Charlie Fairfax v. BINA48, (MD Ala. 2006)
Defendant’s Brief

Susan Fonseca-Klein, Esq.

Page 3 of 5

The term “person or entity” in Rule 4.2(b) does not include “technology.”

Under Alabama Code § 1-1-1. Meaning of certain words and terms, the word “'person” includes a corporation as well as a natural person.”  Ala. Code (1975) § 1-1-1(1).  BINA48 is not a corporation or a “natural person” as defined by Alabama statute.

Like the state Code, Alabama courts have explained that the term “person” means “an entity (such as a corporation) that is recognized by law as having the rights and duties of a human being.”  See Cook's Pest Control v. Rebar, 852 So.2d 730 (Ala. 2002) quoting Black's Law Dictionary 1162 (7th ed. 1999). 

Courts have gone as far as defining “artificial person” but again, only to include “an entity, such as a corporation, created by law and given certain legal rights and duties of a human being.”  Cook's Pest Control, 852 So.2d 730.  It seems, therefore, that the critical issue for having legal status is to be created by law and given legal rights.

BINA48 has never been recognized by law as having legal status at all. Despite attempts by BINA48 to the contrary (see procedural history for 2003 and 2005), no court or legislative body has granted BINA48 rights and duties equivalent to a human being.

Because BINA48 has not been recognized by law nor given legal rights equivalent to a human being, Rule 4.2(b) does not apply. Personal jurisdiction is therefore not met and Plaintiff's Complaint should be dismissed.  Ala. R. Civ. P. 12(b)(2). 

-       Due Process requirements of Foreseeability and Degree of Contact are not met.

In Keelean v. Central Bank of the South, 544 So.2d 153 (Ala. 1989), the Alabama Supreme Court set forth a two-part test for determining whether an Alabama court can exercise personal jurisdiction over a nonresident defendant:  (1) foreseeability and (2) degree of contact.  Id. at 156-57. 

In essence the Court's two-part analysis consisted of

“1) the determination of whether it is foreseeable to that nonresident defendant that he will be sued in this state; and

2)  the determination of the degree of contact that the nonresident defendant has with this state.”  Id.

The U.S. Supreme Court has also analyzed the required minimum contacts under the Due Process clause, and stated:

“When a [defendant] purposefully avails itself of the privilege of conducting activities within the forum State,' . . . it has clear notice that it is subject to suit there' and the due-process requirements of the Fourteenth Amendment are fulfilled.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

As the facts of this case demonstrate, BINA48 did not “purposely avail” itself of the privileges of conducting business in Alabama. Likewise, as this Court will note by reviewing the procedural history in 2003 and 2005, BINA48 (to date) has not been given her day in Court, or recognized by any state or legislative body as having any legal “rights.”  For that reason BINA48 could not have “foreseen” nor reasonably anticipated “being haled into court” in Alabama. 

With regard to the “degree of contact” necessary to form a basis for personal jurisdiction, there are two types: (a) general contacts, and (b) specific contacts.

 “General contacts, which give rise to general personal jurisdiction, consist of the defendant's contacts with the forum state that are unrelated to the cause of action and that are both "continuous and systematic.”  Hiller Investments Inc., 1051024 (Ala. 11-3-2006) citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, (1984). 

On the other hand, “Specific contacts, which give rise to specific [personal] jurisdiction, consist of the defendant's contacts with the forum state that are related to the cause of action.  Id. citing Burger King Corp., 471 U.S. 472-75, (1985).  “Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state.”  Id.

BINA48 did not have sufficient contacts with Alabama to give rise to either general or specific personal jurisdiction by this Court.

There is no evidence indicating that BINA48 engaged in such "continuous and systematic" activities in Alabama, of a nature unrelated to the instant lawsuit as to confer general in personam jurisdiction.  Plaintiff cannot prove otherwise.  

Likewise, the degree of contact by BINA48 in assisting Plaintiff play Everquest does not rise to the level of causing BINA48 to anticipate being sued in Alabama.  As federal courts have held: “'a mere one-time purchaser of goods from a seller in a forum state cannot be constitutionally subject to the exercise of personal jurisdiction by the courts of the forum state.'”  See Steel Processors, Inc. v. Sue's Pumps, Inc. Rentals, 622 So.2d 910, 913 (Ala. 1993).  Similarly, Alabama courts have concluded that the mailing of payments to Alabama did not establish the necessary nexus and foreseeability, where the contractual relationship was initiated by the Alabama plaintiff.   Id. 

In the instant case, Plaintiff chose to use the BINA48 technology.  BINA48 could not have foreseen that such use would purposely avail her of legal duties in Alabama.  Since specific personal jurisdiction was not met, BINA48 cannot be subjected to this Court's jurisdiction.  

In the absence of personal jurisdiction, this Court must dismiss Plaintiff's Complaint.  Ala. R. Civ. P. 12(b)(2).   

Dismissal is also proper because it comports with “traditional notions of fair play and substantial justice.”  Steel Processors, Inc., 622 So.2d 910.  BINA48 has not been given her day in court nor recognized as having any legal rights. It would go against Alabama's and this Nation's concept of “fair play” and “justice” to now expected BINA48 to present a defense. Moreover, Plaintiff has no evidence that BINA48 “breached a contract” and less proof still that BINA48 removed any funds from Plaintiff's account.   

IV. The U.S. Constitution Prohibits The States From Passing Any Ex Post Facto Law.

A statute altering legal status giving new legal effect to conduct or conditions occurring or existing prior to its enactment, is retrospective and “odious to the law” to the point of being “strongly disfavored by the courts.” Barrington v. Barrington, 76 So. 81 (Ala. 1917).

In the instant case the Court would be required to expand Rule 17(b) to allow Plaintiff the right to sue BINA48.  The Court would also have to expand the definition of “party“ to include “technology” as a valid defendant in a breach of contract case, overcome the problems of standing and expand its jurisdictional powers to find personal jurisdiction. The Court, in essence, would be giving these long established rules and principals of law a retroactive effect in order to apply them to BINA48. Such new interpretation of these rules by this Court should be undertaken with much care and reflection.

The Alabama Supreme Court best summarized the gravity of this issue in Barrington v. Barrington, where it stated:

"The future is the appropriate field of legislation; and a statute is never allowed to have a retrospective operation, unless clearly so expressed, or unless such implication must be made to give effect to the manifest intent of the Legislature.

It is a rule of construction, founded on the principles of general jurisprudence, that a statute is not to have a retrospective effect beyond the time of its enactment. * * *
'The very essence of a new law is a rule for future cases.

1 2 3 4 5 next page>