IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GULF OFFSHORE LOGISTICS, LLC, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 09-0688-WS-N

 )

THOMAS B. BENDER, JR., )

 )

Defendant. )

ORDER

This matter is before the Court on the defendant’s motion for reconsideration. 

(Doc. 16). The defendant argues that the Court erroneously placed on him the burden to

show his entitlement to dismissal rather than placing on the plaintiff the burden to show

its entitlement not to be dismissed.

As noted in the Court’s previous order, the plaintiff sued to recover from the

defendant over $600,000 pursuant to a personal guaranty he executed in connection with

negotiations between the plaintiff and the defendant’s company (now in bankruptcy) for

construction of a multi-million dollar vessel. The defendant moved to dismiss on the

grounds that, because the plaintiff is a foreign corporation that lacks a certificate of

authority to transact business in Alabama, it “lacks capacity to bring this action.” (Doc. 5

at 1). The defendant cited Alabama Code § 10-2B-15.02 for this proposition but provided

no further argument. (Id. at 2, 6). The plaintiff responded by pointing out the wellestablished interstate commerce exception to the statute. 

In his reply brief, the defendant for the first time acknowledged the interstate

commerce issue but argued that the plaintiff “has failed to show that it was it was not

engaged in intrastate commerce.” (Doc. 11 at 1-2). In particular, the defendant argued

that “whether a transaction is interstate or intrastate in nature depends on how the purpose

of the transaction is defined,” and he identified the relevant transaction as “the transaction

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which is the basis for [the plaintiff’s] action,” that is, “the transaction between the

plaintiff and defendant,” that is, “the Personal Guaranty.” (Id. at 2). 

The Court ruled that, even if the guaranty, standing alone, could be viewed as an

intrastate transaction, the defendant “has not established” that, for purposes of Section 10-

2B-15.02, it is proper to view the guaranty divorced from the underlying negotiations for

construction of a large vessel. Indeed, two Alabama cases indicate that the status of such

a guaranty must be gauged by evaluating the plaintiff’s conduct with respect to the

underlying contract. The Court concluded that, because “[t]he defendant has not

acknowledged, much less distinguished, these cases[,] he has not met his burden on

motion to dismiss.” (Doc. 15 at 3). 

On motion to reconsider, the defendant argues that the Court “erroneously placed

on the defendant the burden of proving that plaintiff was not exempt from Ala. Code §

10-2B-15.02,” (Doc. 16 at 1), when in fact “the plaintiff [must] carr[y] its burden of

demonstrating that it is exempt.” (Doc. 17 at 5). For this proposition, the defendant relies

on the following language from Casa Investment Co. v. Bolen, 931 So. 2d 53 (Ala. Civ.

App. 2005): “Once a party presents evidence establishing that a corporation is a

nonqualified corporation, the burden shifts to the nonqualified corporation to present

evidence that it is exempt from § 10-2B-15.02(a).” Id. at 58.

This language establishes that, when a defendant moves for summary judgment on

the basis of non-qualification, it meets its initial burden by showing the corporation is

foreign and has not qualified. The plaintiff must then produce sufficient evidence to

create a fact question as to whether it is exempt from the requirement, else suffer

summary judgment. This is in fact what occurred in Casa Investment. The trial court

granted summary judgment to the defendant because it had met its initial burden and the

plaintiff had not met its responsive burden, but the appellate court reversed because the

evidence showed the plaintiff was not doing business in Alabama for purposes of the

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Likewise, in the unpublished case noted by the defendant as citing Casa

Investment “with approval,” (Doc. 17 at 2), the issue was presented on motion for

summary judgment. 

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door-closing statute. 931 So. 2d at 57, 59.1 

The problem for the defendant here is that he did not move for summary judgment. 

His motion is expressly styled as one “to dismiss,” and he invoked only Rules 9(a),

12(b)(1), and 12(b)(6), not Rule 56. (Doc. 5 at 1). The defendant has not explained his

invocation of Rule 12(b)(1), which permits dismissal only for lack of subject matter

jurisdiction. It is not implicated here, because “[a] foreign corporation’s failure to obtain

authorization to do business in Alabama is a capacity defense and does not per se

implicate standing and subject-matter jurisdiction.” Penick v. Most Worshipful Prince

Hall Grand Lodge, ___ So. 3d ___, 2009 WL 3805802 at *7 (Ala. 2009). 

Nor has the defendant explained his citation to Rule 9(a). Rule 9(a)(1)(a) requires

a complaint to allege the plaintiff’s capacity to sue, but only if necessary to establish

jurisdiction. As noted, jurisdiction is not at issue here. Rule 9(a)(2) requires a defendant

asserting the plaintiff’s lack of capacity to specifically deny capacity and set forth

peculiarly known facts supporting the proposition. It does not provide for a motion to

dismiss under that rule, and motions to dismiss for lack of capacity are brought under

Rule 12(b)(1), 12(b)(2), 12(b)(6), 12(c), 12(f), or 56. 5A C. Wright & A. Miller, Federal

Practice and Procedure § 1294 at 23-24 (3rd ed. 2004); id. 5C § 1360 at 80-81. 

The defendant, in short, relied on Rule 12(b)(6) to obtain dismissal. “A motion to

dismiss [under Rule 12(b)(6)] may be granted only when a defendant demonstrates

beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” Kirwin v. Price Communications Corp., 391 F.3d 1323,

1325 (11th Cir. 2004) (emphasis added) (internal quotes omitted); accord Beck v. Deloitte

& Touche, 144 F.3d 732, 735-36 (11th Cir. 1998) (“In seeking dismissal for failure to state

a viable claim, a defendant thus bears the very high burden of showing that the plaintiff

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cannot conceivably prove any set of facts that would entitle him to relief.”) (emphasis

added) (internal quotes omitted).

Because the defendant presented a Rule 12(b)(6) motion rather than a Rule 56

motion, he at all times bore the burden of demonstrating entitlement to dismissal. It is

true that both parties submitted evidence, and it is true that, when “matters outside the

pleadings are presented to and not excluded by the court, the motion must be treated as

one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). The Court, however,

excluded the submitted evidence and so did not convert the motion to dismiss into one for

summary judgment. While the Court did not explicitly exclude the evidence, “[a] judge

need not convert a motion to dismiss into a motion for summary judgment as long as he

or she does not consider matters outside the pleadings. According to case law, ‘not

considering’ such matters is the functional equivalent of ‘excluding’ them — there is no

more formal step required.” E.g., Harvey v. Lawrence County, ___ F.3d ___, 2010 WL

21179 at *2 (11th Cir. 2010). Here, the Court noted the defendant’s evidence of nonqualification but deemed it unnecessary because “the plaintiff concedes as much,” (Doc.

15 at 2), and the Court did not address or even review the affidavit submitted by the

plaintiff. Nor does the defendant contend that the Court converted, or should have

converted, his motion into one for summary judgment. 

In short, the defendant presented a Rule 12(b)(6) motion, which the Court analyzed

as such and resolved as such. The defendant now complains that the Court should not

have employed the burden applicable to Rule 12(b)(6) motions but instead should have

used the very different burden applicable to Rule 56 motions. Had the defendant filed a

Rule 56 motion, the Court would have been required to do just that. Had the defendant

requested the Court to convert his motion to dismiss into a motion for summary judgment

pursuant to Rule 12(d), the Court could have done so. Because the defendant pursued

neither route, the Court correctly placed on him the burden of demonstrating entitlement

to dismissal based on lack of capacity. 

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Since the defendant insists he never made such an argument, it is not clear why he

bothers to assert that the Court analyzed the non-argument incorrectly. (Id. at 4). Nor is

his refutation persuasive. 

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The defendant does not assert that he established entitlement to dismissal using the

burden applicable to Rule 12(b)(6) motions, and he plainly did not. As noted, he must

show that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief. In making this assessment, “all facts set forth in the plaintiff’s

complaint are to be accepted as true and the court limits its consideration to the pleadings

and exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231

(11th Cir. 2000) (internal quotes omitted). Nothing in the complaint or exhibits attached

thereto (the guaranty and a letter cutting off negotiations for construction of the vessel)

facially indicates that the plaintiff cannot establish capacity to sue, and the defendant does

not argue otherwise.

Given this state of affairs, the defendant could prevail on motion to dismiss only

by presenting a legal argument that the necessary interstate commerce nexus is foreclosed

by these documents. The Court in its order gave the defendant credit for asserting a legal

argument that the personal guaranty, viewed alone, as a matter of law could not support

the interstate commerce exception. (Doc. 15 at 2-3). The defendant, however, denies that

he made such an argument, (Doc. 17 at 3),2

 and he identifies no other legal argument that

he asserted (beyond the faulty one premised on an incorrect allocation of the parties’

burdens on motion to dismiss). 

As this Court has recently noted: 

Motions to reconsider serve a valuable but limited function. They

do not exist to permit losing parties to prop up arguments previously 

made or to inject new ones, nor to provide evidence or authority previously

omitted. They do not, in short, serve to relieve a party of the consequences

of its original, limited presentation. 

Dyas v. City of Fairhope, 2009 WL 5062367 at *3 (S.D. Ala. 2009). The defendant

elected to present his motion as one to dismiss, and with that election comes a burden the

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defendant now seeks to avoid. A motion to reconsider is not available for such a purpose.

For the reasons set forth above, the motion for reconsideration is denied.

DONE and ORDERED this 9th day of February, 2010.

s/ WILLIAM H. STEELE

UNITED STATES DISTRICT JUDGE

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