Pardue v. Club at 219 Dauphin, Inc. (Ex parte Int'l Creative Mgmt. Partners, LLC)

Decision Date02 February 2018
Docket Number1161059
Citation258 So.3d 1111
Parties EX PARTE INTERNATIONAL CREATIVE MANAGEMENT PARTNERS, LLC, d/b/a ICM Partners (In re: Jordan Taylor Pardue, a minor, and Terrie Pardue, individually and as mother and next friend of Jordan Taylor Pardue, a minor v. The Club at 219 Dauphin, Inc., et al.)
CourtAlabama Supreme Court

Rik S. Tozzi of Burr & Forman LLP, Birmingham; and Ricardo A. Woods and Taylor B. Johnson of Burr & Forman LLP, Mobile, for petitioner.

Desmond V. Tobias and Bryan E. Comer of Tobias, McCormick & Comer, LLC, Mobile, for respondents.

PARKER, Justice.

International Creative Management Partners, LLC, d/b/a ICM Partners ("ICM"), petitions this Court for a writ of mandamus directing the Mobile Circuit Court to vacate its order denying ICM's motion to dismiss the action filed against it by Jordan Taylor Pardue, a minor, and Terrie Pardue, individually and as Jordan's mother and next friend (hereinafter collectively referred to as "the Pardues"), on the basis that the circuit court lacked personal jurisdiction over it and to issue an order granting its motion. We grant the petition and issue the writ.

Facts and Procedural History

ICM, a limited liability company existing under the laws of the State of Delaware and registered to do business in California and New York, is a literary and talent agency that represents numerous clients throughout the world. ICM's clients perform at various venues around the United States, including venues in Alabama. According to ICM's petition, ICM’s principal place of business is in Los Angeles, California. None of ICM's members or managers reside in Alabama, and ICM does not own or lease property in Alabama, is not registered with the Alabama Secretary of State to do business in Alabama as a foreign entity, and "does not direct efforts regarding sales, marketing, or advertising to individuals or businesses located in Alabama."

Nick Storch, a talent agent employed by ICM at all times relevant to this case, worked out of ICM's New York office. One of the ICM clients assigned to Storch was Cannibal Corpse, a "death-metal" music band that is "owned, managed, promoted and/or controlled" by C.C. Touring Co., Inc., a Florida company. Red Mountain Entertainment, an Alabama company, contacted Storch to inquire about scheduling Cannibal Corpse for a live concert to be performed at Soul Kitchen Music Hall in Mobile, Alabama, on June 27, 2014. Storch, acting as agent for Cannibal Corpse and C.C. Touring, negotiated the details of the concert with Trevor Starnes, an employee of Red Mountain Entertainment. Storch stated in his affidavit testimony that all the fee negotiations were conducted by telephone and e-mail and that "[n]o ICM employees ... ever traveled to Alabama." Based on those negotiations, C.C. Touring and Red Mountain Entertainment entered into a contract, which ICM drafted. ICM received a $250 commission for booking Cannibal Corpse with Red Mountain Entertainment.

On June 27, 2014, Jordan1 attended the Cannibal Corpse concert at Soul Kitchen Music Hall. The Pardues state in their response to ICM's petition that, during the concert, "the crowd became violent and Jordan ... was thrown to the ground, suffering a spinal cord injury

." The Pardues alleged in their complaint that it was, or should have been, foreseeable "that patrons attending Cannibal Corpse concerts exhibit violent behavior, including ... forming ‘mosh pits’ and/or dancing, running[,] jumping or otherwise physically contacting other patrons during the concert." The Pardues state that Jordan's total medical bills for treating the injuries Jordan incurred at the concert exceed $1.2 million.

On July 3, 2014, the Pardues sued "Soul Kitchen Music Hall" and The Club at 219 Dauphin, Inc. ("the Club"), an Alabama company that owns, manages, and operates the Soul Kitchen Music Hall. On July 23, 2015, the Pardues amended their complaint to add ICM as a defendant. The Pardues, after amending their complaint a fourth time, alleged against ICM claims of negligence, wantonness, and "inciting imminent violence." The Pardues did not sue Red Mountain Entertainment.

On May 24, 2016, ICM filed a motion to dismiss the Pardues' claims against it under Rule 12(b)(2), Ala. R. Civ. P. ICM argued that Rule 4.2(b), Ala. R. Civ. P., Alabama's "long-arm" rule, did not operate to give the circuit court personal jurisdiction over ICM. Rule 4.2(b) states, in pertinent part:

"An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States ...."

On May 10, 2017, following some discovery related to the issue of the circuit court's personal jurisdiction over ICM, the Pardues filed a response to ICM's motion to dismiss, which the circuit court denied on July 31, 2017. The circuit court concluded that ICM's contacts with Alabama were such that it had general jurisdiction and specific jurisdiction over ICM.2 ICM then petitioned this Court for mandamus review of the circuit court's order denying its motion to dismiss.

Standard of Review

"We recently addressed the standard of review in a proceeding challenging the trial court's ruling on a motion to dismiss for lack of personal jurisdiction in Ex parte Bufkin, 936 So.2d 1042, 1044–45 (Ala. 2006) :

" ‘ " ‘The writ of mandamus is a drastic and extraordinary writ, to be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) ; see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala. 1995).’ Ex parte Carter, [807 So.2d 534,] 536 [ (Ala. 2001) ]."
" ‘ Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001). "An appellate court considers de novo a trial court's judgment on a party's motion to dismiss for lack of personal jurisdiction." Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala. 2002).
" ‘ " "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) )."
" ‘ " Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala. 2002) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala. 2001) ). However, if 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) )."
" Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229–30 (Ala. 2004).’ "

Ex parte Duck Boo Int'l Co., 985 So.2d 900, 905–04 (Ala. 2007).

Discussion

The only issue before this Court is whether the circuit court's assertion of personal jurisdiction over ICM comports with due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution. This Court recently set forth the applicable law in Hinrichs v. General Motors of Canada, Ltd., 222 So.3d 1114, 1120–22 (Ala. 2016) :

"In Robinson v. Harley–Davidson Motor Co., 354 Or. 572, 316 P.3d 287 (2013), the Supreme Court of Oregon, addressing the issue whether asserting jurisdiction over a foreign corporation comports with due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution, aptly summarized the current status of the United States Supreme Court's holdings, including Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). The Robinson court stated:
" ‘Under Supreme Court jurisprudence, an exercise of jurisdiction over a nonresident defendant comports with due process if there exists "minimum contacts" between the defendant and the forum state such that maintaining suit in the state would "not offend traditional notions of fair play and substantial justice." World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291–92, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (internal quotation marks omitted); see alsoInternational Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ("[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ "). Due process is thus satisfied if "the defendant's conduct and connection with the forum State are such that he [or she] should
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  • Alabama's Appellate Standards of Review in Civil Cases
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    • Alabama State Bar Alabama Lawyer No. 81-1, January 2020
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    ...2004).'" Ex parte Duck Boo Int'l Co., 985 So. 2d 900, 905-06 (Ala. 2007). Ex parte International Creative Management Partners, LLC, 258 So. 3d 1111, 1114 (Ala. 2018). c. Ala. R. Civ. P. 12(b)(3) dismissal for improper venue "'"The question of proper venue for an action is determined at the ......

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