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08/26/94 EX PARTE CHARLES E. SEKERES (RE MARY BETH

August 26, 1994

EX PARTE CHARLES E. SEKERES (RE: MARY BETH VEST, AS ADMINISTRATRIX OF THE ESTATE OF JIMMY RAY VEST, DECEASED
v.
PHYSICIANS WEIGHT LOSS CENTERS, ET AL.)



(Lauderdale Circuit Court, CV-93-341). Larry Mack Smith, Trial Judge.

Released for Publication December 2, 1994.

Almon, Shores, Steagall, Kennedy, and Ingram, JJ., concur. Houston, J., concurs specially.

The opinion of the court was delivered by: Almon

PETITION FOR WRIT OF MANDAMUS

ALMON, JUSTICE.

Charles E. Sekeres petitions this Court for a writ of mandamus ordering the circuit court to grant his motion to dismiss him from an action for lack of personal jurisdiction over him. Sekeres is the sole stockholder, president, and chief executive officer of Physicians Weight Loss Centers of America, Inc. ("PWLC"), and he personally designed and formulated the diet program marketed by PWLC, with assistance from others. Mary Beth Vest, as administratrix of the estate of Jimmy Ray Vest, deceased, filed a wrongful death action in the Circuit Court of Lauderdale County against Sekeres, PWLC, and others, alleging that Jimmy Ray Vest's death was proximately caused by his participation in the PWLC diet program. The circuit court denied Sekeres's motion to dismiss.

Rule 4.2(a)(1), Ala. R. Civ. P., allows service of process "outside of this state upon a person in any action in this state" when the person has "sufficient contacts with this state ... so that the prosecution of the action against the person in this state is not inconsistent with the constitution of this state or the Constitution of the United States." "Sufficient contacts" is defined in Rule 4.2(a)(2), and Rule 4.2(a)(2)(I) states that a person has sufficient contacts with this state "when that person ... may be legally responsible as a consequence of ... having some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action." These provisions have been held to extend the in personam jurisdiction of the courts of this state to the permissible limits of due process. Bryant v. Ceat S.p.A., 406 So. 2d 376 (Ala. 1981), cert. denied, 456 U.S. 944, 102 S. Ct. 2008, 72 L. Ed. 2d 466 (1982); Alabama Power Co. v. VSL Corp., 448 So. 2d 327 (Ala. 1984); Ex parte Paul Maclean Land Services, Inc., 613 So. 2d 1284 (Ala. 1993).

Sekeres relies principally upon Thames v. Gunter-Dunn, Inc., 373 So. 2d 640 (Ala. 1979), quoting the following excerpts from that opinion:

"It is clear that jurisdiction over individual officers or employees of a corporation may not be predicated merely upon jurisdiction over the corporation itself. [Citations omitted.]

"... It is established that there must be a showing that the individual officers engaged in some activity that would subject them to the state's long-arm statute before in personam jurisdiction can attach.

"In Idaho Potato Comm'n v. Washington Potato Comm'n, 410 F. Supp. 171, 181 (D.Idaho 1975), the court said:

"'Unless there is evidence that the act by the corporate officer was other than as an agent for the corporation, then personal jurisdiction over the corporate officer will not lie. Fashion Two Twenty, Inc. v. Steinberg, 339 F. Supp. 836, 842 (E.D.N.Y. 1971).'

"In this case there was no allegation that the corporate entity was a sham or 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 ...


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