United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendants' motion to
dismiss for lack of personal jurisdiction. (Doc. 14). The
parties have filed briefs and evidentiary materials in
support of their respective positions, (Docs. 14, 16-20,
21-1),  and the motion is ripe for resolution.
After careful consideration, the Court concludes the motion
is due to be granted.
to the complaint, (Doc. 1), the plaintiff's predecessor
loaned money to non-party Neverve, LLC
(“Neverve”). David A. Stewart is half owner of
Neverve and a guarantor of the loans to Neverve. In 2015, the
plaintiff foreclosed on the defaulted loans and received a
deficiency judgment of almost $20 million.
is also an owner or part owner of several other entities. In
2011, he and other individuals, along with most of these
entities, entered an agreement to pledge all BP oil spill
claims, and the proceeds therefrom, as collateral to the
plaintiff's predecessor. Although Neverve is not named as
a party to the agreement and is not within the defined term,
“Affiliate, ” the plaintiff asserts that any BP
claim and/or proceeds of Neverve were pledged as collateral
under this agreement, giving rise to a security interest in
any such proceeds.
early 2015, the plaintiff placed Stewart in involuntary
bankruptcy in Alabama, which proceeding was transferred to
Oklahoma. The defendants (collectively, “Welch”)
are an Oklahoma attorney and his law firm. After his
bankruptcy proceeding was transferred to Oklahoma, Welch
became Stewart's bankruptcy counsel.
January 2016, Stewart executed an agreement pursuant to which
Welch would provide bankruptcy and other representation to
Stewart's entities, including Neverve, and the entities
guaranteed payment of Welch's legal fees, including those
associated with Stewart's bankruptcy case. The plaintiff
believes the guaranty is invalid because the permission of
the trustee in Stewart's bankruptcy case (standing in
Stewart's shoes as owner or co-owner) was not sought or
2016, Neverve retained an Alabama law firm (“Taylor
Martino”) to pursue its BP claim. Welch then entered a
fee-sharing agreement with Taylor Martino with regard to the
BP claims of certain of Stewart's entities, purportedly
including Neverve. The plaintiff believes this agreement is
invalid for want of the trustee's authorization.
Neverve claim rapidly settled and, in August 2016, Taylor
Martino wired from its IOLTA account to Welch's IOLTA
account funds representing both Welch's share of the
contingency fee on the BP claim and the net proceeds of the
claim. Between August 2016 and September 2017, Welch
transferred over $277, 000 from the Welch IOLTA account to
the firm account to cover attorney's fees for Welch's
bankruptcy representation of Stewart.
complaint asserts causes of action for fraudulent transfer
under Alabama and Oklahoma law; conversion; civil conspiracy;
unjust enrichment; constructive trust; and equitable lien.
plaintiff seeking to establish personal jurisdiction over a
nonresident defendant bears the initial burden of alleging in
the complaint sufficient facts to make out a prima facie case
of jurisdiction.” Louis Vuitton Malletier, S.A. v.
Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013)
(internal quotes omitted). “When a defendant challenges
personal jurisdiction by submitting affidavit evidence in
support of its position, the burden traditionally shifts back
to the plaintiff to produce evidence supporting jurisdiction,
” unless “the defendant's affidavits contain
only conclusory assertions that the defendant is not subject
to jurisdiction.” Id. (internal quotes
omitted). “Where the plaintiff's complaint and
supporting evidence conflict with the defendant's
affidavits, the court must construe all reasonable inferences
in favor of the plaintiff.” Meier ex rel. Meier v.
Sun International Hotels, Ltd., 288 F.3d 1264, 1269
(11th Cir. 2002); accord Diamond Crystal
Brands, Inc. v. Food Movers International, Inc., 593
F.3d 1249, 1257 (11th Cir. 2010).
evidentiary hearing on a motion to dismiss for lack of
personal jurisdiction is discretionary, not mandatory.
E.g., Snow v. DirecTV, Inc., 450 F.3d 1314, 1317
(11th Cir. 2008). Because the parties have not
requested an evidentiary hearing, the Court exercises its
discretion not to conduct one. Absent such a hearing, a
plaintiff's burden is to present enough evidence,
construed most favorably to him, to withstand a motion for
directed verdict. Id.
state's personal jurisdiction over a defendant may be
either general or specific. The plaintiff does not invoke