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

> District Court, N.D. Alabama · January 13, 2020

URL: https://www.frixlaw.com/law-library/cases/9989167

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** January 13, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
HOMTEX, INC., )
)
Plaintiff, )
)
v. ) Case No.: 5:19-cv-00009-LCB
)
CALAMITY JANE’S FUNK AND )
JUNK, INC., )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Plaintiff originally filed this action in the Circuit Court of Cullman County,
Alabama, on November 28, 2018, against the Defendant for breach of a contract
along with several other counts. (Doc. no. 1-1). Plaintiff alleges that Defendant
ordered substantial textile apparel from their company and has failed to pay
according to their agreement. Id. The damage alleged by Plaintiff is approximately
$171,548.80, plus interest, costs and fees. Id. Defendant filed a notice of removal
on January 2, 2019, citing diversity jurisdiction.1 (Doc. no. 1).
The case currently is before the Court on Defendant’s Motion to Dismiss for
Lack of Personal Jurisdiction (doc. no. 3). Plaintiff filed their response on January
25, 2019. (Doc. no. 7). Defendant filed a reply on February 1, 2019 (doc. no. 9).
The parties presented oral arguments on May 2, 2019. Upon review and for the

1 The case was removed to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. (Doc. 1).
reasons stated herein, the Court concludes that Defendant’s Motion to Dismiss (doc.
no. 3) is due to be denied.

I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(2), “[a] plaintiff seeking the
exercise of personal jurisdiction over a nonresident defendant bears the initial burden

of alleging in the complaint sufficient facts to make out a prima facie case of
jurisdiction.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009).
After the defendant challenges jurisdiction with affidavit evidence in support of its
position, “the burden traditionally shifts back to the plaintiff to produce evidence

supporting jurisdiction unless [the defendant’s] affidavits contain only conclusory
assertions that the defendant is not subject to jurisdiction.” Meier ex rel. Meier v.
Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002). See also Stubbs v.

Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 (11th
Cir.2006). However, if “the plaintiff’s complaint and supporting evidence conflict
with the defendant’s affidavits, the court must construe all reasonable inferences in
favor of the plaintiff.” Meier, 288 F.3d at 1269.

Upon diversity a federal court “may exercise personal jurisdiction over a
nonresident defendant to the same extent that [an Alabama] court may, so long as
the exercise is consistent with federal due process requirements.” Licciardello v.

Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008). Alabama’s long-arm statute, “. . .
permits its courts to exercise jurisdiction over nonresidents to the fullest extent
allowed under the Due Process Clause of the Fourteenth Amendment to the

Constitution.” Ruiz de Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d
1351, 1355-56 (11th Cir. 2000) (citing Martin v. Robbins, 628 So.2d 614, 617 (Ala.
1993) ). See also Ala. R. Civ. P. 4.2 (permitting jurisdiction over nonresident

defendants on any basis “not inconsistent with the constitution of this state or the
Constitution of the United States”). Therefore, this Court may exercise personal
jurisdiction over a defendant so long as jurisdiction is consistent with federal due
process under the Fourteenth Amendment to the U.S. Constitution.

The Supreme Court has recognized two types of personal jurisdiction that are
consistent with the Due Process Clause of the Fourteenth Amendment, general
jurisdiction and specific jurisdiction. Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915, 923-24 (2011). A defendant subject to general jurisdiction in
a forum may be sued in that forum on any and all claims against it, even if the claims
have no connection to the forum. Id. at 919. In contrast, a court has specific
jurisdiction over a defendant only with respect to claims that arise out of or relate to

the defendant’s contacts with the forum. Id. at 923-24.
In the case at bar, the Plaintiff concedes that the Defendant is not subject to
general personal jurisdiction. (Doc. no. 7, p. 12). Thus, this Court must simply

address the question of whether the Defendant is subject to specific jurisdiction in
Alabama for the claims asserted against it in this action.
The Eleventh Circuit follows a three-part test to determine whether specific

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

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

Id. at 1355 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472–73, 474–
75 (1985). See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 413–14 (1984); and Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
The burden generally rests upon the Plaintiff to establish the first two prongs, if
successful, the burden then shifts to the defendant to avoid jurisdiction by making
“a compelling case that the exercise of jurisdiction would violate traditional notions
of fair play and substantial justice.” Diamond Crystal Brands, Inc. v. Food Movers
Int'l, Inc., 593 F.3d 1249, 1267 (11th Cir. 2010)).
II. SUMMARY OF FACTS
In support of the motion Defendant submitted an affidavit of its founder and
Chief Executive Officer, Jazmine Farmer. (Doc. no. 3-1). Plaintiff, in response,
provided an affidavit of Maury Lyon, Vice President of Apparel Sales for the
Plaintiff. (Doc. no. 7-1). Based upon the pending motion, response, supporting
affidavits, and oral arguments the following facts are undisputed:

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

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

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

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

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

6. On November 10, 2017, Defendant submitted a third order for
samples for the Spring 2018 order. (Doc. no. 7-2, at 4-5).

7. Defendant submitted a fourth sample order on November 13,
2017. (Doc. no. 7-2, at 6-7).

8. The second purchase order was submitted by Defendant on
December 7, 2017, for the Spring 2018 line, 26,130 items for a
total of $154,707.50. (Doc. no. 7-2, at 8-10).

9. Thereafter, Defendant submitted several smaller purchase orders
one on January 17, 2018 for 504 items and another on January 30,
2018, for 1,200 items for a total of $13,665.00. (Doc. no. 7-2, at
11-12).

10. Each of the orders involved custom made apparel products and the
parties had extensive discussions prior to these orders about
designs and specifications of the merchandise. (Doc. nos. 3-1 and
7-1).

11. The products were more specialized than usual because the
merchandise included Defendant’s trademark and logo. (Doc. no.
7-1, and 7-3, at 20).

12. In addition, some of the products are locally specific to the State
of Alabama since they contain the words “Alabama.” (Doc. no.
7-1, at 9).

13. The parties frequently discussed specific design and
manufacturing issues by email, telephone and FaceTime. (Doc.
no. 3-1 and 7-1).

14. Due to concessions regarding non-conforming merchandise,
Plaintiff waived payment for the initial purchase order, the Fall
2017 merchandise and allowed the Defendant to keep the
merchandise. (Doc. no. 7-1, ¶ 13).

15. Around January of 2018, due to alleged problems with the
merchandise Defendant refused and/or failed to pay for the Spring
2018 orders. (Doc. no. 7-1).

16. On March 22, 2018, Defendant submitted eight (8) separate
purchase orders for 17,493 total items for total of $91,878.20,
these orders were terminated by Plaintiff. Id.

17. Again on April 12, 2018, Defendant submitted a purchase order
for 191 items for $1,135.95, this order was terminated by Plaintiff.
Id.

18. Defendant’s website lists three (3) Alabama stores that sell its
merchandise. (Doc. no. 3-1).
19. Defendant has continued to sell items from the Fall 2017
merchandise to customers in Alabama. (Doc. no. 7-1, at 9).

20. Some of the 2017 large sample orders were shipped directly from
India to the Defendant in Oklahoma at the direction of the
Plaintiff. (Doc. no. 3-1).

21. No representative of the Defendant ever traveled to the State of
Alabama. Id.

23. Plaintiff’s representatives traveled to the Defendant’s offices in
Oklahoma City to provide support regarding the merchandise
received by the Defendant. (Doc. nos. 3-1 & 7-1).

The parties differ as to how many orders should be considered in the Court’s
analysis of minimum contacts. Plaintiff argues that all contacts surrounding the
relationship should be considered, which amounts to around sixteen (16) orders
during the entire relationship consisting of approximately 58,000 items of
merchandise valued at approximately $350,000.00 dollars. (Doc. no. 7). The
Defendant seeks to narrow their contacts to two (2) orders, the Fall 2017 order and
the Spring 2018 line, but does not dispute the other orders and/or contacts. (Doc. no.
3). Further, in an effort to show that some of the items were not manufactured in
Alabama, Defendant highlights additional large sample orders related to the Fall
2017 and Spring 2018 lines that it alleges were shipped directly from India to the
Defendant’s offices in Oklahoma. (Doc. no. 3).
III. DISCUSSION
Defendant contends that this case should be dismissed for lack of personal
jurisdiction because it lacks the minimum requisite contacts with the State of
Alabama. Defendant further argues that even if the requisite minimum contacts

exist, that litigating this action in Alabama would violate due process. Pursuant to
the above guidelines as outlined in Mosseri, the Court must first conduct a minimum-
contacts analysis, a factually specific analysis which focuses solely upon the

defendant’s contacts. Mosseri, 736 F.3d at 1355. See also, Ex parte Alamo Title
Co., 128 So. 3d 700, 710 (Ala. 2013).
A. Whether Plaintiff’s claims “arise out of or relate to” as least one of the
Defendant’s contacts with the State of Alabama.

Plaintiff’s complaint alleges seven (7) counts: (1) Breach of Contract; (2)
Account Stated; (3) Unjust Enrichment; (4) Breach of Covenant of Good Faith and
Fair Dealing; (5) Promissory Estoppel; (6) Fraud; and (7) Negligent
Misrepresentation. (Doc. no. 1-1). The complaint seeks damages only for the Spring
2018 merchandise purchase orders. Defendant claims that the Fall 2017 merchandise

did not meet its specifications as well, and Plaintiff explains that, in an effort to
establish a long-term business relationship, it waived payment on the Fall 2017
merchandise and allowed the Defendant to retain the merchandise.
It is undisputed that Defendant placed the orders concerning the 2018 Spring

Merchandise; that the goods ordered were received; and that no payment has been
made for the goods that were ordered and received. Defendant contends that it has
not paid for the 2018 Spring merchandise because the merchandise was non-
conforming and that it was returned to the Plaintiff’s offices in Cullman, Alabama;
these particular facts are not critical for our analysis at this point. There is no

question, and the Defendant has not argued otherwise, that its contacts with the
Plaintiff and this forum regarding the 2018 Spring Purchase Order all “arise out of
or relate to” the Plaintiff’s claims. Therefore, the first prong of the minimum-

contacts test is satisfied.
B. Whether the nonresident defendant “purposefully availed” himself of
the privilege of conducting activities within the State of Alabama, thus
invoking the benefit of the forum state's laws.

The principal issue presented in brief and at oral argument is what contacts
the Court should and can consider in determining the extent the Defendant’s
activities. For instance, the Plaintiff argues that the Court can consider all contacts
and not just those centered on the 2018 Spring Merchandise Order. Defendant seeks
to trim the contacts to no more than two (2) and one (1) related specifically to the
2018 Spring Order. The U.S. Supreme Court in Burger King answered this question
as follows:
“[W]e have emphasized the need for a ‘highly realistic’ approach that
recognizes that a ‘contract’ is ‘ordinarily but an intermediate step
serving to tie up prior business negotiations with future consequences
which themselves are the real object of the business transaction.’
(citation omitted). It is these factors—prior negotiations and
contemplated future consequences, along with the terms of the contract
and the parties' actual course of dealing—that must be evaluated in
determining whether the defendant purposefully established minimum
contacts within the forum.”
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479 (1985) (alteration and emphasis
supplied) (quoting Hoopeston Canning Co. v. Cullen, 318 U.S., at 316-17). Thus,

we must consider the entire course of dealing to determine the second prong of the
minimum contacts test. The Eleventh Circuit followed this reasoning in Diamond
Crystal Brands, Inc. wherein it addressed the requisite personal jurisdiction

minimum contacts analysis for contractual cases as follows:
At the outset, we underscore that the minimum contacts analysis is “
‘immune to solution by checklist.’ ” Sloss Indus. Corp. v. Eurisol, 488
F.3d 922, 925 (11th Cir.2007) (quoting Prod. Promotions, Inc. v.
Cousteau, 495 F.2d 483, 499 (5th Cir.1974)). Thus, it is settled that
entering a contract with a citizen of another state, standing alone, does
not automatically satisfy the minimum contacts test. Burger King, 471
U.S. at 478, 105 S.Ct. at 2185.

Rather, when inspecting a contractual relationship for minimum
contacts, we follow a “highly realistic approach” that focuses on the
substance of the transaction: prior negotiations, contemplated future
consequences, the terms of the contract, and the actual course of
dealing. Id. at 479, 105 S.Ct. at 2185 (internal quotation omitted). The
focus must always be on the nonresident defendant's conduct, that is,
whether the defendant deliberately engaged in significant activities
within a state or created continuing obligations with residents of the
forum. Id. at 480, 105 S.Ct. at 2186–87. This focus ensures that a
defendant will not be subject to jurisdiction based solely on “ ‘random,’
‘fortuitous,’ or ‘attenuated’ contacts.” Id. at 475, 105 S.Ct. at 2183
(quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct.
at 1473, 1478, 79 L.Ed.2d 790 (1984)).

This case involves a forum seller’s effort to sue a nonresident buyer in
the seller's home forum for breach of contract. In this context, we have
rejected jurisdiction when the buyer's sole contact with the forum is
contracting with a resident seller who performs there. See Borg–
Warner Acceptance Corp. v. Lovett & Tharpe, Inc., 786 F.2d 1055,
1063 (11th Cir. 1986) (refusing to exercise jurisdiction where the
primary contact involved an isolated purchase of goods manufactured
in the forum under a contract negotiated outside of the forum). This
follows from the two well-established propositions that neither merely
contracting with a forum resident nor the forum resident’s unilateral
acts can establish sufficient minimum contacts.

But nonresident purchasers can still be subject to jurisdiction in the
seller's forum. Jurisdiction is often found where further contacts or plus
factors connect the defendant to the jurisdiction. See, e.g., Sloss Indus.,
488 F.3d at 931–33. Courts have considered a defendant's initiating the
contractual relationship, visiting the plaintiff’s factory to assess or
improve quality, sending materials to the plaintiff for inspection or use
in shipping, participating in the manufacturing process, establishing a
relationship by placing multiple orders, requiring performance in the
forum, negotiating the contract via telefaxes or calls with the plaintiff;
the list goes on.

Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1268–69
(11th Cir. 2010). Thus, a single contact will not suffice and there are no specific
number of contacts or types of contacts or a “checklist” to establish minimum
contacts sufficient for personal jurisdiction. Id. However, it is critical that the non-
resident purchaser initiate or solicitate the contacts with the forum party and, if not,
this fact alone could be critical.2
Ms. Farmer’s affidavit, as provided by the Defendant, attempts to minimize
the party’s contractual relationship by omitting key facts surrounding the
Defendant’s initiation and solicitation of the orders in this case. The undisputed
email exhibits attached to the Plaintiff’s affidavit of Ms. Lyons show that the

2 Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 932 (11th Cir. 2007) (upholding a district court’s finding of sufficient
minimal contacts for the exercise of personal jurisdiction upon, inter alia, solicitations by the [non-resident]
purchaser of ten orders over the period of several months).
Defendant not only initiated these orders but was the controlling party regarding the
designs and production time. During questioning at oral argument both parties

agreed that the communications regarding these designs and specifications were
involved. Evidence submitted shows that the designs involved the Defendant’s logo
along with other designs created by the Defendant for marketing to customers with

an affection for the State of Alabama by using the words “Alabama” in the designs.
In support, the Plaintiff produced sufficient evidence, again to which the Defendant
did not dispute, that the Defendant was currently selling the 2017 merchandise,
allegedly non-conforming, in the State of Alabama thru several stores and by internet

sales. Defendant argues that the sales in Alabama are negligible but presents no
specific evidence to support this argument. In sum, it is undisputed that Defendant
solicited and initiated the first and subsequent order(s) for merchandise, a total

course of dealing involving some sixteen (16) orders over a ten (10) month period
consisting of merchandise valued at approximately $350,00.00 dollars; that the
parties participated in numerous negotiations regarding the designs, color and
printing of a substantial volume of apparel items by telephone, fax and Face Time;

and that the Plaintiff travelled on two (2) occasions to the Defendant’s place of
business to assist with several complaints and support issues regarding the
merchandise. The Court finds that Defendant deliberately engaged in significant
activities, thereby creating continuing obligations3 with the Plaintiff within the State
of Alabama and is not simply a “passive purchaser.”4 Accordingly, the Court further

finds that the Defendant “purposefully availed” itself of the privilege of conducting
activities within the State of Alabama to the extent that the exercise of personal
jurisdiction over it would not violate constitutional due process.

C. Whether the exercise of personal jurisdiction comports with
“traditional notions of fair play and substantial justice.”

Having concluded that sufficient minimum contacts exist, the Court must now
address the Defendant’s argument that litigation in the State of Alabama would
offend “traditional notions of fair play and substantial justice.” Burger King, 471
U.S. at 476. See also Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 259 (11th
Cir.1996). This evaluation includes three factors: (1) The burden on defendant; (2)
the State of Alabama’s interest in adjudicating the dispute; and (3) the Plaintiff’s
interest in obtaining convenient and effective relief. Sloss Indus. Corp. v. Eurisol,

488 F.3d 922, 933 (11th Cir. 2007). First, the Defendant neither in brief nor at oral
argument has presented a specific burden concerning litigation of this matter in the
State of Alabama. The Defendant seems to rely solely upon its argument that it is a
limited purchaser without significant contacts. This Court disagrees. Nevertheless,

3 Burger King, 471 U.S. at 480.
4Sloss Indus. Corp., 488 F.3d at 933 (defined a passive purchaser “simply places an order and sits by until the goods
are delivered.”) (quoting Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079, 1084 (1st Cir.1973) a case
examined with approval in Borg-Warner, 786 F.2d at 1061 & n.3).
the Court finds that the burden upon the Defendant is minimal considering the
location of the witnesses and the merchandise which is the subject of the Plaintiff’s

complaint.5 Huntsville has an international airport making travel to and from
Oklahoma City extremely efficient and reasonable. Of course, the possibility of
litigation in the forum that you seek business should always be a factor in any

business dealings outside your home state. Second, neither party has argued that it
is against the interest of the State of Alabama in adjudicating a dispute involving a
contract initiated in the State with an Alabama Corporation; the Court finds that it is
in the State’s interest to resolve this dispute in the present forum. Third, the Plaintiff

argues, without dispute, that it has a compelling interest in obtaining convenient and
effective relief by litigating this case in the State of Alabama rather than Oklahoma.
Consequently, the Court finds that litigation of this case in this forum would not

“offend the traditional notions of fair play and substantial justice.” International
Shoe, 326 U.S. at 316.
IV. CONCLUSION
Based upon the foregoing, Defendant’s motion to dismiss for lack of personal

jurisdiction (doc. no. 3) is hereby DENIED. Defendant’s answer is due on or before
January 20, 2020. The stay of all Rule 26, Fed. R. Civ. P., obligations (doc. no. 8)

5 Plaintiff’s counsel at oral argument provided that the 2018 Spring Merchandise, which was returned by the
Defendant to the plaintiff’s offices in Cullman, Alabama, where it is currently being stored, consists of three to four
pallets containing 7,000 products.
is hereby lifted and the parties are directed to file a report of parties planning
meeting® on or before February 19, 2020.
DONE and ORDERED this January 13, 2020.

xo SZ C Sha
LILES C. BURKE
UNITED STATES DISTRICT JUDGE

® Pursuant to the Court’s initial order governing all further proceedings. (Doc. no. 5).
15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989167. Public record. Not legal advice.