Threlkeld v. Colorado

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No. 99-463

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 369

303 Mont. 432

16 P. 3d 359

LINDA THRELKELD and TERRY THRELKELD,

Plaintiffs and Appellants,

v.

THE STATE OF COLORADO; COLORADO STATE

UNIVERSITY; COLORADO STATE UNIVERSITY

VETERINARY MEDICINE AND BIOMEDICAL

SCIENCES; COLORADO STATE UNIVERSITY

VETERINARY TEACHING HOSPITAL; and

JOHN DOE 1-10,

Defendants and Respondents.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Wm. Nels Swandal, Judge presiding.

COUNSEL OF RECORD:

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For Appellants:

Martin R. Studer, Attorney at Law, Bozeman, Montana

For Respondents:

M. Terry Fox, Colorado Assistant Attorney General, Denver, Colorado

Lyman H. Bennett, III, Attorney at Law, Bozeman, Montana

Submitted on Briefs: February 3, 2000
Decided: December 28, 2000

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Linda and Terry Threlkeld (the Threlkelds) appeal from the order of the Eighteenth
Judicial District Court, Gallatin County, dismissing their complaint against the State of
Colorado, Colorado State University, Colorado State University College of Veterinary
Medicine and Biomedical Sciences, and Colorado State University Veterinary Teaching
Hospital (collectively, CSU) for lack of personal jurisdiction. We affirm.

¶2 The sole issue on appeal is whether the District Court erred in concluding Montana
does not have personal jurisdiction over CSU pursuant to Rule 4B(1), M.R.Civ.P.

BACKGROUND

¶3 The Threlkelds are in the business of raising and breeding Appaloosa horses outside
Bozeman, Montana. In 1996, one of their premier stud horses developed a neurological
condition known as ataxia, or instability in the hind quarters. After unsuccessful initial
treatment, the Threlkelds and their veterinarian, Dr. David Catlin, decided to contact
CSU's Veterinary Teaching Hospital (VTH) for a consultation.

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¶4 The Threlkelds and Dr. Catlin called CSU several times during September and October
of 1996, to discuss the horse's condition and treatment. During this period, Dr. Catlin took
two blood samples from the horse and sent them to a CSU lab for testing. After continued
treatment efforts were unsuccessful, the Threlkelds and Dr. Catlin decided to take the
horse to CSU for neurological testing. Dr. Catlin contacted the VTH to arrange a referral
and the Threlkelds drove to Fort Collins, Colorado, and admitted the horse on November
14, 1996. The horse died the next morning at the VTH.

¶5 The Threlkelds subsequently sued CSU for veterinary malpractice. They later amended
their complaint to add deceit and negligent misrepresentation or fraud.

¶6 CSU moved to dismiss the complaint pursuant to Rule 12(b)(2), M.R.Civ.P., for lack of
personal jurisdiction pursuant to Rule 4B(1), M.R.Civ.P. With leave of court, the parties
conducted discovery to determine whether facts existed which would establish personal
jurisdiction over CSU. At the close of discovery and after full briefing on CSU's motion,
the District Court concluded Montana does not have personal jurisdiction over CSU and
dismissed the action. The Threlkelds appeal.

STANDARD OF REVIEW

¶7 CSU moved to dismiss for "lack of jurisdiction over the person" pursuant Rule 12(b)
(2), M.R.Civ.P. Motions to dismiss are construed in a light most favorable to the
nonmoving party and should not be granted unless, taking all well-pled allegations of fact
as true, it appears beyond doubt that the plaintiffs can prove no set of facts in support of
their claim which would entitle them to relief. Hilands Golf Club v. Ashmore (1996), 277
Mont. 324, 328, 922 P.2d 469, 471-72 (citations omitted). A district court's determination
that it lacks jurisdiction is a conclusion of law which we review to determine whether the
court's interpretation of the law is correct. Hilands Golf Club, 277 Mont. at 328, 922 P.2d
at 472.

DISCUSSION

¶ 8 Did the District Court err in concluding Montana does not have personal
jurisdiction over CSU?

¶9 This Court applies a two-part test to determine whether a Montana court can exercise
personal jurisdiction over a nonresident defendant. First, we determine whether personal

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jurisdiction exists pursuant to Rule 4B(1), M.R.Civ.P. Second, we determine whether
exercising personal jurisdiction comports with traditional notions of fair play and
substantial justice embodied in the due process clause. Bird v. Hiller (1995), 270 Mont.
467, 470, 892 P.2d 931, 932 (citations omitted). Thus, if personal jurisdiction does not
exist pursuant to Rule 4B(1), the second part of the test need not be addressed.

¶10 Personal jurisdiction can be either general or specific. General jurisdiction exists over
"[a]ll persons found within the state of Montana . . . ." See Rule 4B(1), M.R.Civ.P.;
Simmons Oil Corp. v. Holly Corp. (1990), 244 Mont. 75, 83, 796 P.2d 189, 194. A
nonresident defendant is "found within" Montana for general jurisdiction purposes if its
activities in the state are either "substantial" or "continuous and systematic ." Simmons Oil,
244 Mont. at 83, 796 P.2d at 194 (citations omitted). Specific jurisdiction exists over a
nonresident defendant when the plaintiff's cause of action arises from the specific
circumstances set forth in Rule 4B(1)(a) through (f), M.R.Civ.P.

¶11 In the present case, the Threlkelds contend the District Court erred in concluding
Montana does not have either general or specific jurisdiction over CSU. We examine their
contentions in turn.

A. General Jurisdiction

¶12 The Threlkelds contend CSU maintains substantial or continuous and systematic
contacts with Montana which are so pervasive that CSU can be said to be found within the
state. Their contention is based on six undisputed facts of record: (1) the VTH holds itself
out as a regional veterinary facility and accepts referrals from states throughout the area,
including Montana; (2) CSU maintains a Web site about programs at the university,
including the VTH, which is accessible in Montana; (3) CSU holds continuing education
seminars which are attended by individuals from Montana and advertises these seminars in
nationally distributed equine-related magazines; (4) CSU sends newsletters and brochures
to individuals in Montana which provide updates on the activities of the VTH, publicize
selected research projects, and advertise continuing education seminars; (5) CSU solicits
donations from alumni and other interested individuals or entities, including persons in
Montana; and (6) CSU sends press releases to newspapers throughout the region,
including Montana, regarding research projects and other events at the VTH.

¶13 The Threlkelds rely on Reed v. American Airlines, Inc. (1982), 197 Mont. 34, 640
P.2d 912, in arguing that the above facts establish the substantial or continuous and

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systematic contacts necessary to "find" CSU within Montana for general jurisdiction
purposes. Their reliance on Reed is misplaced.

¶14 In Reed, we concluded American Airlines could be found in Montana where it
advertised in the state by paying for listings in 19 Montana telephone directories and
purchasing television air time; sold airline tickets to Montana residents through Montana
travel agents and through a toll-free telephone number; consistently furnished material to
travel agents in Montana for the purpose of soliciting business; sent employees here to
train Montana travel agents; and derived substantial revenue from its business dealings in
Montana. Reed, 197 Mont. at 36, 640 P.2d at 913-14. This last factor was crucial to our
determination in Reed:

Before the activities of a foreign corporation can create a physical presence within
Montana, those activities must be substantial, continuous, and systematic as opposed
to isolated, casual, or incidental. The activities must comprise a significant
component of the company's business, although the percentage as related to total
business may be small.

Reed, 197 Mont. at 36, 640 P.2d at 914.

¶15 In the present case, the Threlkelds sought out CSU to perform a veterinary service in
Colorado. CSU does not have a marketing campaign directed specifically toward
Montanans via telephone directory listings or television advertisements. It sells no product
to and does not directly solicit referrals from Montanans. It sends no employees to this
state. Moreover, the record does not disclose that a significant component of the VTH's
business--that is, referrals and subsequent activities in Colorado--originates in Montana,
much less that any such business originates here because of any activities by CSU within
this state. In short, CSU's contacts with Montana are both qualitatively and quantitatively
minimal, unlike those of American Airlines in Reed. Reed does not support a
determination that CSU's contacts with Montana are either substantial or continuous and
systematic.

¶16 Furthermore, CSU's activities in the present case are substantially similar to those of
the defendant in Bedrejo v. Triple E Canada, Ltd., 1999 MT 200, 295 Mont. 430, 984 P.2d
739, the Threlkelds' argument to the contrary notwithstanding. In Bedrejo, we concluded
that a nonresident motor home manufacturer could not be found within Montana for
purposes of general personal jurisdiction even though the manufacturer advertised in

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nationally circulated magazines which were distributed in Montana; maintained an
interactive Web site available to Montanans with Internet access; established a network of
dealerships, none of which was located in Montana but which provided sales coverage for
Montana; and provided a club for members which organized trips across the United States
and Canada, some of which necessitated travel through Montana. Bedrejo, ¶¶ 8, 12. In
determining that the defendant was not subject to general jurisdiction, we noted it was not
registered to do business in Montana; did not have an office, facility or real estate in
Montana; did not maintain a telephone listing in the state or engage in direct advertising
here; and did not have employees, distributers or dealers here. Bedrejo, ¶ 11.

¶17 In the present case, CSU does not maintain any office or facilities in Montana; does
not own any real property here; has no employees or agents within the state; does not
engage in direct advertising in Montana and is not listed in any Montana telephone
directory. CSU offers consultations to and accepts referrals from Montana veterinarians
and animal owners, but does so in Colorado and only to those Montanans who seek out
CSU on their own initiative. Nor is there evidence that CSU's Web site is anything more
than a medium for the dissemination of information to Internet users. As in Bedrejo, the
facts that CSU has a Web site and advertises in national magazines--both of which reach
Montana--are insufficient contacts to establish general jurisdiction. See Bedrejo, ¶¶ 8-12.

¶18 Finally, CSU's promotional activities--newsletters, brochures and donation
solicitations sent to Montana residents on their mailing lists and press releases sent to
newspapers in the area, including Montana--do not establish that CSU is present or found
within the state. CSU's purpose in carrying on these activities is to provide to alumni or
friends updates and opportunities to make charitable contributions and to report important
research discoveries and projects at the VTH to the public. On this record, none of CSU's
activities establishes that it seeks to engage in the economic life of our state. Nor has CSU
availed itself of the privilege of conducting such substantial activities within this state that,
like any other Montana resident, it should reasonably anticipate being haled into court here
for legal claims against it. See Simmons v. State (1983), 206 Mont. 264, 277-78, 670 P.2d
1372, 1379.

¶19 The essence of the Threlkelds' argument is that they sought veterinary services from
CSU because it is highly visible in equine-related circles. They trusted CSU because they
frequently saw CSU advertisements in horse magazines and newspaper articles about the
VTH, and knew people who attended CSU continuing education seminars or received a
donation solicitation in the mail. At the bottom line, they argue that, because it is so

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visible here, CSU must be found within the state. CSU's visibility within the Montana
veterinary and equine community does not equate, however, to purposeful contacts with
the state which are substantial or continuous and systematic. We conclude, therefore, CSU
is not "found within" Montana, pursuant to Rule 4B(1), M.R.Civ.P., for purposes of
general personal jurisdiction.

B. Specific Jurisdiction

¶20 The Threlkelds also argue Montana has specific personal jurisdiction over CSU
pursuant to Rule 4B(1), M.R.Civ.P., because their claims arise from CSU's transaction of
business here and CSU's acts resulted in the accrual of torts in Montana on which the
present case is based.

1. Transaction of Business

¶21 Under Rule 4B(1)(a), M.R.Civ.P., a defendant is subject to jurisdiction in Montana for
any claim for relief "arising from . . . the transaction of any business within this state."
Relying on Great Plains Crop Management, Inc. v. Tryco Mfg. Co., Inc. (D. Mont. 1983),
554 F.Supp. 1025, the Threlkelds assert CSU transacted business in Montana by sending
promotional materials into the state, providing free consultation to Montana veterinarians,
accepting and returning the Threlkelds' telephone calls, and recommending procedures
that could not be performed in Montana but could be performed at the VTH.

¶22 It is true, as the Threlkelds urge, that the court in Great Plains concluded a
nonresident defendant transacted business in Montana for purposes of Rule 4B(1), M.R.
Civ.P., where the defendant advertised in a magazine that reached Montana, mailed
brochures to Montana, and placed telephone calls to and accepted calls from Montana
residents. However, the business transaction in Great Plains also included two occasions
on which the defendant sold and shipped farm implements to the Montana plaintiff, and
the parties had negotiated for a third shipment. Great Plains, 554 F.Supp. at 1027. These
latter activities are not similar to any of CSU's interactions with the Threlkelds. CSU did
not sell or ship products to the Threlkelds and the parties did not negotiate a contract.
Great Plains is of no assistance to the Threlkelds here.

¶23 Our decision in Edsall Const. Co., Inc. v. Robinson (1991), 246 Mont. 378, 804 P.2d
1039, however, is instructive to the present case. There, we concluded that a Utah
subcontractor who submitted a bid to a Montana general contractor over the telephone did

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not transact business in Montana under the meaning of Rule 4B(1)(a), M.R.Civ.P.,
particularly in light of the fact that the Montana plaintiff initiated contact with the
defendant and the contract was to be performed entirely out of state. Edsall, 246 Mont. at
382-83, 804 P.2d at 1042. Similarly here, the Threlkelds and their veterinarian, on their
own initiative, contacted CSU for a consultation, sent blood samples to CSU, requested
that the VTH admit their horse as a referral and then transported the horse to Colorado.
The services CSU was to perform were to be performed in Colorado.

¶24 It is not necessary to consider whether CSU's promotional activities constitute the
transaction of business within Montana. To establish specific jurisdiction, the claim at
issue must "arise from" the act in question. Rule 4B(1)(a), M.R.Civ.P. The Threlkelds'
claims of deceit and misrepresentation or fraud all arise from their allegations that CSU
personnel made specific representations and assurances to them regarding the care of the
horse and the availability of facilities. The Threlkelds do not argue, however, that these
claims arise from representations contained in information provided by CSU in its
newsletters, brochures, donation solicitations or press releases.

¶25 At most, CSU engaged in interstate communication with the Threlkelds and their
veterinarian by accepting and returning their telephone calls and returning blood test
results to them. However, such interstate communication does not, by itself, constitute the
transaction of business in Montana for purposes of Rule 4B(1)(a), particularly where CSU
was sought out by the Threlkelds. See Edsall, 246 Mont. at 382, 804 P.2d at 1042. On
these facts, we conclude the Threlkelds' claims do not arise from CSU's transaction of
business within Montana.

2. Accrual of a Tort

¶26 The Threlkelds also argue that Montana has specific jurisdiction over CSU pursuant to
Rule 4B(1)(b), M.R.Civ.P., which provides that a defendant is subject to jurisdiction in
Montana for any claim for relief "arising from . . . the commission of any act which results
in the accrual within this state of a tort action." As stated above, the Threlkelds allege
deceit and misrepresentation or fraud in addition to veterinary malpractice. The former
claims all arise from the Threlkelds' allegations that CSU personnel recommended a
course of treatment for their horse, and assured them CSU could provide such treatment
and the VTH facility was properly equipped for an ataxic horse. They contend the
assurances were false because CSU personnel knew facilities were not available due to a
recent salmonella outbreak and the horse did not receive the quality of care promised.

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¶27 In arguing their deceit and misrepresentation or fraud claims accrued in Montana, the
Threlkelds rely on Johnson Flying Service, Inc. v. Mackey Int'l, Inc. (D. Mont. 1975), 32
St.Rep. 879. There, the federal district court concluded that a claim of fraud accrued in
Montana where a nonresident defendant made representations over the telephone to a
Montana plaintiff regarding the airworthiness of an airplane the defendant was selling.
Upon purchasing the airplane and transporting it to Montana, the plaintiff discovered it did
not meet the defendant's representations. The airplane had to be grounded in Montana.
Johnson Flying Service, 32 St.Rep. at 880-81. The court concluded the fraud claim
accrued in Montana because the fraudulent statements were received here, the airplane
was brought into the state for use and, consequently, the injuries were incurred here.
Johnson Flying Service, 32 St.Rep. at 882-83. Johnson Flying Service is distinguishable.

¶28 There, the record was unclear whether Johnson or the defendant's agent initiated the
telephone contacts which began the negotiations for the airplane. Johnson Flying Service,
32 St.Rep. at 880. In the present case, it is undisputed that the Threlkelds and their
veterinarian contacted CSU with regard to a consultation, and everything thereafter--
including telephone conversations in which the Threlkelds allege CSU made deceitful or
fraudulent representations--grew out of those initial communications from the Threlkelds
to CSU. Moreover, unlike Johnson Flying Service, this case does not involve either
discovery of the purportedly deceitful or fraudulent misrepresentations within this state via
events occurring here after the statements of which the Threlkelds complain or bringing a
product or service into the state.

¶29 Moreover, the federal court in Johnson Flying Service, noting the absence of Montana
decisional authority, relied entirely on federal case authorities in determining that whether
or not the initial contacts between the parties began in Montana was irrelevant because the
fraudulent statements were received here. Johnson Flying Service, 32 St.Rep. at 882-83
(citations omitted). Our subsequent decision in Bird provides guidance in this regard.

¶30 In Bird, several Montana residents contacted and then hired an Idaho attorney to
represent them on claims resulting from an automobile accident in Idaho. After a fee
dispute arose over settlement proceeds, the plaintiffs sued the Idaho attorney in Montana,
asserting tort claims for fraud and deceit stemming from representations and omissions in
a fee agreement. Bird, 270 Mont. at 468-70, 892 P.2d at 932. In response to the attorney's
motion to dismiss for lack of personal jurisdiction, the plaintiffs contended the fraud and
deceit accrued in Montana for Rule 4B(1) purposes when the attorney sent the fee
agreement to them in Montana. We disagreed on appeal and concluded that, because the

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fraud and deceit claims arose from the attorney's representation of the plaintiffs and all
representation regarding the plaintiffs' automobile accident claims occurred in Idaho, any
claim of fraud or deceit would have accrued in Idaho. We also were unwilling to base
personal jurisdiction on interstate communications relating to acts to be performed in
another state. Bird, 270 Mont. at 472-73, 892 P.2d at 934. Applying Bird to the present
case, it is clear that the Threlkelds deceit and fraud claims relate entirely to services to be
performed in Colorado and the mere existence of interstate communications relating to
those services does not provide a basis for personal jurisdiction over CSU.

¶31 The Threlkelds also argue CSU's representations over the telephone are similar to a
telephone conversation that formed the basis for specific jurisdiction in McGee v. Riekhof
(D. Mont. 1978), 442 F.Supp. 1276. In McGee, the defendant, a Utah ophthalmologist,
treated the Montana plaintiff in Utah for a detached retina. The plaintiff returned to
Montana and updated the defendant about his condition over the telephone. During one
such conversation, the defendant advised the plaintiff he could return to work. The
plaintiff did so, suffered a retinal re-detachment and massive retinal tear as a result, and
sued the Utah ophthalmologist for negligence in Montana. McGee, 442 F.Supp. at 1277. In
denying the defendant's motion to dismiss for lack of personal jurisdiction, the McGee
court distinguished the facts before it from cases where the injury and effects in question
resulted from treatment obtained in another state. McGee, 442 F.Supp. at 1278-79. McGee
turned on the fact that the injury in question resulted from medical service provided in
Montana--a new diagnosis rendered telephonically to the plaintiff while in Montana--as
opposed to effects or injures suffered in Montana as a result of medical services rendered
in Utah. McGee, 442 F.Supp. at 1278-79.

¶32 The assurances given by CSU personnel in the present case are in no way similar to
the medical diagnosis given by the defendant in McGee. The Threlkelds' horse was treated
at CSU and died at CSU. We conclude, therefore, that the Threlkelds' claims do not arise
from any act by CSU resulting in the accrual in Montana of a tort action.

¶33 The Threlkelds also argue at length that the District Court failed to take the allegations
of their amended complaint as true and failed to consider facts established in discovery
which would support the existence of personal jurisdiction over CSU. Based on our review
of the record, neither contention has merit. First, a court need only take well-pled
allegations of fact as true in considering a Rule 12(b) motion to dismiss. Hilands Golf
Club, 277 Mont. at 328, 922 P.2d at 472. Courts are not required, however, to accept
allegations of law and legal conclusions in a complaint as true. See Commonwealth Edison

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Co. v. State (1980), 189 Mont. 191, 215, 615 P.2d 847, 860. Thus, the District Court was
free to ignore the numerous allegations of law contained in the Threlkelds' amended
complaint.

¶34 Second, the District Court set forth its analysis in an Explanatory Comment
immediately following its grant of CSU's motion to dismiss. That analysis reflects that the
court considered the undisputed facts obtained through the parties' nearly year-long
discovery related to the personal jurisdiction question.

¶35 Finally, the Threlkelds point out that a motion to compel discovery remains pending
in the District Court. They urge that, if the District Court found their evidence supporting
personal jurisdiction lacking, it should have compelled further discovery. They do not
explain, however, what matters sought through their motion to compel might result in
facts which would establish personal jurisdiction. Furthermore, the Threlkelds did not
request a ruling on their motion to compel during proceedings on CSU's motion to dismiss
and, as stated above, discovery in this case lasted nearly a year.

¶36 The Threlkelds having failed to establish the existence of personal jurisdiction over
CSU in Montana under any of the Rule 4B(1), M.R.Civ.P., grounds raised, it is not
necessary to address whether the exercise of such jurisdiction comports with traditional
notions of fair play and substantial justice. See Bird, 270 Mont. at 473, 892 P.2d at 934.
We hold that the District Court did not err in concluding Montana lacks personal
jurisdiction over CSU.

¶37 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

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