UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

B.B., a minor, by and )

Through his mother and next friend, )

OWENA KNOWLES, )

)

Plaintiff, ) CASE NO.:

) 3:06-CV-00715-MHT

v. )

)

PAWN CITY, INC.; NORINCO )

a/k/a CHINA NORTH INDUSTRIES )

COPORATION, et al., )

)

Defendants. )

REPLY TO PLAINTIFF’S INITIAL 

RESPONSE TO MOTION TO DISMISS

COMES NOW defendant, Qiqihar Hawk Industries Co. Ltd., and submits the 

following in reply to the initial response of plaintiff to Qiqihar Hawk’s Motion to Dismiss 

for lack of personal jurisdiction.

Plaintiff brings suit against Qiqihar Hawk, alleging that he injured himself while 

using a shotgun that he claims Qiqihar Hawk manufactured. Qiqihar Hawk did not, 

however, manufacture or sell the shotgun at issue and, accordingly, moved to dismiss the 

Complaint for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of 

Civil Procedure. Qiqihar Hawk submitted the affidavit of Ms. Wu Ruihuan in support of 

this motion, demonstrating that Qiqihar Hawk did not have specific or general contacts 

with the State of Alabama sufficient to justify in personam jurisdiction. Specifically, 

Qiqihar Hawk did not manufacture the shotgun at issue as it was not even in business at 

the pertinent time and, secondly, Qiqihar Hawk had no general contacts with the subject 

forum. 

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In reply, plaintiff contends that the submission of evidence in support of Qiqihar 

Hawk’s Rule 12(b)(2) motion converts the same into a motion for summary judgment 

and entitles him to full-fledged discovery before being required to oppose the motion to 

dismiss. 

Although the submission of evidence in support of a motion under Rule 12(b)(6) 

does indeed convert such a motion into one for summary judgment, the submission of 

evidence in support of a Rule 12(b)(2) motion does not convert the same into one for 

summary judgment. Rather, plaintiff bears the burden of demonstrating personal 

jurisdiction and, where the defendant has submitted affidavits contesting the facts alleged 

in the Complaint, plaintiff is under the obligation to produce prima facie evidence beyond 

the allegations of the Complaint to support his contention of personal jurisdiction. C.M.B 

Foods v. Corral of Middle Georgia, 396 F.Supp.2d 1283, 1288 n.14 (M.D. Ala. 2005) 

(“[I]f a defendant provides evidence refuting personal jurisdiction in the form of 

affidavits . . . the plaintiff is typically required to produce some evidence (rather than 

additional allegations) in response.”) (emphasis original). Plaintiff is not entitled to fullfledged discovery in order to gather such evidence; at best, he is entitled to jurisdictional 

discovery. See, Wright & Miller, 4 FPP § 1067.6 (noting that a court may consider 

affidavits in ruling on a 12(b)(2) motion and that only discovery pertinent to the 

jurisdictional issue is appropriate).

Qiqihar Hawk has by means of the affidavit of Wu Ruihuan proffered substantial 

evidence that it did not manufacture the subject shotgun; plaintiff is now under the 

obligation to offer affirmative evidence demonstrating in personam jurisdiction. Qiqihar 

Hawk objects to plaintiff’s Rule 56(f) motion insofar as it seeks to delay the ruling upon 

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its motion to dismiss until the conclusion of discovery. Qiqihar Hawk requests an 

expeditious ruling upon its motion.1

Accordingly, should the Court elect to permit discovery prior to ruling upon 

Qiqihar Hawk’s motion, it is respectfully requested that the Court limit such discovery to 

jurisdictional issues and provide for an abbreviated period of time in which to accomplish 

this discovery.

Respectfully submitted,

/s/Todd M. Higey

Todd M. Higey

Ala. Bar No. HIG019

Attorney for Qiqihar Hawk 

Industries Co. Ltd.

ADAMS AND REESE LLP

2100 3rd Avenue North, Suite 1100

Birmingham, Alabama 35203-3367

Telephone: (205) 250-5000

Fax: (205) 250-5034

E-mail: todd.higey@arlaw.com

1

The undersigned wishes to clarify to the Court and the parties a matter raised by 

plaintiff in his response. Prior to the settlement of Interstate Arms Corporation with 

plaintiff, the undersigned represented Interstate Arms only. During that representation, 

Interstate Arms was asked in interrogatories to identify from whom it bought the subject 

shotgun. Interstate Arms identified Norinco. Plaintiff also inquired as to the identity of 

the manufacturer. Interstate Arms disclosed that, upon information and belief, the 

manufacturer had the word “Hawk” in its name. Plaintiff then informally asked for 

Hawk’s address. Interstate Arms, through the undersigned, supplied the address for 

Qiqihar Hawk (presumably because that is who is making this type of shotgun today). 

Subsequent to Interstate Arms’ settlement with plaintiff, Qiqihar Hawk retained the 

undersigned and has moved to dismiss for lack of personal jurisdiction, explaining that 

Heilongjiang Hawk Group Co. Ltd. manufactured the shotgun. The undersigned did not 

know that Heilongjiang Hawk was the putative manufacturer until he was retained by 

Qiqihar Hawk.

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CERTIFICATE OF SERVICE

I hereby certify that on July 6, 2007, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system which will send notification of such filing 

to the persons listed below:

David J. Hodge, Esq.

PITTMAN, DUTTON, KIRBY & HELLUMS, P.C.

2001 Park Place North

1100 Park Place Tower

Birmingham, Alabama 35203

James C. Barton, Jr., Esq.

Alan D. Mathis, Esq.

JOHNSTON, BARTON, PROCTOR & POWELL, LLP

2900 AmSouth/Harbert Plaza

1901 Sixth Avenue North

Birmingham, Alabama 35203

Nick Wooten, Esq.

WOOTEN LAW FIRM, P.C.

P.O. Drawer 290

Lafayette, Alabama 36862

John D. Gleissner, Esq.

ROGERS & ASSOCIATES

3000 Riverchase Galleria

Suite 650

Birmingham, Alabama 35244

/s/Todd M. Higey

Of Counsel

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