Homtex Inc. v. Calamity Jane's Funk and Junk Inc.

          MEMORANDUM OPINION AND ORDER

          LILES C. BURKE UNITED STATES DISTRICT JUDGE

         Plaintiff originally filed this action in the Circuit Court of Cullman County, Alabama, on November 28, 2018, against the Defendant for breach of a contract along with several other counts. (Doc. no. 1-1). Plaintiff alleges that Defendant ordered substantial textile apparel from their company and has failed to pay according to their agreement. Id. The damage alleged by Plaintiff is approximately $171, 548.80, plus interest, costs and fees. Id. Defendant filed a notice of removal on January 2, 2019, citing diversity jurisdiction.^[1] (Doc. no. 1).

         The case currently is before the Court on Defendant's Motion to Dismiss for Lack of Personal Jurisdiction (doc. no. 3). Plaintiff filed their response on January 25, 2019. (Doc. no. 7). Defendant filed a reply on February 1, 2019 (doc. no. 9). The parties presented oral arguments on May 2, 2019. Upon review and for the reasons stated herein, the Court concludes that Defendant's Motion to Dismiss (doc. no. 3) is due to be denied.

         I. STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 12(b)(2), “[a] plaintiff seeking the exercise of 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.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). After the defendant challenges jurisdiction with 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.” Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002). See also Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir.2006). However, if “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, 288 F.3d at 1269.

         Upon diversity a federal court “may exercise personal jurisdiction over a nonresident defendant to the same extent that [an Alabama] court may, so long as the exercise is consistent with federal due process requirements.” Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008). Alabama's long-arm statute, “. . .permits its courts to exercise jurisdiction over nonresidents to the fullest extent allowed under the Due Process Clause of the Fourteenth Amendment to the Constitution.” Ruiz de Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1355-56 (11th Cir. 2000) (citing Martin v. Robbins, 628 So.2d 614, 617 (Ala. 1993)). See also Ala. R. Civ. P. 4.2 (permitting jurisdiction over nonresident defendants on any basis “not inconsistent with the constitution of this state or the Constitution of the United States”). Therefore, this Court may exercise personal jurisdiction over a defendant so long as jurisdiction is consistent with federal due process under the Fourteenth Amendment to the U.S. Constitution.

         The Supreme Court has recognized two types of personal jurisdiction that are consistent with the Due Process Clause of the Fourteenth Amendment, general jurisdiction and specific jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923-24 (2011). A defendant subject to general jurisdiction in a forum may be sued in that forum on any and all claims against it, even if the claims have no connection to the forum. Id. at 919. In contrast, a court has specific jurisdiction over a defendant only with respect to claims that arise out of or relate to the defendant's contacts with the forum. Id. at 923-24.

         In the case at bar, the Plaintiff concedes that the Defendant is not subject to general personal jurisdiction. (Doc. no. 7, p. 12). Thus, this Court must simply address the question of whether the Defendant is subject to specific jurisdiction in Alabama for the claims asserted against it in this action.

         The Eleventh Circuit follows a three-part test to determine whether specific jurisdiction over a defendant is proper. Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013). The test as set out in Mosseri provides that the Court address the following:

(1) whether the plaintiff's claims “arise out of or relate to” at least one of the defendant's contacts with the forum; (2) whether the nonresident defendant “purposefully availed” himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state's laws; and (3) whether the exercise of personal jurisdiction comports with “traditional notions of fair play and substantial justice.”

Id. at 1355 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 474- 75 (1985). See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14 (1984); and Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The burden generally rests upon the Plaintiff to establish the first two prongs, if successful, the burden then shifts to the defendant to avoid jurisdiction by making “a compelling case that the exercise of jurisdiction would violate traditional notions of fair play and substantial justice.” Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1267 (11th Cir. 2010)).

         II. SUMMARY OF FACTS

         In support of the motion Defendant submitted an affidavit of its founder and Chief Executive Officer, Jazmine Farmer. (Doc. no. 3-1). Plaintiff, in response, provided an affidavit of Maury Lyon, Vice President of Apparel Sales for the Plaintiff. (Doc. no. 7-1). Based upon the pending motion, response, supporting affidavits, and oral arguments the following facts are undisputed:

1. Defendant is an Oklahoma Corporation with its principal place of business in Oklahoma City, Oklahoma; it has no offices, property, employees or agents in Alabama; it has no registered agent for service of process in Alabama; it has no state bank accounts in Alabama nor does it pay taxes in Alabama. (Doc. no. 3-1).

2. Plaintiff is an Alabama Company with its principal place of business located in Cullman, Alabama. (Doc. no. 1-1).

3. Defendant engaged the Plaintiff to manufacture “custom-made apparel items (including T-shirts, long sleeve shirts, pillow covers, and other similar products) (the ‘Spring 2018 Merchandise') with designs specifically made for Defendant and bearing Defendant's trade name ‘Calamity Jane's Apparel.'” (Doc. nos. 1-1 ¶ 16, 3-1 ¶ 5 and 7-1).

4. On July 24, 2017 the Defendant submitted the first order for the Fall 2017 Merchandise, a total of 13, 041 items for $89, 346.35. (Doc. nos. 1-1, 3-1, 7-1 and 7-2, at 1-2).

5. In October 2017 Defendant submitted a second order described by Plaintiff as “large sample order for multiple different styles of shirts.” (Doc. nos. 3-1 and 7-1).

6. On November 10, 2017, Defendant submitted a third order for samples for the Spring 2018 order. (Doc. ...