Opinion
Civil No. 00-1262-KI
January 23, 2001
Stephen L. Griffith, Leta E. Gorman, STOEL RIVES LLP, 900 S.W. Fifth Avenue, Suite 2600, Portland, Oregon 97204-1268, Attorneys for Plaintiffs
Gary V. Abbott, ABBOTT DAVIS ROTHWELL MULLIN EARLE PC, 1300 S.W. 5th Avenue, Suite 1900, Portland, Oregon 97201, Attorney for Defendants
Robert D. Scholz, MacMILLAN SCHOLZ MARKS PC, 55 S.W. Yamhill Street, Suite 200, Portland, Oregon 97204, Attorney for Defendant Gincel.
OPINION AND ORDER
Plaintiff Alfredo Julian-Ocampo hired the services of an air ambulance, operated by the corporate defendants, to transport him from Mexico City to Portland, Oregon, so that he could be screened for a heart transplant. After not receiving the services for which he believes he contracted, Julian-Ocampo sued the corporate defendants running the ambulance service and a few of their employees. Before the court is defendant Gincel's motion to dismiss for lack of personal jurisdiction (#12). For the reasons below, I grant the motion and dismiss Gincel.
FACTS
Defendant Sherry Gincel, a Florida resident, is an employee of defendant Air Ambulance Network, Inc., and works from its Florida office. She is the manager of flight coordination. Gincel has never been to Oregon and owns no property here. Plaintiff Patrick Julian, son of Julian-Ocampo, and other members of the family, spoke to Gincel on the telephone when they were researching air ambulance services to transport the father. Several telephone conversations took place over four days in October 1999 immediately prior to the flight. It is unclear where the family members were when these conversations took place, but there is no allegation that they were in Oregon. Gincel explained the company's history, the type of medical care Julian-Ocampo would receive during the flight, the equipment which would be used, and the credentials of the medical staff that would accompany the flight. Gincel also sent the family letters of reference, a company brochure, the contract to be executed by Patrick Julian and returned to Gincel for execution on behalf of Air Ambulance Network, and the flight itinerary. The only fact connecting Gincel to Oregon is that she knew the flight would terminate here.
LEGAL STANDARDS
The plaintiff bears the burden of establishing that the court has personal jurisdiction over the defendant. Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). If no evidentiary hearing is held, a plaintiff can withstand a motion to dismiss by making a prima facie showing of jurisdictional facts which, if true, support jurisdiction over the defendant. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). Allegations in the complaint must be taken as true and conflicts between the facts must be resolved in the plaintiff's favor for purposes of deciding whether a prima facie case for personal jurisdiction exists.American Tel. Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.), opinion supplemented on another grounds, 95 F.3d 1156 (9th Cir. 1996).
DISCUSSION
The jurisdictional reach of the federal court over defendants in a diversity action is determined by the law of the forum state. Oregon extends jurisdiction to the outer limits permitted by the state or federal constitutions. ORCP 4L. Thus, I can turn to a federal due process analysis. Gray Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990).
Plaintiffs contend that they have alleged facts which fall within ORCP 4E(1), for an action arising out of a promise, made anywhere, to perform services within Oregon. Compliance with a subsection of ORCP 4B through K, however, does not mean that the constitutional due process analysis can automatically be dispensed with. Biggs v. Robert Thomas, O.D., Inc., 133 Or. App. 621, 626, 893 P.2d 845, rev. denied, 321 Or. 561 (1995). Particularly in a close case such as this one, I must analyze the defendant's contacts with the state.
Federal due process requires that a nonresident defendant have minimum contacts with the forum state such that the exercise of personal jurisdiction does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The constitutional due process test may be satisfied by a finding of either general or specific jurisdiction. Sher, 911 F.2d at 1361. When a defendant has "substantial" or "continuous and systematic" contacts with the forum state, general jurisdiction is proper even if the cause of action is unrelated to the defendant's forum activities. Id.
There are insufficient contacts here to establish general jurisdiction over Gincel.
When general jurisdiction is inappropriate, the Ninth Circuit has recognized application of a three-part test to determine whether specific jurisdiction exists:
(1) The nonresident defendant must do some act 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 results from the defendant's forum-related activities. (3) Exercise of jurisdiction must be reasonable.Gordy v. Daily News, L.P., 95 F.3d 829, 831-32 (9th Cir. 1996).
The first element ensures that a "`defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.'" Id. at 832 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). The connection between defendant and the forum state must come about "by an action of the Defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. . . . [A] defendant's awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum state." Asahi Metal Indus. v. Superior Court of Cal., 480 U.S. 102, 112 (1987) (emphasis in original). Designing the product for the market in the forum state, advertising in the forum state, establishing channels for providing regular advice to customers in the forum state, or marketing the product through a distributor who has agreed to serve the forum state can indicate the intention to serve the market in the forum state. Id.
Although contacts that are isolated or sporadic may support specific jurisdiction if they create a substantial connection with the forum, the contacts must be more than random, fortuitous, or attenuated. Burger King v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174 (1985). A defendant need not be physically present within the forum, provided its efforts are purposefully directed toward forum residents. Id. at 476. However, contacts resulting from the unilateral activity of another party or third person are not attributable to a defendant. Id. at 475 n. 17. With respect to a contract entered into with a forum corporation, prior negotiations and contemplated future consequences, along with the terms of the contract and the parties actual course of dealings are the factors to be considered. Id. at 479.
Generally, the use of mail, telephone, or other international communications do not qualify, as purposeful activity invoking the benefits and protection of the forum. Roth v. Garcia Marquez. 942 F.2d 617, 622 (9th Cir. 1991) (in contract negotiation). Future consequences of the contract must also be considered. In Roth, the court held that plaintiffs satisfied the purposeful availment prong of the test based on evidence that the editing, production work, and advertising for the movie would take place in the forum, even though the movie would be shot overseas.Id.
The Ninth Circuit recently elaborated on the purposeful availment analysis when a foreign act has effect in the forum state in Bancroft Masters, Inc. v. Augusta National, Inc., 223 F.3d 1082 (9th Cir. 2000). To meet the effects test, the defendant must have (1) committed an intentional act, which was (2) expressly aimed at the forum state, and (3) caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state. Moreover, there must be an "express aiming" at the forum state, namely when the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state. Id. at 1087. Based on this test, the Georgia defendant was found to have purposefully availed itself of the right to conduct activities in California when it sent a letter to the registrar of Internet domain names, located in Virginia, challenging the domain name of a California company, triggering the dispute resolution policy. Id. at 1087-88. The concept has also been applied in defamation actions when the defamed plaintiff lived in the forum state, Gordy v. Daily News, L.P., 95 F.3d 829, 833 (9th Cir. 1996), and an action in which an Alabama resident was brought into a California court on the basis of a letter she sent to an insurance company stating that she was entitled to an insurance payment actually belonging to a California resident, Metropolitan Life Insurance Co. v. Neaves, 912 F.2d 1062 (9th Cir. 1990).
The parties dispute the effect of Gincel's contacts, while acting within the course and scope of her employment, on the jurisdiction question. Each defendant's contacts must be assessed individually. An employer's actions are not attributed to an employee who was not involved in the particular conduct. Being an employee, however, does not insulate a person from jurisdiction. Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482 (1984).
Although the air ambulance was to land in Oregon, and a vehicular ambulance was to transport Julian-Ocampo to OHSU, none of the plaintiffs reside in Oregon. Thus, any long term future consequences from the provision of inadequate medical care would not be felt in Oregon. That fact distinguishes this case from those cited above, including Calder on which plaintiffs rely. Gincel did not purposefully avail herself of conducting activities in Oregon.
The Ninth Circuit uses a "but for" test to determine whether a particular claim arises out of forum-related activities. Ballard v. Savage, 65 F.3d 1495 (9th Cir. 1995) (but for defendant's contacts with California, would plaintiff's claims against defendant have arisen?). The focus is a broad one, analyzing whether the entire course of events was made possible by defendant's contacts in the forum state.
The claim does arise out of Gincel's limited contacts with Oregon.
Seven factors are relevant to the determination of the reasonableness of the exercise of jurisdiction:
1) the extent of the defendant's purposeful interjection into the forum state's affairs; 2) the burden on the defendant; 3) conflicts of law between the forum and defendant's home jurisdiction; 4) the forum's interest in adjudicating the dispute; 5) the most efficient judicial resolution of the dispute; 6) the plaintiffs interest in convenient and effective relief; and 7) the existence of an alternative forum.Roth v. Garcia Marquez, 942 F.2d 617, 623 (9th Cir. 1991). No factor is dispositive; the court must balance all seven. Gordy, 95 F.3d at 836. If the requisite minimum contacts exist and the claim arises out of them, the burden is on the defendant to present a "compelling case" that jurisdiction would be unreasonable. Id. at 835.
Gincel's purposeful interjection into Oregon's affairs is quite minimal. As an individual, the burden on her to litigate this action on the other side of the country would be difficult. Oregon's interest is also limited because none of the plaintiffs are residents here. Presumably, plaintiffs could bring an action against Gincel in Florida. Weighing in favor of reasonableness of the exercise of jurisdiction is the fact that it would be most convenient for plaintiffs to resolve the issues in one forum rather than be split into two. The most efficient judicial resolution would be to retain all defendants before the Oregon court.
Weighing these factors, jurisdiction would be unreasonable, although not severely so. Because the requisite minimum contacts do not exist between Gincel and Oregon, however, she does not have to present a compelling case that jurisdiction would be unreasonable. Gincel has met her burden.
After analysis, I conclude that federal due process prevents me from exercising personal jurisdiction over Gincel.
CONCLUSION
Defendant Gincel's motion to dismiss for lack of personal jurisdiction (#12) is granted.
IT IS SO ORDERED.