Opinion
1:22-cv-00975-CL
12-22-2022
FRANK ELSWICK, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant.
FINDINGS AND RECOMMENDATION
CLARKE, MAGISTRATE JUDGE
Plaintiff Frank Elswick brings this cause of action against the defendant, BNSF Railway Company (“BNSF”), for negligence under the Federal Employers' Liability Act (“the FELA”). The case comes before the Court on the defendant's Motion to Dismiss (#15) for lack of personal jurisdiction. For the reasons below, the Motion (#15) should be DENIED.
BACKGROUND
Defendant BNSF provides freight transportation on an interstate rail system. Declaration of James Obermiller (Obermiller Dec.) at ¶ 4. BNSF's headquarters and principal place of business are located-in Fort Worth, Texas, and BNSF is incorporated in Delaware. Id. at ¶ 5. However, BNSF and its predecessors have operated in Oregon for more than 100 years. BNSF has maintained a registered office and registered agent in Oregon since 1970. Declaration of James K. Vucinovich (“Vuc. Dec.”) Ex. 1. The most recent Oregon State Rail Plan shows BNSF has 332 employees in Oregon, owns 230 miles of track, and operates across 336 miles of track throughout the state of Oregon. Vuc. Dec., ¶ 3, Exhibit 2, Oregon Department of Transportation, Oregon State Rail Plan, at pp. 31-38. Due to its operations in Oregon, BNSF is subject to Oregon railroad regulations. Or. Rev. Stat., ch. 824. These regulations include, among other things, statutes that require BNSF to pay annual fees, submit to inspections by State inspectors, file an annual report, and comply with State regulations about what crews and equipment are required on trains in Oregon. Id.
Plaintiff has been employed by BNSF since 1999. Declaration of Plaintiff Frank Elswick (“Elswick Dec.”), ¶ 2. Since approximately 2010, Plaintiff has been employed by BNSF in Klamath Falls, Oregon, working within the Maintenance of Way Department. Elswick Dec., ¶ 3. The district within which Plaintiff works for BNSF extends from Vancouver, Washington, throughout the State of Oregon, to Keddie, California. Id. As a result, Plaintiff may be assigned and required by BNSF to work at any location within the district. Id. However, approximately 90% of Plaintiff s work for BNSF is performed within the state of Oregon. Elswick Dec., ¶ 4. He reports to work at the BNSF depot in Klamath Falls, Oregon, and primarily performs services for BNSF at the depot. Id. He receives all pay and benefits from BNSF in Oregon, and all direction, instruction, and continuing training from BNSF in Oregon. Id.
On July 23, 2021, Plaintiff was at his home in Klamath Falls, Oregon, when he received a' call from Jim Kirkpatrick instructing him to travel to Crescent Mills, California, to work on a fire train destined for the fire near Keddie, California. Elswick Dec., ¶ 5. Mr. Kirkpatrick is a foreman in the Bridge and Building department, a division within BNSF's Maintenance of Way Department, and was based in Bend, Oregon, at the time of this incident. Id.
After receiving the call, Plaintiff went to the BNSF depot in Klamath Falls, Oregon, to retrieve his BNSF truck, and then began driving to Crescent Mills, California, as instructed by BNSF. Elswick Dec., ¶ 6. Plaintiff stopped to sleep for several hours at a motel and then arrived at Crescent Mills, California, at approximately 6:45 a.m. to join the train crew. Id. He was injured that day while working on the train that was attempting to fight the fire near Keddie, California, Elswick Dec., ¶ 7. '
LEGAL STANDARD
A motion to dismiss for lack of personal jurisdiction is governed by Fed.R.Civ.P, 12(b)(2), and a district court's determination whether to exercise personal jurisdiction is a question of law. Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir.2002). “Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004). See also Dole Food, Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir.2002). Where, as here, the motion is based on written materials'rather than an evidentiary hearing, “the plaintiff need only make a prima facie showing of jurisdictional facts.” Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). A “prima facie” showing means that the plaintiff has produced admissible evidence which, if believed, would be sufficient to establish the existence of personal jurisdiction. See Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir.2003); Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir.1995). Uncontroverted allegations in the plaintiff s complaint must be taken as true. AT & Tv. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996). Although the plaintiff cannot simply rest on the bare allegations of the complaint, conflicts between parties over statements contained in affidavits must be resolved in the plaintiffs favor. Schwarzenegger, 374 F.3d at 800.
Where, as here, there is no federal statute governing personal jurisdiction, the law of the state in which the Court sits applies. CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998). Oregon's long arm statute, Oregon Rule of Civil Procedure (“ORCP”) 4, extends personal jurisdiction to the extent permitted by federal due process. Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir.1990); Tech Heads, Inc. v. Desktop Serv. Ctr., Inc., 105 F.Supp.2d 1142, 1144 (D. Or. 2000).
Federal due process requires that a nonresident defendant have “certain minimum contacts” with the forum state of such a nature that the exercise of personal jurisdiction “does not, offend ‘traditional notions of fair play and substantial justice.'” International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). This constitutional test may be satisfied by showing that (1) the defendant has “substantial” or “continuous and systematic” contacts with the forum state-i.e. “general jurisdiction,” or (2) there is a strong relationship between the defendant's forum contacts and the cause of action-i.e, “specific jurisdiction.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 839 (9th Cir. 1986). See also Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995). The Court agrees with the parties that no general jurisdiction exists as to the Defendant BNSF in this case. .
Personal jurisdiction must be present for “each claim asserted against a defendant.” Action Embroidery Corp. v. Atlanta Embroidery, Inc., 368 F.3d 1174, 1180-81 (9th Cir.2004), However, a court may “assert pendent personal jurisdiction over a defendant with respect to a claim ... so long as it arises out of a common nucleus of operative facts with a claim in the same suit over which the court does have personal jurisdiction.” Id. at 1180.
DISCUSSION
The courts of the Ninth Circuit apply a three-pronged test for determining whether, in connection with a given claim, the exercise of specific personal jurisdiction over a nonresident defendant could be proper:
1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum,.or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). The plaintiff bears the burden of satisfying the first two prongs of the test, whereupon the burden shifts to the defendant to “present a compelling case that the exercise of jurisdiction would not be reasonable.” Id., (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,476-78 (1985)).
1) BNSF purposefully directed its activities into Oregon.
There is no dispute that BNSF has purposefully and deliberately availed itself of the privilege of conducting activities within the state of Oregon. Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 209 L.Ed.2d 225, 141 S.Ct, 1017, 1024 (2021); Schwarzenegger, 374 F.3d at 802; Cox v. HP Inc., 368 Or. 477, 485492 P.3d 1245, 1251 (2021). For over 50 years, BNSF has maintained a registered office and registered agent in Oregon. It employs over 330 people in Oregon, including Plaintiff, and owns or operates on more than 330 miles of track in Oregon, including the corresponding property rights, throughout the State. It deliberately and voluntarily engages in commerce, “exploits the market,” and enters into contractual relationships with customers for its services within the state. BNSF has purposefully availed itself of the privilege of conducting business in Oregon, particularly in forming an employment relationship with the Plaintiff. The first prong of the test for specific personal jurisdiction is satisfied.
2) Plaintiffs claims arise out of the defendant's forum-related activities.
The second prong of the specific jurisdiction test requires that the plaintiffs claims arise out of defendant's forum-related activities. Schwarzenegger, 374 F.3d at 802. “None of our precedents has suggested that only a strict causal relationship between the defendant's in-state activity and the litigation will do.” Ford Motor Co., at 1026; see also Cox, 368 Or. at 494,492 P.3d at 1255 (quoting id., and recognizing that, in some cases, the “relationship among the defendant, the forums, and the litigation is close enough to support specific jurisdiction in the absence of a but-for causal link.”) .
The defendant proposes that, even if the standard is not “but-for causation,” the conduct at the heart of the claims must have taken place inside the forum; the claims may not simply relate to the relationship between the parties that exists inside the forum. The Court finds that, in this case, that is a distinction without a difference. Here there is a direct, causal relationship between BNSF's purposeful activities in Oregon - employing the Plaintiff as a railway employee, and Plaintiffs claims of an unsafe working environment causing injury. This relationship exceeds the standard required for exercise of specific jurisdiction.
As discussed above, since approximately 2010, Plaintiff has been employed by BNSF in Klamath Falls, Oregon, working within the Maintenance of Way Department. Plaintiffs work region for BNSF extends from Vancouver, Washington, throughout the State of Oregon, to Keddie, California. However approximately 90% of Plaintiff s work for BNSF is performed within the state of Oregon. He reports to work at the BNSF depot in Klamath. Falls, Oregon, and primarily performs services for BNSF at the depot. He receives all pay and benefits from BNSF in Oregon, and all direction, instruction, and continuing training from BNSF in Oregon.
In terms of the claims at issue in this case, Plaintiff alleges that he received the phone call . from the BNSF foreman Mr. Kirkpatrick while he was in Klamath Falls, Oregon, and Mr. Kirkpatrick was in Bend, Oregon. Plaintiff then went to the BNSF depot in Klamath Falls, Oregon, to get his work truck, and drove south to California.- Thus, he was directed to the worksite by a BNSF supervisor in Oregon, and he was resourced for the job in Oregon. While the specific event causing Plaintiff's injuries'took place in California, it was reasonable and foreseeable that Plaintiff might litigate his employment-related claims in the forum in which he is generally employed: Oregon. See Cox, 368 Or. At 494, 492 P.3d at 1255 (a case will “arise out of or relate to” the defendant's connection to Oregon only if the defendant's Oregon activities “provide a basis for an objective determination that the litigation was reasonably foreseeable.”).Therefore, the claims arise out of the forum-related activities, and the second prong is satisfied.
A FELA claim for an employee of an interstate railroad is the functional equivalent of a workers' compensation claim for other Oregon residents and employees. The Court agrees with Plaintiffs assertion that employers can reasonably foresee a claim by an employee for injuries arising during the course and scope of employment would be brought in the state within which the employee resides and is employed.
3) Exercise of jurisdiction is reasonable in this case.
Once a plaintiff has met its burden on the first two prongs of the specific personal jurisdiction inquiry, the burden shifts to the defendant to show why the exercise of jurisdiction would not be reasonable and fair. Schwarzenegger, 374 F.3d at 802. Generally, a defendant must “‘present a compelling case' that the exercise of jurisdiction would not be reasonable.” Id. (quoting Burger King, 471 U.S. at 476-78). Seven factors are proscribed by the Ninth Circuit:
the extent of purposeful interjection; the burden on the defendant to defend the suit in the chosen forum; the extent of conflict with, the sovereignty of the defendant's state; the forum state's interest in the dispute; the most efficient forum for judicial resolution of the
dispute; the importance of the chosen forum to the plaintiffs interest in convenient and effective relief; and the existence of an alternative forum.Control Sols,, Inc. v. MicroDAQ.com, Inc., 126 F.Supp.3d 1182, 1190 (D. Or. 2015) (quoting Shute v. Carnival Cruise Lines, 897 F.2d 377, 386 (9th Cir.1990)). “The court must balance the seven factors to determine whether the exercise of jurisdiction would be reasonable.” Shute, 897 F.2d at 386 (9th Cir.1990), (citing Federal Deposit Ins. Corp. v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1442 (9th Cir.1987)).
“If a court determines that a defendant has purposefully directed its actions at the forum state, as discussed above, then the purposeful interjection factor favors the plaintiff.” Adidas Am., Inc. v. Cougar Sport, Inc., 2016 WL 1054581, at *8 (D. Or. Mar. 14, 2016) (citing CollegeSource, 653 F.3d at 1080). The Court has determined that BNSF purposefully directed its actions at Oregon, as discussed above. The first factor favors jurisdiction.
Second, while it is inconvenient for a defendant to defend themselves in a foreign jurisdiction, BNSF's presence in Oregon is substantial and longstanding, as discussed above. Moreover, technological advances in transportation and internet communications will relieve a substantial part of that burden. This factor is neutral, or it weighs slightly in favor of the defendant's motion to dismiss, but it is not dispositive. See Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482,1489 (9th Cir, 1993) holding modified by Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199 (9th Cir. 2006) (holding that this factor alone is not' dispositive, even when Swedish defendants would have significant burden of defending a case in California).
The third factor concerns the extent of any risk that the Court's exercise of jurisdiction in Oregon might conflict with the sovereignty of California, the place where the main event in this case took place,.or the states of BNSF's domicile. See Panavision, 141 F.3d at 1323. This factor is not a concern in this case because the FELA is a federal statute, applied uniformly throughout the country. Thus, the sovereignty of any one state is not implicated by the claims in this case and this third factor is neutral.
Fourth, “the Ninth Circuit assumes that a forum state ‘maintains a strong interest in providing an effective means of redress for its residents tortiously injured.'” Adidas Am., Inc. v. Cougar Sport, Inc., 169 F.Supp.3d 1079, 1094 (D. Or. 2016) (citing Panavision, 141 F.3d at 1323). This fourth factor therefore favors jurisdiction.
Fifth, regarding an efficient judicial resolution, “[t]his factor focuses on the location of the evidence and witnesses.” Id. As with the factor considering the burden on the defendant, this factor “is no longer weighed heavily given the modem advances in communication and transportation.” Id. However, the parties do not dispute that some of the evidence and witnesses are located in California, and some are located in Oregon. Therefore, this factor is either neutral, or it favors defendant's motion to dismiss.
The Court notes that defendant BNSF has not moved to dismiss the case for improper venue under Rule 12(b)(3). Under 28 U.S.C. § 1391, venue is proper in (1) a judicial district in which any defendant resides, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which the defendant is subject to the court's personal jurisdiction. Unlike personal jurisdiction, however, venue can be waived by the defendant, and here the Court finds that BNSF has waived any objection to venue in this district by not raising the issue in the current briefing on the motion to dismiss. See FRCP 12(g)(2) (a party may not make a further motion under Rule 12 raising a defense or objection that was available to the party but omitted from its earlier motion).
Sixth, if Oregon is not a proper forum, then Plaintiff would most likely be required to litigate this matter in California, Although litigating in an alternative forum would most likely inconvenience Plaintiff, the Ninth Circuit does not give much weight to the plaintiffs inconvenience. Ziegler v. Indian River Cnty., 64 F.3d 470, 476 (9th Cir. 1995). Thus, this factor only slightly favors jurisdiction.
Seventh, the appropriate district in California is an alternative forum; however, the existence of an alternative forum only becomes an issue “when the [original] forum state is shown to be unreasonable.” Sinatra v. Nat'l Enquirer, Inc., 854 F.2d 1191, 1201 (9th Cir. 1988). The defendant has not established that Oregon is an unreasonable forum.
Out of the seven factors identified above, three weigh in favor of finding of personal jurisdiction in this District, one is purely neutral, two are either neutral or slightly favor dismissal, and one is irrelevant. Overall, the factors weigh in favor of jurisdiction. The defendant fails to present a compelling case that the exercise of jurisdiction would be unreasonable. Thus, the Court has specific jurisdiction over BNSF. The motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) should be DENIED.
RECOMMENDATION
Defendants' Motion (#15) should be DENIED. The Clerk should set a new deadline to' Answer, and the case should proceed through discovery.
SCHEDULING
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is entered. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See FED. R. CIV. P. 72, 6.
Parties are advised that the failure to file objections Within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst. 951 F.2d 1153 (9th Cir. 1991).