AILED
COURT OF APPPALS
Of',' fSlt? I
f;
2013 NOV i M 11: 15
IN THE COURT OF APPEALS OF THE STATE OF WASHIN
ASHINi O I
DIVISION II
Py
DEMTY
KRISTINE FAILLA, No. 43405 -9 -II
Respondent,
PUBLISHED OPINION
V.
FIXTUREONE CORPORATION; and
KENNETH A. SCHUTZ,
BJoRGEN, J. — Kenneth A. Schutz, president and chief executive officer of FixtureOne
Corporation, appeals the denial of his motion to dismiss Kristine Failla' s claims against him for
unpaid wages and other relief and the granting of Failla' s summary judgment motion on the same
claims. Schutz argues that Washington State lacks personal jurisdiction over him because he does
not have the requisite minimum contacts with the state; and, even if Washington did have
personal jurisdiction, that summary judgment was .inappropriate because genuine issues of
material fact are present. Concluding that Washington lacks personal jurisdiction, we reverse the
superior court' s denial of Schutz' s dismissal motion. Because Washington lacks jurisdiction, we
also reverse the superior court' s summary judgment in Failla' s favor and the accompanying
judgment and awards of prejudgment interest, attorney fees and costs.
FACTS
I. REMOTE EMPLOYMENT WITH PENNSYLVANIA CORPORATION
FixtureOne is a Pennsylvania corporation headquartered in Philadelphia, specializing in
the design and production of custom store fixtures and furnishings for the retail industry. Schutz
was the president and chief executive officer of FixtureOne Corporation and had been an officer
and director of the company between 2004 and 2011
No. 43405 -9 -II
In October 2009 Failla e- mailed Schutz seeking a sales position with FixtureOne that she
could perform from her home near Seattle. Failla traveled to Pennsylvania for an interview with
Schutz. Following the interview, Schutz offered Failla an account executive position with the
company. The position required Failla to conduct her work via telephone, e- mail, and occasional
airplane travel. Schutz told Failla that having a sales representative in her part of the country
could be useful because he would like to do business with Starbucks. However, Failla did not
pursue Starbucks or any other Washington company as a customer. Failla' s compensation
included $75, 000 in annual salary and an additional three percent sales commission on new
accounts.
At the end of 2010, Failla' s first full year of employment with FixtureOne, she e- mailed
Schutz asking for an accounting of her sales commissions and payment of those commissions.
Schutz instructed " Ed"' to identify and report Failla' s 2010 sales commissions and to issue her.a
check. Clerk' s Papers ( CP) at 36.
Schutz promoted Failla to vice president for sales in 2011. He raised her base salary to
135, 000 and continued her three percent sales commission, with the exception of one account.
Additionally, Schutz informed Failla that she would need to sign the company' s employment
agreement, which, among other terms, provided that it "shall be interpreted in accordance with
the laws of the Commonwealth of Pennsylvania." CP at 78. Failla responded that she would
sign and mail the agreement that day. Three days later, Failla sent a version of the agreement
1
The e -mail address associated with this person is " Ed Friedman." Clerk' s Papers at 36.
Otherwise, the record does not identify him. In the " Facts" section of Failla' s brief, she refers to
this person as " staff." See Br. of Resp' t at 3.
2
No. 43405 -9 -II
back to Schultz with proposed revisions. Neither Schutz nor Failla took further action on the
agreement.
In early April, Failla sent Schutz another request for the accounting and payment of her
2010 commissions. Schutz replied, " If Ed does not calculate soon, I will do so." CP at 38..
Shortly thereafter, Schutz calculated Failla' s 2010 commissions as $ 21, 025. 06. He e- mailed that
calculation to Ed with instructions that Ed send a check for that amount to Failla by overnight
mail. Not having received payment in early May, Failla again asked Schutz about the situation.
Schutz responded that he had instructed Ed to make the payment and that he would find out what
happened.
In late May Schutz e- mailed Failla, informing her that FixtureOne could not execute its
orders properly and needed to close. Schutz told Failla that the company needed to end her
employment as of the next day, but he promised, " We will pay your commissions and expenses
asap in the next several weeks as we complete operations." CP at 44.
In early June Failla again e- mailed Schutz, asking for her last payroll salary check, her
expenses, her 2010 sales commissions, and for documentation for her 2011 commissions.
Schultz responded, " I know that Ed cut a payroll check for you and I signed itI assume it
would have been sent overnight and will check on it. I will check the status of your expenses
and calculate the 2011 commissions." CP at 46.
In late July Schutz e- mailed Failla stating, " Legally we do not owe you any commissions
as the amount owed was negated when Juicy cancelled $ 50, 000 of JFK ... would like to pay you
a severance in an amount equal to what the commission would have been assuming we are in a
No. 43405 -9 -II
financial position to do so, however right now we are not in a financial position to do so." CP at
50.
Through counsel, Failla sent a letter to Schutz demanding immediate payment. The letter
informed Schutz that Washington subjected employers to liability for double damages and
attorney. fees.
II. PROCEDURE .
Failla filed a complaint in Washington State seeking judgment for double her unpaid
wages and for breach of her employment contract. Although Failla originally named both
FixtureOne and Schutz, she was unable to obtain service on FixtureOne; therefore, she
proceeded solely against Schutz and served him in Pennsylvania.
Failla moved for summary judgment against Schutz, seeking wages, exemplary damages,
attorney fees, and costs under RCW 49. 52. 050 and . 070. Schutz moved to dismiss for lack of
personal jurisdiction under CR 12( b)( 2). The parties agreed that the trial court would consider
both motions concurrently.
The trial court denied Schutz' s motion to dismiss and granted summary judgment for
2
Failla. The order included $ 59, 608. 12 as the principal amount, $ 3, 129.42 for prejudgment
interest, $ 8, 150. 00 in attorney fees, and $ 568.40 in costs. Schutz appeals.
2 The record before this court consists of only Clerk' s Papers; the record does not contain the
Verbatim Report of Proceedings.
rd
No. 43405 -9 -II
ANALYSIS
Schutz argues that the Washington court lacked personal jurisdiction over him under the
long -arm statute, RCW 4.28. 185, because he lacks minimum contacts with the forum state.
Schutz additionally argues that even if Washington has personal jurisdiction, summary judgment
was inappropriate because questions of material fact remained. Failla responds that Washington
has jurisdiction because Schutz knew that Failla lived and would perform her duties in
Washington. Failla also responds that Schutz failed to raise any issue of material fact before the
trial court. We hold that the superior court lacked personal jurisdiction over Schutz and, for that
reason, we reverse the superior court' s denial of Schutz' s dismissal motion and its grant of
summary judgment in favor of Failla.
I. STANDARD OF REVIEW
When reviewing a summary judgment order, we engage in the same inquiry as the trial
court. We determine if there are any genuine issues of material fact and, if not, whether the
moving party is entitled to judgment as a matter of law. Lewis v. Bours, 119 Wn.2d 667, 669,
t]he court must consider the facts in the light most
835 P.2d 221 ( 1992). In this review, "` [
favorable to the nonmoving party, and the motion should be granted only if, from all the
evidence, reasonable persons could reach but one conclusion. "' Lewis, 119 Wn.2d at 669
quoting Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P. 2d 562 ( 1990)) ( alteration in
original). More specifically, where the " underlying facts are undisputed, the trial court' s
assertion of personal jurisdiction is a question of law reviewable de novo." MBMFisheries, Inc.
Bollinger Mach. Shipyard, Inc., 60 Wn. App. 414, 418, 804 P. 2d 627 ( 1991). Failla
v. Shop &
has the burden of establishing jurisdiction, but she need only make a prima facie showing.
5
No. 43405 -9 -II
CTVC of Hawaii Co., Ltd. v. Shinawatra, 82 Wn. App. 699, 708, 919 P. 2d 1243 ( 1996), modified
by 932 P.2d 664 ( 1997).
H. JURISDICTION
Washington' s long -arm statute, RCW 4.28. 185, authorizes Washington courts to exercise
jurisdiction over a nonresident defendant to the extent permitted by the due process clause of the
United States Constitution. MBM Fisheries, Inc., 60 Wn. App. at 423.
Specifically, RCW 4.28. 185 provides in pertinent part:
1) Any person, whether or not a citizen or resident of this state, who in person or
through an agent does any of the acts in this section enumerated, thereby submits
said person, and, if an individual, his or her personal representative, to the
jurisdiction of the courts of this state as to any cause of action arising from the
doing of any of said acts:
a) The transaction of any business within this state;
b) The commission of a tortious act within this state;,
3) Only causes of action arising from acts enumerated herein may be asserted
against a defendant in an action in which jurisdiction over him or her is based
upon this section.
To subject a nonresident defendant to the personal jurisdiction of this state under RCW
4.28. 185, the following requirements must be met:
1) The nonresident defendant or foreign corporation must purposefully do
some act or consummate some transaction in the forum state; ( 2) the cause of
action must arise from, or be connected with, such act or transaction; and ( 3) the
assumption ofjurisdiction by the forum state must not offend traditional notions
of fair play and substantial justice, consideration being given to the quality,
nature, and extent of the activity in the forum state, the relative convenience of the
parties, the benefits and protection of the laws of the forum state afforded the
respective parties, and the basic equities of the situation.
Shute v. Carnival Cruise Lines, 113 Wn.2d 763, 767, 783 P. 2d 78 ( 1989) ( quoting Deutsch v. W.
Coast Mach. Co., 80 Wn.2d 707, 711, 497 P. 2d 1311 ( 1972)).
0
No. 43405 -9 -II
We will not find jurisdiction under the long -arm statute unless a nexus exists between the
plaintiff s cause of action and the defendant' s activities in the state. 14 KARL B. TEGLAND,
WASHINGTON PRACTICE: CIVIL PROCEDURE § 4. 13, at 89 ( 2d ed. 2009). We determine the
propriety of long -arm jurisdiction " on a case -by -case basis, based upon the specific parties and
the specific facts." 14 WASHINGTON PRACTICE at 90.
A. No Transaction of Business within Washington .
To meet the first step in the Shute test, set out above, the evidence must show that Schutz
purposefully did some act or consummated some transaction in this state. Shute, 113 Wn.2d at
767. Personal jurisdiction " exists where the contacts create a substantial connection with the
forum state." SeaHAVN, Ltd. v: Glitnir Bank, 154 Wn. App. 550, 564, 226 P. 3d 141 ( 2010). We
determine the sufficiency of the contacts " by the quality and nature of the defendant' s activities,
not the number of acts or mechanical standards." Shinawatra, 82 Wn. App. at 710.
The execution of a contract with a state resident alone does not fulfill the "` purposeful
act "' requirement. MBMFisheries, 60 Wn. App. at 423 ( quoting Burger King v. Rudzewicz, 471
U.S. 462, 478 -79, 105 S. Ct. 2174, 85 L. Ed. 2d 528 ( 1985)). To determine whether Schutz
purposefully established minimum contacts with Washington by hiring Failla, we must examine
the entire transaction, including negotiations, " contemplated future consequences, the terms of
the contract, and the parties' actual course of dealing." MBMFisheries, 60 Wn. App. at 423.
Failla argues that Schutz consummated a transaction in Washington by employing her
knowing that she lived in Washington, citing Toulouse v. Swanson, 73 Wn.2d 331, 438 P.2d 578
1968), Thornton v. Interstate Sec. Co., 35 Wn. App. 19, 21, 666 P. 2d 370 ( 1983), and Cofinco of
7
No. 43405 -9 -II
Seattle, Ltd. v. Weiss, 25 Wn. App. 195, 605 P. 2d 794 ( 1980). These cases, however, do not
support this proposition.
In Toulouse, 73 Wn.2d at 331, an Idaho resident employed a Washington lawyer to
represent him in Washington in extended litigation involving his mother' s estate. Toulouse was
in the state of Washington on many occasions from 1956 to 1959 and was a frequent visitor, as a
client, to his attorney' s law office. Toulouse, 73 Wn.2d at 331. The court upheld Washington
jurisdiction over Toulouse in a suit by his attorney for compensation, holding that Toulouse
consummated a transaction in Washington by employing the plaintiff as his lawyer, that the
present action arose from that transaction, and that sustaining Washington jurisdiction would not
be " an affront to the `traditional notions of fair play and substantial justice' necessary for due
process of law." Toulouse, 73 Wn.2d at 334 ( citations omitted).
In Thornton, a foreign corporation hired Thornton to expand into Washington and other
northwest states. Thornton worked in Washington, with Washington companies, and was chosen
for employment
Necause of his numerous contacts in the industry, his position as vice -
president
and then president of the Washington State Consumer Finance Association, his
dealings since 1956 with Washington State' s Division of Banking, Department of
General Administration, his knowledge of state laws regulating small loan
companies, and his experience in the field since 1946.
Thornton, 35 Wn. App. at 21. When Thornton' s employment was terminated, he sued the
foreign corporation in the Washington courts. We held that Thornton' s role and the company' s
reasons for hiring him raised sufficient contacts with Washington to sustain personal jurisdiction.
Thornton, 35 Wn. App. at 25.
No. 43405 -9 -II
In Cofinco, 25 Wn. App. at 196, a Washington corporation with its principal place of
business in Seattle, hired Weiss, a New York resident, to sell shoes for Cofinco on the east coast.
Although Weiss never came to Washington, Cofinco provided him with goods, funds, and
advancements as part of selling shoes for Cofmco. Cofinco, 25 Wn. App. at 196. We held that
under these circumstances the long -
arm statute gave Washington courts jurisdiction over Weiss
in a contract dispute with Confinco. By entering into the employment contract, we held Weiss
purposefully [ availed himself] of the privilege of conducting activities" within the state of
Washington. Cofinco, 25 Wn. App. at 197 ( alteration in original) ( citation omitted).
None of these cases stand for the rule that Schutz is subject to Washington jurisdiction
merely because he hired Failla knowing that she lived in Washington. Instead, each decision
rests its holding on contacts that are not present in the relationship between Failla and Schutz or
FixtureOne.
Failla reached out to. Schutz in Pennsylvania and flew to Pennsylvania to interview.
FixtureOne paid Failla by checks initiated, issued, and mailed from Pennsylvania. FixtureOne
did not register to do business in Washington and never had operations, officers, or customers in
this state. Nothing about Schutz' s employment of Failla anticipated that her activities in
Washington would consist of more than residing here, working from home, and collecting a
paycheck. Nothing in the record shows any attempt to do business with a Washington company,
let alone any transactions with Washington companies.
Federal case law strongly indicates that this level of contact is insufficient to sustain
jurisdiction over Schutz. In Peterson v. Kennedy, 771 F. 2d 1244, 1262 ( 9th Cir. 1985), the court
held that use of mails or telephones ordinarily does not qualify as purposeful activity invoking
9
No. 43405 -9 -II
the benefits and protections of the forum state. Pennebacker v. Wayfarer Ketch Corp., 777
F. Supp. 1217, 1221 ( E.D. Pa. 1991), held that the plaintiff' s decisions to live in Pennsylvania and
receive some paychecks there were unilateral decisions on his part and did not support
Pennsylvania jurisdiction over the New York employer. Similarly, Romann v. Geissenberger
Mfg. Corp., 865 F. Supp. 255, 261 -63 ( E.D. Pa. 1994), held that a salesman' s unilateral decision
to work partly in his home state of Pennsylvania did not establish jurisdiction over his New
Jersey employer where the salesman had an office in New Jersey and his employer neither
required nor encouraged him to live or work in Pennsylvania.
The business relationship between Schutz and Failla shares its essential characteristics
with those relationships found inadequate to sustain jurisdiction in these federal cases. In
contrast, the relationship between Schutz and Failla lacks the sort of additional contacts on which
Toulouse, Thornton, and Cofinco relied to uphold jurisdiction. Thus, the case law leans heavily
against the conclusion that the superior court had jurisdiction over Schutz.
Failla argues that her presence in Washington was more than simple residence, because
Schutz had told her that having a sales representative here could be useful in obtaining business
with Starbucks. However, the record merely shows that after Schutz hired Failla, he forwarded
an e -mail to her with the subject line " Starbucks," mentioning that another company had certified
FixtureOne' s fixtures under a food equipment standard. CP at 95. The meaning of this e -mail is
obscure. Other than this bare subject line, the record does not show any attempt to do business
with Starbucks or any other Washington company. Failla' s employment began in November
2009 and ended in May 2011. During that time, there is no evidence of contact with Starbucks.
During that time, there are no e -mails discussing attempts to make contacts, no meetings
10
No. 43405 -9 -II
concerning Starbucks, and no mention of phone calls concerning Starbucks. Not only did
FixtureOne fail to gain Starbucks or any other Washington company as a customer, there is no
evidence that Failla or anyone at FixtureOne ever solicited Starbucks or any other Washington
company' s business. Without any action, preparations, or planning, a single mention of
Starbucks in the subject line of an e -mail is without significance in determining whether
Washington courts have jurisdiction over Schutz.
For these reasons, we conclude that Schutz did not transact business in Washington for
the purpose of the long -
arm statute. In reaching this holding, we do not ignore the potential
effect of the recent, revolutionary advances in communications, such as e -mail, video
conferencing, social media and the Internet, on the analysis ofjurisdiction. If Schutz and
FixtureOne had opened a physical. branch office here, the case for jurisdiction over them would
be much stronger. The availability of e -mail, the Internet and the rest invites consideration
whether Failla' s situation was effectively no different from a bricks and mortar branch office;
whether it was qualitatively different from that of an employee working at home using just mail
and the telephone. The case law rejects "` mechanical "' and "` conceptualistic "' approaches to
long -arm jurisdiction in favor of a "` highly realistic "' approach that considers actual course of
dealing. See Burger King Corp., 471 U.S. 462 at 478 -79 ( quoting Int' l Shoe v. Washington, 326
U.S. 310, 319, 66 S. Ct. 154, 90 L. Ed. 95 ( 1945) and Hoopeston Canning Co. v. Cullen, 318
U. S. 313, 316, 63 S. Ct. 602, 87 L. Ed. 777 ( 1943)). The factual record in this appeal does not
allow proper consideration of the effect of the new electronic world on the " highly realistic"
approach to long -arm jurisdiction required by the case law. That question awaits another day.
11
No. 43405 -9 -II
B. No Commission of Tortious Act within Washington
Failla also argues that Schutz committed a tortious act that established personal
jurisdiction in Washington under RCW 4.28. 185( 1)( b). Specifically, Failla argues that Schutz
committed a tort by failing to pay her wages and that he injured her in Washington because that
is where she resided and should have been paid. Schutz correctly responds that because his
alleged failure to pay did not occur in Washington, that action cannot subject him to its
jurisdiction.
Under RCW 4. 28. 185( 1)( b), a tortious act occurs in Washington when the injury occurs
within our state. Grange Ins. Assn v. State, 110 Wn.2d 752, 757, 757 P. 2d 933 ( 1988). An
injury " occurs" in Washington for purposes of the long -arm statute, " if the last event necessary
to make the defendant liable for the alleged tort occurred in Washington." MBMFisheries, 60
Wn. App. at 425. A nonphysical loss suffered in Washington is not sufficient in itself to confer
jurisdiction. Hogan v. Johnson, 39 Wn. App. 96, 100, 692 P. 2d 198 ( 1984). No jurisdiction
exists when alleged fraud had an effect in Washington only because plaintiff had chosen to
reside there. DiBernardo- Wallace v. Gullo, 34 Wn. App. 362, 366, 661 P. 2d 991 ( 1983).
The SeaHAVN decision is also instructive in resolving this issue. SeaHAVN alleged that
Glitnir Bank tortiously misrepresented that it had no conflicts of interest and that it would not
disclose SeaHAVN' s confidential information to benefit a competitor. SeaHAVN, 154 Wn. App.
at 569. SeaHAVN argued that Washington had jurisdiction because SeaHAVN was a
Washington based company and Glitnir had financially harmed SeaHAVN in Washington. See
SeaHAVN, 154 Wn. App. at 569. Division One of this court concluded, however, that "[ b] ecause
12
No. 43405 -9 -II
the alleged misrepresentations did not occur in Washington, ... Glitnir was not subject to
jurisdiction under RCW 4. 28. 185( 1)( b)." SeaHAVN, 154 Wn. App. at 570.
Here, Schutz allegedly committed a tort by failing to pay Failla' s wages. His failure to
pay occurred in Pennsylvania. Failla experienced nonphysical injury in Washington only
because she chose to live in Washington. Because the failure to pay is the " last event necessary"
to make Schutz liable and his alleged failure did not occur in Washington, he is not subject to
Washington jurisdiction. See MBMFisheries, 60 Wn. App. at 425.
Failla does not show that Schutz either transacted business or committed a tort in
Washington. Consequently, Failla does not meet the first prong of the three -part Shute test, and
Washington courts lack personal jurisdiction over Schutz. See Shute, 113 Wn.2d at 767. With
that conclusion, we need not consider the second or third parts of the Shute test.
We reverse the superior court' s decision that.it had personal jurisdiction over Schutz and
its denial of Schutz' s dismissal motion. Because the superior court lacked jurisdiction, we reverse
its grant of summary judgment in favor of Failla and the accompanying judgment award and
award of prejudgment interest, attorney fees, and costs.
BJORGEN,
We ncur:
NT, P. J
k
r
SET U YAR, J .
13