Civilization 6 Rule 34 Map
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In Re National Contract Poultry Growers, 771 So. 2d 466 (Ala. 2000)

Supreme Court of Alabama

771So. 2d466 (2000)1980946.

Supreme Court of Alabama.

May 5, 2000.

Kimberly J. Calametti of Gardner, Middlebrooks, Fleming, Gibbons & Kittrell, P.C., Mobile, for National Contract Poultry Growers' Association.

Robert H. Harris of Harris, Caddell & Shanks, P.C., Decatur; and Kenneth T. Fuller, M. Dale Marsh, and M. Chad Tindol of Cassady, Fuller & Marsh, L.L.P., Enterprise, for ConAgra, Inc.

BROWN, Justice.

The National Contract Poultry Growers' Association ('NCPGA') appeals from an order finding it in contempt for its failure to respond to a nonparty subpoena issued at the request of ConAgra, Inc., a defendant in an action pending in the Coffee Circuit Court. We reverse and remand.

On February 27, 1996, a group of poultry growers sued ConAgra, Inc.; one of its subsidiaries, ConAgra Poultry Company; and a number of ConAgra employees, alleging that the defendants had engaged in discriminatory business practices. During the discovery phase of that case, ConAgra requested that the trial court issue a nonparty subpoena to NCPGA for the production of documents.

NCPGA is a corporation organized under the laws of Arkansas, with its principal place of business in Rushton, Louisiana. NCPGA has no office in Alabama, and it is not qualified to do business in Alabama. NCPGA does have an affiliated state organization, the Alabama Contract Poultry Growers' Association. NCPGA's contacts with Alabama are limited to communication with the state association and the fact that a number of its dues-paying members live in Alabama. A number of these members *467 are plaintiffs in the lawsuit pending in the Coffee Circuit Court. The subpoena was served by certified mail on NCPGA at its office in Rushton, Louisiana. The subpoena sought the production of documents kept by NCPGA at that office. NCPGA did not respond to the subpoena.

Because NCPGA did not respond to the subpoena, ConAgra filed a motion to compel production. The motion to compel was served on NCPGA by certified mail at its Rushton, Louisiana, office. The circuit court held a hearing on ConAgra's motion to compel; however, NCPGA did not appear for the hearing. Following the hearing, the trial court entered an order directing NCPGA to comply with the subpoena. This order was also served on NCPGA by certified mail at its principal place of business in Rushton, Louisiana.

On July 27, 1998, NCPGA filed a motion for a reconsideration of the court's order of compulsion. The trial court denied that motion on September 24, 1998. On the advice of counsel, NCPGA did not produce the documents sought by the nonparty subpoena.

On December 23, 1998, ConAgra filed a motion requesting that NCPGA be required to show cause why it should not be held in contempt. A hearing was set on that motion. NCPGA, through counsel, argued that the trial court lacked the jurisdiction to issue, as well as to enforce, a subpoena directed to a nonparty located outside the State of Alabama. In an order dated January 28, 1999, the trial court rejected NCPGA's argument, stating:

'[T]he said National Association appeared, through counsel, and presented arguments by which it contended that the National Association is not subject to the force of a subpoena issued by this Court but served outside the State of Alabama. The Court is unpersuaded by such argument since it appears to the Court, and is conceded by the National Association that: (1) It is a corporation organized under the laws of the State of Louisiana [sic]; (2) it does business in the State of Alabama where it solicits members from whom it solicits and collects dues; and (3) it is not qualified to do business in the State of Alabama and does not have an agent within the State of Alabama authorized to accept service of process. The Court considers that, under these circumstances and upon a consideration of Section 232, Constitution of Alabama, § 10-2B-15.10(b), Code of Alabama 1975, Rule 4(c)(6), and Rule 34, [Ala.R.Civ.P.], the National Association was effectively served with the subject subpoena and that its obedience to that subpoena may be enforced within the State of Alabama. It further appears to the Court that the National Contract Poultry Growers' Association has not shown any cause why it should not be [found] in contempt of this Court by failing to respond to the subject subpoena by producing the records therein described and required to be produced..'

Concluding that NCPGA was in contempt, the trial court ordered it to produce the documents requested by the subpoena and to pay ConAgra's counsel $1,000 for expenses and fees incurred in seeking enforcement of the subpoena. Additionally, the court ordered that until such time as NCPGA purged itself of the contempt, it was forbidden from conducting any business activity in Alabama, including, but not limited to: (1) soliciting or accepting any new members of NCPGA; (2) collecting dues from any current NCPGA members; (3) conducting any NCPGA meetings; (4) communicating in any way with any NCPGA members; and (5) communicating or conducting any kind of business with its corresponding Alabama association. This appeal followed.

NCPGA argues that the trial court lacked jurisdiction to issue and enforce a subpoena directed to a nonparty located outside the State of Alabama. Although technically it is not a party to this appeal, ConAgra has filed a brief in support of its contention that NCPGA was properly *468 served with the subpoena. The gist of ConAgra's argument appears to be that because NCPGA solicits members from Alabama and accepts dues from Alabama poultry growers, it does business in Alabama and has therefore subjected itself to the jurisdiction of Alabama courts. As a foreign corporation doing business in Alabama, ConAgra claims, NCPGA was required to obtain a certificate of authority from the secretary of state. See § 10-215.01, Ala.Code 1975. ConAgra further contends that because NCPGA had no registered agent in Alabama, § 10-2B-15.10, Ala.Code 1975, authorized service as provided for in the Alabama Rules of Civil Procedure.^[1]

Rule 34(c), Ala.R.Civ.P., provides that '[a] person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45,' Ala.R.Civ.P. Rule 45 governs the issuance of subpoenas in civil actions. That rule reads, in pertinent part:

'(b) Service.

'(1) A subpoena may be served by the sheriff, a deputy sheriff, or by any other person who is not a party and is not less than eighteen (18) years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person or by leaving a copy at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein and, if the person's attendance at a place more than 100 miles from the person's residence is commanded, by tendering to that person the fees for one day's attendance and an amount to reimburse the mileage allowed by law. Prior notice of intent to secure the issuance of a subpoena to command production of documents and things or inspection of premises before trial under the procedure set forth in subparagraph (a)(3) of this rule shall be served on each party in the manner prescribed by Rule 5(b).

'(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a subpoena may be served at any place wit

Civilization 6 Rule 34