Opposition Brief — McInnis v. Daniel

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Supreme Court, US.

FILED

- APR 5 2002

No. 01-1290

OFFICE OF THE CLERK

—— ee’

In The

Supreme Court of the United States

SAM MCINNIS AND TIM SHINGLETON,

Petitioners,

Vv.

PAMELA ALICE LITTLE DANIEL,

AS ADMINISTRATRIX OF THE

ESTATE OF JOE ED DANIEL,

Respondent.

On Petition For Writ Of Certiorari

To The Supren.. Court Of Alabama -

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI ¥

JoserH M. Brown, Jr. THomMasS R. DOLVEN

Davip G. Wirtes, JR. — Dewnirst & Weeks, LLP

Counsel of Record 950 South Cherry Street

Georcrt M. Dent, III Suite 600

CUNNINGHAM, Bounpbs, YANcE, Denver, Colorado 80246

CROWDER & BROWN (303) 757-0003

1601 Dauphin Street

P. O. Box_66705

Mobile, Alabama 36660

(251) 471-6191

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6464

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Respondent disagrees with the “Questions Pre-

sented” in the Petition, as will be explained within.

Respondent asserts that the following are the questions

pertinent to a decision whether to grant the petition for

certiorari:

‘

Whether there is a final judgment below suffi-

cient to invoke review by this Court pursuant to

28 U.S.C. § 1257(a)?

If so, whether this Court should nevertheless

decline to exercise jurisdiction because of the pre-

liminary, fact-dependent, and undeveloped char-

acter of the presentation of and rulings on the

assertions regarding Petitioners’ contacts with

Alabama?

Was there error, much less error of constitutional

magnitude, in the Supreme Court of Alabama’s

holding that Petitioners did not present in their

mandamus petition an indisputable case for lack

of minimum contacts, given the applicable stan-

dards of review and the avowed non-finality of

the denial of their motions to dismiss and the

denial of their mandamus petition?

PARTIES TO THE PROCEEDING

Respondent Pamela Alice Little Daniel, as Adminis-

tratrix of the Estate of Joe Ed Daniel, will be referred to

herein as Mrs. Daniel or Plaintiff. She is the widow of Joe

Ed Daniel, whose death is the subject of the wrongful

death action against Petitioners and other defendants in

the Circuit Court of Baldwin County, Alabama. in the

years just preceding Mr. Daniel’s death, Petitioner Sam

McInnis (“McInnis”) was the Vice President of Sales and

then the Chief Executive Officer of the corporations that

produced and marketed the explosive, but deceptively

labeled as non-explosive, product known as “fix a flat”?

that killed Mr. Daniel. In the same time period Petitioner

Tim Shingleton (“Shingleton”) was a Regional Sales Man-

ager or Vice President of Sales and then President of

Operations of the two corporations that successively mar-

keted fix a flat just prior to Mr. Daniel’s death. From

September 1993 through March 1995, the relevant corpo-

ration was Snap Products, Inc. From April 1995 through

the time of Mr. Daniel’s death on June 4, 1997, and until

November 1997, the relevant corporation was Snap Auto-

motive Products, Inc. Michael Borka, whose petition for

mandamus the Supreme Court of Alabama granted, was

Chief Financial Officer of Snap Automotive Products,

Inc., from April 1995 through November 1997. (App. A to

1 The name of this product is written in various ways in

these proceedings. Photographic exhibits in the trial record

show the name without capital “F’s” or hyphens and with a

trademark symbol following “fix a flat.”

ili

PARTIES TO THE PROCEEDING - Continued

Petition, p. 10a.) McInnis and Shingleton were officers of

Snap Products, Inc., when they, together with Borka,

formed Snap Automotive Products, Inc., and caused it to

purchase Snap Products, Inc., in April 1995. (Id.; App. A

to this Brief, J 56.)

TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEEDING ............5.0,.. ii

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CONSTITUTIONAL AND STATUTORY PROVI-

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RAEN GOP BRO GO oo oases css andseatanns 2

7 ee eee eee 5

REASONS FOR DENYING THE WRIT............. 8

I. The Judgment Below Is Interlocutory, Not

Final, So This Court Does Not Have Jurisdic-

PERE CEE TEE EOC e CE ELT PUTT Oe TCET ETT y 8

II. Even If This Court May Have Jurisdiction, It

Should Decline To Exercise It............... 14

A. Even a Final Denial of An Extraordinary

Writ Does Not Require This Court to Take

Jurisdiction. ......... Prerrreror er rere Tr 14

B. The Better View of the In Personam Cases

is That This Court Should Grant Review

Only After a Final Judgment Against the

CORCRIN TOUUIRGEONE og gk os oh nce ee es 15

III. Petitioners Make No Showing Of A Due Pro-

ee er err er ey rere 23

Re MIEN os a. scores he iee viene ees 30

TABLE OF AUTHORITIES

Page

Cases

Asahi Metal Industry Company, Ltd. v. Superior

Court, 400 WS; 102 CUFF. 6 oss oiahe des csesee 16

Bandini Petroleum Co. v. Superior Court, 284 U.S. 8

(TRIED iss 25) ok eae 10, 14, 15

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). .passim

Cable/Home Communication Corp. v. Network Pro-

ductions, Inc., 902 F.2d 829 (11th Cir. 1990)........ 23

Calder v. Jones, 465 U.S. 783 (1984)........... 17, 27, 28

Costarelli v. Massachusetts, 421 U.S. 193 (1975) nated 10

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)

ddan avd ee kee Dae sake See eee eee 17, 18, 19, 21

Duke v. Young, 496 So.2d 37 (Ala. 1986)............. 24

Ex parte Sekeres, 640 So.2d 640 (Ala. 1994)........ 10, 11

Ex parte Shelton, [Ms. 1990366, Sept. 7, 2001; 2001

WL 1021585] __. So.2d ___ (Ala. 2001)....... 1, 9, 10

Fisher v. District Court, 424 U.S. 382 (1976) ...9, 10, 13, 14

Florida v. Thomas, 532 U.S. 774 (2001) ................ 9

Hanson v. Denckla, 357 U.S. 235 (1958)........ id; Bis ae

Helicopteros Nacionales De Columbia, S.A. v. Hall,

O66 US. GOR Clos kak bok eece ee 16, 19

Jefferson v. City of Tarrant, Alabama, 522 U.S. 75

8 5 Se ee err rr ry eid passim

Keeton v. Hustler Magazine, Inc., 465 U.S. 770

Bi rr re een as Bere er an ruth y iet 28, 29

Kulko v. Superior Court, 436 U.S. 84 (1978)...15, 17, 21, 22

vi -

TABLE OF AUTHORITIES - Continued

Page

Madara v. Hall, 916 F.2d 1510 (11th Cir. 1990) ....... 24

Madruga v. Superior Court, 346 U.S. 556 (1954)....... 10

Market Street R. Co. v. Railroad Comm'n of Cal., 324

U.S. S4B (O00) oo ccnccvccesscuctsanssepecssvasenes 11

May v. Anderson, 345 U.S. 528 (1953)............. 17, 22

Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama

Interstate Power Co., 240 U.S. 30 (1916).. 9, 10, 13, 14

Olson v. Snap Products, Inc., 29 F.Supp. 1027 (D.

biiom. 1906) sc sis assonnancsaas66e000 ben eeeseeiee 3, 4

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

(1988) . ccvcccdcdctsawanesaeshusarseenss yee 11

Rescue Army v. Municipal Court, 331 U.S. 549

(1069) . < occcsksceasaeieeiene eee 10, 14, 15

Robinson v. Giamarco & Bill, P.C., 74 F.3d 253 (11th

Che. 2008) oc Se coxa taconkahenaekensaeeeeeeeee 23, 24

Rush v. Savchuk, 440 U.S. 320 (1980)................. 17

Shaffer v. Heitner, 433 U.S. 186 (1977)..... 16, 17, 20, 21

Van Cauwenberghe v. Biard, 486 U.S. 517 (1988).. 12, 19, 20

Weston v. Charleston, 27 U.S. (2 Pet.) 449 (1829)...... 10

World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

ye eer bette eee ee eee eee ners aa, 37

CONSTITUTIONAL PROVISIONS

LS. Comet. ant: TE, Oo OSs cance caus eeeeancessoceee 2

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Vii

TABLE OF AUTHORITIES - Continued

Page

STATUTES

Pub. L. 100-352, §§ 3 and 5, June 27, 1988, 102 Stat.

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BRIEF IN OPPOSITION TO CERTIORARI

Mrs. Daniel respectfully submits that Petitioners

| McInnis and Shingleton have overstated the precedential

importance of the denial of mandamus by the Supreme

Court of Alabama and have ignored its lack of finality. In

the introductory paragraph of their Petition, McInnis and

Shingleton assert that their supposedly “very limited con-

tacts” with Alabama “have nothing to do with* Mrs. Dan-

iel’s cause of action. (Petition, p. 1.) On the contrary, their

tortious conduct resulted in the sale in Alabama of the

dangerous product that caused Mr. Daniel’s death. They

further erroneously state that the Supreme Court of Ala-

bama has “attribut[ed] to defendants the actions of other

parties,” id., when it is the personal actions of McInnis and

Shingleton that principally caused the production and sale

of the explosive and dangerously mislabeled fix a flat

product that caused Mr. Daniel’s death. Thus, even aside

from the jurisdictional and prudential concerns argued as

issues one and two below, this case presents no color of

merit that would justify granting the Petition.

OPINION BELOW

Because the opinion of the Supreme Court of Alabama

remains unpublished, Respondent will cite to the copy of

that opinion presented to the Court as “App. A to Peti-

tion.”

JURISDICTION

As a threshold matter, this Court lacks jurisdiction

because there is no final judgment below. The Supreme

Court of Alabama has expressly held that “ ‘[T]he denial

of relief by mandamus does not have res judicata effect.’ ”

Ex parte Shelton, [Ms. 1990366, Sept. 7, 2001; 2001 WL

1021585, p. **3] __ So.2d __, ___ (Ala. 2001) (alteration in

original; citations omitted). In the opinion now under

review, the Supreme Court of Alabama expressly noted

the interlocutory nature of a denial of a motion to dismiss

Di ee ee eel i

for lack of in personam jurisdiction, Ala.R.Civ.P. 12(b)(2),

and the non-final nature of the denial of mandamus.

(App. A to Petition, pp. 3a-4a, 18a.) Therefore, Petitioners

erroneously invoke this Court’s jurisdiction pursuant to

28 U.S.C. § 1257(a), which requires a “[f]inal judgment ]

. rendered by the highest court of a State.”

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

“(T]he Supreme Court shall have appellate Jurisdic-

tion, both as to Law and Fact, with such Exceptions, and

under such Regulations as the Congress shall make.” U.S.

Const. art. III, § 2, { 3. “Final judgments or decrees ren-

dered by the highest court of a State in which a decision

could be had, may be reviewed by the Supreme Court by

writ of certiorari . . . where any title, right, privilege, or

immunity is specially set up or claimed under the Consti-

tution or the treaties or statutes of . . . the United States.”

28 U.S.C. § 1257(a).

STATEMENT OF THE CASE

Pursuant to Rule 15.2 of the Rules of this Court, Mrs.

Daniel will address the facts that bear on what issues

would be before the Court if certiorari were granted. The

Petition seriously understates the facts which support the

exercise of in personam jurisdiction over Petitioners. For

example, Petitioners attached as an appendix a drastically

edited version of the Amended Complaint that does not

present to this Court the many uncontested allegations of

fact supporting jurisdiction. Mrs. Daniel therefore attaches

as App. A to this Brief In Opposition the entire Amended

Complaint. The complete allegations of that complaint,

together with the affidavits filed by Petitioners, provide

the factual context in this case. The pertinent portions of

the affidavits are quoted in the opinion of the Supreme

Court of Alabama, App. A to the Petition, pp. 8a-10a.

The Amended Complaint alleges that Petitioners per-

sonally participated in formulating, manufacturing, label-

ing, and distributing the fix a flat product dangerously

mislabeled as “non-explosive.” (App. A to this Brief, pas-

sim, esp. {J 4, 11, 13-14, 42-57, 75, 81, and 83.) Little

discovery took place between the filing of Plaintiff's origi-

nal Complaint on December 18, 1998, and the denial of the

motions to dismiss on June 23, 1999. (Respondent's brief,

Supreme Court of Alabama Docket #1990045, Ex. 1, Case

Action Summary.)? Mrs. Daniel offered in Opposition to

the motions to dismiss certain documents (“the Olson

materials”) from a similar action against some of these

defendants in Minnesota.? (Mrs. Daniel's cross-petition,

Supreme Court of Alabama docket #1990659, Exhibit 9.)

These materials were directed principally at the activities

of McInnis, because Shingleton was not named as a defen-

dant in Olson. Id. However, Shingleton has admitted in his

affidavit in this case that he was at the relevant times a

regional director of sales, a vice president of sales, and

then president of operations. (App. A to Petition, p- 10a.)

These facts, coupled with the facts established against

* The “record” on the petitions for mandamus consists only

of exhibits that the Petitioners and the Respondents submitted

to the Supreme Court of Alabama. Ala.R.App.P. 21. These

materials are somewhat voluminous and would be difficult to

duplicate, because they include handwritten notations,

letterheads, and other materials that would not be amenable to

typesetting. Because the points made regarding some of these

exhibits in this and the succeeding paragraph are incidental and

procedural, Mrs. Daniel is not appending them to this brief.

However, if the Court were to grant the Petition, Mrs. Daniel

would request that the exhibits referenced in these paragraphs

would be made part of any Joint Appendix or record before this

Court. Cf. Rule 12.7 of the Rules of this Court.

3 See Olson v. Snap Products, Inc., 29 F.Supp. 1027 (D. Minn.

1998).

McInnis personally in the Olson materials, support infer-

ences that Shingleton, as well as McInnis, personally par-

ticipated in the tortious marketing of the dangerous fix a

flat product in Alabama and other states that caused -

before Mr. Daniel’s death - injuries at least in Arizona,

Colorado, and Minnesota. (See also App. A to this Brief,

WI 12-38, 58-67.)

The trial court (the Circuit Court of Baldwin County,

Alabama) sustained Petitioners’ objection to Mrs. Daniel’s

offer of the Olson materials as evidence in opposition to

the motions to dismiss. (Respondent’s Brief, Supreme

Court of Alabama Docket #1990045, Ex. 1, Trial Court’s

Docket Entry of 7/15/99.) After Petitioners and Borka

filed their mandamus petition, Mrs. Daniel filed a cross-

petition for mandamus requesting that, if the Supreme

Court of Alabama deemed the order denying the motion

to dismiss to be infirm, the court would order further

evidentiary proceedings, including the allowance of the

Olson materials and the conduct of further discovery

regarding the contacts of McInnis, Shingleton, and Borka

with Alabama. (Petition for Writ of Mandamus, Supreme

Court of Alabama Docket #1990659, esp. pp. 10-11.) The

Supreme Court of Alabama denied relief on the cross-

petition, deeming it moot as to McInnis and Shingleton,

and not probative as to the contacts of Borka. (App. A to

Petition, p. 20a.)

Mrs. Daniel does not contest the grant of mandamus

relief in favor of Borka, who was the finance officer of

Snap Automotive Products, Inc., from the time of acquisi-

tion of Snap Products, Inc., in April 1995 until the sale of

that company to Pennzoil in 1997. McInnis and Shingleton

were directly involved in operations and sales of both

companies. Mrs. Daniel cannot at present make similar

allegations against Borka, and his affidavit does not bridge

the gap by admitting trips to Alabama on company busi-

ness or official responsibility for sales and/or operations.

(App. A to Petition, p. 10a.)

I. Factual Background

In April 1995, Petitioners and former Defendant Borka

formed Snap Automotive Products, Inc., and purchased

Snap Products, Inc. (App. A to this Brief, J 56.) Snap

Products, Inc., and then Snap Automotive Products, Inc.,

manufactured and sold an aerosol tire inflator product

(“fix a flat”) throughout the United States, including the

State of Alabama. (Id., J 11.) From September 1993 to

March 1995, McInnis was Vice-President of Sales, and

Shingleton was a Regional Sales Manager or Vice-Presi-

dent of Sales. From April 1995 to November 1997, McInnis

was Chief Executive Officer, and Shingleton was President

of Operations. (App. A to Petition, p. 10a.) As Regional

Sales Manager or Vice-President of Sales, Shingleton came

to Alabama to promote sales of Snap products on four

occasions that he admitted in his affidavits. (Id. at 8a-10a.)

McInnis, in his capacity as Vice-President of Sales, also

came to Alabama to promote the sales of Snap products in

1994 or 1995. (Id., pp. 9a-10a.)4

Thus, even before they became the owners of the

company, McInnis and Shingleton visited Alabama to pro-

mote the sales of Snap products. It can be inferred from

the fact that Shingleton visited Alabama four times while

he was a Regional Sales Manager that Alabama was within

his region. Because little discovery occurred before the

trial court proceeded to hear McInnis, Shingleton, and

Borka’s motions to dismiss, however, Plaintiffs have not

cross-examined them regarding their affidavits or other-

wise conducted discovery to determine what additional

4 Although their affidavits attempt to minimize the

importance of fix a flat as a Snap product and its relevance to

their Alabama trips, fix a flat was “the single largest revenue

generating product sold by Nationwide/Snap, and of

approximately 70 company products, sales of the ‘fix a flat’

product constitute[d] approximately half the company’s

revenue.” (App. A to this Brief, { 15.)

contacts they may have with Alabama beyond those

admitted in their affidavits.

Important allegations about the participation of

McInnis and, by inference, Shingleton in communications

with Snap customers are found at paragraphs 39 and 47-51

of the Amended Complaint:

39. During 1990-1993, while Nationwide/Snap

and Mr. Mcinnis were marketing their second

generation HCFC non-flammable propellant “fix

a flat” product, the company spent significant

sums of money educating the public, and the tire

inflator industry, as to the safety benefits of a

non-flammable propellant tire inflator product in

view of foreseeable rim welding and tire reaming

activity.

47. On or about April 25, 1994, Mr. McInnis,

along with “consultants” Montfort A. Johnsen

(“Johnsen”), and Paul Hughett (“Hughett”)

attended a meeting in Kansas City, Missouri,

with a customer (Western Auto Parts Company).

Johnsen and Hughett had helped design and

develop the third generation DME “fix a flat”

product.

48. At the meeting with Western Auto on or

about April 25, 1994, Mr. McInnis, with consul-

tants Hughett and Johnsen, tried to sell Western

Auto the DME “fix a flat” product. However,

Western Auto informed McInnis, Johnsen, and

Hughett that Western Auto’s testing of the “fix a

flat” revealed that the product was flammable/

explosive and Western Auto would not purchase

such a product.

49. In response to Western Auto’s concerns ~

regarding the flammability/explosivity of the

DME fix a flat product, Mr. McInnis informed

Western Auto that if any accidents occurred involv-

ing the DME fix a flat product Snap would fully

indemnify and reimburse Western Auto for any lia-

bility incurred under the provisions of Snap’s

castes aerate

$25,000,000 product liability insurance policy. West-

ern Auto decided not to do any business with

Snap.

50. On or about May 12, 1994, Snap and/or Mr.

McInnis had tire explosion testing performed. .. .

This testing revealed that certain mixtures of the “fix

a flat” DME product with air in a tire were explosive

and could propel the Ford Explorer tire and rim

assemblies as much as 252 feet into the air.

51. Despite test results ... in the Spring of 1994

indicating the DME fix a flat product was explosive,

[other defendants] and Snap conspired to selectively

omit tire explosion test sequences from testing reports

which were sent to Snap’s customers and the Con-

sumer Product Safety Commission. The selectively

edited testing reports created the illusion that the fix a

flat DME product was safe and non-explosive.

(App. A to this Brief, {J 39 and 47-51; emphasis added.)

Fix a flat was Snap’s flagship product and largest source of

revenue (Id., J 15.) As Vice-President of Sales at the time,

McInnis would have had responsibility for sending the

deceptively edited test sequences to Snap customers (id.,

{YT 50-51), including those in Alabama. As Regional Man-

ager or Vice-President of Sales, Shingleton would have had

similar responsibility. They do not deny in their affidavits

that they communicated with Snap customers in Alabama

as alleged in paragraphs 39 and 51, together with para-

graph 11 of the Amended Complaint. (Jd., {J 11, 39, 51.)

Of course, the responsibilities of McInnis and Shingleton

for marketing this dangerous product in Alabama would

have increased when they became, in April 1995, the

owners and, respectively, Snap’s Chief Executive Officer

and President of Operations. (Id., {| 56.)

~ Just a few months after Mr. Daniel’s death, McInnis,

Shingleton and Borka sold Snap at a handsome profit. (Id.,

{ 71.) The national marketing of Snap’s most important

product was vital to the Petitioners’ effort to sell the

company for a profit a mere two and a half years after its

purchase.

All that Petitioners deny in their affidavits is frequent

physical presence in Alabama. Their affidavits say nothing

about their marketing efforts directed toward Alabama, or

the number of Snap customers selling fix a flat in Ala-

bama, or anything else to contradict the allegations of the

Complaint that they personally directed a marketing cam-

paign of this product that they knew to be dangerous and

dangerously mislabeled. They do not deny that this mar-

keting campaign was directed at Alabama or that they

were personally responsible for it. They do not deny

knowing in the two years prior to Mr. Daniel’s death of at

least three explosions of the product in Arizona, Colorado,

and Minnesota.

Petitioners bore personal responsibility for the distri-

bution of Snap products, including fix a flat, into Alabama,

and they have all but admitted it. Certainly their mere

denials of frequent physical presence in Alabama do not

contradict the direct allegations and available inferences of

the Complaint that, as directors of sales and later as

owners and directors of the entire corporation, they pur-

posefully marketed and sold in Alabama a dangerous and

dangerously mislabeled product.

REASONS FOR DENYING THE WRIT

I. The Judgment Below Is Interlocutory, Not Final, So

This Court Does Not Have Jurisdiction

In Jefferson v. City of Tarrant, Alabama, 522 U.S. 75

(1997), this Court dismissed the writ of certiorari for want

of jurisdiction, because “This case, still sub judice in Ala-

bama, was brought to this Court too soon.” Id. at 77. This

Court stated, in remarks directly pertinent here:

The decision we confront does not qualify as a

“final judgment” within the meaning of [28

U.S.C.] § 1257(a). The Supreme Court of Alabama

decided the federal-law issue on an interlocutory

certification from the trial court, then remanded

the cause for further proceedings on petitioners’

remaining state-law claims. The outcome of those

further proceedings could moot the federal ques-

tion we agreed to decide. If the federal question

does not become moot, petitioners will be free to

seek our review when the state-court proceed-

ings reach an end. We accordingly dismiss the

writ for want of a final judgment.

Id. at 77-78. See also Florida v. Thomas, 532 U.S. 774 (2001)

(Supreme Court of Florida upheld trial court’s interlocu-

tory order granting a motion to suppress evidence; this

Court dismissed its writ for want of jurisdiction.)

Exactly the same posture is presented by this Petition

for Certiorari, except that here, the Supreme Court of

Alabama decided the federal-law issue on a petition for

writ of mandamus pursuant to Ala.R.App.P. 21, whereas in

Jefferson, the Supreme Court of Alabama decided the fed-

eral-law issue on an interlocutory certification pursuant to

Ala.R.App.P. 5. That is a distinction without a difference,

because the Supreme Court of Alabama has held that a

denial of a petition for a writ of mandamus does not

operate as res judicata upon further proceedings in the

subject action. Ex parte Shelton, [Ms. 1990366, Sept. 7, 2001;

2001 WL 1021585], __ So.2d __ (Ala. 2001), and cases

cited therein. Moreover, the Supreme Court of Alabama

expressly recognized that its denial of mandamus here

did not end the question of in personam jurisdiction over

Petitioners (App. A to Petition, pp. 3a-4a, 18a), so its

decision “was avowedly interlocutory.” Jefferson, supra,

522 U.S. at 81.

- Petitioners cite Mt. Vernon-Woodberry Cotton Duck Co.

v. Alabama Interstate Power Co., 240 U.S. 30, 31 (1916), and

Fisher v. District Court, 424 U.S. 382, 385 n. 7 (1976), as

supporting the exercise of jurisdiction over this petition.

Mt. Vernon-Woodberry and Fisher, however, merely hold

that “[a] judgment that terminates original proceedings in

a state appellate court, in which the only issue decided

concerns the jurisdiction of a lower state court, is final

even if further proceedings are to be had in the lower

court.” Fisher, 424 U.S. at 385, n. 7 (citations omitted).°

This principle cannot apply if the state appellate court's

judgment terminating the original proceedings therein is,

by its own terms, not final as to the issue raised. As the

Supreme Court of Alabama said, “[w]hether the plaintiff

can prove her allegations against the defendants McInnis

and Shingleton and can thereby maintain personal juris-

diction at the stages of the litigation that require proof as

distinguished from pleadings remains to be seen.” (App.

A to Petition, p. 18a). The entire tenor of the opinion

below is consistent with the holding of Ex parte Shelton,

supra, and the cases cited therein. For example, the court

pointed out the heavy burden on a mandamus petitioner:

A writ of mandamus is an extraordinary remedy

which requires a showing of (a) clear legal right

in the petitioner to the order sought, (b) an

imperative duty on the respondent to perform,

accompanied by a refusal to do so, (c) the lack of

another adequate remedy, and (d) the properly

invoked jurisdiction of the court.

(App. A to Petition, p. 4a; emphasis added.) The Supreme

Court of Alabama later tied this burden to the interlocu-

tory nature of the 12(b)(2) denial by quoting from a

special concurrence in Ex parte Sekeres, 640 So.2d

_ 5 Footnote 7 of Fisher cites three cases, Madruga v. Superior

Court, 346 U.S. 556, 557 n. 1 (1954); Rescue Army v. Municipal

Court, 331 U.S. 549, 565-568 (1947); Bandini Petroleum Co. v.

Superior Court, 284 U.S. 8, 14-15 (1931); and one additional case

with a “see” signal, Costarelli v. Massachusetts, 421 U.S. 193,

197-199 (1975), which is actually consistent with Mrs. Daniel’s

argument herein, id., at 196. Mt. Vernon cites an 1829 opinion by

Chief Justice Marshall, Weston v. Charleston, 27 U.S. (2 Pet.) 449,

464-65 (1829). These cases involved challenges to the subject

matter jurisdiction of the lower court, not in personam

jurisdiction. The denial of prohibition finally ended the matter,

because there were no further factual inquiries to be addressed

by the lower court after prohibition was denied.

640, 642 (Ala. 1994). There, Supreme Court of Alabama

Associate Justice Gorman Houston noted that, on the bare

record of a mandamus proceeding, it is difficult for a

reviewing court to Say that a trial court “clearly erred in

denying [a] motion to dismiss or that [a defendant] has a

clear and undisputable right to be dismissed from this

action.” Id., quoted at App. A to Petition, p. 18a.

The non-finality of the denial of mandamus is com-

pounded by the non-finality of a denial of a Rule 12(b)(2)

motion to dismiss. Again, the Supreme Court of Alabama

made this very point: “After such a denial, the continua-

tion of personal jurisdiction over a defendant who appro-

priately persists in challenging it in the defendant's

answer to the complaint and by motion for summary

judgment or at trial depends on the introduction of sub-

stantial evidence to prove the plaintiff’s jurisdictional

allegations in the plaintiff’s complaint.” (App. A to Peti-

tion, p. 4a; citations omitted.) Petitioners thus seek review

of a non-final judgment from the Supreme Court of Ala-

bama refusing to set aside a non-final order of the Circuit

Court of Baldwin County, Alabama.

As this Court stated in Jefferson v. City of Tarrant,

Alabama, supra:

This provision [§ 1257(a)] establishes a firm final

judgment rule. To be reviewable by this Court, a

state-court judgment must be final “in two

senses: it must be subject to no further review or

correction in any other state tribunal; it must

also be final as an effective determination of the

litigation and not of merely interlocutory or

intermediate steps therein. It must be the final

word of a final court.” Market Street R. Co. v.

Railroad Comm'n of Cal., 324 U.S. 548, 551 (1945).

As we have recognized, the finality rule “is not

one of those technicalities to be easily scorned.

It is an important factor in the smooth working

of our federal system.” Radio Station WOW, Inc.

v. Johnson, 326 U.S. 120, 124 (1945).

Jefferson, 522 U.S. at 81. If the courts of Alabama continue

to assert personal jurisdiction over Petitioners, if a final

judgment on the merits is rendered against them and

affirmed on appeal, and “[e]ven if the Supreme Court of

Alabama adheres to its interlocutory ruling as ‘law of the

case,’ that determination will in no way limit [this

Court's] ability to review the issue on final judgment.” Id.

at 83.

The inconvenience to Petitioners of renewing their

objections to the exercise of jurisdiction over them pro-

vides no reason to ignore the mandate of Congress in 28

U.S.C. § 1257(a) or the principles of comity and federal-

ism that support Congress’ decision to grant this Court

jurisdiction to review state court judgments only after

they become final. Denial of interlocutory review neces-

sarily requires an allegedly aggrieved party to continue

litigating the question, so it is no answer for Petitioners to

complain that they would prefer to terminate this litiga-

tion against them sooner rather than later. Quite plainly,

Petitioners do not “enjoy a right not to stand trial... .

entailed in the mere assertion that the District Court lacks

personal jurisdiction.” Van Cauwenberghe v. Biard, 486 U.S.

517, 526-27 (1988). As this Court has stated:

In the context of due process restrictions on the

exercise of personal jurisdiction, this Court has

recognized that the individual interest protected

is in “not being subject to the binding judgments

of a forum with which [the defendant] has

established no meaningful ‘contacts, ties, or

relations.’ ” . Because the right not to be

subject to a binding judgment may be effectively

vindicated following final judgment, we have

held that the denial of a claim of lack of jurisdic-

tion is not an immediately appealable collateral

order.

Id. (brackets in original; citations omitted).* This principle

applies with great force to the present matter

Mt. Vernon-Woodberry and its progeny, including

Fisher, are further distinguishable. Both cases, as well as

those cited in footnote 7 of Fisher, involved petitions for a

writ of prohibition raising facial challenges to the exercise of

subject matter jurisdiction by inferior courts. In Mt. Vernon-

Woodberry, for example, the Court began its discussion by

saying that “Prohibition is a distinct suit and the judgment

finally disposing of it is a final judgment within the mean-

ing of the Judicial Code.” 240 U.S. at 31. A denial of

prohibition where the reviewing court finally decides the

question of whether an inferior court has subject-matter

jurisdiction under a statute is entirely different, for pur-

poses of finality analysis, from a denial of mandamus in

which the reviewing court expressly states that the ques-

tion presented remains open. The critical distinction lies in

the Mt. Vernon-Woodberry Court's notation that a “judg-

ment finally disposing of” a petition for prohibition is a

final judgment. The Supreme Court of Alabama has

expressly held that its denial of mandamus is not “final” in

any meaningful sense, a decision on a matter of state

procedure tha’ this Court should not controvert.

286, 291 (1980):

The Due Process Clause of the Fourteenth

Amendment liniits the power of a state court to

render a valid personal judgment against a non-

resident defendant. ... : A judgment rendered in

violation of due process is void in the rendering State

and is not entitled to full faith and credit elsewhere.

(Citations omitted; emphasis added.)

Il. Even If This Court May Have Jurisdiction, It Should

Decline To Exercise It

A. Even a Final Denial of An Extraordinary Writ

Does Not Require This Court to Take Jurisdic-

tion

Most of the Fisher/Mt. Vernon-Woodberry line of cases

involved the appellate jurisdiction of the Supreme Court

that was repealed in 1988. See former 28 U.S.C. § 1257,

before amendment by Pub. L. 100-352, §§ 3 and 5, June 27,

1988, 102 Stat. 662, 664. Even under its former appellate

jurisdiction, the Court exercised discretionary authority

and declined to exercise jurisdiction in Rescue Army, supra,

at n. 5, dismissing the appeal. The Rescue Army Court

discussed the rule from Bandini, supra, at n. 5, and earlier

cases that a denial of prohibition creates an appealable

final judgment, but concluded that “[wJhile therefore we

are unable to conclude that there is no jurisdiction in this

cause, nevertheless compelling reasons exist for not exer-

cising it.” 331 U.S. 549, 565-67. The Court then discussed

those “compelling reasons,” beginning with the “policy of

strict necessity in disposing of constitutional issues.” Id.

Significant in that discussion is footnote 34:

“If there is one doctrine more deeply rooted than

any other in the process of constitutional adjudi-

cation, it is that we ought not to pass on ques-

tions of constitutionality * * * unless such

adjudication is unavoidable.” . . . It has long been

the Court’s “considered practice not to decide

abstract, hypothetical or contingent questions

** * or to decide any constitutional question in

advance of the necessity for its decision... . ”

Id. at 570 n. 34 (citations omitted). The Court concluded

that “the shape in which the underlying constitutional

issues have reached this Court presents, we think, insuper-

able obstacles to any exercise of jurisdiction to determine

them, [including] obstacles of prematurity and compara-

tive abstractness.” Id. at 574. If these sorts of consider-

ations persuaded the Court to decline to exercise appellate

jurisdiction in Rescue Army, they provide even more com-

pelling persuasion that this Court should deny certiorari

where the question is undeveloped, abstract, and prema-

ture.

The Bandini Court held that it had jurisdiction over an

appeal from a denial of a writ of prohibition that “merely

dealt with the jurisdiction of the Superior Court of the suit

for injunction, and the only question before us is whether

the District Court of Appeal erred in deciding the federal

questions as to the validity of the statute upon which that

jurisdiction was based. Moreover, with all questions of fact

_ we are not concerned on this appeal.” Bandini, supra,

284 U.S. 8, 14 (emphasis added). In personam jurisdiction is

necessarily dependent upon the facts of the defendants’

contacts with the forum state, and this Court should “not

[be] concerned” with such factual questions when the

court below held only that the matters presented at a

preliminary stage did not demonstrate unequivocally that

Plaintiff could prove no facts supporting jurisdiction over

Petitioners. Only after those facts have been finally liti-

gated and a final judgment entered against Petitioners

based on a factual finding that they are subject to the

jurisdiction of Alabama would the question be ripe for this

Court’s review.

B. The Better View of the In Personam Cases is

That This Court Should Grant Review Only

After a Final Judgment Against the Objecting

Defendant

This Court’s landmark in personam decisions are dis-

cussed, infra, regarding their “minimum contacts” analy-

ses. For present purposes, Mrs. Daniel points out that

some of these cases arose after a denial of a motion to

dismiss, a trial, and a final judgment against the objecting

defendant, while other cases arose from pre-trial postures

with no discussion of the Court’s jurisdiction. The few

cases where the Court has discussed its jurisdiction to

entertain appeals or certiorari petitions in preliminary pos-

tures are either distinguishable (as in Shaffer v. Heitner,

infra) or based on questionable support (as in Kulko, infra).

In Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985),

the in personam issue was brought to this Court after a final

judgment. Burger King, a Florida corporation, brought suit

in Florida against two individual Michigan franchisees,

who entered special appearances and moved for dismissal.

The district court denied their motions. Id., at 469. They

then filed an answer and counterclaim. After a three-day

bench trial, the court again concluded that it had jurisdic-

tion over the parties. Id. The trial court entered a final

judgment against them and they appealed to the Eleventh

Circuit. That court reversed, holding that the defendants

did not have sufficient contacts with Florida to support the

district court’s exercise of jurisdiction over them. This

Court reversed, holding that the defendants had estab-

lished minimum contacts.

This Court also addressed in personam jurisdiction

after a trial on the merits in Helicopteros Nacionales De

Columbia, S.A. v. Hall, 466 U.S. 408 (1984). Four wrongful

death actions were filed in a Texas state court against a

Colombian corporation (Helicol) engaged in the business

of providing helicopter transportation for oil and construc-

tion companies in South America. Id., at 409. Helicol filed

special appearances and moved to dismiss the actions for

lack of in personam jurisdiction. The Texas court denied the

motion, held a jury trial, and entered a final judgment ona

verdict against Helicol. Helicol appealed to the Texas

Court of Civil Appeals, which reversed for lack of in

personam jurisdiction. The plaintiffs then appealed to the

Supreme Court of Texas, which reversed, holding that the

trial court had properly exercised jurisdiction. Id., at 412.

This Court reversed, holding that minimum contacts were

not shown.

In Asahi Metal Industry Company, Ltd. v. Superior Court,

480 U.S. 102 (1987), the in personam issue reached this

Court in a preliminary posture. After the trial court denied

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a motion to quash summons on Asahi, a Japanese corpora-

tion, the intermediate appellate court “issued a peremp-

tory writ of mandamus commanding the [trial court] to

quash service of summons.” Id. at 107. The California

Supreme Court then reversed and discharged the writ

issued by the intermediate appellate court. Id. at 108. This

Court reached the merits with no discussion of whether

there was a final judgment that would support jurisdiction

under 28 U.S.C. § 1257.

In Calder v. Jones, 465 U.S. 783 (1984), two Florida

defendants “caused special appearances to be entered [in

California] on their behalf, moving to quash the service of

process for lack of personal jurisdiction. The Superior

Court granted the motion,” id., at 784-85, the California

Court of Appeals reversed, id., at 785, and the California

Supreme Court denied a petition for hearing, id., at 787.

This Court, addressing the question of whether there was

a final judgment, stated:

Although there has not yet been a trial on the

merits in this case, the judgment of the California

appellate court “is plainly final on the federal

issue and is not subject to further review in the

state courts.” Cox Broadcasting Corp. v. Cohn, 420

U.S. 469, 485 (1975). Accordingly, as in several

past cases presenting jurisdictional issues in this

posture, “we conclude that the judgment below

is final within the meaning of [28 U.S.C.} § 1257.”

Shaffer v. Heitner, 433 U.S. 186, 195-196, n. 12

(1977). See also Rush v. Savchuk, 440 U.S. 320

(1980); World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980); Kulko v. Superior Court, 436

U.S. 84 (1978).

Calder v. Jones, 465 U.S. at 788, n. 8.7 However, the quoted

language from Cox Broadcasting cannot govern the present

7 The Court exercised jurisdiction in Rush, World-Wide

Volkswagen, and Kulko, but did not engage in any discussion of

how and why it had jurisdiction. See Rush, 444 U.S. at 324-25,

and 433 U.S. 902 (1977), noting probable jurisdiction without

further comment; World-Wide, 444 U.S. at 289-291; and Kulko,

case, because the Supreme Court of Alabama expressly

held that its judgment is not final on the federal issue and

is subject to further review in the state courts.

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 485-86

(1975), a Georgia trial court granted summary judgment

for the plaintiff on liability in his invasion of privacy

action and ordered a trial on damages. The defendants

claimed that their broadcasts were privileged under the

First and Fourteenth Amendments. Id., at 474. The Georgia

Supreme Court affirmed the interlocutory liability judg-

ment, holding that a Georgia statute making it unlawful to

disseminate the name of a rape victim was constitutional

as against the defendant’s invocation of the First Amend-

ment. Id., at 475. This Court addressed the question of

jurisdiction, sorting its prior decisions into “four catego-

ries of . . . cases in which the Court has treated the

decision on the federal issue as a final judgment” even

though there “are further proceedings in the lower state

courts to come.” Id., at 477. The first category applies

where “the federal issue is conclusive or the outcome of

further proceedings preordained.” Id., at 478. There is

nothing “conclusive or . . . preordained” about further

state court proceedings in the present matter. To the con-

trary, Petitioners can point only to a tentative refusal to set

aside a preliminary denial of a weakly supported assertion

of a lack of minimum contacts.

The second Cox Broadcasting category comprises cases

“in which the federal issue, finally decided by the highest

court in the State, will survive and require a decision

regardless of the outcome of future state-court proceed-

ings.” Id., at 480 (emphasis added). There is nothing

“finally decided by” the Supreme Court of Alabama, and

the federal issue may very we!! not survive for any

436 U.S. at 90, finding no jurisdiction by appeal, but treating the

papers as a petition for certiorari pursuant to Hanson v. Denckla

and May v. Anderson, infra, and explaining in footnote 4 why

appellate jurisdiction does not lie but not explaining why

certiorari jurisdiction does lie.

ARLE SACI OTR are nes PS Be

number of reasons. For example, after discovery, Peti-

tioners’ contacts with Alabama may prove overwhelming,

and they may concede jurisdiction. Alternatively, if their

contacts prove to be no more than they have admitted in

their affidavits, and their commercial activities prove not

to have resulted in colorable contacts with Alabama in the

sale and marketing of fix a flat, the state trial court

remains free to hold that contacts have not been estab-

lished as a factual matter. Moreover, just as in Jefferson v.

City of Tarrant, supra, “[rlesolution of the state-law claims

could effectively moot the federal-law question raised

here.” 522 U.S. 75, at 82.

The third category includes cases “where the federal

claim has been finally decided, with further proceedings on

the merits in the state courts to come, but in which later

review of the federal issue cannot be had, whatever the

ultimate outcome of the case.” Id., at 481 (emphasis

added). a category is not implicated here because, as

stated in Van Cauwenberghe, supra, Petitioners have no right

to avoid a trial, and as can be seen from Burger King and

Helicopteros. supra, they can raise their due process argu-

ment after a trial.

Cox Broadcasting described the fourth category as fol-

lows:

Lastly, there are those situations where the

federal issue has been finally decided in the state

courts with further proceedings pending in

which the party seeking review here might pre-

vail on the merits on non-federal grounds, thus

rendering unnecessary review of the federal

issue by this Court, and where reversal of the

state court on the federal issue would be preclu-

sive of any further litigation on the relevant

cause of action rather than merely controlling the

nature and character of, or determining the

admissibility of evidence in, the state proceed-

ings still to come. In these circumstances, if a

refusal to immediately review the state court

decision might seriously erode federal policy, the

Court has entertained and decided the federal

ee LU

issue, which itself has been finally determined by the

state courts for purposes of the state litigation.

Id., at 482-83 (emphasis added). Again, the issue has not

been “finally determined.” Moreover, requiring Petitioners

to continue defending these claims against them, condi-

tioned upon substantiation of the allegations contained in

the Amended Complaint, can hardly be said to “seriously

erode federal policy.”

Shaffer v. Heitner, 433 U.S. 186, 195-96, n. 12 (1977),

cited the Cox Broadcasting analysis in the context of a

jurisdictional challenge arising before trial. The circum-

stances of Shaffer, however, differ greatly from those here.

The Delaware law at issue in Shaffer required defendants

to “enter a general appearance, thus subjecting themselves

to in personam liability, before they [could] defend on the

merits.” Id. Quite the contrary is true here. Even if, after

further proceedings in the trial court, the trial court con-

tinues to assert jurisdiction over Petitioners, they will still

be able to raise their due process argument in any appeal

from a judgment against them on the merits. Shaffer

quoted Cox Broadcasting as follows:

“The (Delaware) Supreme Court’s judgment is

plainly final on the federal issue and is not subject to

further review in the state courts. Appellants will be

liable for damages if the elements of the state

cause of action are proved. They may prevail at

trial on non-federal grounds, it is true, but if the

(Delaware) court erroneously upheld the statute, there

should be no trial at all.”

Id. (alteration in Shaffer; citation omitted; emphasis added).

A facial challenge to a statute is not fact-dependent and its

rejection on appeal finally resolves the question. Those

factors provide this Court’s jurisdiction, not the exhorta-

tion that “there should be no trial at all.” The present case,

unlike Shaffer, involves only a non-final rejection of a

threshold claim that a factual showing cannot be made.

Moreover, the rule of Van Cauwenberghe, supra, that the

Fourteenth Amendment protects against a final judgment

without due process, not against an erroneous holding of a

fsa ha CAIs Me DH OV

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trial, further distinguishes this case from Shaffer and Cox

Broadcasting. Petitioners cannot be heard at this stage to

say that “there should be no trial at all,” because the

Supreme Court of Alabama has expressly preserved their

right to renew and substantiate their challenge to the

jurisdiction of the Alabama courts over them. Little or no

judicial economy could be gained by addressing Peti-

tioners’ arguments now, because a holding in their favor

would not avoid the need for a trial. There will be a trial in

any event against at least the remaining defendants. If this

Petition is denied, if the state trial court holds a trial and

enters a judgment against all the defendants, if Petitioners

appeal from that judgment, and if the Supreme Court of

Alabama holds that the trial court erred in continuing to

exercise jurisdiction over them, a reversal of the judgment

against Petitioners would not require a reversal of the

judgment against the other defendants. Thus, an erroneous

assertion of jurisdiction over Petitioners through a trial on

the merits would not require a retrial as to other defen-

dants. In short, as the Court said in Jefferson v. Tarrant City,

supra, Petitioners have simply come here “too soon.” 522

io. Ot 7.

Hanson v. Denckla, 357 U.S. 235 (1958), did not present

any question of finality. The procedural holding that was

alluded to in Kulko, supra, at n. 7, was stated in the

following paragraph:

The question of our jurisdiction was postponed

until the hearing of the merits. The appeal is

predicated upon the contention that as applied to

the facts of this case the Florida statute providing

for constructive service is contrary to the Federal

Constitution. 28 U.S.C. § 1257(2). But in the state

court appellants (the “beneficiaries”) did not

object that the statute was invalid as applied, but

rather that the effect of the state court’s exercise

of jurisdiction in the circumstances of this case

deprived them of a right under the Federal Con-

stitution. Accordingly, we are without jurisdic-

tion of the appeal and it must be dismissed.

. . . Treating the papers whereon appeal was

taken as a petition for certiorari, 28 U.S.C. § 2103,

certiorari is granted.

357 U.S. at 244 (footnote and citations omitted). Thus, the

only issue depended on differences between appellate

jurisdiction and certiorari jurisdiction and the Hanson

Court in no way implied that certiorari will lie to review a

non-final ruling from a state court. The Florida decree at

issue in Hanson declared that the beneficiaries took the

disputed property under the will; the Delaware decree

declared that the appointees under the power of appoint-

ment in the trust took the property. There is no indication

that either decree suffered any lack of finality. The only

question was whether the Florida decree was void for lack

of in rem jurisdiction over the corpus of the Delaware trust

or in personam jurisdiction over the Delaware trustee.

Thus, the citation to Hanson in Kulko, 436 U.S. 84, at 90, n.

4, does not support the exercise of jurisdiction in Kulko

over a non-final judgment.

Nor does May v. Anderson, 345 U.S. 528 (1953), involve

any question as to finality of the judgment below. An Ohio

probate court, “proceeding to the merits of the case ,” id.,

at 529, granted a father’s petition for a writ of habeas

corpus and ordered the mother to give up custody of the

couple’s children, rejecting the mother’s argument that the

ex parte Wisconsin divorce decree obtained by the father

was void for lack of in personam jurisdiction over her. The

intermediate appellate court of Ohio affirmed, and the

Supreme Court of Ohio denied review. Id., at 529-530. As

in Hanson, the Court “treated the appeal as a petition for a

writ of certiorari.” Id., at 530. The attempt to invoke appel-

late jurisdiction was based on an Ohio statute upon which

“neither the Court of Appeals nor the Supreme Court of

Ohio relied.” Id. This again provides no support for the

apparent conclusion in Kulko that certiorari jurisdiction

will lie to review a non-final judgment even though appel-

late jurisdiction will not lie.

Close study of the pertinent cases along the lines

suggested above supports at least a prudential decision

not to entertain certiorari in this case. Thus, even if this

Court disagrees with the argument in Part I above that the

opinion below is not final so as to support review, the fact

that in a number of these cases the issue came up only

after a trial on the merits suggests that this Court should

decline to exercise jurisdiction. The correctness of that

conclusion will be even more evident after the Court con-

siders the arguments in the following section of this brief.

III]. Petitioners Make No Showing Of A Due Process

Violation

Even if the foregoing jurisdictional and prudential

concerns did not exist, there would be no issue here wor-

thy of issuing a writ of certiorari. The decision of the

Supreme Court of Alabama is consistent with this Court’s

precedents, and there is no need for this Court to engage

in academic, abstract rumination about potential tests for

“arising out of” or “related to,” as the Petition asks the

Court to do.

The posture of this matter affects its merits as well as

the Court’s jurisdiction. There was no evidentiary hearing;

the circuit judge simply heard oral arguments of counsel

on this motion and others at a motion docket. Petitioners

and Borka had recently submitted affidavits that did little

more than deny frequent physical presence in Alabama,

and Plaintiff had not conducted discovery on this question

prior to the hearing. The trial court denied the motions to

dismiss, apparently agreeing with Plaintiff’s position that

the affidavits insufficiently denied contacts with Alabama

and that the uncontradicted allegations of the Complaint

were sufficient to support the exercise of personal jurisdic-

tion, at least in the posture then presented.

The Supreme Court of Alabama agreed, applying the

following standard of review:

In considering a Rule 12(b)(2), Ala.R.Civ.P.,

motion to dismiss for want of personal jurisdic-

tion, a court must consider as true the allegations

of the plaintiff’s complaint not controverted by

the defendant's affidavits, Robinson v. Giamarco &

Bill, P.C., 74 F.3d 253 (11th Cir. 1996), and Cable/

o Be ae ced DE Sea MC oe

Home Communication Corp. v. Network Productions,

Inc., 902 F.2d 829 (11th Cir. 1990), and “where the

plaintiff’s complaint and the defendant's affi-

davits conflict, the court must construe all rea-

sonable inferences in favor of the plaintiff.”

Robinson, 74 F.3d at 255 (quoting Madara v. Hall,

916 F.2d 1510, 1514 (11th Cir. 1990). “For pur-

poses of this appeal [on the issue of in personam

jurisdiction] the facts as alleged by the. .

plaintiff will be considered in a light most favor-

able to him [or her].” Duke v. Young, 496 So.2d 37,

38 (Ala. 1986).

(App. A to Petition, p. 3a.) Thus, the question becomes

whether Petitioners can show constitutional error despite

the “allegations of the plaintiff’s complaint not contro-

verted by the defendants’ affidavits, . . . constru[ing] all

reasonable inferences in favor of the plaintiff.” Id.

Burger King Corp. v. Rudzewicz, supra, provides ample

support for the conclusion that in personam jurisdiction

exists here. The following paragraph from Burger King is

especially pertinent:

We have noted several reasons why a forum

legitimately may exercise personal jurisdiction

over a nonresident who “purposefully directs”

his activities toward forum residents. A State

generally has a “manifest interest” in providing

its residents with a convenient forum for redress-

ing injuries inflicted by out-of-state actors.

. . . Moreover, where individuals “purposefully

derive benefit” from their interstate activ-

ities, . . . it may well be unfair to allow them to

escape having to account in other States for con-

sequences that arise proximately from such activ-

ities; the Due Process Clause may not readily be

wielded as a territorial shield to avoid interstate

obligations that have been voluntarily assumed.

And because “modern transportation and com-

munications have made it much less burdensome

for a party sued to defend himself in a State

pees erty Set Sees ee nee

where he engages in economic activity,” it usu-

ally will not be unfair to subject him to the

burdens of litigating in another forum for dis-

putes relating to such activity.

471 US. at 473-74 (citations omitted). Given the uncon-

tested allegations of the Amended Complaint in this case,

the foregoing passage from Burger King provides more

than enough authority for a finding that the Supreme

Court of Alabama was absolutely correct to deny Peti-

tioners’ writ of mandamus.

But there is more support in Burger King for the

Supreme Court of Alabama’s decision. There the Court

held that the reasonableness of jurisdiction may be estab-

lished “upon a lesser showing of minimum contacts than

would otherwise be required”:

Thus courts in “appropriate case[s]” may evalu-

ate “the burden on the defendant,” “the forum

State’s interest in adjudicating the dispute,” “the

plaintiff's interest in obtaining convenient and

effective relief,” “the interstate judicial system's

interest in obtaining the most efficient resolution

of controversies,” and the “shared interest of the

several States in furthering fundamental substan-

tive social policies.” . . . These considerations

sometimes serve to establish the reasonableness

of jurisdiction upon a lesser showing of mini-

mum contacts than would otherwise be required.

Burger King, 471 U.S. at 476-77 (citations omitted). These

principles refute Petitioners’ argument that the Supreme

Court of Alabama erred in considering the reprehensibility

of their alleged conduct in determining whether “a lesser

showing of minimum contacts than would otherwise be

required” properly supported the Alabama court’s asser-

tion of in personam jurisdiction over them. Alabama has an

interest in adjudicating the dispute as a means of protect-

ing its citizens against a defendant from a nearby state

whose highly culpable wrongdoing has caused death in

Alabama. “The interstate judicial system’s interest in

obtaining the most efficient resolution of controversies,”

id., applies because Alabama has jurisdiction over

numerous other joint tortfeasors. These interests “establish

the reasonableness of jurisdiction upon a lesser showing of

minimum contacts than would otherwise be required.” Id.

The Supreme Court of Alabama has therefore properly

relied on the principles established by this Court, and

Petitioners’ assertion that “the Supreme Court of Alabama

has taken an extreme position” (Petition, p. 1) is simply

wrong.

In Burger King, this Court upheld the district court’s

assertion of jurisdiction over defendants Rudzewicz and

MacShara despite their having few or no physical ties to

Florida. Noting that MacShara had been there for a single

brief training course, but “for all that appears from the

record, [Rudzewicz] has never even visited there,” id., at

479, the Court rejected the Eleventh Circuit’s categorical

holding that MacShara’s trip to Florida on Burger King

business could not be attributed to Rudzewicz:

We have previously noted that when commercial

activities are “carried on in behalf of” an out-of-

state party those activities may sometimes be

ascribed to the party, . . . at least where he is a

‘primary participan(t]’ in the enterprise and has

acted purposefully in directing those activ-

ities. . . . Because MacShara’s matriculation at

Burger King University is not pivotal to the dis-

position of this case, we need not resolve the

permissible bounds of such attribution. -

Id., at 480 n. 22 (citations omitted). Here, McInnis was Vice

President of Sales, and Shingleton was Regional Director

of Sales. Shingleton’s four trips to Alabama to sell Snap

products could thus arguably be attributed to McInnis.

However, because physical presence in Alabama is not

required to hold these two perpetrators liable for their acts

directed toward Alabama, the Court “need not resolve the

permissible bounds of such attribution.” It suffices that the

Complaint and Petitioners’ affidavits permit an inference

that they directed sales efforts toward Alabama, that the

fix a flat that killed Mr. Daniel was sold in Alabama, and

that the sale was related to Defendants’ sales efforts. It

follows that the Supreme Court of Alabama was quite

Pos

oneee ett ee

correct to conclude that the assertion of in personam juris-

diction over McInnis and Shingleton was proper.®

Calder v. Jones, 465 U.S. 783 (1984), also supports the

Supreme Court of Alabama’s decision, as it affirmed asser-

tions of jurisdiction in California over an editor and a

reporter of the National Enquirer who were residents of

Florida. Shirley Jones sued them and the Enquirer in Cali-

fornia, alleging they had libeled her. Petitioner South, the

reporter, traveled to California frequently, but denied by

affidavit that he visited California to research the relevant

article. Id., at 785, n. 4. The Court expressly did not rely for

its holding on the alleged visit. Id. Petitioner Calder was

also a Florida resident, but had been to California only

twice - once on a pleasure trip before the publication of

the article and once afterwards to testify in an unrelated

matter. Id., at 786. He had “no other relevant contacts with

8 The immateriality of Petitioners’ affidavits is highlighted

by the following holding from Burger King:

Jurisdiction in these circumstances may not be

avoided merely because the defendant did not

physically enter the forum State. . . . [I]t is an

inescapable fact of modern commercial life that a

substantial amount of business is transacted solely by

mail and wire communications across state lines, thus

obviating the need for physical presence within a

State in which business is conducted. So long as a

commercial actor’s efforts are “purposefully

directed” toward residents of another State, we have

consistently rejected the notion that an absence of

physical contacts can defeat personal jurisdiction

there.

Burger King, 471 U.S. at 476 (citations omitted; emphasis in

original). As “commercial actor[s],” id., Petitioners’ efforts to

market their most profitable product to the residents of

numerous states, including Alabama, surely amount to

purposeful availment sufficient to confer personal jurisdiction

on Alabama courts.

California.” Id. The California Court of Appeal nonethe-

less:

concluded that a valid basis for jurisdiction exis-

ted on the theory that petitioners intended to,

and did, cause tortious injury to respondent in

California. The fact that the actions causing the

effects in California were performed outside the

State did not prevent the State from asserting

jurisdiction over a cause of action arising out of

those effects.

Id., at 787. This Court approved “of the ‘effects’ tests

employed by the California court.” Id., at 787, n. 6. The

fact that Petitioners’ actions causing an effect in Alabama

may have occurred outside Alabama do not prevent Ala-

bama from asserting jurisdiction over a cause of action

arising out of that effect.

In Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984),

the Court held: “Respondent's regular circulation of mag-

azines in the forum State is sufficient to support an

assertion of jurisdiction in a libel action based on the

contents of the magazine.” Id., at 773-74. The same is true

of Snap and its principals, whose regular sales of fix a flat

in Alabama suffice to support an assertion of jurisdiction

in a wrongful death action based on the explosion of the

contents of fix a flat, for “[rjegular monthly sales of

thousands of [products] cannot by any stretch of the

imagination be characterized as random, isolated, or for-

tuitous.” Id., at 774. It can be inferred from the allegation

that fix a flat constituted fifty percent of the revenue of

Snap that substantial numbers of sales occurred in Ala-

bama at the relevant times. Petitioners, as the persons

individually responsible for the creation and sale of this

dangerous product, cannot be said to have established

only “random, isolated, or fortuitous” contacts with Ala-

bama.

In any event, “it is ‘fair’ to compel respondent to

defend a multi-state lawsuit in New Hampshire seeking

ee ht SE BABI Nei Ae Met ae le Me Bat

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nationwide damages for all copies of the five issues in

question, even though only a small portion of those copies

were distributed in New Hampshire.” Id., at 775. Thus, even

if only a small percentage of the sales of fix a flat

occurred in Alabama, Keeton supports a holding that

efforts to promote those sales support the exercise of in

personam jurisdiction over Petitioners. This holds true

even if only part of their sales efforts were directed at

Alabama: “But respondent is carrying on a ‘part of its

general business’ in New Hampshire, and that is suffi-

cient to support jurisdiction when the cause of action

arises out of the very activity being conducted, in part, in

New Hampshire.” Id., at 779-80. Petitioners have not

denied making any efforts to sell fix a flat in Alabama;

they have only denied repeated trips to Alabama that

directly resulted in sales of fix a flat in Alabama. (App. A

to Petition, pp. 8a-10a.) By negative inference, it can be

concluded that they made efforts directed toward cus-

tomers in Alabama, even if only from their offices in

North Carolina, which directly or indirectly resulted in

sales in Alabama. Thus, the record supports a conclusion

that Petitioners have conducted, in part, their tortious

activity in, or at least directed toward, Alabama.

In footnote 13, the Keeton Court held that the inquiry

would remain “open upon remand” as to whether “Larry

Flynt, the publisher, editor and owner of the magazine,”

was subject to jurisdiction in New Hampshire. Keeton, 465

U.S. at 781, n. 13. Because the Court of Appeals found no

jurisdiction over the corporation, “it did not inquire into

the propriety of jurisdiction over” Flynt. Id. The allega-

tions against Petitioners here of personal tortious

involvement in knowingly directing this dangerous prod-

uct at the national market and Alabama in particular help

establish “the propriety of jurisdiction.” Id.

CONCLUSION

Petitioners could have said to themselves, “we better

not sell fix a flat in Alabama because if we kill someone

there, we might get sued.” They could have prevented

Snap from marketing fix a flat in Alabama. Instead, Peti-

tioners took affirmative action toward selling fix a flat in

Alabama. They have admitted personal presence in Ala-

bama to conduct sales efforts for the corporations for

which they were sales executives and later chief execu-

tives. They have not denied conducting other sales efforts

directed toward Alabama. This record would not support

a conclusion by this Court that the trial court and the

Supreme Court of Alabama manifestly erred in holding

that McInnis and Shingleton had not shown an absence of

sufficient contacts with Alabama. In any event, there is no

final judgment presented for review, so this Court cannot,

or < least should not, exercise jurisdiction over this Peti-

tion.

Respectfully submitted,

JoserpH M. Brown, Jr. THomaSs R. DOLVEN

Davip G. WirtEs, JR. — Dewuirst & Weeks, LLP

Counsel of Record 950 South Cherry Street

Georce M. Dent, III Suite 600

CUNNINGHAM, Bounps, YANCE, Denver, Colorado 80246

CROWDER & BROWN (303) 757-0003

1601 Dauphin Street

P. O. Box 66705

Mobile, Alabama 36660

(251) 471-6191

Counsel for Respondent

April 5, 2002

App. 1

APPENDIX A

IN THE CIRCUIT COURT OF

BALDWIN COUNTY, ALABAMA

PAMELA ALICE LITTLE

DANIEL, Administratrix of the

Estate of JOE ED DANIEL,

Deceased,

Plaintiff,

VS: CIVIL ACTION

PANDORA MANUFACTURING, AMENDED

INC., formerly known as SNAP COMPLAINT

PRODUCTS, INC.; SNAP

AUTOMOTIVE PRODUCTS,

INC.; HUGHTONE INDUSTRIES,

INC.; PAUL HUGHETT;

MONTFORT A. JOHNSEN AND

ASSOCIATES, LTD.; MONTFORT

A. JOHNSEN; SAFETY

CONSULTING ENGINEERS,

INC.; JAMES C. DAHN;

PENNZOIL QUAKER STATE

COMPANY (f/k/a PENNZOIL

PRODUCTS COMPANY);

NATIONWIDE INDUSTRIES,

INC.; SAM McINNIS; MICHAEL

BORKA; TIM SHINGLETON;

AEROFIL TECHNOLOGY, INC.;

SWEAT TIRE COMPANY

INCORPORATED; A, B, C, D, E

and/or F, the person, firm or

corporation who formulated,

manufactured, sold, labeled,

NO:CV-98-1113 =

(Filed Jun. 2, 1999)

* * #* #& # @ & © & &@ H—cMH_ He RF RR Re He He HR Re RBRQHRhmLMHMDUDUULUHDUO HR SE He HB HR HB SB

App. 2

packaged, supplied and/or

distributed the Fix-A-Flat Non-

Explosive Formua aerosol tire

sealant/inflator involved in the

accident made the basis of this

suit; G, H, I, J, K and/or L, the

person, firm or corporation who

packaged the Fix-a-Flat Non-

Explosive Formula aerosol tire

sealant/inflator involved in the

accident made the basis of this

suit; M, N, O, P, QO and/or R,

the person, firm or corporation

who modified, converted and/or

altered the tire and rim

assembly involved in the

accident made the basis of this

suit: all of whose true names

and legal identities are otherwise

unknown to the Plaintiff at this

time, but will be substituted by

amendment when ascertained,

individually and jointly,

e @ 2° 6 @ ¢ 2S? BS 2S BSB EB BD SB BS. SB So - 2 ES

Defendants.

GENERAL ALLEGATIONS

1. Plaintiff is a resident of the State of Alabama.

2. Defendant Nationwide Industries, Inc. is the cor-

porate predecessor to defendant Snap Products, Inc.

which is the corporate predecessor to defendant Pandora

Manufacturing, Inc. These defendants are, or have been,

residents of the state of North Carolina, with a principal

place of business located as 4117 North Roxboro Road,

Suite 201, Durham, North Carolina.

App. 3

3. Defendant Pennzoil - Quaker State Company (f/

k/a Pennzoil Products Company) is a resident of the state

of Texas which owns, and is a corporate successor to,

defendants Nationwide Industries, Inc.; Snap Products,

Inc.; Snap Automotive Products, Inc.; and Pandora Manu-

facturing, Inc.

4. Defendants Sam McInnis (“McInnis”), Michael

Borka (“Borka”), and Tim Shingleton (“Shingileton”)

were, at all times relevant hereto, residents of the state of

North Carolina and were either employed in managerial

capacities, or were owners and/or officers of defendants

Nationwide Industries, Inc.; and/or Snap Products, Inc.;

and/or Snap Automotive Products, Inc.; and/or Pandora

Manufacturing, Inc. and in such capacities acted as agents

for the companies.

5. Defendant Snap Automotive Products, Inc. is 4

Delaware corporation with its principal residence located

in North Carolina.

6. Defendant Hughtone Industries, Inc.

(“Hughtone”) is a Florida corporation and defendant

Paul Hughett (“Hughett”) is an owner/ officer of the com-

pany who at all relevant times acted as an agent for

Hughtone.

7. Defendant Montfort A. Johnsen and Associates,

Ltd. (“Johnsen & Assoc.”) is an Illinois corporation and

defendant Montfort A. Johnsen (“Johnsen”) is an owner

and/or officer of the company who at all relevant times

acted as an agent for Johnsen & Assoc.

8. Defendant Safety Consulting Engineers, Inc.

(“SCE”) is an Illinois corporation and defendant James C.

App. 4

Dahn (“Dahn”) is an owner and/or officer and/or

employee of SCE who at all relevant times acted as an

agent for SCE.

9. Defendant Sweat Tire Company, Inc. is a resident

of the state of Alabama.

10. Defendant Aerofil Technologies, Inc. is a resi-

dent of the state of Missouri and at all relevant times

hereto filled, packaged, and/or distributed the “fix a flat

NON-EXPLOSIVE FORMULA” tire inflator product.

11. Atall times relevant hereto, defendants Pandora

Manufacturing, Inc., formerly known as Snap Products,

Inc.; Snap Products, Inc.; Snap Automotive Products, Inc.;

Pennzoil - Quaker State Company; and Nationwide

Industries, Inc. were engaged in the business of manufac-

turing and marketing an aerosol tire inflator product (“fix

a flat”) throughout the United States, including the state

of Alabama.

12. Since at least 1979, up until 1993, defendant

Nationwide Industries, Inc. (“Nationwide”) marketed

and sold the aerosol tire inflator product labeled “Snap

fix a flat.” In June 1993, Nationwide was sold and the

name of the company was changed to Snap Products, Inc.

(“Snap”).

13. Defendant Sam McInnis (“McInnis”) was first

employed with Nationwide in March, 1990 and he contin-

ued with the company through the 1993 change to Snap

Products, Inc.

14. Mr. McInnis became familiar with the “fix a flat”

aerosol tire inflator product when he started with Nation-

wide in 1990 as sales manager. Mr. McInnis was put in

App. 5

charge of everyday operations for Snap in the summer of

1994, and he and defendants Borka and Shingleton even-

tually bought the company in April 1995 by forming

defendant Snap Automotive Products, Inc.

15. The “fix a flat” aerosol tire inflator product is,

and has been, the single largest revenue generating prod-

uct sold by Nationwide/Snap, and of approximately 70

company products, sales of the “fix a flat” product consti-

tute approximately half the company’s revenue.

16. As of 1990, when Mr. McInnis became director

of marketing for Nationwide, the “fix a flat” aerosol tire

inflator product was the major product Nationwide was

marketing.

17. During the 1980s, Nationwide marketed the

“Snap fix a flat” aerosol tire inflator product which then

contained flammable propane/butane propellants. The

propellant in a tire inflator serves to inflate the tire when

the product is transferred into a tire. The sealant material

in the tire inflator is intended to be transferred into a tire

to plug a hole.

18. The propane/butane propelled “fix a flat” prod-

uct (first generation product) was sold through 1989.

19. The first generation “fix a flat” tire inflator with

the propane/butane propellants was implicated in

numerous tire explosion accidents where claims were

made that the flammable propellants from the product

ignited when subjected to tire rim welding activity per-

formed on a tire rim with a tire attached that contained

the flammable gas from the “fix a flat” product.

App. 6

20. Tire explosion accident claims also implicated

the first generation “fix a flat” product in connection with

tire plug repairs involving a tire reamer, or file, which

created friction and/or sparks that ignited the flammable

gas from the “fix a flat” product.

21. In response to the first generation “fix a flat”

tire explosion accidents involving rim welding and tire

reaming activity, Nationwide took action in 1989-1990 to

(1) properly label the existing first generation propane/

butane “fix a flat” product with graphic transferable

warning labels advising the product user to transfer a

warning sticker from the can to the tire to inform anyone

coming in contact with the tire that it contained a flam-

mable/explosive gas; (2) move toward designing out the

flammable/explosive risk with a flammable propellant

tire inflator product by developing a second generation

non-flammable propellant hydrochlorofluorocarbon

(“HCFC”) product; and (3) disseminate safety bulletins

nationwide to tire repair personnel to inform them of the

flammable/explosive risks associated with flammable

propellant aerosol tire inflator products.

22. The transferable tire explosion warning labels

for the “fix a flat” product were utilized during the last

year of the first generation product’s marketing and sale

in 1989.

23. The late first generation “fix a flat” product

labeling advised the consumer that the product was

“Extremely Flammable” and contained propane/butane

explosive gases which could cause severe personal injury

if tire reaming or rim welding occurred on tires or rims

with the “fix a flat” product contained in the tires. The

App. 7

warnings also stated the need to remove the tire from the

rim, before performing any repairs, to avoid the explo-

sion risks associated with the flammable tire inflator.

24. At the time Nationwide was first marketing its

second generation HCFC non-flammable propellant “fix a

flat” tire inflator product in the 1990-1991 time frame, the

United States government was considering banning com-

petitor flammable propellant tire inflator products,

regardless of the warnings labeling on the products,

because of tire explosion risks. Nationwide’s position at

that time was that the flammable propellant tire inflator

products should be banned because the second genera-

tion “fix a flat” non-flammable HCFC propellant technol-

ogy designed out the explosive risks normally associated

with flammable propellant tire inflator products.

25. In 1990-1991 when the second generation “fix a

flat” HCFC non-flammable propellant tire inflator prod-

uct was first marketed, Mr. McInnis, as sales manager

and “president” of Nationwide, used the non-flamma-

bility characteristics of the second generation “fix a flat”

product as a competitive marketing advantage in differ-

entiating the non-flammable second generation “fix a

flat” product from the flammable propellant competitor

tire inflator products.

26. As of 1991, Mr. McInnis became successful in

convincing retail customers not to purchase the flamma-

| ble propellant competitor tire inflator products that had

graphic tire explosion warning stickers attached to the

front of the cans.

27. On December 18, 1991, while Mr. McInnis was

touting the safety aspects of the second generation non-

App. 8

flammable HCFC propellant “fix a flat” product, Mr.

McInnis tested a competitor tire inflator product manu-

factured by “STP.” In testing the STP product, Mr.

McInnis coneluded that the STP product was flammable

and was comparable to the propane/butane propellant

tire inflator products.

28. On March 5, 1992, Nationwide and Mr. McInnis

determined that the “STP” tire inflator product, which

was labeled as a “non-explosive formula” product, uti-

lized flammable/explosive dimethyl ether (“DME”) as

the propellant.

29. On March 5, 1992, Nationwide and Mr. McInnis

acknowledged that DME is a highly flammable chemical

that poses a dangerous fire and explosion hazard. Nation-

wide and Mr. McInnis also acknowledged that STP was

compounding the explosion hazard associated with the

STP DME tire inflator by labeling the product as a “non-

explosive formula” because such labeling may lead some

mechanics to disregard a need to remove the tire from the

rim before performing repairs.

30. As of March 1992, Nationwide and Mr. McInnis

understood that the “fix a flat” HCFC non-flammable

second generation product was superior, with regard to

safety, to the STP DME product as the “fix a flat” second

generation product would not combust with any level of

dilution with air inside a tire, unlike the STP DME prod--

uct.

31. By at least 1992, the graphic and ostensible tire

explosion transferable warning labels became the custom

and standard in the aerosol tire inflator business for

flammable propellant tire inflator products. The warnings

App. 9

labeling existed because of the foreseeability that welding

on a tire rim, with an attached tire containing a flamma-

ble gas tire inflator product, could ignite the flammable

gas and cause a tire explosion.

32. As of 1992, Nationwide and Mr. McInnis under-

stood that major retail customers preferred to purchase a

non-flammable tire inflator product, as opposed to a

flammable propellant product that could explode a tire.

33. As of 1993, Nationwide/Snap, and Mr. McInnis,

felt very strongly about the safety aspects associated with

the non-flammable HCFC second generation “fix a flat”

product. In 1993, Nationwide/Snap and Mr. McInnis

opined that manufacturers of flammable propellant tire

inflators were irresponsible, and deceitful, regardless of

warnings labeling utilized, and were sacrificing public

safety in the interest of corporate profits by ignoring a

serious public safety risk associated with flammable pro-

pellant tire inflator products.

34. In 1993, the United States government, under

the Clean Air Act, Title 42 U.S.C. Section 7671i(d)(1)(A)

notified Nationwide/Snap that the HCFC second genera-

tion “fix a flat” propellant was being phased out because

it depleted the atmospheric ozone layer. The govern-

mental order banning use of HCFC propellants for prod-

ucts such as tire inflators was to take effect at the end of

1993.

35. Because of the impending governmental ban on

the second generation “fix a flat” HCFC non-flammable

propellant, Nationwide/Snap, and Mr. McInnis, in July of

1993 evaluated potential propellants for a replacement

App. 10

(third generation) “fix a flat” product to be sold starting

in 1994.

36. In July of 1993, Mr. McInnis considered use of a

propellant known as “134A” for the third generation “fix

a flat” product which was to be sold starting in 1994.

134A is a non-flammable and non-explosive propellant

which could be used in a tire inflator product. However,

Mr. McInnis ruled out 134A for use in the upcoming third

generation “fix a flat” tire inflator because of 134A’s cost.

37. As of July 1993, Mr. McInnis advocated, and

chose, use of DME for the upcoming third generation “fix

a flat” product, to be sold starting in 1994, because DME

was significantly less expensive than non-flammable

134A.

38. The third generation “fix a flat” tire inflator

product, with the DME propellant, was first marketed

and sold in early 1994. The product was labeled: “NEW

fix a flat NON-EXPLOSIVE FORMULA.” It was Mr.

Mcinnis’ decision to put the “NON-EXPLOSIVE FOR-

MULA” label on the front of the third generation “fix a

flat” DME product.

39. During 1990-1993, while Nationwide/Snap and

Mr. McInnis were marketing their second generation

HCFC non-flammable propellant “fix a flat” product, the

company spent significant sums of money educating the

public, and the tire inflator industry, as to the safety

benefits of a non-flammable propellant tire inflator prod-

uct in view of foreseeable rim welding and tire reaming

activity.

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App. 11

40. Despite the fact that the third generation “fix a

flat” product contained the flammable/explosive DME

propellant, the product was labeled as a “NON-EXPLO-

SIVE FORMULA” because it was important for Snap’s

sales/marketing activities to continue projecting the

product as “safe,” “non-flammable,” and “non-explosive”

the same way the truly non-explosive second generation

HCFC “fix a flat” had been marketed.

41. At the time the third generation “fix a flat” DME

propellant tire inflator product was first marketed in

early 1994, the STP DME tire inflator Nationwide/Snap

previously tested in 1991 and 1992 (labeled as a “non-

explosive formula”) had been recalled from the market

because of safety issues associated with tire explosion

accidents

#2. On March 22, 1994, shortly after the third gener-

mn DME “fix a flat” product was first marketed, one of

Snaps principal competitors, Radiator Specialty Com-

pany | KSC") communicated to Snap, and Mr. McInnis,

at the third generation “fix a flat” DME product was

explosive and was mislabeled as a “NON-EXPLOSIVE

FORMULA.”

43. On March 31, 1994, Mr. McInnis, at the invita-

tion of RSC, visited RSC to meet with their representa-

tives to discuss flammability/explosivity issues

associated with the “fix a flat” DME product. At the

meeting with RSC personnel on March 31, 1994, Mr.

McInnis acknowledged to RSC that the DME “fix a flat”

product was, in fact, explosive and may have to be re-

called, which could cost millions of dollars, could cost

Mr. McInnis his job, or could put Snap out of business.

App. 12

44. Mr. McInnis also stated to RSC representatives

on March 31, 1994, that Snap carried a $25,000,000 insur-

ance policy covering the company for product liability

risks.

45. On April 11, 1994, Mr. McInnis acknowledged to

other Snap personnel that he agreed with the RSC find-

ings that the DME “fix a flat” product was flammable and

explosive. However, Mr. McInnis, also on April 11, 1994,

had at least one attorney write to RSC threatening RSC

with a lawsuit for allegedly falsely claiming that the “fix

a flat” DME product was flammable/explosive.

46. In response to the RSC claims that the “fix a

flat” DME product was mislabeled as a “NON-EXPLO-

SIVE FORMULA,” Mr. McInnis sought to have the prod-

uct selectively tested. On April 21, 1994, an engineering

firm known as “Dustech” evaluated the “fix a flat” prod-

uct at Mr. McInnis’ request and concluded that use of the

DME propellant in the “fix a flat” product was concep-

tually similar to the use of propane regarding fire/explo-

sion considerations. Dustech, through chemist William

Cruice, confirmed that the third generation DME “fix a

flat” “NON-EXPLOSIVE FORMULA” was, in fact, explo-

sive and the test results were given to Mr. McInnis.

47. On or about April 25, 1994, Mr. McInnis, along

with “consultlants” Montfort A. Johnsen (“Johnsen”), and

Paul Hughett (“Hughett”) attended a meeting in [Kansas

City, Missouri, with a customer (Western Auto Parts

Company). Johnsen and Hughett had helped design and

develop the third generation DME “fix a flat” product.

48. At the meeting with Western Auto on or about

April 25, 1994, Mr. McInnis, with consultants Hughett

App. 13

and Johnsen, tried to sell Western Auto the DME “fix a

flat” product. However, Western Auto informed McInnis,

Johnsen, and Hughett that Western Auto’s testing of the

“fix a flat” revealed that the product was flammable/

explosive and Western Auto would not purchase such a

product.

49. In response to Western Auto’s concerns regard-

ing the flammability /explosivity of the DME fix a flat

product. Mr. McInnis informed Western Auto that if any

accidents occurred involving the DME fix a flat product

Snap would fully indemnify and reimburse Western Auto

for any liability incurred under the provisions of Snap’s

$25,000,000 product liability insurance policy. Western

Auto decided not to do any business with Snap.

50. On or about May 12, 1994, Snap and/or Mr.

McInnis had tire explosion testing performed by defen-

dants Hughtone, SCE, Hughett, and Dahn on the “fix a

flat” DME product. On or about May 12, 1994, various

mixtures of the “fix a flat” DME tire inflator product were

inserted into Ford Explorer tire and rim assemblies to be

ignited by a remote control spark plug igniter. This test-

ing revealed that certain mixtures of the “fix a flat” DME

product with air in a tire were explosive and could propel

the Ford Explorer tire and rim assemblies as much as 252

feet into the air.

51. Despite test results by Hughtone and SCE in the

spring of 1994 indicating the DME “fix a flat” product

was explosive, Hughtone, SCE, Johnsen & Assoc.,

Hughett, Dahn, Johnsen, and Snap conspired to selec-

tively omit tire explosion test sequences from testing

reports which were sent to Snap’s customers and the

App. 14

Consumer Product Safety Commission. The selectively

edited testing reports created the illusion that the “fix a

flat” DME product was safe and non-explosive.

52. On October 5, 1994, Mr. McInnis hired a chemi-

cal engineer, Reese Howle, to perform additional remote

control tire explosion tests on various mixtures of the “fix

a flat” DME product with air inside tires. This testing was

performed to simulate rim welding activity to determine

whether mixtures of the “fix a flat” product with air

inside a tire could explode tires.

53. On October 7, 1994, Reese Howle performed

remote control tire explosion tests which confirmed that

the “fix a flat” DME product could violently explode a

tire. Mr. Howle then reported the test results to Mr.

McInnis on this same day.

54. Despite Snap’s knowledge of the explosive char-

acteristics of the third generation DME “fix a flat” prod-

uct, Snap and its “consultants” (Hughett, Johnsen, and

Dahn) told concerned retail customers in 1994 that the

“fix a flat” DME product had been thoroughly tested for

safety, and that the product could not explode tires.

55. Because Snap utilized the less expensive DME

propellant for the third generation “fix a flat” product (as

opposed to the more costly 134A non-flammable pro-

pellant), and because Snap labeled their DME tire inflator

as a “NON-EXPLOSIVE FORMULA,” Snap was able to

enjoy a competitive cost marketing advantage over com-

petitors who utilized the non-flammable 134a propellant.

56. In April 1995, defendants McInnis, Borka, and

Shingleton formed Snap Automotive Products, Inc., and

App. 15 a

purchased Snap Products, Inc. from the then owners of

the company, the “Bishop Estate” in Hawaii.

57. At the time defendants McInnis, Borka, and

Shingleton formed Snap Automotive Products, Inc., and

bought Snap Products, Inc. from the “Bishop Estate,”

_these defendants knew the DME “fix a flat” product-was

explosive and they had no intention to recall, or relabel,

the product regarding flammability/explosivity risks.

58. On November 21, 1995, James Bergey-Lyon

injected Snap’s “NEW fix a flat NON-EXPLOSIVE FOR-

MULA” tire inflator product into a partially deflated

tubeless tire.

59. Subsequent to injecting the-Snap “fix a flat

NON-EXPLOSIVE FORMULA” tire inflator product into

a partially deflated tire, Mr. Lyon was misled by Snap’s

label of non-explosiveness to believe that he did not need

to remove the tire from the rim before he welded on the

rim.

60. On November 21, 1995, James Bergey-Lyon was

seriously injured in a tire explosion accident resulting

from welding activity on a tire rim which ignited the

DME flammable gas from the “NEW fix a flat NON-

EXPLOSIVE FORMULA” product.

61. Snap, McInnis, Shingleton, and Borka subse-

quently learned of Mr. Lyon’s accident in the spring or

summer of 1996, but chose not to relabel or recall the “fix

a flat” product labeled as containing a “NON-EXPLO-

SIVE FORMULA.” These defendants also received infor-

mation from Mr. Lyon’s expert witness’ reports further

App. 16

confirming that the “fix a flat” DME product was explo-

sive and mislabeled.

62. On April 12, 1996, a second injurious rim-weld-

ing tire explosion accident occurred in Arizona involving

an individual named Mark Malinkovich when Mr. Mal-

inkovich was misled by the “NON-EXPLOSIVE” label on

the “fix a flat” DME tire inflator product and his welding

activity ignited the explosive propellant.

63. After learning of the additional tire explosion

accident in Arizona, Snap and its principals, McInnis,

Borka, and Shingleton, chose not to recall or relabel the

third generation “fix a flat” DME product labeled as a

“NON-EXPLOSIVE FORMULA.”

64. On October 1, 1996, an individual named Gary

Olson sustained serious injuries in a rim welding tire

explosion accident in Sandstone, Minnesota, when he

welded on a tire rim with a tire attached that contained a

flammable mixture of Snap’s “fix a flat” NON-EXPLO-

SIVE FORMULA” DME tire inflator product.

65. At the time of Mr. Olson’s accident on October

1, 1996, Mr. Olson was misled by defendants’ labeling of

the “fix a flat” product into believing that he did not

otherwise need to remove the tire from the rim before

commencing rim welding activity.

66. As a result of learning of Mr. Olson’s accident,

defendants Snap, McInnis, Borka, and Shingleton made

no effort to recall the dangerous DME “fix a flat,” or to

place any information on the product that it contained an

explosive gas.

App. 17

67. On or about June 4, 1997, Joe Ed Daniel,

attempted to affix a small metal block, or lug, to a motor

grader rim with a tire attached which had been previ-

ously inflated with two cans of the DME “fix a flat NON-

EXPLOSIVE FORMULA’ tire inflator product.

68. Mr. Daniel, while performing a brief tacking

repair to affix the metal block to the motor grader tire

rim, was killed when the flammable DME propellant

from the “fix a flat” product ignited and propelled the

tire and/or components of the rim assembly into him

thereby resulting in his being decapitated.

69. Mr. Daniel, and the individuals who previously

purchased and injected the “fix a flat NON-EXPLOSIVE

FORMULA’ tire inflator product into the subject motor

grader tire, were disarmed by the product's labeling into

believing the motor grader tire did not have to be

removed from the rim before the tacking procedure was

performed.

70. Less than two weeks prior to Mr. Daniel's acci-

dent, the subject motor grader tire had been converted

from a “tube type” tire to a “tubeless” tire by defendant

Sweat Tire Company, Inc.

71. In November 1997, McInnis, Shingleton, and

Borka sold Snap Products, Inc. to Pennzoil Products Com-

pany, n.k.a. Pennzoil - Quaker State Company.

72. In February 1999, Pennzoil - Quaker State Com-

pany announced a $25,000,000 nationwide recall of the

explosive DME “fix a flat” product and reformulated the

product by using the non-flammable 134A propellant

instead of explosive DME.

App. 18

FIRST CAUSE OF ACTION

Plaintiff, PAMELA ALICE LITTLE DANIEL, Admin-

istratrix of the Estate of JOE ED DANIEL, Deceased,

alleges against the Defendants PANDORA MANUFAC-

TURING, INC., formerly known as SNAP PRODUCTS,

INC.; SNAP PRODUCTS, INC.; SNAP AUTOMOTIVE

PRODUCTS, INC.; HUGHTONE INDUSTRIES, INC.;

PAUL HUGHETT; MONTFORT A. JOHNSEN AND

ASSOCIATES, LTD.; MONTFORT A. JOHNSEN; SAFETY

CONSULTING ENGINEERS, INC.; JAMES C. DAHN;

PENNZOIL —- QUAKER STATE COMPANY (f/k/a PENN-

ZOIL PRODUCTS COMPANY); NATIONWIDE INDUS-

TRIES, INC.; SAM McINNIS; MICHAEL BORKA; TIM

SHINGLETON; AEROFIL TECHNOLOGY, INC.; SWEAT

TIRE COMPANY INCORPORATED; A, B, C, D, E, F, G, H,

I, J, K, L, M, N, O, P, Q, and R, as follows:

73. Plaintiff realleges all of the allegations contained

in paragraphs 1 through 72 of the GENERAL ALLEGA-

TIONS as if set forth fully herein.

74. This action is brought pursuant to the Alabama

Extended Manufacturers Liability Doctrine.

75. The “fix a flat NON-EXPLOSIVE FORMULA”

part number S455K, DOT 2Q involved in the accident

made the basis of this suit was formulated, manufac-

tured, labeled, packaged, sold, supplied and/or distrib-

uted by the Defendants, PANDORA MANUFACTURING,

INC., formerly known as SNAP PRODUCTS, INC.; SNAP

PRODUCTS, INC.; SNAP AUTOMOTIVE PRODUCTS,

INC.; HUGHTONE INDUSTRIES, INC.; PAUL

App. 19

HUGHETT; MONTFORT A. JOHNSEN AND ASSOCI-

ATES, LTD.; MONTFORT A. JOHNSEN; SAFETY CON-

SULTING ENGINEERS, INC.; JAMES C. DAHN; PENN-

ZOIL — QUAKER STATE COMPANY (f/k/a PENNZOIL

PRODUCTS COMPANY); NATIONWIDE INDUSTRIES,

INC.; SAM McINNIS; MICHAEL BORKA; TIM SHIN-

GLETON; AEROFIL TECHNOLOGY, INC.; SWEAT TIRE

COMPANY INCORPORATED; A, B, C, D, E, F, G, H, L, J,

K, L, M, N, O, P, Q, and R.

76. Prior to June 4, 1997, the Defendants PANDORA

MANUFACTURING, INC., formerly known as SNAP

PRODUCTS, INC.; SNAP PRODUCTS, INC.; SNAP

AUTOMOTIVE PRODUCTS, INC.; HUGHTONE INDUS-

TRIES, INC.; PAUL HUGHETT; MONTFORT A. JOHN-

SEN AND ASSOCIATES, LTD.; MONTFORT A.

JOHNSEN; SAFETY CONSULTING ENGINEERS, INC.;

JAMES C. DAHN; PENNZOIL - QUAKER STATE COM-

PANY (f/k/a PENNZOIL PRODUCTS COMPANY);

NATIONWIDE INDUSTRIES, INC.; SAM McINNIS;

MICHAEL BORKA; TIM SHINGLETON; AEROFIL

TECHNOLOGY, INC.; SWEAT TIRE COMPANY INCOR-

PORATED; A, B, C, D, E, F, G, H, L J, K, L, M, N, O, P, Q,

and R, either formulated, manufactured, labeled, pack-

aged, sold, supplied and/or distributed the “fix a flat

NON-EXPLOSIVE FORMULA” tire inflator/sealant

involved in the accident made the basis of this suit.

77. At the time of the accident made the basis of this

suit, the “fix a flat NON-EXPLOSIVE FORMULA” tire

inflator/sealant was in substantially the same condition

as it was when it originally left the control of the Defen-

dants, PANDORA MANUFACTURING, INC., formerly

known as SNAP PRODUCTS, INC.; SNAP PRODUCTS,

App. 20

INC.; SNAP AUTOMOTIVE PRODUCTS, INC.;

HUGHTONE INDUSTRIES, INC.; PAUL HUGHETT;

MONTFORT A. JOHNSEN AND ASSOCIATES, LTD.;

MONTFORT A. JOHNSEN; SAFETY CONSULTING

ENGINEERS, INC.; JAMES C. DAHN; PENNZOIL -

QUAKER STATE COMPANY (f/k/a PENNZOIL PROD-

UCTS COMPANY); NATIONWIDE INDUSTRIES, INC.;

SAM McINNIS; MICHAEL BORKA; TIM SHINGLETON;

AEROFIL TECHNOLOGY, INC.; SWEAT TIRE COM-

PANY INCORPORATED; A, B, C, D, E, F, G, H, |, J, K, L,

M, N, O, P, QO, and R.

78. At the time the “fix a flat NON-EXPLOSIVE

FORMULA” involved in the accident made the basis of

this suit was formulated, manufactured, labeled, pack-

aged, sold, supplied and/or distributed, it was in a defec-

tive and unreasonably dangerous condition and was not

reasonably safe for its intended uses.

79. The injuries and subsequent death of Joe Ed

Daniel were the direct and proximate result of the defec-

tive condition of the “fix a flat NON-EXPLOSIVE FOR-

MULA’” tire inflator/sealant.

WHEREFORE, Plaintiff PAMELA ALICE LITTLE

DANIEL, Administratrix of the Estate of JOE ED DAN-

IEL, Deceased, demands judgment against the Defen-

dants PANDORA MANUFACTURING, INC., formerly

known as SNAP PRODUCTS, INC.; SNAP PRODUCTS,

INC.; SNAP AUTOMOTIVE PRODUCTS, INC.;

HUGHTONE INDUSTRIES, INC.; PAUL HUGHETT;

MONTFORT A. JOHNSEN AND ASSOCIATES, LTD.;

MONTFORT A. JOHNSEN; SAFETY CONSULTING

ENGINEERS, INC.; JAMES C. DAHN; PENNZOIL -

App. 21

QUAKER STATE COMPANY (f/k/a PENNZOIL PROD-

UCTS COMPANY); NATIONWIDE INDUSTRIES, INC.;

SAM McINNIS; MICHAEL BORKA; TIM SHINGLETON;

AEROFIL TECHNOLOGY, INC.; SWEAT TIRE COM-

PANY INCORPORATED; A, B, C, D, E, F,G, H, L, J, K, L,

M, N, O, P, Q, and R, separately and severally, for puni-

tive damages, for the wrongful death of the said Joe Ed

Daniel, plus interest and costs in excess of the jurisdic-

tional limits of this Court.

SECOND CAUSE OF ACTION

PAMELA ALICE LITTLE DANIEL, Administratrix of

the Estate of JOE ED DANIEL, Deceased, alleges against

the Defendants PANDORA MANUFACTURING, INC.,

formerly known as SNAP PRODUCTS, INC.; SNAP

PRODUCTS, INC.; SNAP AUTOMOTIVE PRODUCTS,

INC.; HUGHTONE INDUSTRIES, INC.; PAUL

HUGHETT; MONTFORT A. JOHNSEN AND ASSOCI-

ATES, LTD.; MONTFORT A. JOHNSEN; SAFETY CON-

SULTING ENGINEERS, INC.; JAMES C. DAHN; PENN-

ZOIL - QUAKER STATE COMPANY (f/k/a PENNZOIL

PRODUCTS COMPANY); NATIONWIDE INDUSTRIES,

INC.; SAM McINNIS; MICHAEL BORKA; TIM SHIN-

GLETON; AEROFIL TECHNOLOGY, INC.; SWEAT TIRE

COMPANY INCORPORATED; A, B, C, D, E, F, G, H,L, J,

K, L, M, N, O, P, Q, and R, as follows:

80. Plaintiff realleges all of the allegations contained

in paragraphs 1 through 79 of the GENERAL ALLEGA-

TIONS and FIRST CAUSE OF ACTION as if fully set out

herein and further states as follows:

App. 22

81. Plaintiff further alleges that the injuries and

subsequent death of Joe Ed Daniel was proximately

caused by the negligence of the Defendants PANDORA

MANUFACTURING, INC., formerly known as SNAP

PRODUCTS, INC.; SNAP PRODUCTS, INC.; SNAP

AUTOMOTIVE PRODUCTS, INC.; HUGHTONE INDUS-

TRIES, INC.; PAUL HUGHETT; MONTFORT A. JOHN-

SEN AND ASSOCIATES, LTD.; MONTFORT A.

JOHNSEN; SAFETY CONSULTING ENGINEERS, INC.;

JAMES C. DAHN; PENNZOIL - QUAKER STATE COM-

PANY (f/k/a PENNZOIL PRODUCTS COMPANY);

NATIONWIDE INDUSTRIES, INC.; SAM McINNIS;

MICHAEL BORKA; TIM SHINGLETON; AEROFIL

TECHNOLOGY, INC.; SWEAT TIRE COMPANY INCOR-

PORATED; A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q,

and R, in one or more of the following respects:

a. Negligently formulating and/or manufac-

turing the “fix a flat NON-EXPLOSIVE

FORMULA” involved in the accident made

the basis of this suit;

b. Negligently selling, supplying and/or dis-

tributing the “fix a flat NON-EXPLOSIVE

FORMULA” made the basis of this suit

when the Defendants knew or in the exer-

cise of reasonable care, should have known

that said product referred to above was ina

defective and unreasonably dangerous con-

dition;

c. Negligently selling, supplying and/or dis-

tributing a flammable and explosive product

when other non-flammable and non-explo-

sive formulations were available in the mar-

ketplace for the purpose of providing

emergency and/or temporary tire repairs;

App. 23

Negligently failing to provide adequate

warnings to the decedent and others sim-

ilarly situated as to inherent dangers associ-

ated with the use of “fix a flat NON-

EXPLOSIVE FORMULA” of which the

Defendants were aware;

Negligently failing to warn the decedent

and others similarly situated of the dan-

gerous, flammable and explosive propen-

sities of the “fix a flat NON-EXPLOSIVE

FORMULA” made the basis of this suit;

Negligently labeling and/or packaging the

“fix a flat NON-EXPLOSIVE FORMULA”

made the basis of this suit;

Negligently failing to adequately test the

explosiveness and/or flammability of the

“fix a flat NON-EXPLOSIVE FORMULA”

made the basis of this suit;

Negligently failing to adequately test the

“fix a flat NON-EXPLOSIVE FORMULA”

to determine that it was safe for its intended

uses and purposes;

Negligently misrepresenting that the “fix a

flat NON-EXPLOSIVE FORMULA” made

the basis of this suit was a Non-explosive

Formula, when the Defendants knew or

should have known of its dangerous flam-

mable and/or explosive characteristics;

Negligently continuing to manufacture, sell,

supply and/or distribute “fix a flat NON-

EXPLOSIVE FORMULA” after said product

was known by the Defendants to be flamma-

ble, explosive and unreasonably dangerous

for its intended uses;

App. 24

k. Negligently continuing to manufacture, sell,

supply and/or distribute “fix a flat NON-

EXPLOSIVE FORMULA” which was

extremely flammable and explosive after a

safe formulation was available;

l. Negligently failing to take appropriate mea-

sures to remedy the defective nature of the

“fix a flat NON-EXPLOSIVE FORMULA”

made the basis of this suit;

m. Negligently failing to remove and/or recall

“fix a flat NON-EXPLOSIVE FORMULA”

from the marketplace after becoming aware

of the flammable, explosive and unreason-

ably dangerous propensities of the product.

WHEREFORE, Plaintiff PAMELA ALICE LITTLE

DANIEL, Administratrix of the Estate of JOE ED DAN-

IEL, Deceased, demands judgment against the Defen-

dants PANDORA MANUFACTURING, INC., formerly

known as SNAP PRODUCTS, INC.; SNAP PRODUCTS,

INC.; SNAP AUTOMOTIVE PRODUCTS, FNC.;

HUGHTONE INDUSTRIES, INC.; PAUL HUGHETT;

MONTFORT A. JOHNSEN AND ASSOCIATES, LTD.;

MONTFORT A. JOHNSEN; SAFETY CONSULTING

ENGINEERS, INC.; JAMES C. DAHN; PENNZOIL -

QUAKER STATE COMPANY (f/k/a PENNZOIL PROD-

UCTS COMPANY); NATIONWIDE INDUSTRIES, INC.;

SAM McINNIS; MICHAEL BORKA; TIM SHINGLETON;

AEROFIL TECHNOLOGY, INC.; SWEAT TIRE COM-

PANY INCORPORATED; A, B, C, D, E, F, G, H, L, J, K, L,

M, N, O, P, Q, and R, separately and severally, for puni-

tive damages, for the wrongful death of the said Joe Ed

Daniel, plus interest and costs in excess of the jurisdic-

tional limits of this Court.

App. 25

THIRD CAUSE OF ACTION

Plaintiff PAMELA ALICE LITTLE DANIEL, Adminis-

tratrix of the Estate of JOE ED DANIEL, Deceased, alleges

against the Defendants PANDORA MANUFACTURING,

INC., formerly known as SNAP PRODUCTS, INC.; SNAP

PRODUCTS, INC.; SNAP AUTOMOTIVE PRODUCTS,

INC.; HUGHTONE INDUSTRIES, INC.; PAUL

HUGHETT; MONTFORT A. JOHNSEN AND ASSOCI-

ATES, LTD.; MONTFORT A. JOHNSEN; SAFETY CON-

SULTING ENGINEERS, INC.; JAMES C. DAHN; PENN-

ZOIL —- QUAKER STATE COMPANY (f/k/a PENNZOIL

PRODUCTS COMPANY); NATIONWIDE INDUSTRIES,

INC.; SAM McINNIS; MICHAEL BORKA; TIM SHIN-

GLETON; AEROFIL TECHNOLOGY, INC.; SWEAT TIRE

COMPANY INCORPORATED; A, B, C, D, E, F, G, H, L, J,

K, L, M, N, O, P. QO, and R, as follows:

82. Plaintiff realleges all of the allegations contained

in paragraphs 1 through 81 of the GENERAL ALLEGA-

TIONS and FIRST AND SECOND CAUSES OF ACTION

as if set forth fully herein.

83. Plaintiff further alleges that the injuries and

subsequent death of the said Joe Ed Daniel was prox-

imately caused by the wanton conduct of the Defendants

PANDORA MANUFACTURING, INC., formerly known

as SNAP PRODUCTS, INC.; SNAP PRODUCTS, INC.;

SNAP AUTOMOTIVE PRODUCTS, INC.; HUGHTONE

INDUSTRIES, INC.; PAUL HUGHETT; MONTFORT A.

JOHNSEN AND ASSOCIATES, LTD.; MONTFORT A.

JOHNSEN; SAFETY CONSULTING ENGINEERS, INC.;

JAMES C. DAHN; PENNZOIL - QUAKER STATE COM-

PANY (f/k/a PENNZOIL PRODUCTS COMPANY);

App. 26 7

NATIONWIDE INDUSTRIES, INC.; SAM McINNIS;

MICHAEL BORKA; TIM SHINGLETON; AEROFIL

TECHNOLOGY, INC.; SWEAT TIRE COMPANY INCOR-

PORATED; A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q,

and R, in one or more of the following respects:

a. Wantonly formulating and/or manufactur-

ing the “fix a flat NON-EXPLOSIVE FOR-

MULA” involved in the accident made the

basis of this suit;

b. Wantonly selling, supplying and/or distrib-

uting the “fix a flat NON-EXPLOSIVE

FORMULA” made the basis of this suit

when the Defendants knew or in the exer-

cise of reasonable care, should have known

that said product referred to above was in a

defective and unreasonably dangerous con-

dition;

c. Wantonly selling, supplying and/or distrib-

uting a flammable and explosive product

when other non-flammable and non-explo-

sive formulations were available in the mar-

ketplace for the purpose of providing

emergency and/or temporary tire repairs;

d. Wantonly failing to provide adequate warn-

ings to the decedent and others similarly

situated as to inherent dangers associated

with the use of “fix a flat NON-EXPLOSIVE

FORMULA” of which the Defendants were

aware;

e. Wantonly failing to warn the decedent and

others similarly situated of the dangerous,

flammable and explosive propensities of the

“fix a flat NON-EXPLOSIVE FORMULA”

made the basis of this suit;

App. 27

Wantonly labeling and/or packaging the

“fix a flat NON-EXPLOSIVE FORMULA”

made the basis of this suit;

Wantonly failing to adequately test the

explosiveness and/or flammability of the

“fix a flat NON-EXPLOSIVE FORMULA”

made the basis of this suit;

Wantonly failing to adequately test the “fix

a flat NON-EXPLOSIVE FORMULA” to

determine that it was safe for its intended

uses and purposes;

Wantonly misrepresenting that the “Fix-

A-Flat NON-EXPLOSIVE FORMULA”

made the basis of this suit was a Non-explo-

sive Formula, when the Defendants knew or

should have known of its dangerous flam-

mable and/or explosive characteristics;

Wantonly continuing to manufacture, sell,

supply and/or distribute “fix a flat” as a

“NON-EXPLOSIVE FORMULA” after said

product was known by the Defendants to be

flammable, explosive and unreasonably dan-

gerous for its intended uses;

Wantonly continuing to manufacture, sell,

supply and/or distribute “fix a flat NON-

EXPLOSIVE FORMULA” which was

extremely flammable and explosive after a

safe formulation was available;

Wantonly failing to take appropriate mea-

sures to remedy the defective nature of the

“fix a flat NON-EXPLOSIVE FORMULA”

made the basis of this suit;

. Wantonly failing to remove and/or recall

“fix a flat NON-EXPLOSIVE FORMULA”

App. 28

from the marketplace after beconiing aware

of the flammable, explosive and unreason-

ably dangerous propensities of the product.

WHEREFORE, Plaintiff PAMELA ALICE LITTLE

DANIEL, Administratrix of the Estate of JOE ED DAN-

IEL, Deceased, demands judgment against the Defen-

dants PANDORA MANUFACTURING, INC, formerly

known as SNAP PRODUCTS, INC.; SNAP PRODUCTS,

INC.; SNAP AUTOMOTIVE PRODUCTS, INC.;

HUGHTONE INDUSTRIES, INC.; PAUL HUGHETT;

MONTFORT A. JOHNSEN AND ASSOCIATES, LTD.;

MONTFORT A. JOHNSEN; SAFETY CONSULTING

ENGINEERS, INC.; JAMES C. DAHN; PENNZOIL -

QUAKER STATE COMPANY (f/k/a PENNZOIL PROD-

UCTS COMPANY); NATIONWIDE INDUSTRIES, INC.;

SAM McINNIS; MICHAEL BORKA; TIM SHINGLETON;

AEROFIL TECHNOLOGY, INC.; SWEAT TIRE COM-

PANY INCORPORATED; A, B, C, D, E, F, G, H, I, J, K, L,

M, N, O, P, Q, and R, separately and severally, for puni-

tive damages, for the wrongful death of the said Joe Ed

Daniel, plus interest and costs in excess of the jurisdic-

tional limits of this Court.

FOURTH CAUSE OF ACTION

PAMELA ALICE LITTLE DANIEL, Administratrix of

the Estate of JOE ED DANIEL, Deceased, alleges against

the Defendants SWEAT TIRE COMPANY INCORPO-

RATED, M, N, O, P, Q, and R, as follows:

App. 29

84. Plaintiff realleges all of the allegations contained

in paragraphs 1-83 of the GENERAL ALLEGATIONS and

FIRST, SECOND, and THIRD CAUSES OF ACTION as if

fully set out herein. i.

85. Plaintiff further alleges that the injuries and

subsequent death of the said Joe Ed Daniel was prox-

imately caused by the negligence of the Defendants

SWEAT TIRE COMPANY, INCORPORATED, M, N, O, P,

Q and/or R, as follows:

a. Negligently altering the configuration of the

tire and rim assembly involved in the acci-

dent made the basis of this suit;

b. Negligently converting the tire and rim

assembly involved in the accident made the

basis of this suit from a “tube-type” assem-

bly to a “tubeless” assembly.

WHEREFORE, Plaintiff PAMELA ALICE LITTLE

DANIEL, Administratrix of the Estate of JOE ED DAN-

IEL, deceased, demands judgment against the Defendants

SWEAT TIRE COMPANY, INCORPORATED, M, N, O, P,

Q and R, separately and severally, for punitive damages,

for the wrongful death of the said Joe Ed Daniel, plus

interest and costs in excess of the jurisdictional limits of

this Court.

FIFTH CAUSE OF ACTION

PAMELA ALICE LITTLE DANIEL, Administratrix of

the Estate of JOE ED DANIEL, Deceased, alleges against

the Defendants SWEAT TIRE COMPANY, INCORPO-

RATED, M,N, O, P, Q and R, as follows:

App. 30

86. Plaintiff realleges all of the allegations contained

in paragraphs 1 through 85 of the GENERAL ALLEGA-

TIONS and FIRST, SECOND, THIRD, AND FOURTH

CAUSES OF ACTION as if fully set out herein and fur-

ther states as follows:

87. Plaintiff further alleges that the injuries and

subsequent death of the said Joe Ed Daniel was prox-

imately caused by the wanton conduct of the Defendants

SWEAT TIRE COMPANY, INCORPORATED, M, N, O, P,

Q and/or R, as follows:

a. Wantonly altering the configuration of the

tire and rim assembly involved in the acci-

dent made the basis of this suit;

b. Wantonly converting the tire and rim assem-

bly involved in the accident made the basis

of this suit from a “tube-type” assembly to a

“tubeless” assembly. ”

SIXTH CAUSE OF ACTION

PAMELA ALICE LITTLE DANIEL, Administratrix of

the Estate of JOE ED DANIEL, Deceased, alleges against

Defendants PANDORA MANUFACTURING, INC., for-

merly known as SNAP PRODUCTS, INC.; SNAP PROD-

UCTS, INC.; SNAP AUTOMOTIVE PRODUCTS, INC.;

HUGHTONE INDUSTRIES, INC.; PAUL HUGHETT;

MONTFORT A. JOHNSEN AND ASSOCIATES, LTD.;

MONTFORT A. JOHNSEN; SAFETY CONSULTING

ENGINEERS, INC.; JAMES C. DAHN; PENNZOIL -

QUAKER STATE COMPANY (f/k/a PENNZOIL PROD-

UCTS COMPANY); NATIONWIDE INDUSTRIES, INC.;

SAM McINNIS; MICHAEL BORKA; TIM SHINGLETON;

App. 31

AEROFIL TECHNOLOGY, INC.; SWEAT TIRE COM-

PANY INCORPORATED; A, B, C, D, E, F, G, H, I, J, K, L,

M, N, O, P, Q, and R, as follows:

88. Plaintiff realleges all of the allegations contained

in paragraphs 1 through 87 of the GENERAL ALLEGA-

TIONS and FIRST, SECOND, AND THIRD CAUSES OF

ACTION as if fully set out herein and further states as

follows:

89. Plaintiff further alleges that the injuries and

subsequent death of Joe Ed Daniel was proximately

caused by a civil conspiracy among two or more defen-

dants combining to exercise wanton reckless indifference

to the safety of members of the public, including plain-

tiff’s decedent, as follows:

a. Wantonly formulating and/or manufactur-

ing the “fix a flat NON-EXPLOSIVE FOR-

MULA” involved in the accident made the

basis of this suit;

b. Wantonly combining to misrepresent that

the “fix a flat NON-EXPLOSIVE FOR-

MULA” made the basis of this suit was a

“non-explosive formula,” when the defen-

dants knew or should have known of its

dangerous flammable and/or explosive

characteristics;

c. Wantonly combining to selectively edit and/

or alter test results confirming the explosive-

ness of the “fix a flat NON-EXPLOSIVE

FORMULA” tire inflator to create the false

impression that the product was not flam-

mable or explosive;

App. 32

Wantonly combining to ignore test results

from credible sources indicating the “fix a

flat NON-EXPLOSIVE FORMULA” tire

inflator product was, in fact, explosive;

Wantonly combining to fail to recall the “fix

a flat NON-EXPLOSIVE FORMULA” tire

inflator product when confronted with sub-

stantial information indicating the product

posed a dangerous fire/explosion risk;

Wantonly combining to contrive testing pro-

cedures to give a false impression that the

“fix a flat NON-EXPLOSIVE FORMULA”

tire inflator product was somehow “safe,”

“non-flammable,” or “non-explosive”;

Wantonly combining to tout testing proto-

cols for the “fix a flat NON-EXPLOSIVE

FORMULA” tire inflator product which

defendants knew were “largely irrelevant,”

“invalid,” and not applicable to tire inflator

products in order to create a false impres-

sion that the “fix a flat NON-EXPLOSIVE

FORMULA” tire inflator made the basis of

this suit was somehow “safe,” “non-flamma-

ble,” or “non-explosive”;

Wantonly combining to visit concerned

retail customers to falsely convey that the

“fix a flat NON-EXPLOSIVE FORMULA”

tire inflator product could not explode tires

when defendants knew otherwise;

Wantonly failing to remove and/or recall

the “fix a flat NON-EXPLOSIVE FOR-

MULA” from the marketplace after becom-

ing aware of the flammable, explosive and

unreasonably dangerous propensities of the

product.

App. 33

WHEREFORE, plaintiff Pamela Alice Little Daniel,

Administratrix of the Estate of Joe Ed Daniel, deceased,

demands judgment against the defendants PANDORA

MANUFACTURING, INC., formerly known as SNAP

PRODUCTS, INC.; SNAP PRODUCTS, INC.; SNAP

AUTOMOTIVE PRODUCTS, INC.; HUGHTONE INDUS-

TRIES, INC.; PAUL HUGHETT; MONTFORT A. JOHN-

SEN AND ASSOCIATES, LTD.; MONTFORT A.

JOHNSEN; SAFETY CONSULTING ENGINEERS, INC.;

JAMES C. DAHN; PENNZOIL - QUAKER STATE COM-

PANY (f/k/a PENNZOIL PRODUCTS COMPANY);

NATIONWIDE INDUSTRIES, INC.; SAM McINNIS;

MICHAEL BORKA; TIM SHINGLETON; AEROFIL

TECHNOLOGY, INC.; SWEAT TIRE COMPANY INCOR-

PORATED; A, B, C, D, E, F,G,H,1, J, K, L, M,N, 0, P, Q,

and R, separately and severally, for punitive damages, for

the wrongful death of the said Joe Ed Daniel, plus interest

and costs in excess of the jurisdictional limits of this

Court.

Dated this 28th day of May, 1999.

* + +

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