Opposition Brief — United Brotherhood of Carpenters & Joiners of America v. BE&K Construction Co.

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- JUN 5 {997

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No. 96-1447

IN THE

Supreme Court of the Hnited States ~

OcToBerR TERM, 1996

Unitep BROTHERHOOD OF CARPENTERS AND

Jomners oF America, AFL-CIO,

Petitioner,

VS.

BE&K ConstrRuCcTION COMPANY, ET AL..

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Alabama

RESPONDENT'S BRIEF IN OPPOSITION

E. Mabry Rogers >

Matthew H. Lembke*

BRADLEY ARANT ROSE &

WHITE LLP

200! Park Place, Suite 1400

Birmingham, Alabama 35203

(205) 521-8000

Counsel for Respondent

*Counsel of Record

St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477

QUESTION PRESENTED

Whether the standard for determining whether the exercise

of general in personam jurisdiction comports with the require-

ments of the Due Process Clause as set out in Jnternational Shoe

Co. v. Washington, 326 U.S. 310 (1945), and as refined in

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.

408 (1984), requires further refinement?

(1)

(2)

(3)

(4)

RULE 29.6 LISTING

BE&K, Inc. (privately held, parent corporation of

respondent BE&K Construction Company);

Polar BE&K Latvia, Ltd. (partially owned

subsidiary);

Rentinko Oy (partially owned subsidiary); and

Digital Training Sciences Corporation (partially owned

subsidiary).

— i—

TABLE OF CONTENTS

SER AE eaten RA NCE Re Ee

ESERIES a tere Oe le SEER ORDER

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NN NN icc iitistccincndichadatilanes bkovacakccshantniodses

Reason for Denying the Wit ..............0.ccccccseccseeceeeees

I. This case involves the factbound application of

the settled due process standard relevant to the

exercise of general in personam jurisdiction, and

there is no conflict of authority among the lower

federal courts or state courts concerning this

NNR ati iced atibaaccbaieactionsctasciin within ach se idahicecmineb thatch

II. There is an alternative basis for the Alabama

courts to assert jurisdiction over petitioner, which

renders pointless the requested review by this

NM ch cists lhc a can va ensa Paksdstioevactecthineaabdcecigucoiabes

il

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11

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TABLE OF AUTHORITIES

Cases Page

Administrators of Tulane Educ. Fund v. Cooley, 462 So.

2d 696 (Miss. 1984), cert. denied, 474 U.S.

RROD ke hasstsccsticcmssdindiianiqnensobieihddetatsaminaietsene 8

Amoco Egypt Oil Co. v. Leonis Navigation Co., | F.3d

RO Ce il Se ricco amnion aes 5

Asahi Metal Industry Co. v. Superior Court of California,

Solano County, 480 U.S. 102 (1987) ..............e8. 4,9

Brooks v. Inlow, 453 So. 2d 349 (Ala. 1984) ............... 10

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) = 4,10

Crose v. Volkswagenwek Aktiengesellschaft, 558 P.2d

FOO FFE isptisinctincierncenspeinivcoaiancnd natal 6,8

Derman v. Wilair Servs., Inc., 590 A.2d 317 (Pa. Super.),

appeal denied, 600 A.2d 537 (Pa.1991)................ 9

Duke v. Young, 496 So. 2d 37 (Ala. 1986) ................... 10

Eatin Vv. Extion, SI4 US. SAY CFGRBY cin cvccssnssciosassezcnassacas 6

Ex Parte British Steel Corp., 426 So. 2d 409 (Ala. 1983). 8

Glover v. Western Airlines, Inc., 745 P.2d 1365

EPRI BET D sicccsieciacaeuvarcoexcaviscdbentanda maiaadshanckanetaaucn 5,8

Goodyear Tire & Rubber Co. v. Ruby, 540 A.2d 482

I SU siccioteiiertancisdihcatt ddlduladbsilacsdapiahabosanusbbiads 5,9

Hanson v. Denckla, 357 U.S. 235 (1958)...........cccceeceees 6

Hartley v. American Contract Bridge League, 812 P.2d

109 (Wash. Ct. App.), review denied, 820 P.2d 511

oN, 9 naa APS nea ae ate Ea en aE

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.

EOD jie ied ache tecxioviniahieidicadiabeoschuasteeisaisians

Hughes v. A.H. Robins Co., 490 A.2d 1140 (D.C. 1985).......

International Shoe Co. v. Washington, 326 U.S. 310

CFM saxiavinisvsashsivicsestncnvasbniehaanbedianeaide ena ek

Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102

sae ee AW Oh. BON circa athcdsichosnnsiee

Kulko v. Superior Court of California, 436 U.S. 84 (1978)...

Laufer v. Ostrow, 434 N.E.2d 692 (N.Y. 1982) ............

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

Markby v. St. Anthony Hosp. Sys., 647 P.2d 1068

EO SOUND Situ is ee

Maunder v. DeHavilland Aircraft of Canada, Ltd., 466

N.E.2d 217 (Ill.), cert. denied, 469 U.S. 1036

GRIPE sinclisnckcebcicuadinin in ire eo

Metropolitan Life Ins. Co. v. Robertson-Ceco Corp.,84

F.3d 560 (2d Cir.), cert. denied, 117 S. Ct. 508

PO BOR ca caso pansies nein i cacaccai cima esis

Michigan Nat'l Bank v. Quality Dinette, Inc., 888 F.2d

ee at Ree rae

National Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769

4, , . | RE Re ate ee

Nichols v. G.D. Searle & Co., 991 F.2d 1195

AR _|_) ARSE ra er ee pone Pe eee Dee

wa a! UO: UW

9,79

5,8

—*

Perkins v. Benguet Consol. Mining Co., 342 US.

BST CURBS) srtincddtndscsiebecieaein aden

Price & Sons v. Second Judicial Dist. Court, 831 P.2d

GE PRON, BOE evckaciscetthitiitnncccksttcedalanns

Provident Nat'l Bank v. California Fed. Sav. & Loan

Ass'n,819 F.2d 434 (3d Cir. 1987) ...........cccccseeeeees

Thomason v. Chemical Bank, 661 A.2d 595

RIA Pre shiccrcadcinsttisnccbskiccasacudvesdcbenisaae ens

Ultra Scientific, Inc. v. Yanusas, 687 A.2d 1247

CR By WEED cissirscdervictsicasasdeaea a eee

Vons Cos. v. Seabest Foods, Inc., 926 P.2d 1085 (Calif.

1996), petition for cert. filed, 65 U.S.L.W. 3756

(U.S. May 5, 1997) (No. 96-1762) ..................008

Wilson v. Belin, 20 F.3d 644(Sth Cir.), cert. denied,

SES B UE e 0 eee ii erinecdtidataniidnie.

3-7

5,8

No. 96-1447

In THE

Supreme Court of the Huited States

OcToBerR TERM, 1996

UNITED BROTHERHOOD OF CARPENTERS AND

JOINERS OF America, AFL-CIO,

Petitioner,

VS.

BE&K Construction COMPANY, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Alabama

RESPONDENT'S BRIEF IN OPPOSITION

Respondent BE&K Construction Company (“BE&K”) re-

spectfully requests that this Court deny the petition for writ of

certiorari seeking review of the Supreme Court of Alabama’s

decision denying a petition for writ of mandamus filed by

petitioner.

OPINIONS BELOW

The decision of the Supreme Court of Alabama is reported at

688 So. 2d 246 (1997), and is also attached to the petition as

Appendix A. The decision of the Circuit Court of Jefferson

cea. eres

County, Alabama is unreported, but is attached to the petition as

Appendix B.

STATEMENT OF THE CASE

Petitioner failed to include in its Statement of the Case all the

facts in the record which reveal the extent of petitioner’s contacts

with Alabama. In its opinion below, the Supreme Court of

Alabama set out the facts on which it relied in assessing the

constitutionality of the exercise of general in personam jurisdic-

tion in this case:

The [United Brotherhood of Carpenters] does not

maintain an office, a bank account, or property in

Alabama. It does maintain the membership of 10 local

affiliates, whose 2,584 resident members represent

only one-half of one percent of the UBC’s total mem-

bership.

*

We note that in 1994 the UBC’s Alabama membership

collectively paid $198,022 in dues and that the UBC

paid over $50,000 in funeral benefits to Alabama

members. Although the UBC’s collection of dues is

not for profit, it is systematic and continuous. During

the period in question, the UBC maintained Rudolph

Clay, a local representative of the general president,

who provided the UBC with weekly reports concern-

ing anti-BE&K activities throughout the state. The

UBC has consistently directed and/or supported pro-

union activities at Alabama jobsites, and has con-

ducted rallies, funded radio advertisements, held press

conferences, and provided handbills for members to

distribute at jobsites that employ nonunion workers.

Although Alabama members of the UBC do not con-

stitute a large portion of its overall organization, they

ey eee

do maintain a continuous relationship with the UBC in

order to systematically further their admitted goal of

discouraging contractors who do not provide union

labor.

Pet. App. 12a.

In addition to those facts noted by the Supreme Court of

Alabama, the record contains additional facts relating to

petitioner’s contacts with Alabama. Petitioner had employed its

local representative of the general president since 1971, and that

individual resided and directed petitioner’s activities in Ala-

bama. Since 1987, that representative (along with other officials

from petitioner’s Washington, D.C. office) had spearheaded and

appeared at numerous events across Alabama as part of

petitioner’s nationwide campaign to force BE&K out of busi-

ness. Furthermore, petitioner has negotiated several labor agree-

ments with Alabama employers and with other employers con-

cerning projects in Alabama.

After the trial court ruled that it had generai in personam

jurisdiction over petitioner, petitioner filed a petition for writ of

mandamus in the Supreme Court of Alabama seeking to have

that ruling overturned. At the outset of its discussion of that issue

in its opinion, ihe Alabama Supreme Court recognized that the

case would be governed by the “minimum contacts” analysis

outlined by this Court in Jnternational Shoe Co. v. Washington,

326 U.S. 310 (1945). Pet. App. 8a. The Alabama court also

noted that, in the context of general jurisdiction, there is a further

requirement that a plaintiff establish that “the defendant’s con-

tacts with the forum have been ‘continuous and systematic.””

Pet. App. 9a (citing Helicopteros Nacionales de Colombia vy.

Hall, 466 U.S. 408 (1984); Perkins v. Benguet Consolidated

Mining Co., 342 U.S. 437 (1952)). Based on the facts described

above, the Alabama Supreme Court concluded that petitioner’ s

contacts with Alabama were sufficiently continuous and system-

atic to warrant exercise of general jurisdiction. That, however,

was not the end of the court’s analysis. The court then analyzed

whether exercise of general jurisdiction over petitioner would be

reasonable in light of factors enumerated in Asahi Metal Industry

Co. v. Superior Court of California, Solano County, 480 U.S.

102 (1987), and Burger King Corp. v. Rudzewicz, 471 U.S. 462

(1985). Pet. App. 13a. After examining those factors, the

Supreme Court of Alabama concluded that “traditional notions

of fair play and substantial justice would not be violated if the

UBC is required to submit to the jurisdiction of an Alabama

court.” Ibid.

REASONS FOR DENYING THE WRIT

I. This case involves the factbound application of the

settled due process standard relevant to the exercise of

generalin personam jurisdiction, and there is no conflict

of authority among the lower federal courts or state

courts concerning this standard.

The standard for determining whether a court’s exercise of

general in personam jurisdiction comports with the require-

ments of the Due Process Clause is well settled. In International

Shoe, this Court established the benchmark against which juris-

diction over a defendant not physically present in the forum state

be assessed: such a defendant must “have certain minimum

contacts with [the forum] such that the maintenance of the suit

does not offend traditional notions of fair play and substantial

justice.” 326 U.S. at 316 (internal quotation omitted). Although

the Court in Jnternational Shoe indicated that exercise of juris-

diction over a defendant in a case concerning matters unrelated

to the defendant’s activities within the forum state could be

constitutionally permissible, the standard to be employed in that

situation was not refined until later cases. In Helicopteros, the

Court indicated that the /nternational Shoe benchmark would be

satisfied in the general jurisdiction context when the defendant

sD i

had “continuous and systematic” contacts with the forum state.

466 U.S. at 415-416; see also Perkins v. Benguet Consol. Mining

Co., 342 U.S. 437, 448 (1952) (upholding exercise of general

jurisdiction where defendant corporation’s president had en-

gaged in “continuous and substantial” supervision in the forum

state of the defendant’s activities).

The state courts and lower federal courts have consistently

applied this standard to cases involving issues of general juris-

diction. As noted above, the Supreme Court of Alabama applied

the settied standard derived from International Shoe and

Helicopteros to the facts of this case. Pet. App. 8a-12a. In fact,

virtually all of the courts in the cases cited by petitioner applied

this very standard to the facts before them. See, e.g., Kuenzle v.

HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 455 (10th Cir.

1996); Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84

F.3d 560, 567-568 (2d Cir.), cert. denied, 117 S. Ct. 508 (1996);

Wilson v. Belin, 20 F.3d 644, 647 (Sth Cir.), cert. denied, 115 S.

Ct. 322 (1994); Amoco Egypt Oil Co. v. Leonis Navigation Co.,

1 F.3d 848, 853 & n.3 (9th Cir. 1993); Nichols v. G.D. Searle &

Co., 991 F.2d 1195, 1199 (4th Cir. 1993); Madara v. Hall, 916

F.2d 1510, 1516 & n.7 (1 1th Cir. 1990); Michigan Nat’! Bank v.

Quality Dinette, Inc., 888 F.2d 462, 464-465 (6th Cir. 1989);

Provident Nat’l Bank v. California Fed. Sav. & Loan Ass'n, 819

F.2d 434, 437 (3d Cir. 1987); Glover v. Western Airlines, Inc.,

745 P.2d 1365, 1367 (Alaska 1987); Vons Cos. v. Seabest Foods,

Inc., 926 P.2d 1085, 1091-1092 (Calif. 1996), petition for cert.

filed, 65 U.S.L.W. 3756 (U.S. May 5, 1997) (No. 96-1762);

Thomason v. Chemical Bank, 661 A.2d 595, 599 (Conn. 1995);

Maunder v. DeHavilland Aircraft of Canada, Ltd., 466 N.E.2d

217,220-221 (Ill.), cert. denied, 469 U.S. 1036 (1984); Goodyear

Tire & Rubber Co. v. Ruby, 540 A.2d 482, 487 (Md. 1988); Price

& Sons v. Second Judicial Dist. Court, 831 P.2d 600, 601 (Nev.

1992) (discussing only Helicopteros); Ultra Scientific, Inc. v.

Yanusas, 687 A.2d 1247, 1249(R.I. 1997); National Indus. Sand

Ass'n v. Gibson, 897 S.W.2d 769, 772 (Tex. 1995).'

Out of this remarkable continuity among the lower federal

courts and state courts, petitioner has struggled to find uncer-

tainty and confusion by parsing the facts of each case and then

deriving an interpretation of the holding that seems at odds with

the approaches of other courts. If one looks to the cited cases,

however, it is readily apparent that the differences identified by

petitioner are not differences in standards or approaches, but

rather reflect the inevitable variety that results when a single

standard is applied to a plethora of factual situations. This Court

has repeatedly recognized that the standards established to guide

the constitutional analysis of jurisdictional issues are somewhat

general by necessity and that each case must be assessed on its

own facts. In Kulko v. Superior Court of California, 436 U.S. 84,

92 (1978), the Court made this point:

Like any standard that requires a determination of “reason-

ableness,” the “minimum contacts” test of /nternational

Shoe is not suspectible of mechanical application; rather,

the facts of each case must be weighed to determine

whether the requisite “affiliating circumstances” are present.

Hanson v. Denckla, 357 U.S. 235, 246 (1958). We recog-

nize that this determination is one in which few answers

will be written “in black and white. The greys are

dominant and even among them the shades are innumer-

able.” Estin v. Estin, 334 U.S. 541, 545 (1948).

' Petitioner cited a number of cases in its petition that were decided prior

to this Court’s Helicopteros decision. While the probative value of those

cases as support for alleged confusion among the lower federal courts and

state courts is dubious, those cases consistently rely on the /nternational Shoe

standard in undertaking the general jurisdiction analysis. See, e.g., Laufer v.

Ostrow, 434 N.E.2d 692, 694 (N.Y. 1982); Crose v. Volkswagenwek

Aktiengesellschaft, 558 P.2d 764, 768 (Wash. 1977) (also relying on Perkins);

Markby v. St. Anthony Hosp. Sys., 647 P.2d 1068, 1071 (Wyo. 1982).

as RA oN as PORE LE ads a Vents eo

site sie

(Emphasis added); accord International Shoe, 326 U.S. at 319

(test “cannot simply be mechanical or quantitative”); Perkins,

342 U.S. at 445 (“The amount and kind of activities which must

be carried on by the foreign corporation in the state of the forum

SO as to make it reasonable and just to subject the corporation to

the jurisdiction of that state are to be determined in each case.”).

Petitioner apparently wants this Court to develop the type of

mechanical or quantitative test for the general jurisdiction analy-

sis that the Court has indicated is not possible to create. The

Court should reject this request. The lower federal courts and

State courts, including the Supreme Court of Alabama in this

case, are faithfully applying the standard that the Court has

previously developed to the fact-specific situations which they

confront, so there is no need for further review by this Court. Just

this Term, this Court denied another petition for writ of certiorari

raising the same issue related to general jurisdiction, see Metro-

politan Life, 117 S. Ct. at 508, and there certainly has been no

change in the state of the law on that point in the few months since

that denial.’

The suggestion by petitioner that the lower courts employ four

separate approaches to deciding general jurisdiction cases has no

basis in the case law. In placing various courts into one of its four

groups, petitioner has engaged in an arbitrary reading of the

cases which ignores the fact that the various courts are consis-

tently applying the same standard. As an example, petitioner’ s

primary basis for distinguishing between its “Alabama group”

2

The decision by the Supreme Court of Alabama in this case merely

applied preexisting Alabama case law to the facts of this case. so there has

been no change in Alabama law concerning the due process limits of general

jurisdiction since the denial of certiorari in Metropolitan Life. See Pet. App.

| la-12a; see also Petition for Cert. at 14-15 & n.4 (describing Alabama case

law on general jurisdiction and alleging reliance on that case law by the

Supreme Court of Alabama in this case).

and “California group” of courts is an alleged requirement by the

latter group that the defendant corporation or unincorporated

association conduct “substantial” activities in the forum state in

order for the exercise of general jurisdiction to be permissible.

The problem with this contention is that a number of cases in the

“Alabama group” use the term “substantial” as part of the

analysis of the defendant’s contacts with the forum state, see

Provident Nat'l Bank, 819 F.2d at 437-438; Ex Parte British

Steel Corp., 426 So. 2d 409, 412 (Ala. 1983); Administrators of

Tulane Educ. Fund v. Cooley, 462 So. 2d 696, 703 (Miss. 1984),

cert. denied, 474 U.S. 820 (1985); Glover, 745 P.2d at 1368-

1369; Crose, 558 P.2d at 766; Hartley v. American Contract

Bridge League, 812 P.2d 109, 112 (Wash. Ct. App.), review

denied, 820 P.2d 511 (Wash. 1991); whereas at least one of the

cases in the “California group” fails to use the term as part of its

analysis of the defendant’s contacts, see National Indus. Sand,

897 S.W.2d 769. The conclusion to be drawn from this is that the

talismanic significance that petitioner wishes to attribute to the

term “substantial” is inappropriate. None of the “Alabama

group’ of courts holds, as petitioner suggests, that the nature,

volume and extent of an entity’s contacts with the forum state are

irrelevant, and none of the “California group” suggests that the

term “substantial” adds something meaningful to the require-

ment that contacts be “continuous and systematic.”

Petitioner’s suggestion that some courts go even further to

require that substantiality be determined by looking to the

proportion of the defendant’s activities in the forum state as

against its activities elsewhere is wrong. In each of the cases

cited by petitioner in support of this proposition, the court in

question looked to the proportion of the defendant entity’s

activities as one of many factors to be examined as part of the

general jurisdiction analysis, but not one of those courts held or

even suggested that this particular factor is controlling. See, e.g.,

Nichols, 991 F.2d at 1200; Hughes v. A.H. Robins Co.,490 A.2d

cat eee ee oe —,

eee vote

hl sc

1140, 1143 (D.C. 1985); Goodyear, 540 A.2d at 486-487:

Derman v. Wilair Servs., Inc., 590 A.2d 317, 324 (Pa. Super.),

appeal denied, 600 A.2d 537 (Pa. 1991).

Petitioner’s most surprising claim is its contention that the

Second Circuit in Metropolitan Life has developed a “very

different inquiry for determining the constitutionality of the

exercise of general jurisdiction.” Petition for Cert. at 23. In the

Metropolitan Life opinion, the Second Circuit applied the very

two-step approach to the general jurisdiction analysis employed

by the Alabama Supreme Court in this case: first, the court must

determine if the defendant entity has constitutionally sufficient

contacts with the state, and, if so, then the Asahi factors must be

examined to determine whether the exercise of jurisdiction is

reasonable under the particular circumstances of the case. 84

F.3d at 567-568. Not only is this approach identical to the one

employed by the Alabama court in this case, but the Second

Circuit also indicated that its approach was consistent with that

employed by the First, Fourth, Fifth, and Ninth Circuits. Jd. at

569 & 573.

In sum, the decision by the Supreme Court of Alabama

involves the factbound application of a settled constitutional

standard. Like the Alabama court, lower federal courts and other

State courts have consistently applied this settled standard to the

particular factual situations confronted, and there is no conflict

of authority which requires resolution by this Court.

If. There is an alternative basis for the Alabama courts to

assert jurisdiction over petitioner, which renders point-

less the requested review by the this Court.

Even if the Alabama courts could not exercise general juris-

diction over petitioner, the exercise of specific jurisdiction

would still be appropriate. In opposing the motion to dismiss

filed in the trial court by petitioner alleging the absence of in

personam jurisdiction over petitioner, BE&K argued that both

general and specific jurisdiction exist in this case. BE&K

identified three independent bases for specific jurisdiction: (1)

petitioner had targeted its actions at BE&K, an Alabama resi-

dent, or, at the very least, should have known that its actions

would have detrimental effects on BE&K and the citizens of

Alabama, see, e.g., Burger King Corp. v. Rudzewicz, 471 U.S.

462, 472-473 (1985); (2) petitioner participated in a conspiracy

against BE&K and at least one of the conspirators committed an

overt act within or aimed at a citizen of Alabama, see, e.g., Duke

v. Young, 496 So. 2d 37, 40 (Ala. 1986); and (3) petitioner had

direct contacts with Alabama related to the claims in this case,

see, e.g., Brooks v. Inlow, 453 So. 2d 349, 351 (Ala. 1984). Pitf.’s

Brief in Opp. to Mot. to Dismiss at 26. Neither the trial court nor

the Supreme Court of Alabama reached the question of the

existence of specific jurisdiction. Thus, even if this Court were

to grant the petition and rule in petitioner’s favor on the merits,

the exercise would be purely academic due to the existence of the

separate basis for jurisdiction. To grant a petition for certiorari

in such a circumstance would be a waste of this Court’s limited

resources.

eerie

Famer & bet

CONCLUSION

For these reasons, the petition for writ of certiorari should be

denied.

Respectfully submitted,

E. Mabry Rogers

Matthew H. Lembke*

BRADLEY ARANT ROSE &

WHITE LLP

2001 Park Place, Suite 1400

Birmingham, Alabama 35203

(205) 521-8000

Counsel for Respondent

*Counsel of Record