640 (Ala. 1994...