source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte John BUFKIN. (In re George Roberts v. John Bufkin and Byron Williamson).
    1041890.
    Supreme Court of Alabama.
    Feb. 10, 2006.

      Rick A. Howard and Jason D. Darneille of Nix Holtsford Gilliland Higgins & Hit-son, P.C., Montgomery, for petitioner.
    Robert G. Wilson of Wilson & Scott, LLC, Fort Payne, for respondent.
   LYONS, Justice.

George Roberts sued John Bufkin and Byron Williamson in the Sumter Circuit Court. Bufkin filed a motion to dismiss on the basis that the trial court lacked personal jurisdiction over him. The trial court denied that motion, and Bufkin filed this petition for a writ of mandamus. We deny the petition.

I. Facts and Procedural History

According to Roberts’s complaint, on September 12, 2003, he was permanently injured and his property damaged when Bufkin backed a truck over the motorcycle Roberts was riding. The accident occurred in Fayetteville, Tennessee. Bufkin is a resident of Mississippi. Williamson, who owns the truck Bufkin was driving at the time of the accident and who is also a defendant in the case, is a resident of Alabama, as is Roberts, the plaintiff. Williamson was not present at the time of the accident. Roberts alleged negligence and wantonness on the part of Bufkin and negligent entrustment on the part of Williamson.

Bufkin filed with the trial court a motion to dismiss, arguing that the court lacked personal jurisdiction over him. Williamson filed a motion for a summary judgment, setting forth defenses to Roberts’s negligent-entrustment claim. The trial court denied Bufkin’s motion to dismiss and reserved judgment on Williamson’s summary-judgment motion until discovery was completed. Bufkin then filed this petition for the writ of mandamus in which he argues that the trial court erred in denying his motion to dismiss for lack of personal jurisdiction.

II. Standard of Review

“ ‘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 tidal 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 plaintiffs 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 plaintiffs 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 evi-dentiary 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).

III. Analysis A.

“A state has jurisdiction over a person or corporation so long as its ‘long-arm statute’ reaches the person or corporation and the state’s jurisdiction comports with the requirements of due process.” Leithead v. Banyan Corp., 926 So.2d 1025, 1029-30 (Ala.2005). Rule 4.2, Ala. R. Civ. P., Alabama’s long-arm rule, provides:

“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....”

Therefore, Alabama’s long-arm rule extends the personal jurisdiction of Alabama courts to the limits of due process permissible under the Fourteenth Amendment to the United States Constitution and Art. I, § 13, Constitution of Alabama of 1901. See Ex parte Alloy Wheels Int’l, 882 So.2d 819, 822 (Ala.2003).

“The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to jurisdiction in its courts only when that defendant has had ‘minimum contacts’ with the forum state.” Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 644 (Ala. 2003) (citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

“ ‘Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. 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.’
“Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result). Furthermore, this Court has held that, for specific in personam jurisdiction, there must exist ‘a clear, firm nexus between the acts of the defendant and the consequences complained of.’ Duke v. Young, 496 So.2d 37, 39 (Ala.1986). See also Ex parte Kamilewicz, 700 So.2d 340, 345 n. 2 (Ala.1997).”

Elliott, 830 So.2d at 730-31.

Roberts argues that the trial court has specific personal jurisdiction over Buf-kin, focusing on Bufkin’s contacts with Alabama that are related to the underlying cause of action. According to Roberts’s complaint, “[a]t the time of the accident complained of, [Bufkin] was the agent, servant or employee of [Williamson] and/or was involved in a joint venture with [Williamson].” According to Williamson’s summary-judgment motion, Williamson’s truck, being driven by Bufkin at the time of the accident involving Roberts, had a horse trailer attached to it when Bufkin backed over Roberts’s motorcycle, a fact Bufkin admits in his reply brief. In an affidavit submitted to the trial court, Buf-kin concedes that, at some point in September 2003, the month in which the accident occurred in Tennessee, Bufkin was present in Alabama.

We have recently reiterated the principle that “ ‘ “[t]he plaintiff bears the burden of proving the court’s personal jurisdiction over the defendant.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002).’ ” Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 463 (Ala.2003) (quoting Ex parte Dill, Dill, Car)", Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala. 2003)). While affidavits filed by Bufkin and Williamson do not contradict the allegations of agency contained in Roberts’s complaint, based on the limited facts before us on this petition for the writ of mandamus, we cannot determine the nature of the alleged business relationship between Bufkin and Williamson; therefore, we cannot conclude that Bufkin’s contacts with Alabama are such that the trial court could have found, at this stage of the proceeding, that Roberts had established that that court had personal jurisdiction over Bufkin. However, if Roberts is entitled to conduct further discovery on the issue of personal jurisdiction, our inability to find personal jurisdiction based on the facts presently before us does not warrant our issuing the writ of mandamus and instructing the trial court to dismiss all claims against Bufkin.

B.

Roberts contends that before a final determination is made regarding personal jurisdiction as to Bufkin, Roberts is entitled to limited discovery to investigate facts relevant to that issue. Roberts points out that Bufkin has refused to respond to discovery requests, causing Roberts to file a motion to compel discovery. There is no indication that the trial court has ruled on Roberts’s motion to compel. Roberts contends that, while he believes that Bufkin and Williamson were involved in some sort of business relationship at the time of the accident, which is the reason Bufkin was driving Williamson’s truck, he is unable to confirm that belief because Bufkin has refused to respond to Roberts’s discovery requests.

In Ex parte Troncalli Chrysler Plymouth Dodge, Inc., a case involving discovery on the question of jurisdiction, this Court said:

“ ‘ “It is well established that a ... court has the power to require a defendant to respond to discovery requests relevant to his or her motion to dismiss for lack of jurisdiction.” ’ Andersen v. Sportmart, Inc., 179 F.R.D. 236, 241 (N.D.Ind.1998) (quoting Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 311 (S.D.Ind. 1997)). ‘However, it is also well established that a plaintiff does not enjoy an automatic right to discovery pertaining to personal jurisdiction in every case.’ Id. ‘[T]o be permitted jurisdictional discovery, [a] plaintiff must at least allege facts that would support a colorable claim of jurisdiction.’ Schenck v. Walt Disney Co., 742 F.Supp. 838, 840 n. 1 (S.D.N.Y.1990) (emphasis added). See also Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 312 (S.D.Ind.1997); Hansen v. Neumueller GmbH, 163 F.R.D. 471, 475 (D.Del.1995); Daval Steel Prods, v. M.V. Juraj Dalmatinac, 718 F.Supp. 159, 162 (S.D.N.Y.1989); Rich v. KIS California, Inc., 121 F.R.D. 254, 259 (M.D.N.C.1988).
“A request for jurisdictional discovery must offer the court ‘more than conjecture and surmise in support of [the] jurisdictional theory.’ Crist v. Republic of Turkey, 995 F.Supp. 5, 13 (D.D.C. 1998). ‘[The] standard is quite low, but a plaintiffs discovery request will nevertheless be denied if it is only based upon “bare,” “attenuated,” or “unsupported” assertions of personal jurisdiction, or when a plaintiffs claim appears to be “clearly frivolous.” ’ Andersen, 179 F.R.D. at 242.”

876 So.2d at 467-68.

In Troncalli, we held that the plaintiffs discovery request presented “nothing but ‘conjecture and surmise’ regarding the existence of general jurisdiction,” 876 So.2d at 468, and was therefore due to be denied. Unlike the complaint in Troncalli, which was devoid of allegations necessary to sustain personal jurisdiction, the complaint in this proceeding alleges that “[Bufkin] was the agent, servant or employee of [Williamson] and/or was involved in a joint venture with [Williamson].” Williamson, of course, is a resident of Alabama. Buf-kin admits in his affidavit that he visited Alabama during the month in which the accident occurred, and it is undisputed that Bufkin was driving Williamson’s truck at the time of the accident. Therefore, in contrast to the situation presented this Court in Troncalli, Roberts has “at least alleg[ed] facts that would support a color-able claim of jurisdiction.” 876 So.2d at 468. Limited discovery could flesh out Roberts’s allegations and could lead to a conclusion that the trial court can exercise personal jurisdiction over Bufkin.

The allegations before us in this proceeding are distinguishable from those in Troncalli, and they justify a less restrictive approach to allowing jurisdictional discovery. We embrace the rule applicable in such circumstance as expressed in Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir.2003):

“Although the plaintiff bears the burden of demonstrating facts that support personal jurisdiction, Pinker [v. Roche Holdings Ltd., 292 F.3d 361, 368 (3rd Cir.2002) ], courts are to assist the plaintiff by allowing jurisdictional discovery unless the plaintiffs claim is ‘clearly frivolous.’ Massachusetts School of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir.1997). If a plaintiff presents factual allegations that suggest ‘with reasonable particularity’ the possible existence of the requisite ‘contacts between [the party] and the forum state,’ Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992), the plaintiffs right to conduct jurisdictional discovery should be sustained.
“Where the plaintiff has made this required threshold showing, courts within this Circuit have sustained the right to conduct discovery before the district court dismisses for lack of personal jurisdiction. See, e.g., In re Automotive Refinishing Paint Antitrust Litigation, [No. 1426, July 31, 2002] (E.D.Pa. July 31, 2002) [not reported in F.Supp.2d] (denying motion to dismiss and permitting jurisdictional discovery where plaintiff made a ‘threshold prima facie showing of personal jurisdiction over Defendants’); W. Africa Trading & Shipping Co., et al. v. London Int’l Group, et al., 968 F.Supp. 996, 1001 (D.N.J.1997) (denying defendant’s motion to dismiss where the plaintiffs’ ‘request for jurisdictional discovery is critical to the determination of whether [the court can] exercise personal jurisdiction over the defendant.’); Centralized Health Systems, Inc. v. Cambridge Medical Instruments, Inc., [No. 89-3322, Nov. 8, 1989] (E.D.Pa. Nov. 8, 1989) [not reported in F.Supp.] (holding motion to dismiss in abeyance to permit party to take discovery on jurisdiction where distribution arrangement might satisfy minimum contacts).”

Without affording Roberts the opportunity for limited discovery on the issue of personal jurisdiction, we will not at this stage of the proceeding grant the writ of mandamus and order Bufkin’s dismissal from the action. The petition for mandamus is therefore premature and is due to be denied.

IV. Conclusion

The answer to the question whether Bufkin is subject to the jurisdiction of the trial court must await further discovery. We note that there is no ruling for us to review on Roberts’s pending motion to compel discovery. Nonetheless, we assume that further proceedings with respect to discovery from Bufkin will be limited to the issue of personal jurisdiction until that issue is resolved.

PETITION DENIED.

WOODALL, STUART, SMITH, and PARKER, JJ., concur.


author: STUART, Justice.

text:
    Ex parte UNITED INSURANCE COMPANIES, INC. (In re Patricia M. Jackson v. MEGA Life and Health Insurance Company et al.). Ex parte UICI Marketing, Inc. (In re Patricia M. Jackson v. MEGA Life and Health Insurance Company et al.). Ex parte United Group Service Centers, Inc. (In re Patricia M. Jackson v. MEGA Life and Health Insurance Company et al.). Ex parte Specialized Association Services, Inc. (In re Patricia M. Jackson v. MEGA Life and Health Insurance Company et al.).
    1041704, 1041705, 1041888, and 1041889.
    Supreme Court of Alabama.
    Feb. 10, 2006.

      Henry C. Callaway, E. Luckett Robinson II, and Lisa Darnley Cooper of Hand Arendall, L.L.C., Mobile, for petitioners United Insurance Companies, Inc., and UICI Marketing, Inc.
    John N. Bolus of Maynard, Cooper & Gale, P.C., Birmingham, for petitioners United Group Service Centers, Inc., and Specialized Association Services, Inc.
    Phillip W. McCallum, James M. Terrell, and P. Michael Yancey of McCallum, Methvin & Terrell, P.C., Birmingham, for respondent.
   STUART, Justice.

United Insurance Companies, Inc. (“UICI”), UICI Marketing, Inc., United Group Service Centers, Inc. (“UGSC”), and Specialized Association Services, Inc. (“SAS”) (hereinafter referred to collectively as “the petitioners”), petition this Court for writs of mandamus directing the trial court to vacate its order denying their motions to dismiss Patricia M. Jackson’s claims against them for lack of personal jurisdiction and to enter an order dismissing Jackson’s complaint insofar as it asserts claims against them. We deny the petitions.

Facts

Jackson sued the petitioners; her health insurer, MEGA Life and Health Insurance Company (“MEGA”); and others regarding the sale and administration of her health-insurance certificate issued by MEGA allegedly through the combined sales and marketing efforts of UICI, UICI Marketing, MEGA, UGSC, SAS, and the National Association for the Self-Employed (“the NASE”). Apparently, Jackson became associated with the NASE, an independent, not-for-profit association formed to independently research, negotiate, and endorse unaffiliated health-insurance carriers for the benefit of the members of the NASE; based on the NASE’s endorsement of the insurance offered by MEGA she purchased a MEGA insurance certificate.

According to Jackson’s complaint, UICI is the parent and sole shareholder of MEGA and UICI Marketing. The NASE, which is managed by SAS and, according to Jackson, is also under the control of UICI and MEGA, endorses only MEGA insurance policies. UICI Marketing generates potential policy purchasers, like Jackson, by using the NASE’s endorsement of MEGA in Internet advertising, print ads, signs, direct mail, and telemarketing. UGSC trains the NASE enrollers to approach potential leads generated by UICI Marketing. Jackson, however, alleges that the NASE enrollers, who she says are UICI agents, are actually insurance agents because, she says, the enrollment application for the NASE is an insurance application and with the completion of the application the enroller collects an “[NASE] association initiation fee” or registration fee, NASE dues, and the first month’s premium payment.

Jackson further alleges that UICI is controlled by Ronald Jensen, that the NASE was established by a former business partner of Jensen’s and is controlled by Jensen-family-owned businesses, and that SAS is run by Jensen’s son, but controlled by Jensen and other family members. Jackson alleges that all the companies work together to form a mechanism that allows them to avoid insurance regulations in implementing fraudulent writing of policies and pooling practices.

In her complaint, Jackson alleged claims of breach of fiduciary and trust duties, breach of contract, fraudulent suppression, unjust enrichment, civil conspiracy, fraud, breach of implied contract to procure insurance, negligence, negligence per se, wantonness, conversion, bad-faith refusal to pay, and bad-faith refusal to investigate. With regard to her claim of civil conspiracy, Jackson averred:

“78. [Jackson] hereby adopts and incorporates by reference all preceding paragraphs and further alleges:
“79. Defendants [UICI, UICI Marketing, UGSC, SAS, and MEGA] have engaged in an unlawful conspiracy to breach fiduciary duties, breach contracts and to mislead [Jackson], regarding among other things, (a) the full and true nature of the relationship between the Defendants, (b) the full and true nature of Defendants trust ‘group’ health coverage, (c) the full and true nature and manner in which premiums and premium increases would be determined and/or calculated for [Jackson], (d) the fact that the health insurance coverage marketed by Defendants was not a true group policy; (e) the fact that premium increases could be affected by individual claims experience, and (f) the fact that once premium increases began, the Defendants’ intent, purpose and goal was to make the coverage so expensive that [Jackson] and other insureds would no longer be able to afford the premiums and thus be forced to let the policy lapse.
“80. Defendants also combined and joined in a concerted effort to formulate a fraudulent and deceitful marketing scheme which prevented [Jackson] and others from discovering the true relationship of the related Defendants and their plans to extort and later share exorbitant fees and charges passed on to NASE participants.
“81. As a direct, foreseeable and proximate result thereof, [Jackson] was caused to suffer actual damages and will suffer such damages in the future.”

The petitioners moved for a dismissal of Jackson’s claims pursuant to Rule 12(b)(2), Ala. R. Civ. P., maintaining that the trial court did not have personal jurisdiction over them. In support of their motions, the petitioners filed affidavits from officers in their companies.

The vice president of UICI averred in his affidavit that UICI is a holding company incorporated in Delaware with its principal place of business in the State of Texas; that it is the parent company of MEGA; that MEGA is a wholly owned, independently operated subsidiary of UICI; that “UICI is not an insurer and does not participate in the business of insurance”; that UICI is not registered to do business in the State of Alabama; that it has never conducted business in Alabama; that it is not required to and has never filed a tax return in Alabama; that it does not own property in Alabama; that it does not maintain any offices or a telephone listing or have any employees in Alabama; and that it had no involvement in the marketing, sale, underwriting, or administration of any insurance coverage issued to Jackson or any other resident in Alabama.

Similarly, the affidavit of the controller and treasurer of UICI Marketing averred that UICI Marketing is a Delaware corporation with its principal place of business in Texas; that it is not an insurer and does not participate in the business of insurance; that it is not registered as an insurer in Alabama; that it is not registered to do business in Alabama; that it does not pay Alabama taxes or own property in Alabama; that it has no employees in Alabama; that it does not have a telephone listing in Alabama; that it has never conducted any business in Alabama; and that it was not involved in the sale, underwriting, or administration of any insurance coverage issued to Jackson or any other Alabama resident.

The officer for UGSC averred in her affidavit in support of UGSC’s motion to dismiss that UGSC is a registered and licensed Texas staff-leasing-service company with its principal place of business in Texas; that it had not conducted business in Alabama; that it has no employees in Alabama; that it is not required to be registered, licensed, or otherwise qualified to do business in Alabama; that it is not required to file any type of tax return in Alabama; that it does not maintain any offices in Alabama; that it does not own any property in Alabama; that it has never maintained any offices in Alabama; that it does not employ any insurance agents in Alabama; that it does not derive substantial revenue from goods, services, or products from Alabama; that it did not solicit, market, sell, issue, underwrite, or administer Jackson’s insurance certificates; and that it has never solicited, marketed, sold, issued, underwritten, or administered insurance in Alabama.

The director of operations for SAS averred in her affidavit in support of SAS’s motion to dismiss that SAS is a Texas corporation with its principal place of business in Texas; that it provides its clients with a number of “back office” administrative services; that it does not conduct business in Alabama; that it is not registered, licensed, or qualified to do business in Alabama; that it is not required to file any type of tax return in Alabama; that it does not have employees in Alabama; that it does not maintain an office in Alabama; that it does not own real property in Alabama; that it does not maintain a telephone listing in Alabama; that it does not have any sales representatives in Alabama; that it does not advertise its services in Alabama; that it does not derive substantial revenue from goods, services, or products consumed in Alabama; that it did not solicit, sell, issue, underwrite, or administer Jackson’s insurance certificates or any other insurance certificates sold in Alabama; and that it does not control the NASE.

In response to the motions, Jackson argued that her complaint, which detailed the relationship of the petitioners with MEGA, the alleged marketing scam, and the claim of conspiracy, established personal jurisdiction. Jackson did not file an affidavit or other evidence to substantiate the factual allegations in her complaint, but she did request the opportunity to conduct discovery “to cross-examine the individuals whose affidavits have been submitted in support of the motions to dismiss and to further evidence the conspiracy that has been alleged in the complaint.”

The trial court denied the petitioners’ motions to dismiss. The petitioners then filed their petitions for writs of mandamus, asking this Court to direct the trial court to vacate its order denying their motions to dismiss the complaint against them and to grant their motions to dismiss for lack of personal jurisdiction.

Standard of Review

“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).”

Ex parte Puccio, 923 So.2d 1069, 1072 (Ala.2005). Moreover, “[a]n 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).

Discussion

The petitioners contend that the trial court erred in denying their motions to dismiss because, they say, uncontroverted evidence presented through the affidavits of their officers clearly established that the trial court does not have personal jurisdiction over them.

“ ‘Jurisdiction is obtained over out-of-state defendants pursuant to the “long-arm” rule, Ala. R. Civ. P. 4.2(a)(2)(A)— (I)![] Recently, we explained:
“ ‘ “ ‘A physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.’ Sieber v. Campbell, 810 So.2d 641, 644 (Ala.2001). What is required, however, is that the defendant have such contacts with Alabama that it ‘ “should reasonably anticipate being haled into court [here].” ’ Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986)(quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).
“ ‘ “Depending on the quality and quantity of the contacts, jurisdiction may be either general or specific. Leventhal v. Harrelson, 723 So.2d 566, 569 (Ala.1998). ‘General jurisdiction applies where a defendant’s activities in the forum state are “substantial” or “continuous and systematic,” regardless of whether those activities gave rise to the lawsuit.... A court has specific jurisdiction when a defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit.’ Id.
“ ‘ “But regardless of whether jurisdiction is alleged to be general or specific, the nexus between the defendant and the forum state must arise out of ‘ “an action of the defendant [that was] purposefully directed toward the forum State.” ’ Elliott [v. Van Kleef], 830 So.2d [726] at 731 [ (Ala.2002) ] (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). ‘This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of “ ‘the unilateral activity of another person or a third person.’ ” ’ Elliott, 830 So.2d at 731 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).” “ ‘Ex parte Dill[ Dill, Carr, Stonbraker & Hutchings, P.C.], 866 So.2d [519,] 525 [ (Ala.2003) ].’
“[Ex parte Troncalli Chrysler Plymouth Dodge, Inc.,] 876 So.2d [459,] 463 [ (Ala. 2003) ].
“This Court recently summarized a plaintiffs burden, once the defendant has made a prima facie showing that the court lacked personal jurisdiction as to the defendant.
“ ‘[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) [i.e., for lack of personal jurisdiction], 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) (footnote omitted).”

Ex parte Unitrin, Inc., 920 So.2d 557, 560-61 (Ala.2005).

By submission of their affidavits in support of their motions to dismiss, the petitioners made a prima facie evidentiary showing that the trial court lacked personal jurisdiction; therefore, the burden then shifted to Jackson to present competent proof to substantiate her allegation that the trial court had personal jurisdiction over the petitioners. Jackson, however, did not present any proof to support her jurisdictional allegation; she argued that the particularity and specificity with which she pleaded her claim that a civil conspiracy existed among the petitioners adequately established the trial court’s personal jurisdiction over them.

The petitioners argue that because Jackson did not present any evidence to substantiate her jurisdictional allegation, the trial court erred in refusing to dismiss Jackson’s claims against them. The petitioners maintain that the application of our holding in Ex parte Unitrin requires a finding that the trial court lacks personal jurisdiction over them. In Ex parte Unit-rin, the holder of an insurance policy sued Unitrin and others claiming that they had fraudulently collected premiums on a lapsed life-insurance policy. Unitrin moved to dismiss the claims against it because, it said, the trial court lacked personal jurisdiction. In support of its motion to dismiss, Unitrin attached an affidavit from its vice president, in which the vice president stated that Unitrin was not qualified to do business in any state other than Illinois, that it did not conduct business in Alabama, that it did not own real or personal property in Alabama, that it did not maintain any office or have any employees in Alabama, and that it did not receive any portion of the premiums collected by United, a wholly owned subsidiary of Unitrin that is a separate entity from Unitrin. This Court did not find the following evidence to be competent proof to substantiate the jurisdictional allegations in the complaint: the policyholder’s submission of Unitrin’s 2003 annual report; a printout of information from the Web site of the Aabama secretary of state indicating that a corporate name had been reserved for an entity listed as Unitrin Auto and Home Insurance and located at Unitrin’s Chicago address; and another printout of information from the same Web site indicating that the reporting address for Unitrin Internal Audit Services, Inc., reflected in Unitrin’s annual reports for 2003 and 2004 was the same address listed for Unitrin. Ater thoroughly reviewing the documents, this Court concluded that the information relied upon by the policyholder did not refer to Unitrin, but to three wholly owned subsidiaries of Unitrin’s and held that the trial court had erred in denying Unitrin’s motion to dismiss. Specifically, this Court held that “doing business through a wholly owned subsidiary does not, in and of itself, constitute doing business by the parent corporation.” 920 So.2d at 561.

In her answer and brief to this Court, Jackson argues that the particularity with which she pleaded her civil-conspiracy claim establishes that the petitioners are doing business in Alabama and, consequently, that the trial court has personal jurisdiction over the petitioners. Essentially, she argues that while the facts presented here and in Unitrin are similar, the facts in Unitrin are distinguishable because, she says, Unitrin did not involve a conspiracy among the defendants.

The appropriate response for a plaintiff who is confronted with a motion to dismiss for lack of personal jurisdiction that is supported by affidavits is to offer evidence to the contrary. See Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 230 (Ala.2004). Jackson did not do so. However, under the facts of this case, especially in light of the specificity with which Jackson pleaded her claim of civil conspiracy and her request at the time she opposed the motions for the opportunity to conduct further discovery, the petitioners did not establish a clear legal right to have the complaint against them dismissed.

In Ex parte McInnis, 820 So.2d 795, 806-07 (Ala.2001), this Court addressed the issue whether a claim of civil conspiracy adequately established a court’s personal jurisdiction over corporate agents, stating:

“ ‘ “Bald speculation” or a “conclusion-ary statement” that individuals are co-conspirators is insufficient to establish personal jurisdiction under a conspiracy theory. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 787 (D.C.Cir. 1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984). Instead, the plaintiff must plead with particularity “the conspiracy as well as the overt acts within the forum taken in furtherance of the conspiracy.” Dooley v. United Technologies Corp., 786 F.Supp. 65, 78 (D.D.C.1992) (citing Naartex, 722 F.2d at 787 and First Chicago Int’l v. United Exchange Co., Ltd., 836 F.2d 1375, 1378-79 (D.C.Cir.1988)).” ’
“Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C.Cir.1997).”

Here, Jackson did plead in detail the corporate relationship of the petitioners and the role each petitioner allegedly played in the alleged civil conspiracy. Indeed, she pleaded her facts supporting her conspiracy claim with such specificity that the petitioners were able to file affidavits in which each petitioner denied the control and involvement alleged in the civil-conspiracy claim. For example, the petitioners in the affidavits in support of their motions to dismiss refuted Jackson’s allegations, stating that their companies were not insurers; that they were not in the business of insurance; and that they did not participate in the sale, underwriting, or administration of any insurance coverage to Jackson or any other resident in Alabama. These statements address Jackson’s allegations of the existence of a civil conspiracy among the petitioners with such specificity that it is clear that Jackson’s complaint contained more than “bald speculation” and “conclusory statements” that the petitioners were involved in a conspiracy. Therefore, Jackson’s reliance on her factual allegations in the complaint did adequately rebut the petitioners’ affidavits to survive the motions to dismiss to the extent that she is entitled to further discovery on personal jurisdiction.

In Ex parte Troncalli Chrysler Plymouth Dodge, 876 So.2d 459, 467-68 (Ala. 2003), this Court addressed discovery for the purpose of determining jurisdiction, stating:

“ ‘ “It is well established that a ... court has the power to require a defendant to respond to discovery requests relevant to his or her motion to dismiss for lack of jurisdiction.” ’ Andersen v. Sportmart, Inc., 179 F.R.D. 236, 241 (N.D.Ind.1998) (quoting Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 311 (S.D.Ind. 1997)). ‘However, it is also well established that a plaintiff does not enjoy an automatic right to discovery pertaining to personal jurisdiction in every case.’ Id. ‘[T]o be permitted jurisdictional discovery, plaintiff must at least allege facts that would support a colorable claim of jurisdiction.’ Schenck v. Walt Disney Co., 742 F.Supp. 838, 840 n. 1 (S.D.N.Y. 1990) (emphasis added). See also Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 312 (S.D.Ind.1997); Hansen v. Neumueller GmbH, 163 F.R.D. 471, 475 (D.Del.1995); Daval Steel Prods. v. M.V. Juraj Dalmatinac, 718 F.Supp. 159, 162 (S.D.N.Y.1989); Rich v. KIS California, Inc., 121 F.R.D. 254, 259 (M.D.N.C. 1988).
“A request for jurisdictional discovery must offer the court ‘more than conjecture and surmise in support of [the] jurisdictional theory.’ Crist v. Republic of Turkey, 995 F.Supp. 5, 13 (D.D.C. 1998). ‘[The] standard is quite low, but a plaintiffs discovery request will nevertheless be denied if it is only based upon “bare,” “attenuated,” or “unsupported” assertions of personal jurisdiction, or when a plaintiffs claim appears to be “clearly frivolous.” ’ Andersen, 179 F.R.D. at 242.”

Jackson met this standard, and further discovery at this stage in the proceeding is warranted. We note that the trial court’s denial of the petitioners’ motions to dismiss for lack of personal jurisdiction is interlocutory and preliminary only. The petitioners can continue to challenge personal jurisdiction in their answers to the complaint and by motions for a summary judgment or at trial. Ex parte McInnis, 820 So.2d at 798.

Conclusion

The petitioners have failed to establish a clear legal right to have the claims against them dismissed for lack of personal jurisdiction; therefore, their petitions are denied.

PETITIONS DENIED.

NABERS, C.J., and LYONS, HARWOOD, WOODALL, SMITH, BOLIN, and PARKER, JJ., concur.

      . Effective August 1, 2004, Rule 4.2 was amended to delete the “laundry list” of types of conduct that would subject an out-of-state defendant to personal jurisdiction in Alabama formerly found in subdivisions (A)-(H), retaining the “catchall” clause formerly found in subdivision (I).


author: HARWOOD, Justice.

text:
    J.M. “Mike” HILLMAN v. Stanley YARBROUGH and the Cullman County Commission.
    1041205.
    Supreme Court of Alabama.
    Feb. 24, 2006.

      Beverly Paschal Poston and William D. Sulzby, Jr., Cullman, for appellant.
    Robert M. Girardeau and Michelle K. Pieroni of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellees.
    Kendrick E. Webb and Bart Harmon of Webb & Eley, P.C., Montgomery, for ami-cus curiae Association of County Commissions of Alabama, in support of the appel-lee’s application for rehearing.
    Lori Lein, staff atty., Montgomery, for amicus curiae Alabama League of Municipalities, in support of the appellee’s application for rehearing.
   On Application for Rehearing

HARWOOD, Justice.

The application for rehearing filed by Stanley Yarbrough and the Cullman County Commission, joined in by the Association of County Commissions of Alabama and the Alabama League of Municipalities, as amici curiae, is granted and the opinion of November 10, 2005, is withdrawn, with the following opinion substituted therefor.

J.M. “Mike” Hillman appeals from an order entered by the Cullman Circuit Court granting a motion to dismiss filed by Stanley Yarbrough and the Cullman County Commission (“the Commission”), the defendants in the action below (hereinafter jointly referred to as “the Yarbrough defendants”). We reverse and remand.

Facts and Procedural History

The underlying operative facts, derived, for the reason hereinafter explained, solely from Hillman’s complaint, are as follows: On November 25, 2003, two members of the Commission, Yarbrough and Wiley Kitchens, attended a meeting of the Cull-man County Parks and Recreation Board (“the Board”). At one point, Yarbrough asked the Board to consider removing Hill-man from his position as consulting engineer on a project being undertaken by the Board to renovate the Clarkston covered bridge. Yarbrough stated:

“We are having trouble with [Hill-man] .... We understand he has already spent half the money [earmarked for the renovation]. There has been tremendous trouble working with him. We need more input from him, and we need signs of work being done.”

Yarbrough additionally requested the Board to “make [Hillman] more aggressive or dismiss him. We are getting complaints from the state because he is not filing his paperwork.” It is unclear from the record why Yarbrough and Wiley attended the meeting of the Board and in what capacity. The comments Yarbrough made at the meeting were quoted in an article appearing in the Cullman Times, a local newspaper.

Hillman sued Yarbrough, the Commission, the Cullman Times, and Community Newspaper Holdings, Inc. (the latter two defendants are hereinafter referred to as “the newspaper defendants”). Hillman alleged, among other things, that he had been defamed by Yarbrough, acting both individually and, Hillman alleged, as an agent of the Commission.

The Yarbrough defendants subsequently filed a motion to dismiss Hillman’s complaint as to them, attaching as an exhibit a copy of the relevant newspaper article. The Yarbrough defendants contended that the statements made by Yarbrough and quoted in the article were “subject to an absolute legislative privilege” and that the complaint thus failed to state a claim upon which relief could be granted and was due to be dismissed pursuant to Rule 12(b)(6), Ala. R. Civ. P. Hillman later amended his complaint; to this amended version he attached a copy of the newspaper article as an exhibit, expressing no disagreement with the factual content of the article. The Yarbrough defendants subsequently renewed their motion to dismiss the complaint on the same basis they had alleged in their initial motion.

The trial court heard oral arguments on the motion to dismiss, and on September 21, 2004, granted the motion, stating that “this Court is of the opinion that the [Yar-brough defendants] are due to be dismissed as the communications by [Yar-brough] were made in the performance of his duties as county commissioner and are subject to immunity due to legislative privilege.”

Hillman subsequently filed with the trial court a document he styled as a “motion to vacate judgment.” In that motion, Hill-man three times referred to the trial court’s September 21 order as a “judgment.” Shortly after Hillman filed his motion, the trial court, on November 15, 2004, made the following entry on the case-action summary sheet:

“ORDERED, this matter comes before the Court on [Hillman’s] Motion to Vacate Judgment. After hearing oral arguments, this Court does hereby deny same. The Summary Judgment previously entered remains in full force and effect in favor of [d]efendant[s]. If [Hillman] desires, they [sic] may request the court certify same as a final and appealable judgment under the Alabama Rules of Civil Procedure by written motion.”

(Emphasis added.)

Nearly five months later, the Yarbrough defendants filed a “motion for final judgment under Rule 54(b),” Ala. R. Civ. P., contending that because six months had passed since the entry of the order dismissing them as defendants, “there would seem to be an adequate basis to establish the finality of an order favoring dismissal of these defendants.” Therefore, the Yar-brough defendants requested that the court certify its September 21 order as a final judgment under Rule 54(b), Ala. R. Civ. P.

The trial court granted this motion on April 4, 2005, making “an express determination that there is no just reason for delay and expressly directing] the entry of a final judgment as to [the Yarbrough defendants].” Hillman then filed a motion to set aside the trial court’s judgment, which the court denied. Hillman appeals.

On appeal, Hillman raises three grounds he contends warrant reversal of the trial court’s order dismissing the Yar-brough defendants. First, he argues that the court’s certification of its order as a final judgment was improper because, he says, a just reason for delay does in fact exist. Next, he asserts that the Yar-brough defendants were not entitled to assert a legislative privilege as to Yar-brough’s comments to the Board. Finally, he attacks the trial court’s treatment of the Yarbrough defendants’ motion to dismiss as one for a summary judgment. Before we can know what standard of review is appropriate, we must determine the threshold issue: whether the trial court ordered the dismissal of the Yarbrough defendants or entered a summary judgment in their favor.

Hillman argues that the trial court improperly treated the Yarbrough defendants’ motion to dismiss as a motion for a summary judgment. Indeed, the trial court’s November 15 entry on the case-action summary sheet, referring to its September 21 order, states that the “Summary Judgment previously entered remain[ed] in full force and effect.” (Emphasis added.) However, the motions and responsive papers viewed as a whole do not support the notion that the court’s September 21 order was intended to be a summary judgment. This Court will not elevate form over substance in determining the nature of a motion. Swain v. Terry, 454 So.2d 948 (Ala.1984); and Low v. State ex rel. Wattman, 602 So.2d 435 (Ala.Civ.App.1992). The September 21 order simply granted the Yarbrough defendants’ motion to dismiss; it did not purport to enter a summary judgment. Although the November 15 order referenced a previously entered “summary judgment,” the court’s next opportunity to refer to the September 21 action was an order directing the entry of a final judgment, and here the court referred to its September 21 order as “[t]his Court’s earlier Order.” (Emphasis added.) It appears that the court’s reference to a “summary judgment” in the November 15 entry on the case-action summary sheet was simply inadvertent — perhaps caused by Hillman’s reference to a “judgment” in his motion to vacate — which that court duly corrected in its subsequent rulings.

Although we conclude that the trial court did not enter a summary judgment on September 21, or even on November 15, that court eventually entered a final judgment on April 4, 2005. The court’s order on that date stated that it was making final its earlier “order dismissing the [Yar-brough] defendants.” It further made the required express determination that there was no just reason for delay and expressly directed the entry of a judgment.

Therefore, we recognize the court’s September 21 order as one granting the Yar-brough defendants’ motion to dismiss. The later incidental mischaraeterization of this order of dismissal as a summary judgment did not retroactively alter the nature of the initial order.

Standard of Review

An order granting a motion to dismiss is not entitled to a presumption of correctness. Jones v. Lee County Comm’n, 394 So.2d 928, 930 (Ala.1981). In reviewing such an order, we must take the allegations of the complaint “most strongly in favor of the pleader” and determine whether the plaintiff could prove any set of facts that would entitle him or her to relief. Feore v. Feore, 627 So.2d 411, 413 (Ala.Civ.App.1993); and Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985). We are not concerned with whether the plaintiff will ultimately prevail on the merits, only whether the plaintiff may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985).

Analysis

A. Was There “No Just Reason for Delay”?

Hillman argues that although the trial court properly phrased its order certifying the September 21, 2004, order as a final judgment under Rule 54(b), Ala. R. Civ. P., the court erred in determining that there was, in fact, no just reason for delay in so certifying the order. We disagree.

Hillman argues that there weré two just reasons for delay. First, he contends, the claims against the newspaper defendants were “so closely related to and intertwined with claims against [the Yarbrough defendants] that information developed through discovery could reveal facts that indicate [the Yarbrough defendants’] liability.” (Hillman’s brief, at 16.) Second, Hillman asserts that “there was no proof [that] Yarbrough was performing a legislative duty or a legislative function” at the time he made the statements quoted in the Cullman Times. Id.

As for Hillman’s first argument, this Court has not hesitated to dismiss an appeal or to set aside a Rule 54(b) certification when it appeared that the trial court had erred in certifying a judgment as final because a just reason for delay in fact existed. See, e.g., Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88 (Ala.2002), and Branch v. SouthTrust Bank of Dothan, 514 So.2d 1373 (Ala.1987); see also Winecoff v. Compass Bank, 854 So.2d 611 (Ala.Civ.App.2003), and H.P.H. Props., Inc. v. Cahaba Lumber & Millwork, Inc., 811 So.2d 554 (Ala.Civ.App. 2001). Hillman correctly notes that we have set aside a certification of finality in prior cases specifically because a dismissed claim and a remaining claim were “so closely intertwined” that there existed an unreasonable risk of inconsistent results should the disposition of the one become final before the other was resolved. Here the inconsistent result Hillman envisions would be dismissing the Yarbrough defendants, despite Yarbrough’s allegedly defamatory comments, while holding the newspaper defendants liable for subsequently printing those comments.

The specific basis, of the trial court’s holding dismissing the Yarbrough defendants was that they were entitled to the protection of absolute legislative privilege for Yarbrough’s comments. If that decision was correct, then whether Yar-brough’s comments were defamatory is irrelevant to the Yarbrough defendants’ liability. It would thus be permissibly conceivable, and not legally inconsistent, to find the newspaper defendants liable for printing the allegedly defamatory comments without finding the Yarbrough defendants liable.

Hillman’s second argument concerning the prematurity of the trial court’s certification of finality is that there exists no proof that when he made the comments Yarbrough was performing a legislative duty or a legislative function so as to invoke absolute legislative privilege. Although there may presently be absent from the complaint factual averments that would support the Yarbrough defendants’ privilege argument, that is a matter to be determined in Part B., infra. Even if that were the case, moreover, this Court would be obliged to reverse the judgment of the trial court, not because it certified the judgment as final, but because it erred in determining that Yarbrough’s comments were privileged.

We therefore conclude that the trial court did not err in certifying the judgment of dismissal as final.

B. Do the Allegations of the Complaint Establish Absolute Legislative Privilege for the Yarbrough Defendants?

Hillman’s final argument on appeal is that Yarbrough’s comments were not shown to be absolutely privileged. For the reasons set forth below, we agree.

The Alabama Constitution of 1901, § 56, affords absolute legislative immunity to members of the legislature, providing that “for any speech or debate in either house [the legislators] shall not be questioned in any other place.” At least as early as 1967, this Court recognized the availability of an absolute privilege for communications “made in the course of legislative or judicial proceedings, and acts of state made under authority of law.” Tonsmeire v. Tonsmeire, 281 Ala. 102, 106, 199 So.2d 645, 648 (1967). In 2003, in Butler v. Town of Argo, 871 So.2d 1 (Ala.2003), this Court noted that “[t]his privilege has been extended to members of local legislative bodies,” quoting Restatement (Second) of Torts § 590 (1977), which provides that “ ‘[a] member of the Congress of the United States or of a State or local legislative body is absolutely privileged to publish defamatory matter concerning another in the performance of his legislative functions.’ ” 871 So.2d at 24 (emphasis added).

“ ‘ “To make the defense of absolute privilege available, the communication must be made on a privileged occasion; the circumstances under which the defamatory language is used are the occasion, and it is the occasion that is privileged.” ’ ” Butler, 871 So.2d at 23 (quoting O'Barr v. Feist, 292 Ala. 440, 445, 296 So.2d 152, 156 (1974), quoting in turn 50 Am.Jur.2d Libel and Slander § 193, p. 696). “Thus, members of local legislative bodies ... are absolutely privileged to publish matters concerning others if the publication is made during the performance of the members’ legislative duties.... The privilege, however, does not extend to public discussion outside of a legislative function.... ” 871 So.2d at 24.

The fact that an action is undertaken in the course of a legislator’s fulfilling his or her responsibilities does not necessarily indicate that the action was taken in the performance of a legislative duty or act. In United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972), the Supreme Court was confronted with a question concerning the “Speech or Debate” Clause, U.S. Const., art. I, § 6, which provides, in pertinent part: “[F]or any speech or debate in either house, [senators and representatives] shall not be questioned in any other place.” The Court, interpreting the federal constitutional provision, observed the state of the law to be that a member of Congress was immune from suit if the basis of the prosecution was a legislative act or the motivation for a legislative act. In thus defining what constituted a legislative act, the Court stated:

“A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause [U.S. Const., art. I, § 6] prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts.
“It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years.... Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things ‘generally done in a session of the House by one of its members in relation to the
business before it,’ Kilbourn v. Thompson, [103 U.S. 168, 204 (1881) ], or things ‘said or done by him, as a representative, in the exercise of the functions of that office.’ Coffin v. Coffin, 4 Mass. 1, 27 (1808).”

408 U.S. at 512-13, 92 S.Ct. 2531. The Supreme Court has also offered these observations, however, in Bogan v. Scott-Harris, 523 U.S. 44, 52, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998):

“The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See Spallone v. United States, 493 U.S. 265, 279 (1990) (noting, in the context of addressing local legislative action, that ‘any restriction on a legislator’s freedom undermines the “public good” by interfering with the rights of the people to representation in the democratic process’); see also Kilbourn v. Thompson, 103 U.S. [168], at 201-204 [ (1881) ] (federal legislators); Tenney[ v. Brandhove, 341 U.S. 367], at 377 [(1951) ] (state legislators); Lake Country Estates, 440 U.S. [391], at 405 [(1979) ] (regional legislators). Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace. See Tenney, supra, at 377 (citing ‘the cost and inconvenience and distractions of a trial’). And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982).”
In Butler, 871 So.2d at 23, we explained:
“ ‘As one court has stated, “the availability of an absolute privilege must be reserved for those situations where the public interest is so vital and apparent that it mandates complete freedom of expression without inquiry into a defendant’s motives.” ’ Webster v. Byrd, 494 So.2d 31, 35 (Ala.1986)(quoting Supry v. Bolduc, 112 N.H. 274, 276, 293 A.2d 767, 769 (1972)).
“ ‘ “An absolutely privileged communication is one in respect of which, by reason of the occasion on which, or the matter in reference to which, it is made, no remedy can be had in a civil action, however hard it may bear upon a person who claims to be injured thereby, and even though it may have been made maliciously, and is false. To make the defense of absolute privilege available, the communication must be made on a privileged occasion; the circumstances under which the defamatory language is used are the occasion, and it is the occasion that is privileged. The privilege is a matter of public policy, and is not intended so much for the protection of those engaged in the public service and in the enactment and administration of law, as for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages.” ’
“O'Barr v. Feist, 292 Ala. 440, 445, 296 So.2d 152, 156 (1974)(quoting 50 Am. Jur.2d Libel and Slander § 193, p. 696).”
We also stated in Butler:
“ ‘A member of the Congress of the United States or of a State or local legislative body is absolutely privileged to publish defamatory matter concerning another in the performance of his legislative functions.’ Restatement (Second) of Torts, § 590 (1977). Thus, members of local legislative bodies, i.e., city council members, are absolutely privileged to publish matters concerning others if the publication is made during the performance of the members’ legislative duties. See id. Unlike the privilege afforded to those involved in judicial proceedings, the legislative privilege applies even when the defamatory communication is not related to matters of public or legislative concern. See Restatement (Second) of Torts, § 590 cmt. a. (1977). The privilege, however, does not extend to public discussion outside of a legislative function, such as explaining reasons for voting on legislation or engaging in activities only incidentally related to legislative affairs. See Restatement (Second) of Torts, § 590 cmt. a. Furthermore, although this absolute privilege is rooted in defamation law, the privilege also applies to the publication of any matter that amounts to an invasion of privacy. See Restatement (Second) of Torts, § 652F (1977).”

871 So.2d at 24.

Hillman asserts that he can present evidence indicating that in addressing the Board Yarbrough was not performing “legislative duties.” In making this argument, Hillman partially relies upon an affidavit submitted in conjunction with his motion to vacate the judgment, filed after the court entered its ruling on the Yarbrough defendants’ motion to dismiss. The record does not indicate whether the trial court considered this evidence, because it denied Hillman’s motion to vacate without explanation. The court was free to disregard the evidence presented in the affidavit. In a case in which a party files a motion to alter, amend, or vacate a summary judgment, we have consistently held that “ ‘ “ ‘[t]he trial court can consider only that material before it at the time of submission of the motion’ [such as to dismiss or for a summary judgment] and ... any material filed thereafter ‘comes too late.’ ” ’ ” Ex parte Organized Cmty. Action Program, Inc., 852 So.2d 92, 95 (Ala.2002) (quoting Bean v. State Farm Fire & Cas. Co., 591 So.2d 17, 20 (Ala.1991), quoting in turn other cases). We see no distinction between a motion that comes on the heels of a ruling on a motion to dismiss as opposed to a ruling on a motion for a summary judgment. Therefore we need not consider the evidence presented in the affidavit attached to Hillman’s motion to vacate.

Our standard of review obliges us to reverse an order dismissing a defendant if the plaintiff could possibly prove any set of facts that would allow recovery. Fontenot, supra; Feore, supra. It appears that Hill-man could conceivably prove a set of facts under which Yarbrough’s presence at the meeting of the Board was not a legislative function but rather a “public discussion outside of a legislative function.” Butler, 871 So.2d at 24. Because we conclude that Hillman could prove such a set of facts, we reverse the trial court’s order granting the Yarbrough defendants’ motion to dismiss, and we remand the cause for proceedings consistent with this opinion.

APPLICATION GRANTED; OPINION OF NOVEMBER 10, 2005, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . Hillman’s amendment did not materially alter the relevant allegations of his original complaint.

      . After the Yarbrough defendants presented in their brief to this Court an argument similar to this analysis and concluded that the trial court had not actually treated the motion to dismiss as one for a summary judgment, Hill-man stated in his reply brief: "In view of the [Yarbrough defendants'] concession that the Trail [sic] Court Order was made on a Motion to Dismiss and is not a Summary Judgment OrderL Hillman] refrains from further addressing this issue.” We do not, however, read this as saying that Hillman has abandoned this argument, as advanced in his primary brief, and we thus address the merits of this argument.