author: WISE, Justice.

text:
    BRANDED TRAILER SALES, INC. v. UNIVERSAL TRUCKLOAD SERVICES, INC.
    1090356.
    Supreme Court of Alabama.
    June 24, 2011.

      Charles A. Hardin of Hardin & Hughes, LLP, Tuscaloosa, for appellant.
    R. Bernard Harwood, Jr., and Chad L. Hobbs of Rosen Harwood, P.A., Tuscaloosa, for appellee.
   WISE, Justice.

The plaintiff, Branded Trailer Sales, Inc. (“Branded”), appeals from a judgment of the Tuscaloosa Circuit Court, granting a motion to dismiss asserting lack of personal jurisdiction filed by one of the defendants, Universal Truckload Services, Inc. (“Universal”). We reverse and remand.

Facts and Procedural History

In its complaint instituting the underlying action, Branded alleged that, in late March or early April 2008, a customer contacted Branded about having flatbed trailers designed and manufactured to haul wind towers; that Universal was a trucking company that was in the business of hauling wind towers for that customer; that Universal needed to purchase trailers that were specially manufactured to haul wind towers; and that Branded subsequently contacted Universal. Branded is a Louisiana corporation; Universal is a Michigan corporation. Branded further alleged that it subsequently contacted Lid-dell Trailers, LLC (“Liddell”), which is an Alabama corporation, and several other manufacturers of trailers about the cost of designing and manufacturing such specialized trailers; that it presented Universal with several different options; that Universal chose Liddell to design and manufacture the trailers; and that Branded entered into a contract with Liddell that provided that Liddell would design and manufacture the trailers at a cost to Branded of $168,680 each. Branded further alleged that it entered into a contract with Universal that provided that Universal would purchase two trailers from it at a price of $244,465.84 each; that Universal had the option to order up to eight more trailers; and that the first two trailers were to be delivered to Universal by the first week of August 2008.

Branded alleged that, “[s]oon thereaf-tei*,” Liddell notified Branded that the cost of the trailers would be increased, that the completion date for the trailers would be extended, and that it would not build the trailers in accordance with the previously agreed upon design. Branded also alleged that Universal subsequently terminated the agreement to purchase the trailers from Branded. Branded further alleged that it subsequently learned that Universal and Liddell entered into an agreement pursuant to which Universal would purchase directly from Liddell the trailers it had agreed to design and manufacture; that Universal and Liddell excluded Branded from the agreement; that Liddell delivered the first two trailers to Universal in late December 2008 or early January 2009; and that Branded did not receive a sales commission based on the transaction.

On February 2, 2009, Branded filed a complaint in the Tuscaloosa Circuit Court, alleging that Universal and Liddell had each “intentionally interfered with contract and the business relationship between [Branded] and the other Defendant, without justification, to make the transaction relating to the trailers more financially rewarding”; that Liddell had violated the Alabama Sales Representatives Commission Act; that Universal had engaged in fraud because it “innocently, recklessly or intentionally misrepresented that it would purchase the two (2) trailers to be manufactured by Liddell through [Branded]”; that Liddell had engaged in fraud because it “innocently, recklessly or intentionally misrepresented that it would manufacture the two (2) trailers to be purchased by Universal through [Branded]”; that Lid-dell breached its contract with Branded when it did not deliver the trailers; and that Universal breached its contract with Branded when it refused to purchase the trailers from Branded.

On March 23, 2009, Universal filed a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for lack of personal jurisdiction. On May 28, 2009, Universal filed a brief in support of its motion to dismiss and a supporting affidavit from Mike Peterson, the director of Risk Management for Universal. In that affidavit, Peterson stated:

“3. [Universal] is a primarily non-asset based provider of transportation services to shippers in the United States and in the Canadian provinces of Ontario and Quebec. [Universales headquarters and corporate and administrative functions are located in Warren, Michigan.
“4. [Universal] is a business corporation organized, incorporated, and existing pursuant to the laws of the State of Michigan. [Universal] is not registered or qualified to do business in Alabama as a foreign corporation, does not have any registered agent in Alabama, and does not maintain any offices in Alabama.
“5. [Universal] does not have any officers, employees, or directors living in Alabama.
“6. [Universal] does not have any agents that do business in Tuscaloosa County or in the state of Alabama, and does not have any agents that regularly solicit business in Tuscaloosa County or in the state of Alabama.
“7. [Universal] does not conduct any business in Tuscaloosa County or in the state of Alabama on a regular basis, does not have any customers in Alabama for whom it regularly performs any work or services, and does not regularly transport or deliver any goods, products, or equipment into Alabama for any of its customer.
“8. [Universal] does not own, rent, or lease any real or personal property in Alabama.
“9. [Universal] does not maintain any offices or places of business in Alabama, and does not have or maintain any assets in Alabama.
“10. [Universal] does not maintain any telephone numbers in Alabama, and does not maintain any facsimile numbers in Alabama.
“11. [Universal] does not maintain any bank accounts or business records in Alabama.
“12. I have reviewed information regarding the allegations of the complaint filed by Branded Trailer Sales and the business records related to those allegations. Based on my review of that information, I can make the following statements on behalf of [Universal].
“13. No meetings occurred between representatives of [Universal] and representatives of Branded Trailer Sales in Alabama.
“14. No representatives of [Universal] placed any telephone calls to Branded Trailer Sales or its representatives in Alabama, or made any such calls from Alabama.
“15. No representatives of [Universal] sent any facsimile correspondence to Branded Trailer Sales or its representatives in Alabama, or sent any such correspondence from Alabama.
“16. No representatives of [Universal] sent any email correspondence to Branded Trailer Sales or its representatives in Alabama, or sent any such correspondence from Alabama.
“17. No representative of [Universal] had any dealings with Branded Trailer Sales or its representatives that took place in Alabama, or were otherwise directed at Alabama.
“18. [Universal] did not enter into contracts with Branded Trailer Sales, Inc., in Alabama, or any contracts that were to be performed in Alabama.
“Therefore, Branded has not shown that Universal itself has sufficient general contacts with Alabama to establish personal jurisdiction.”

On May 29, 2009, Branded filed a response to Universal’s motion to dismiss, as well as a motion to strike its brief and Peterson’s affidavit; it also filed a motion pursuant to Rule 56(f), Ala. R. Civ. P., asking the court to treat Universal’s motion to dismiss as one for a summary judgment and to allow it to conduct additional discovery. In support of its May 29, 2009, response, Branded attached an affidavit from Wayne Ostrander. In his affidavit, Ostrander stated:

“1. My name is Wayne Ostrander and I am over 19 years of age. I work for Branded Trailer Sales and I have personal knowledge of the facts stated herein.
“2. [Universal] contacted [Branded] and requested that [Branded] find a company to manufacture a trailer to certain specifications. After [Branded] presented [Universal] with several options, [Universal] chose Liddell Trailers, LLC (‘Liddell’) to build the trailers.
“3. Liddell is a company registered in Alabama with its principle [sic] place of business in Springville, AL.
“4. Pursuant to the agreement between Liddell, [Branded], and [Universal], Liddell would build the trailers in Alabama.
“5. Liddell and [Universal] both informed [Branded] that they would not uphold their existing agreements. [Branded] later learned that [Universal] agreed to purchase and Liddell agreed to manufacture the trailers, thereby excluding [Branded].
“6. In order to facilitate this later deal, [Universal] had to make contact with Alabama numerous times. The wrongdoing made the basis of this complaint was therefore projected toward Alabama.
“7. At the completion of the deal between [Universal] and Liddell, [Universal] took possession of the trailers in Alabama.”

In Branded’s Rule 56(f) motion, Branded stated that it had filed a motion to strike Universal’s brief in support of the motion to dismiss and to strike Peterson’s affidavit. It then stated:

“In the event that this Court denied [Branded]’s motion to strike [Univer-salis brief and affidavit, filed contemporaneously hereto, and treats [Univer-salis motion to dismiss as a motion for summary judgment, [Branded] will require additional time to, among other things conduct discovery and oppose [Universalis motion for summary judgment. Particularly, [Branded] would require time to depose the affiant whose affidavit is attached to the brief titled Defendant Universal Truckload Services, Ina’s Brief in Support of its Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction.”

On June 2, 2009, the trial court conducted a hearing on Universal’s motion to dismiss. However, the record does not include a transcript of that hearing. On June 17, 2009, Universal filed a supplemental brief in support of its motion to dismiss and a second affidavit from Peterson. On that same date, Branded filed a response to Universal’s brief in support of its motion to dismiss. That response also included a request for additional time to conduct discovery. In that request, Branded stated:

“[I]n the event that this Court determines sufficient contacts have not been demonstrated to overcome due process, [Branded] asks that this court allow additional time to conduct discovery. While this brief outlines numerous contacts between [Universal] and Alabama, [Branded] is confident that through discovery, it will uncover many more contacts and be able to describe such contacts in greater detail. As in the case of Ex parte Bufkin, [Branded], at minimum, has ‘at least alleg[ed] facts that would support a colorable claim of jurisdiction.’ Ex parte Bufkin, 936 So.2d 1042, 1047 (Ala.2006). Therefore, ‘Limited discovery could flesh out [the plaintiffs] allegations and could lead to a conclusion that the trial court can exercise personal jurisdiction over [the defendant].’ Id.
“The Alabama Supreme Court has ruled that although the plaintiff bears the burden of demonstration, the court should assist the plaintiff and allow the plaintiff to conduct jurisdictional discovery unless their claim is clearly frivolous. Id., quoting 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 facial 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.’
“[Branded]’s demonstration of personal jurisdiction is accurate and sufficient. However, if this Court requires additional contacts shown, such deficiency can be filled with detail through discovery. This case for personal jurisdiction is by no means ‘clearly frivolous.’ ”

On June 29, 2009, the trial court entered the following order:

“On June 2nd 2009 this court heard arguments on [Universal’s] motion to dismiss and [Branded’s] motion to strike brief and affidavit. [Branded] requested for a continuance of the hearing and it was denied.
“This court hereby denies [Branded’s] motion to strike brief and affidavit and finds that [Universal’s] motion to dismiss is well taken and is hereby granted. “Wherefore, it is hereby Ordered, Adjudged and Decreed that [Universal’s] motion to dismiss is granted and Universal Truckload Services, Inc. is hereby dismissed. This case shall proceed against the remaining defendant.”

On July 29, 2009, the trial court entered an order certifying its June 29, 2009, order as a final judgment. This appeal followed.

Standards of Review
“ ‘ “ ‘An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.’” Ex parte Lagrone, 839 So.2d 620, 623 (Ala.2002) (quoting Elliott v. Van Kleef 830 So.2d 726, 729 (Ala.2002)). Moreover, “[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 Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003).
“ ‘ “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)).
“ ‘ “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, 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)).’
“Dill, 866 So.2d at 525-26 (emphasis omitted).”

Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004) (footnote omitted).

Discussion

Branded argues that the trial court erred in granting Universal’s motion to dismiss without first giving it the opportunity to conduct jurisdictional discovery. We note:

“ ‘ “The trial court has broad and considerable discretion in controlling the discovery process and has the power to manage its affairs ... to ensure the orderly and expeditious disposition of cases.” ’ Ex parte Vulcan Materials Co., 992 So.2d 1252, 1259 (Ala.2008) (quoting Salser v. K.I.W.I., S.A., 591 So.2d 454, 456 (Ala.1991)). ‘Therefore, this Court will not interfere with a trial court’s ruling on a discovery matter unless this Court “ ‘determines, based on all the facts that were before the trial court, that the trial court clearly [exceeded] its discretion.’ ” ’ Id. (quoting Ex parte Henry, 770 So.2d 76, 80 (Ala.2000), quoting in turn Ex parte Horton, 711 So.2d 979, 983 (Ala.1998)).”

Brown v. ABUS Kransysteme GmbH, 11 So.3d 788, 795 (Ala.2008).

In Ex parte Bufkin, 936 So.2d 1042, 1047-48 (Ala.2006), this Court addressed the issue whether a plaintiff was entitled to jurisdictional discovery:

“In Ex parte Troncalli Chrysler Plymouth Dodge, Inc., [876 So.2d 459 (Ala.2003),] 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. Bufkin 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 alleged] facts that would support a col-orable 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.”

Similarly, in this case, Branded has alleged sufficient facts that could establish a colorable claim of personal jurisdiction against Universal.

In its response to Universal’s motion to dismiss, Branded alleged the following facts:

“1) [Universal] is a large, publicly traded, international company that does business in all lower 48 states. [Universal] asserts through the World Wide Web on its official website that it provides ‘transportation services to shippers throughout the United States.’ Universal Truckload Services, Inc., available at http://www.goutsi.com/ (last visited May 28, 2009).
“2) One of [Universal]’s subsidiaries, Mason Dixon Lines, asserts through the World Wide Web on its website that ‘it has expanded its operations from its “North and South” beginning to include 48 states.’ The Mason Dixon Lines, available at http://www.madl.com/ (last visited on May 28, 2009).
“3) In addition to doing business in Alabama, [Universal] acquired the operations of an Alabama truckload carrier Noble & Pitts, Inc. based [in] Scotts-boro, AL in or around 2006.
“4) [Universal] contacted [Branded] and requested that [Branded] find a company to manufacture a trailer to certain specifications. After [Branded] presented [Universal] with several options, [Universal] chose Liddell Trailers, LLC (‘Liddell’) to build the trailers. (Aff. of Wayne Ostrander ¶ 2, attached hereto as Exhibit A.)
“5) Liddell is a company registered in Alabama with its principle [sic] place of business in Springville, AL. (Exhibit A, Ostrander Aff. ¶ 3.)
“6) Pursuant to the agreement between Liddell, [Branded], and [Universal], Liddell agreed to build the trailers in Alabama. (Exhibit A, Ostrander Aff. ¶ 4.)
“7) Liddell and [Universal] both informed [Branded] that they would not uphold their existing agreements. [Branded] later learned that [Universal] agreed to purchase and Liddell agreed to manufacture the trailers, thereby excluding [Branded]. (Exhibit A, Ostran-der Aff. ¶ 5.)
“8) In order to facilitate this later deal, [Universal] had to make contact ■with Alabama numerous times. The wrongdoing made the basis of this complaint was therefore projected toward Alabama. (Exhibit A, Ostrander Aff. ¶ 6.)
“9) At the completion of the deal between [Universal] and Liddell, [Universal] took possession of the trailers in Alabama. (Exhibit A, Ostrander Aff. ¶ 7.)
“10) [Universal] is a large company that has sufficient contacts with Alabama. Not only do they conduct regular business in Alabama, but with respect to this case, they have directed their action toward Alabama.
“11) The Alabama Supreme Court states in the case Ex parte DBI, Inc. that Alabama’s long arm statute extends the jurisdiction of Alabama courts to the permissible limits of due process. [23 So.3d 635, 643 (Ala.2009)] (‘In accordance with the plain language of Rule 4.2, both before and after the 2004 amendment, Alabama’s long-arm rule consistently has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process.’).
“The Supreme Court goes on to say that Due Process permits Alabama to subject a nonresident defendant to its jurisdiction when there exists sufficient ‘minimum contacts,’ such that a defendant should reasonably anticipate being haled into court. [23 So.3d at 644].
‘The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient “minimum contacts” with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant’s contacts is whether the contacts are such that the nonresident defendant “ ‘should reasonably anticipate being haled into court’ ” in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).’
“The Court has framed this discussion as one of reasonableness and fairness; asking whether it is reasonable or fair to bring such defendant into court. [23 So.3d at 650-51].
“ ‘The protection against inconvenient litigation is typically described in terms of “reasonableness” or “fairness.” We have said that the defendant’s contacts with the forum State must be such that maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” The relationship between the defendant and the forum must be such that it is “reasonable ... to require the corporation to defend the particular suit which is brought there.” (citations omitted).’
“However, due to modern transportation and communication, the ‘limits imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against inconvenient litigation, have been substantially relaxed.’ [23 So.3d at 650].
“Furthermore, where a defendant has ‘purposely availed’ himself of the privilege of conducting business in Alabama, it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum. [23 So.3d at 654],
‘“[W]here the defendant “deliberately” has engaged in significant activities within a State, or has created “continuing obligations” between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by “the benefits and protections” of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well, (citations omitted).’
“Therefore, when the defendant has ‘purposefully directed’ his actions toward residents of Alabama, the defendant must present a compelling case that some other consideration would render jurisdiction unreasonable. [23 So.3d at 653-54]. (‘[W]here a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.’).
“12) In the present case, [Branded] has presented ample evidence that [Universal] has sufficient contacts with the State of Alabama, and, as a result of [its] actions, [Universal] should reasonably expect to be haled into Alabama court. Furthermore, [Universal] has purposely availed itself [of] the privilege of conducting business in Alabama.
“[Universal] is a large publicly traded company with stockholders around the country. Through [its] marketing [on] the World Wide Web, [Universal] has held itself out as a company conducting business in Alabama. [Universal] agreed to do business with a company in Alabama and the current allegations surround [Universal’s] contact with a company residing in Alabama. The wrong alleged in this complaint is based on [Universal’s] act of contacting Lid-dell, in Alabama. Furthermore, [Universal] went to Alabama to pick up the trailers.
“[Universal] has presented no evidence, compelling or otherwise, of the presence of ‘some other considerations [that] would render jurisdiction unreasonable.’ [23 So.3d at 654]. In fact, [Universal] has not presented one shred of evidence or pointed to one fact showing how [Universal] will be burdened by defending this case in Alabama. The only benefit to [Universal] in excluding jurisdiction is to delay justice. [Universal is] already represented by a firm in Tuscaloosa, Alabama. Defending this case in Alabama would be not more burdensome than defending it in Louisiana. As the Supreme Court points out, modern transportation and communication has helped to substantially relaxed any due process restraints. [23 So.3d at 657],
“13) [Universal] has no Due Process argument for excluding personal jurisdiction. [It has] conducted business in Alabama, directed [its] actions to residents in Alabama, and [has] held [itself] out to the public as conducting business in Alabama. Therefore, jurisdiction is proper in this case.”

Further, in its response to Universal’s brief in support of its Rule 12(b)(2) motion, Branded alleged:

“[Universal] contacted [Branded] and requested that [Branded] find a company to manufacture trailers to certain specifications. After [Branded] presented [Universal] with several options, [Universal] chose Liddell Trailers, LLC (‘Liddell’) to build the trailers. (Aff. of Wayne Ostrander ¶ 2, attached hereto as Exhibit A.) Liddell is a company registered in Alabama with its principle [sic] place of business in Springville, AL. (Exhibit A, Ostrander Aff. ¶ 3.) Pursuant to the agreement between Liddell, [Branded], and [Universal], Liddell agreed to build the trailers in Alabama. (Exhibit A, Ostrander Aff. ¶ 4.) Defendant Liddell agreed to design, manufac-turen, and sell said trailers to [Branded] for $168,680.00 each (Compl. ¶ 7), and [Universal] agreed to purchase at least two of these trailers at a price of $244,465.84. (Compl. ¶ 8.) Liddell and [Universal] both informed [Branded] that they would not uphold their existing agreements. (Compl.)
“[Branded] later learned that [Universal] agreed to purchase and Liddell agreed to manufacture the trailers, thereby excluding [Branded], (Exhibit A, Ostrander Aff. ¶ 5.) In order to facilitate this later deal, [Universal] had to make contact with Alabama numerous times. The wrongdoing made the basis of this complaint was therefore projected toward Alabama. (Exhibit A, Os-trander Aff. ¶ 6.) At the completion of the deal between [Universal] and Lid-dell, [Universal] physically entered Alabama and physically took possession of the trailers in Alabama. (Exhibit A, Ostrander Aff. ¶ 7.)
“[Universal] is a large, publicly traded, international company that does business in all lower 48 states. [Universal] identifies itself as a ‘non-asset based provider of transportation,’ Universal Truckload Services, Inc., available at http://www.goutsi.com/ (last visited June 17, 2009) (attached hereto as Exhibit B), [Universal] markets its services to the state of Alabama and asserts that it does business in Alabama. [Universal] asserts through the World Wide Web on its official website that it provides ‘transportation services to shippers throughout the United States.’ Exhibit B. [Universal] solicits agents and contractors through the World Wide Web, including those agents and contractors located in Alabama. Universal Truckload Services, Inc., available at http:// www.goutsi.com/JoinUs.aspx (last visited June 17, 2009) (attached hereto as Exhibit C).
“At any given time, [Universal] arranges numerous load pickups for locations throughout the state of Alabama. On June 11, 2009, [Universal] provided information through its official website of load pickup and drop-off locations throughout Alabama. These sites included, among other locations: Jasper, Scottsboro, Tuscaloosa, Courtland, Tal-ladega, Montgomery, Mount Meigs, Louisville, Eufaula, Selma, Jackson, Mobile, Tuscumbia, Belk, Moundville, Gray-son, Birmingham, Hanceville, Pelham, Millbrook, Huntsville, Decatur, Nauvoo. See for example, Universal Truckload Services, Inc., available at http://loads. goutsi.com:8080/wntv5/BKLoad Selections (last visited June 11, 2009) (attached hereto as Exhibit D). These locations provide the telephone numbers of [Universal] agents, many of whom are located in Alabama. [Universal] boasts on its official website that it ‘provides shippers with a network of hundreds of agents and thousands of owner-operators.’ Universal Truckload Services, Inc, available at http://www.goutsi.com/ Shippers.aspx. (last visited June 17, 2009) (attached hereto as Exhibit E). Therefore, not only does [Universal] do business in Alabama, they have numerous agents throughout the state.
“Furthermore, in 2006, [Universal] reported to Alabama Trucker, that [Universal] bought a major Alabama trucking company located in Scottsboro, Alabama. Alabama Trucker, 3rd Quarter (2006), available at http://www. alabamatrucking.org/docs/AT7l_summer 3Q06_web.pdf (attached hereto as Exhibit F). (‘Universal Truckload Services officials said late Thursday it acquired the operations of Alabama truckload carrier Noble & Pitts’) ‘Noble & Pitts generated combined truckload and brokerage revenue of about $33 million [in 2005], including fuel surcharges of $3 million, Universal said in a statement’ Id.
“In addition to the fact that [Universal] conducts extensive business in .Alabama and has a broad network of business contacts in Alabama, [Universal] also conducts extensive business in Alabama through its subsidiaries. [Universal] acts as a non-asset based provider and conducts most of its business through its subsidiaries. Exhibit E, Universal Truckload Services, Inc., available at http://www.goutsi.com/ Shippers.aspx (‘We conduct our operations through our operating subsidiaries under the brand names: Mason and Dixon Lines, Mason Dixon Intermodal, Economy Transport, Louisiana Transportation, Great American Lines, CrossRoad Carriers, and Universal Am-Can.’).
“Mason Dixon Lines, asserts through its official website that ‘it has expanded its operations from its “North and South” beginning to include 48 states.’ The Mason Dixon Lines, available at http://www.madl.com/ (last visited on May 28, 2009). Additionally, Mason Dixon Lines holds a permanent office in Scottsboro, Alabama. Mason Dixon In-termodal asserts through the World Wide Web that its does business in Alabama. Mason Dixon Intermodal, available at http://www.mdintermodal.com/ AboutUs.aspx (last visited June 17, 2009) (attached hereto as Exhibit G) (‘Operating with one of the finest groups of Owner-Operators in the country enables us to service 48 states, ... Mason Dixon Intermodal is a subsidiary of Universal Truckload Services, Inc.’). Likewise, Louisiana Transportation, Inc. boasts through the World Wide Web of the extensive business it conducts throughout the 48 states and of the national sales and recruiting force it maintains. Louisiana Transportation, Inc., available at http://www.louisiana transport.com/AboutUs.aspx (last visited June 17, 2009) (attached hereto as Exhibit H) (‘Louisiana Transportation, Inc., is an established over-the-road commercial carrier with brokerage authority serving 48 states with our focus on the Southern parts of the U.S.’) and (‘We have an established national sales and recruiting force integrated into an efficient back office support network with a proprietary computer system geared for the future.’).
“Universal Am-Can, Ltd. and Great American Lines, Inc. market themselves to Alabama through the World Wide Web and also assert that they do business in Alabama. Universal Am-Can, Ltd. asserts through the World Wide Web, ‘Our services encompass Flatbed, Van, Over Dimensional and Logistic solutions throughout the United States, Canada, and Mexico. There are no limits when it comes to providing transportation solutions to fit you and or your customers needs.’ Universal Am-Can. Ltd, available at http://www.uacl.com/ (last visited June 17, 2009) (attached hereto as Exhibit I). Furthermore, Universal Am-Can, Ltd. boasts of a ‘nationwide network of agents’ (Exhibit I) and state that they have a ‘carrier network of over 10,000 approved carriers throughout the United States and Canada.’ Universal Am-Can, Ltd., available at http://www.uacl.com/Services.aspx (last visited June 17, 2009) (attached hereto as Exhibit J). Finally, Universal Am-Can states that it has a ‘network consisting of over 250 offices nationwide.’ Universal Am-Can, Ltd., available at http://www.uacl.com/Brokerage. aspx (last visited June 17, 2009) (attached hereto as Exhibit K).
“Great American Lines, Inc. asserts a nationwide presence and solicit business nationwide. They assert through the World Wide Web, ‘Our diversified agent and company terminal sales force are capable of accommodating any hauling preference an owner operator may have within these trailer types throughout the U.S. and Canada.’ Great American Lines, Inc. available at, http://www. grtamerlines.com/AboutUs.aspx (last visited June 17, 2009) (attached hereto as Exhibit L). Finally, they boast of a ‘Freight Brokerage to carrier network throughout the U.S. using agent network.’ Great American Lines, Inc, available at, http://www.grtamerlines. com/Services.aspx (last visited June 17,-2009) (attached hereto as Exhibit M).”

Branded went on to argue that Universal itself had sufficient general contacts with Alabama to establish jurisdiction in Alabama. See Sverdrup Tech., Inc. v. Robinson, 36 So.3d 34 (Ala.2009) (holding that a defendant that did business in and maintained corporate offices in Alabama had sufficient “ ‘continuous and systematic’ ” activities to establish general personal jurisdiction in Alabama). It also argued that Universal’s subsidiaries had sufficient general contacts with Alabama to establish personal jurisdiction in Alabama and that the subsidiaries’ contacts are attributable to Universal. See Environmental Waste Control, Inc. v. Browning-Ferris Indus., Inc., 711 So.2d 912, 916 (Ala.1997) (holding that the trial court erroneously granted a motion for a summary judgment filed by Browning-Ferris Industries, Inc. (“BFI, Inc.”), based on lack of personal jurisdiction where the record contained evidence indicating that BFI, Inc., had sufficient contacts with Alabama and where it was “not unreasonable to assume that it was ‘foreseeable’ that BFI, Inc., could be held liable for the conduct of its subsidiary”). Finally, Branded argued that Universal had sufficient specific contacts with Alabama to establish personal jurisdiction because, it says, its claims against Universal arose from the contacts between Universal and Alabama. See Hiller Invs. Inc. v. Insultech Group, Inc., 957 So.2d 1111 (Ala.2006) (holding that the trial court had personal jurisdiction over the defendant because the cause of action arose out of the defendant’s contacts with the State). Specifically, Branded asserts that

“[t]he wrongful act alleged in this case is [Universal’s] act of going behind the back of [Branded] and contacting Lid-dell, in Alabama. [Universal’s] act of contacting Liddell in Alabama was therefore the precise act that harmed [Branded].”

Additionally, Branded supported its jurisdictional arguments with an affidavit from Ostrander, with printouts from the Web sites of Universal and its subsidiaries, and with an article from Alabama Trucker, a trade publication.

In this case, Branded made detailed assertions regarding its theories of personal jurisdiction, and it presented evidence to support those assertions. See Ex parte United Ins. Cos., 936 So.2d 1049 (Ala.2006) (holding that a plaintiff raising a civil-conspiracy claim was entitled to jurisdictional discovery because she presented detailed pleadings regarding the corporate relationship of the defendants and regarding the role each defendant allegedly played in the civil conspiracy). Therefore, this was not a situation where Branded’s discovery request was “ ‘based upon “bare,” “attenuated,” or “unsupported” assertions of personal jurisdiction’ ” or a situation where Branded’s claim appeared to be “ ‘ “clearly frivolous.” ’ ” Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 468 (Ala.2003). Further, unlike the request in Ex parte Troncalli, Branded’s discovery request did not consist of mere conjecture and surmise. See United Ins. Cos., supra. Rather, Branded has

“ ‘at least alleg[ed] facts that would support a colorable claim of jurisdiction.’ [Ex parte Troncalli Chrysler Plymouth Dodge, Inc.,] 876 So.2d [459,] 468 [(Ala.2003) ]. Limited discovery could flesh out [Branded’s] allegations and could lead to a conclusion that the trial court can exercise personal jurisdiction over [Universal].”

Ex parte Bufkin, 936 So.2d at 1047. For these reasons, the trial court exceeded its discretion when it granted Universal’s motion to dismiss without first providing Branded an opportunity to conduct jurisdictional discovery.

Conclusion

The trial court exceeded its discretion when it granted Universal’s motion to dismiss without first providing Branded an opportunity to conduct jurisdictional discovery. Accordingly, we reverse the trial court’s judgment dismissing Branded’s claims against Universal on the basis that the court did not have personal jurisdiction over Universal, and we remand this case for the trial court to allow Branded to conduct discovery on the limited issue of personal jurisdiction.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, and MAIN, JJ., concur.

      . This case was originally assigned to another Justice on this Court. It was reassigned to Justice Wise on January 19, 2011.

      . In its brief to this Court, Universal asserts that subsequent discovery in the case, involving another defendant, Liddell Trailers, LLC, indicated that the customer was General Electric Company.

      . Branded’s subsequent pleadings and the affidavit it submitted in support of those pleadings included allegations that Universal initiated contact with Branded and asked Branded to locate a company that would design and manufacture flatbed trailers to haul wind towers.

      . The trial court also noted that Branded’s claims against Liddell were still pending and that the case would proceed as to those claims.

      . On the date this opinion was released the Web sites referenced in paragraphs 1 and 2 of Branded’s response were still available.

      . On the date this opinion was released, all but two of the Web sites referenced in Branded's response were still available. The Web sites that are no longer available are http:// www.alabamatrucking.org/docs/ATA_summer 3Q06_web.pdf and http://loads.goutsi.com 8080/wntv5/B KLoadSelections.

      . Because of our disposition of this appeal on the jurisdictional discovery issue, we preter-mit discussion of the remaining claims Branded raises on appeal.


source: Caselaw Access Project

author: COBB, Chief Justice.

license: Public Domain

text:
    LOACHAPOKA WATER AUTHORITY, INC. v. WATER WORKS BOARD OF the CITY OF AUBURN. The Greens at Auburn, an Arkansas limited partnership; The Greens at Auburn Land Development, an Arkansas limited partnership; The Greens at Auburn Land Holdings, LLC, an Arkansas limited liability company v. Water Works Board of the City of Auburn.
    1091297 and 1091461.
    Supreme Court of Alabama.
    June 24, 2011.

      Richard J.R. Raleigh, Jr., and T. Mark Maclin of Wilmer & Lee, P.A., Huntsville; and Stephen R. Windom, Montgomery, for appellant Loachapoka Water Authority, Inc.
    Russell C. Balch and David P. Whatley of Akridge & Balch, P.C., Auburn, for appellants The Greens at Auburn entities.
    Paul A. Clark and James A. Byram, Jr., of Balch & Bingham LLP, Montgomery; and James K. Haygood, Jr., and Van C. Gholston of Haygood, Cleveland, Pierce, Mattson & Thompson LLP, Auburn, for appellee.
    Robert E. Sasser and John Vickers III of Sasser, Sefton, Tipton & Davis, P.C., Montgomery, for amicus curiae Alabama Water & Wastewater Institute, in support of the appellee.
    J. Gorman Houston, Jr., of Lightfoot, Franklin & White, L.L.C., Birmingham, for amicus curiae City of Auburn, in support of the appellee.
   COBB, Chief Justice.

In these consolidated appeals, The Greens at Auburn, an Arkansas limited partnership; The Greens at Auburn Land Development, an Arkansas limited partnership; and The Greens at Auburn Land Holdings, LLC, an Arkansas limited liability company (collectively, “the Greens”), and the Loachapoka Water Authority, Inc. (“LWA”), appeal from a partial summary judgment in favor of the Water Works Board of the City of Auburn (“AWWB”). The trial court certified the partial summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Because we hold that the trial court exceeded its discretion in certifying the partial summary judgment as final, we set aside the certification and remand the case to the trial court.

Facts and Procedural History

AWWB is a waterworks board organized under Ala.Code 1975, § 11-50-230 et seq., to provide water and sewer service to locations within the city limits of Auburn and to the territory surrounding Auburn. LWA is a rural water authority organized under Ala.Code 1975, § 11-88-1 et seq., and is authorized by the Lee County Commission to provide water service in certain originally unincorporated areas in Lee County. As Auburn has grown westward and southward, the city limits have expanded to include certain portions of the territory to which LWA is authorized to provide service. Several disputes have arisen between AWWB and LWA concerning which entity will provide service in these overlapping areas.

On March 30, 2009, AWWB filed a complaint against LWA seeking a judgment declaring it to be the entity that could provide domestic water service, sewer service, and water for fire protection to several discrete locations within the disputed service areas and seeking to permanently enjoin LWA from serving those areas. A subdivision under development when the complaint was filed known as “The Greens at Auburn” was located in one of the disputed service areas that formed the basis of AWWB’s complaint. With respect to The Greens at Auburn, AWWB sought a judgment (1) declaring that LWA had no legal right to supply water for fire protection to the subdivision and (2) permitting AWWB to provide water for fire protection to the subdivision.

On May 7, 2009, the Greens, the owners and developers of The Greens at Auburn, filed a motion to intervene (which the trial court subsequently granted), a separate complaint against AWWB, and a motion to dismiss. The Greens sought dismissal of AWWB’s complaint as it related to The Greens at Auburn on the ground that AWWB was, they said, an “alter ego” of the City of Auburn and was therefore es-topped from claiming that LWA could not provide water for fire protection to The Greens at Auburn because the City of Auburn had previously approved the water system for the subdivision. Further, in their complaint, the Greens sought a judgment declaring that “LWA has the continuing authority and right to provide both domestic and fire flow service to” The Greens at Auburn.

On May 20, 2009, LWA filed an answer to AWWB’s complaint. On September 9, 2009, LWA filed an amended answer to AWWB’s complaint and a counterclaim requesting various forms of relief on the ground that AWWB was allegedly illegally duplicating LWA’s services.

On October 6, 2009, AWWB filed an amended complaint, which, with respect to matters pertaining to The Greens at Auburn, was identical to the original complaint. On October 20, 2009, LWA filed an answer to AWWB’s amended complaint. On November 5, 2009, LWA filed an amended counterclaim seeking additional relief for AWWB’s alleged duplication of LWA’s services.

On April 27, 2010, AWWB moved for a summary judgment on some of the claims in its complaint, including its request for a judgment declaring that it, and not LWA, had the right to supply water for fire protection to The Greens at Auburn. AWWB also sought a summary judgment on LWA’s counterclaim.

On June 9, 2010, the trial court entered a partial summary judgment in favor of AWWB on the majority of the claims asserted in AWWB’s complaint, including those claims pertaining to The Greens at Auburn. In the same order, the trial court dismissed LWA’s counterclaim against AWWB and certified the partial summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

On June 18, 2010, LWA filed a notice of appeal to this Court from the trial court’s partial summary judgment (case no. 1091297). On July 21, 2010, the Greens filed a notice of appeal to this Court from the trial court’s partial summary judgment (case no. 1091461).

Analysis

On questions of subject-matter jurisdiction, this Court is not limited by the parties’ arguments or by the legal conclusions of the trial court regarding the existence of jurisdiction. See Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) (“Lack of subject-matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject-matter jurisdiction ex mero motu.” (citing City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So.2d 606, 608 (1958))). In the absence of subject-matter jurisdiction, this Court has no power to consider the merits of an appeal. See Ex parte V.S., 918 So.2d 908, 912 (Ala.2005) (quoting Flannigan v. Jordan, 871 So.2d 767, 768 (Ala.2003)).

“ ‘The question whether an order appealed from is final is jurisdictional....’ ” Hinson v. Hinson, 745 So.2d 280, 281 (Ala.Civ.App.1999) (quoting Powell v. Powell, 718 So.2d 80, 82 (Ala.Civ.App.1998)). “It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.” Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981).

With respect to the finality of judgments adjudicating fewer than all claims in a case, Rule 54(b), Ala. R. Civ. P., provides:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.... [I]n the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

“If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.” Baugus v. City of Florence, 968 So.2d 529, 531 (Ala.2007) (emphasis added). However, this Court will not consider an appeal from a judgment certified as final under Rule 54(b) if it determines that the trial court exceeded its discretion in concluding that there is “no just reason for delay.” Rule 54(b); see also Scrushy v. Tucker, 955 So.2d 988, 996 (Ala.2006) (“Whether there was ‘no just reason for delay’ is an inquiry committed to the sound discretion of the trial court, and, as to that issue, we must determine whether the trial court exceeded its discretion.”).

A trial court exceeds its discretion in determining that there is “no just reason for delay” when the “the issues in the claim being certified and a claim that will remain pending in the trial court ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ ” Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006) (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). See also Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1281 (Ala.2009) (“ ‘It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.’ ” (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998))).

In this case, one of the claims disposed of by the partial summary judgment was AWWB’s claim seeking a judgment (1) declaring that LWA had no legal right to supply water for fire protection to The Greens at Auburn and (2) permitting AWWB to provide water for fire protection to The Greens at Auburn. AWWB argued that it was entitled to this relief because LWA was not incorporated as a “fire protection service.” In the partial summary judgment, the trial court stated, in pertinent part: “LWA does not have the legal right to provide water for fire protection to [T]he Greens [at Auburn] because LWA is not authorized by its certificate of incorporation, as amended, to provide fire protection service.”

The complaint filed by the Greens was pending when the trial court entered the partial summary judgment in favor of AWWB. The trial court did not enter a judgment on the Greens’ complaint. In their complaint, the Greens alleged that because AWWB is an “alter ego” of the City of Auburn and because the City of Auburn had approved the water system for The Greens at Auburn, including LWA’s provision of the water services, AWWB was estopped from denying that LWA was legally entitled to provide water for fire-protection services to The Greens at Auburn. Further, the Greens sought a judgment declaring that “LWA has the continuing authority and right to provide both domestic and fire flow service to” The Greens at Auburn.

The Greens’ pending complaint against AWWB and the partial summary judgment entered by the trial court on AWWB’s claims against LWA both require resolution of the same issue: specifically, whether LWA has the right to provide water to The Greens at Auburn for fire-protection services. Therefore, the Greens’ pending claims are so intertwined with AWWB’s claims that they cannot be separately enforced and they should not be separately adjudicated. Centennial, 20 So.3d at 1281 (quoting 10 IVright § 2659) (“ ‘An appellate court ... should not hear appeals that will require it to determine questions that remain before the trial court with regard to other claims.’ ”). Cf. Branch, 514 So.2d at 1374 (“Rule 54(b) is properly applied in a situation where the claim and the counterclaim present more than one claim for relief, either of which could have been separately enforced. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975).... The facts in this case, however, do not present the type of situation that Rule 54(b) was intended to cover.... [T]he issues in the two claims in this case are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results. We must conclude, therefore, that in the interest of justice, the claims should not be adjudicated separately.”).

Accordingly, the trial court exceeded its discretion in determining that there was no just reason for delay and in certifying the partial summary judgment as final under Rule 54(b). Cf. Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So.3d 556, 562-63 (Ala.2009) (“[A]t least some of the issues presented in the still pending claim against Smith are the same as the issues presented in the appeal now brought by Smith and Smith & Weems Investments.... Repeated appellate review of the same underlying facts would be a probability in this case, and, in light of this Court’s stated policy disfavoring appellate review in a piecemeal fashion, see Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004), we accordingly hold that the trial court exceeded its discretion in certifying the judgment entered against Weems as final pursuant to Rule 54(b).”); Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala.2008) (holding that judgments on the claims against certain defendants had been improperly certified as final under Rule 54(b), because pending claims against' the remaining defendants depended upon the resolution of common issues); and Palmer v. Resolution Trust Corp., 613 So.2d 373, 376 (Ala.1993) (holding that a summary-judgment order was improperly certified as final for purposes of appeal where issues necessary to a resolution of the appeal were common to issues necessary to the resolution of counterclaims still pending in the trial court).

Because the Greens’ pending claims against AWWB and AWWB’s claims against LWA disposed of by the partial summary judgment are so intertwined that they cannot be separately enforced, the trial court exceeded its discretion in finding that there was no just reason for delay of the entry of the partial summary judgment and in certifying that judgment as final under Rule 54(b). We therefore set aside the certification and remand the case to the trial court. See Palmer v. Resolution Trust Corp., 613 So.2d at 376 (“[T]he certification of ... summary judgment as final was premature, given the nature of the. [defendants’] outstanding counterclaims. Therefore, the certification is set aside and the case is remanded to the trial court.”). Because we are remanding this case to the trial court, all motions pending before this Court in case no. 1091297 and case no. 1091461 are moot.

1091297 — RULE 54(b), ALA. R. CIV. P., CERTIFICATION SET ASIDE; REMANDED.

1091461 — RULE 54(b), ALA. R. CIV. P., CERTIFICATION SET ASIDE; REMANDED.

STUART, PARKER, SHAW, and WISE, JJ., concur.

      . AWWB argues that the Greens cannot appeal from the partial summary judgment because, it argues, the partial summary judgment did not dispose of the Greens’ claims asserted against AWWB in their complaint and those claims remain pending. Because we dispose of the Greens' appeal on other grounds, we need not address AWWB's argument on this point.


author: PARKER, Justice.

text:
    Ex parte MOBILE INFIRMARY ASSOCIATION d/b/a Mobile Infirmary Medical Center. (In re Ernest Shaw, as administrator of the estate of Mary H. Shaw, deceased v. Infirmary Health System, Inc., et al.).
    1091490.
    Supreme Court of Alabama.
    June 24, 2011.

      Jon N. Leach, A. Edwin Stuardi III, and Annie J. Dike of Helmsing, Leach, Her-long, Newman & Rouse, P.C., Mobile, for petitioner.
    William M. Cunningham, Jr., and Clay T. Rossi of Burns, Cunningham & Mackey, P.C., Mobile, for respondents Judge John R. Lockett and Ernest Shaw.
   PARKER, Justice.

Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center (“Mobile Infirmary”) petitions this Court for a writ of mandamus directing the Mobile Circuit Court to grant Mobile Infirmary’s motion to dismiss the wrongful-death action filed against it by Ernest Shaw, as administrator of the estate of Mary H. Shaw, deceased (“Shaw”). We grant the petition and issue the writ.

Facts and Procedural History

Mary H. Shaw, who was then 90 years old, was admitted to the emergency room at the Mobile Infirmary Medical Center on January 29, 2008. She underwent surgery, which was successful, but she developed pressure sores while she was a patient at the Center. Mary was transferred to Infirmary Health Hospital, Inc., d/b/a Infirmary Long Term Acute Care Hospital on February 20, 2008, for treatment of the pressure sores. Mary remained a patient there until she was transferred to Infirmary Health Hospital, Inc., d/b/a Infirmary West on March 22, 2008; she died there the next day.

Claudia Coleman, manager of the medical records department at Mobile Infirmary, stated in her July 21, 2010, affidavit that Mary’s medical records (several of which were clearly labeled as being records of “Mobile Infirmary Medical Center”) were mailed to Mary’s family on April 7, 2008, and that Shaw also obtained a copy of Mary’s medical records from Mobile Infirmary on September 8, 2009. Before filing this wrongful-death action and after reviewing Mary’s medical records, Shaw’s attorney contacted the attorney for Infirmary Health System, Inc. (“IHS”); IHS’s attorney also represents Mobile Infirmary. Shaw’s attorney claims to have asked IHS’s attorney which entity Shaw should sue. According to Shaw’s attorney, IHS’s attorney told him that Shaw should sue IHS and that the identity of the proper parties would be sorted out later. IHS’s attorney, in an affidavit filed with the trial court, remembered the conversation differently, stating that he “never told [Shaw’s attorney] to file a lawsuit against Infirmary Health Systems, Inc. to the exclusion of any other entity” and that he did not “tell him the name of any entity that he should or should not sue.”

On December 10, 2009, Shaw filed a wrongful-death action against IHS and several fictitiously named defendants (hereinafter collectively referred to as “the defendants”), alleging that the defendants caused Mary’s death by negligently causing her injuries while she was a patient at the Medical Center and by then negligently treating those injuries while she was a patient at Infirmary Health Hospital, Inc., d/b/a Infirmary Long Term Acute Care Hospital and Infirmary Health Hospital, Inc., d/b/a Infirmary West. Along with the complaint, Shaw filed interrogatories seeking all information relevant to Mary’s treatment and care. Those interrogatories did not mention Mobile Infirmary or seek any information about the correct legal name of that entity.

IHS did not answer Shaw’s interrogatories within 45 days, as required by Rule 33(a), Ala. R. Civ. P. Shaw sent IHS additional interrogatories on March 30, 2010, specifically requesting, among other things, information regarding the “proper legal entity for the hospital commonly known as a the Mobile Infirmary Medical Center.” IHS responded on April 2, 2010, identifying Mobile Infirmary as that legal entity. On April 12, 2010, Shaw attempted to amend his complaint to substitute Mobile Infirmary as a party in place of one of the fictitiously named defendants. Mobile Infirmary filed a motion to dismiss, alleging that the two-year limitations period in the wrongful-death statute, § 6-5-410, Ala.Code 1975, had expired on March 23, 2010, before Shaw sent IHS the additional interrogatories or amended his complaint. The trial court treated the motion to dismiss as a motion for a summary judgment. The trial court denied Mobile Infirmary’s motion; Mobile Infirmary then filed a motion to reconsider the denial of its motion to dismiss, which was also denied. Mobile Infirmary then petitioned this Court for a writ of mandamus.

Standard of Review
“A writ of mandamus is an extraordinary remedy, and one petitioning for it must show: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court....
“The general rule is that ‘ “a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.” ’ Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998) (quoting Ex parte Central Bank of the South, 675 So.2d 403 (Ala.1996))....
“... In a narrow class of cases involving fictitious parties and the relation-back doctrine, this Court has reviewed the merits of a trial court’s denial of a summary-judgment motion in which a defendant argued that the plaintiffs claim was barred by the applicable statute of limitations. See Ex parte Snow, 764 So.2d 531 (Ala.1999) (issuing the writ and directing the trial court to enter a summary judgment in favor of the defendant); Ex parte Stover, 663 So.2d 948 (Ala.1995) (reviewing the merits of the trial court’s order denying the defendant’s motion for a summary judgment, but denying the defendant’s petition for a writ of mandamus); Ex parte FMC Corp., 599 So.2d 592 (Ala.1992) (same); Ex parte Klemawesch, 549 So.2d 62, 65 (Ala.1989) (issuing the writ and directing the trial court ‘to set aside its order denying [the defendant’s] motion to quash service or, in the alternative, to dismiss, and to enter an order granting the motion’). In Snow, Stover, FMC Corp., and Klemawesch, the plaintiff amended his or her complaint, purporting to substitute the true name of a fictitiously named defendant. In each case, the plaintiffs claim against the newly named defendant would have been barred by the applicable statute of limitations if the plaintiffs amendment did not, pursuant to Rule 15(c), Ala. R. Civ. P., relate back to the filing of the plaintiffs original complaint. As we explained in Snow, ‘[a] writ of mandamus is proper in a case such as this if the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.’ 764 So.2d at 537.”

Ex parte Jackson, 780 So.2d 681, 683-84 (Ala.2000).

Discussion

At issue in this petition is whether Shaw’s amended complaint, admittedly filed after the expiration of the two-year limitations period for bringing a wrongful-death action, see § 6-5-410, Ala.Code 1975, related back to the filing of his original complaint. Because Shaw failed to use due diligence in determining the true identity of Mobile Infirmary as the fictitiously named defendant, we hold that the amended complaint did not relate back to the filing of the original complaint, and, thus, the trial court erred in denying Mobile Infirmary’s motion to dismiss.

Mary died on March 23, 2008; Shaw had two years from that date in which to file a wrongful-death action. See § 6-5-410, Ala.Code 1975 (“A personal representative may commence an action ... for the wrongful act, omission, or negligence ... whereby the death of his testator or intestate was caused.... Such action must be commenced within two years from and after the death of the testator or intestate.”). Shaw filed the amended complaint on April 12, 2010, after the two-year limitations period had expired. The determinative issue is whether that amendment relates back to the filing of the original complaint as permitted by Rules 9(h) and 15(c), Ala. R. Civ. P. In a case involving fictitiously named defendants, the answer to that question depends upon the plaintiffs conduct.

As this Court said in Ex parte Snow, 764 So.2d 531, 537 (Ala.1999), an amendment substituting a new defendant in place of a fictitiously named defendant will relate back to the filing of the original complaint only if the plaintiff acted with “due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.” Ignorance of the new defendant’s identity is no excuse if the plaintiff should have known the identity of that defendant when the complaint was filed:

“The requirement that the plaintiff be ignorant of the identity of the fictitiously named party has been generally explained as follows: ‘The correct test is whether the plaintiff knew, or should have known, or was on notice, that the substituted defendants were in fact the parties described fictitiously.’ Davis v. Mims, 510 So.2d 227, 229 (Ala.1987). This Court has elaborated upon the requirement that the plaintiff be ignorant of the identity of the fictitiously named party by holding that the plaintiff must substitute the named defendant for the fictitious party within a reasonable time after determining the defendant’s true identity, see Walden v. Mineral Equip. Co., 406 So.2d 385 (Ala.1981), and by holding that ‘the same policy considerations which require a plaintiff to amend his complaint within a reasonable time after learning the defendant’s true identity also require the plaintiff to proceed in a reasonably diligent manner in determining the true identity of the defendant.’ Kinard v. C.A. Kelly & Co., 468 So.2d 133, 135 (Ala.1985).”

Crawford v. Sundback, 678 So.2d 1057, 1060 (Ala.1996).

Shaw points to his interrogatories and other discovery requests as evidence of his due diligence in attempting to discover the identity of the fictitiously named defendants. However, although a lack of formal discovery will often indicate a lack of due diligence, see, e.g., Ex parte Hensel Phelps Constr. Co., 7 So.3d 999, 1004 (Ala.2008) (“Although it is true that formal discovery is not the only method of determining the identity of a fictitiously named defendant, it commonly is vital to demonstrating due diligence because it provides objective evidence of the plaintiffs case activity.”), the presence of formal discovery does not necessarily indicate the due diligence of an amending party, see, e.g., Jones v. Resorcon, Inc., 604 So.2d 370 (Ala.1992) (finding the plaintiffs discovery insufficient to satisfy due-diligence standard).

The evidence attached to Mobile Infirmary’s summary-judgment motion indicates that Shaw did not act with due diligence. When he filed the original complaint, Mary’s family had possessed her medical records for 20 months, and Shaw had possessed Mary’s medical records for at least 3 months, including various paperwork from Mobile Infirmary, which indicated that Mary had been admitted to the Medical Center, had undergone surgery there, and had been treated there following her surgery. A reasonably diligent plaintiff possessing that information should have at least attempted to identify the corporation doing business as Mobile Infirmary Medical Center and include it as a defendant. See Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995) (holding that where plaintiff knew the allegedly defective forklift was manufactured by “Clark” and possessed forklift manuals providing Clark’s name but did not attempt to amend the complaint until after the limitations period had run, the plaintiff “did not act diligently in attempting to learn Clark Equipment’s identity”). As this Court has said,

“[ijf the plaintiff knows the identity of the fictitiously named parties or possesses sufficient facts to lead to the discovery of their identity at the time of the filing of the complaint, relation back under fictitious party practice is not permitted and the running of the limitations period is not tolled.”

Clay v. Walden Joint Venture, 611 So.2d 254, 256 (Ala.1992).

Shaw argues that Mobile Infirmary is not prejudiced by his delay in identifying it as a defendant because, he says, Mobile Infirmary’s counsel received notice of the wrongful-death action in his role as counsel for IHS. However, prejudice becomes a consideration only when an amendment would otherwise relate back to the time of filing; lack of prejudice to the non-amending party will not make an otherwise improper relation back proper, where due diligence by the amending party is lacking. See Wallace v. Doege, 484 So.2d 404, 406 (Ala.1986) (“The relation-back principle will not be applied when there has been an inordinate delay between the time the plaintiff learned the fictitious party’s true name and the time of the actual substitution, if the delay prejudiced the defendant.”).

Shaw also argues that Mobile Infirmary’s petition for the writ of mandamus should be denied because, he says, Mobile Infirmary comes to this Court with unclean hands. See State Bd. of Admin. v. Roquemore, 218 Ala. 120, 124, 117 So. 757, 760 (1928) (“[T]he petitioner must come into court with clean hands, and any fraudulent, dishonest, or inequitable conduct on his part in respect of the matter at issue invites or requires a denial of the writ [of mandamus].”). Shaw points to the alleged inadequacy of Mobile Infirmary’s filings with the Alabama Secretary of State, including its failure to register the name “Mobile Infirmary Medical Center,” as well as its failure to provide a registered agent and office. Shaw argues that these failures violated § 10-2B-5.01, Ala.Code 1975 (“Each corporation must continuously maintain in this state: (1) A registered office that may be the same as any of its places of business; and (2) A registered agent....”). He argues that this alleged statutory noncompliance, combined with the alleged unfulfilled promises of IHS’s attorney to notify Shaw of the identity of the proper defendants in a timely manner and the unexcused delay in responding to Shaw’s original interrogatories, made Shaw’s due-diligence attempts to discover Mobile Infirmary’s identity unavailing and invited error. Shaw cites Mississippi Valley Title Insurance Co. v. Hooper, 707 So.2d 209, 214 n. 5 (Ala.1997) (quoting Slaton v. State, 680 So.2d 879, 892 (Ala.Crim.App.1995)), in which this Court stated that “a party ‘cannot by his own voluntary conduct invite error and then seek to profit thereby.’ ” As previously noted, however, Shaw failed to include in his original interrogatories any inquiry about the legal entity doing business as Mobile Infirmary Medical Center; therefore, even if IHS had responded to those interrogatories in a timely manner, Shaw would not have had any new information on which to amend his complaint to add Mobile Infirmary as a defendant in place of one of the fictitiously named defendants.

Shaw argues that his attorney searched the Secretary of State’s Web site in an attempt to determine Mobile Infirmary’s identity; that his attorney contacted IHS’s attorney for the same purpose; and that his attorney attempted to discern the identity of the correct defendants through the discovery process. However, the complaint does not allege that Mobile Infirmary is a subsidiary of IHS or an otherwise related entity of IHS, the only named defendant. Nor is Mobile Infirmary even mentioned in Shaw’s initial discovery. Due diligence may take different forms, but this clearly was not sufficient. See Crowl v. Kayo Oil Co., 848 So.2d 930, 941 (2002) (plaintiff “did not exercise due diligence” when he relied on interrogatories to determine the identity of defendants and those interrogatories were never answered).

Finally, a party is responsible for knowing the contents of medical records in its possession. See Marsh v. Wenzel, 732 So.2d 985 (Ala.1998); Weber v. Freeman, 3 So.3d 825 (2008). In both Marsh and Weber, this Court held that the relation-back doctrine was not applicable when, before the limitations period expired, the plaintiffs in each case knew that the omitted defendant was one of the treating physicians. This was so, even though it was only after the limitations period expired that the plaintiffs discovered that they had a cause of action against the defendant physicians. In this case, Shaw and his attorney reviewed Mary’s medical records before filing the wrongful-death action. Those records were clearly marked as being the records of “Mobile Infirmary Medical Center.” Mobile Infirmary argues that this was sufficient to give Shaw knowledge of Mobile Infirmary’s identity.

Shaw argues that Oliver v. Woodward, 824 So.2d 693 (Ala.2001), is the more applicable precedent. In Oliver, the patient, Oliver, knew when she filed her complaint, based on her medical records, that Dr. Woodward was one of the doctors present in the emergency room at the time the treatment that harmed her was authorized. However, Oliver was not able to determine that Dr. Woodward was the doctor who authorized the harmful treatment until after the limitations period had expired. 824 So.2d at 698. This Court held that the amended complaint did relate back to the original complaint because Oliver had “diligently and reasonably” attempted to verify which doctor of those present in the emergency room had authorized the harmful treatment. This Court rejected Dr. Woodward’s argument that Oliver should have sued all the doctors present rather than waiting to identify him as the responsible party, noting that “substitution of Dr. Woodward and the other emergency-room doctor for fictitious defendants without a reasonable factual basis or a substantial justification for the substitution would have subjected Oliver to sanctions under Rule 11, Ala. R. Civ. P., and the Alabama Litigation Accountability Act.” 824 So.2d at 699. Similarly, Shaw argues, he knew that Mobile Infirmary Association was an IHS entity but did not know that Mobile Infirmary Association was doing business as Mobile Infirmary Medical Center and therefore potentially liable for Mary’s alleged wrongful death.

Like Oliver, Shaw knew there were multiple potential defendants in this case. Unlike Oliver, however, Shaw knew from Mary’s medical records that Mary had been in the care of an entity doing business as Mobile Infirmary Medical Center at the time she suffered the injuries that led to her death. Shaw therefore had a reasonable factual basis on which to name Mobile Infirmary Medical Center as a defendant in this wrongful-death action and later amend his complaint to reflect the correct name of the appropriate legal entity. Therefore, because Shaw did not act with due diligence in identifying Mobile Infirmary as the fictitiously named party in the original complaint, his amended complaint does not relate back to the time of filing of the original complaint, and his wrongful-death action against Mobile Infirmary is barred by the expiration of the two-year limitations period in the wrongful-death statute.

Conclusion

Based on the foregoing, we conclude that Mobile Infirmary has established a clear legal right to have Shaw’s wrongful-death action against it dismissed. Accordingly, we grant the petition and issue the writ directing the Mobile Circuit Court to enter a summary judgment in favor of Mobile Infirmary.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and STUART, SHAW, and WISE, JJ., concur.

      . Only Mobile Infirmary has filed a motion to dismiss; no motion to dismiss was filed regarding Shaw’s wrongful-death action against IHS.

      . Rule 9(h), Ala. R. Civ. P., provides:
      “When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party's true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

      . Rule 15(c), Ala. R. Civ. P., provides:
      "An amendment of a pleading relates back to the date of the original pleading when
      "(4) relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).”

      . We note that this provision was repealed effective January 1, 2011, by Act No. 2009-513, Ala. Acts 2009.