Goettman v. North Fork Valley Restaurant

JUSTICE EID,

dissenting.

The majority concludes that the trial court can assume personal jurisdiction over Hydra-matic, an Australian limited liability company, because Goettman established “a reasonable inference that Dunn’s tortious conduct was sufficiently connected to Hydramatic’s business.” Maj. op. at 70. Yet it also “acknowledge[s] that at this early stage of litigation, there are conflicts between the jurisdictional facts regarding the scope of Dunn’s employment.” Id. In such a situation, where the question is whether a trial court can assert personal jurisdiction over an out>of-state defendant, and there is conflicting evidence with regard to the facts necessary to support a finding of jurisdiction, the trial court should hold a hearing. Because the majority decides the jurisdictional issue in Goettman’s favor instead of remanding the case to the trial court for a hearing, I respectfully dissent from its opinion.

I.

In Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187 (Colo.2005), we set forth the procedure a trial court should follow when considering a defendant’s 12(b)(2) motion to dismiss for lack of personal jurisdiction. We observed that “[i]n its discretion, a court may address a 12(b)(2) motion prior to trial based solely on the documentary evidence or by holding a hearing.” Id. at 1192. As the majority recognizes, however, the trial court’s discretion to decide not to hold a hearing is not unbounded. Maj. op. at 65-66. As we stated in Archangel:

In deciding whether a hearing on the issue of personal jurisdiction is appropriate, the court must determine if the circumstances of a particular case indicate it is unfair to force an out-of-state defendant to incur the expense and burden of a trial on the merits in the local forum without first requiring more of the plaintiff than a prima facie showing of facts essential to in personam jurisdiction. A court may so determine, for example, when the proffered evidence is conflicting and the record is rife with contradictions....

123 P.3d at 1193 (citation omitted) (emphasis added). Thus, as a preliminary matter, the court “must determine” whether it would be unfair to require an out-of-state defendant to defend in the forum based merely on an inference of jurisdiction. If it would, the trial court should hold a hearing.

Ordinarily, of course, a trial court is not required, on a Rule 12 motion, to hold a hearing and make findings of fact and conclusions of law. See C.R.C.P. 52 (“Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12.... ”); Leidy’s, Inc. v. H2O Eng’g, Inc., 811 P.2d 38, 89 (Colo.1991) (discussing Rule 52). But the issue of whether personal jurisdiction can be asserted over an out-of-state defendant implicates significant due process concerns. See Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102, 111-13, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion). As we stated in Archangel, although the “due process analysis involves an ad hoe evalúa*73tion of the facts of each case,” this “does not mean that due process analysis is discretionary.” 128 P.3d at 1194 (citations omitted). The dictates of due process, as set forth in Archangel, require a trial court to consider whether it would be unfair to assume jurisdiction based on a mere inference of jurisdiction. In my view, more than a mere inference is required to proceed in this case.

The majority appears to agree with this analysis of Archangel, but rejects its application in this case on the ground that Hydra-matic did not ask for a hearing. Maj. op. at 65-66. Hydramatic plainly argued before the trial court, however, that it would violate due process and our decision in Archangel for the court to assume personal jurisdiction over it because it had no contacts with Colorado. Hydramatic thus argued that the trial court could not proceed with the ease at all, which necessarily includes the argument that it could not proceed based on a mere inference of jurisdiction. Moreover, as the majority acknowledges, Hydramatic could simply request a hearing on personal jurisdiction when the case returns to the trial court. See maj. op. at 66 n. 3 (“[T]he [trial] court may require the plaintiff to establish personal jurisdiction by a preponderance of the evidence at a hearing prior to trial.”). Thus, the question raised in this case remains the same — namely, whether this is the type of ease that can proceed on a mere inference of jurisdiction. I do not believe it is.

In Archangel, we stated that it would be unfair to proceed based on a mere inference of jurisdiction “when the proffered evidence is conflicting.” 123 P.3d at 1193 (citation omitted). The majority acknowledges that in this case “there are conflicts between the jurisdictional facts regarding the scope of Dunn’s employment.” Maj. op. at 70. It therefore should remand the case for a hearing on personal jurisdiction.

Without such a hearing, the majority permits the case to proceed on an inference that Dunn’s tortious conduct was “sufficiently connected to Hydramatic’s business.” Id. The majority finds such a connection between Dunn’s conduct and Hydramatic based on the fact that Dunn was a traveling employee for the company. Id. at 69-70. Yet this is a fairly slim reed on which to rest a finding of personal jurisdiction. There must be something more than a mere employment relationship to support such a finding; if not, Hydramatic would be subject to personal jurisdiction for any action taken by Dunn during his stay in Colorado.

The record, as it currently stands, suggests that the employment relationship may be the only thing that connects Hydramatic to the accident involving Michael Goettman. According to the Pennsylvania workers’ compensation ruling, Dunñ and Michael Goett-man had completed their work and left the mine around 3:30 p.m. on Friday afternoon, and they had no further work-related duties to perform that day or the next. In fact, they had planned to go snowboarding in Aspen, Colorado, sometime Saturday. They arrived at the restaurant Friday night around 6:00 or 7:00 p.m. and had dinner. At some later point, they began drinking and became extremely intoxicated. They left around 1:00 a.m. in a vehicle driven by Dunn. Soon thereafter, Dunn’s vehicle went off the road, killing Michael Goettman. Dunn’s blood alcohol content was 0.187; Michael Goettman’s was 0.300. Dunn is currently incarcerated in Colorado following his guilty plea to felony operation of a motor vehicle while intoxicated. The Pennsylvania workers’ compensation ruling concluded that Michael Goettman’s intoxication did not preclude an award of benefits to Goettman because “[Michael Goettman’s] intoxication was unrelated to his death as he was a passenger in the rental car driven by Phillip Dunn whose intoxication caused the accident.”

The question we consider today is, of course, much different, as we are deciding whether Dunn’s driving'in a state of extreme intoxication, not Michael Goettman’s riding as a passenger, could be within the scope of Dunn’s employment. The conduct giving rise to the lawsuit must be within the employee’s scope of employment for it to be attributed to his or her employer for purposes of personal jurisdiction. See Shepherd v. U.S. Olympic Comm., 94 F.Supp.2d 1136, 1142 (D.Colo.2000) (“The contacts of an agent may generally be imputed to the principal if *74those contacts are made within the scope of the agent’s employment.”).1 We have held that whether an employee’s conduct is within the scope of employment depends upon whether that conduct was “necessarily incidental” to that employment. Hynes v. Donaldson, 155 Colo. 456, 459, 395 P.2d 221, 223 (1964); see also Lytle v. Kite, 728 P.2d 305, 310 (Colo.1986) (citing Hynes).

Here, again on this record, it is difficult to see how, Dunn’s driving in a state of extreme intoxication could be deemed “necessarily incidental” to his employment. The accident occurred long after he had finished his work for the day, and long before he was to perform any work-related duties again. While it may be true that “a traveling employee need not be engaged in the actual performance of work to be considered engaged in the course of his employment,” maj. op. at 70 (citing Hynes), the conduct still must be “necessarily incidental” to that employment. In Hynes for example, a traveling employee got into an accident while driving'to his hotel room after having dinner with a company official for the purpose of discussing company business. 155 Colo, at 459, 395 P.2d at 223. We noted that a traveling employee “must of necessity eat and sleep in various places in order to carry on the business of his master.” Id. at 459-60, 395 P.2d at 223. Hynes is simply inapposite to this case. That case did not involve driving in a state of extreme intoxication; moreover, in contrast to Hynes, it appears in this case that both work and the meal were over before the drinking began.

Finally, the majority appears to reason that, because scope of employment is normally a fact issue to be decided by the jury, Goettman need only demonstrate that Dunn was a traveling employee in order to make a prima facie showing that Dunn was acting within the scope of his employment such that his contacts may be imputed to Hydramatic for the purpose of personal jurisdiction. Maj. op. at 69-70.2 But in my view, the fact-intensive nature of the scope of employment inquiry leads me not to the majority’s conclusion that assertion of jurisdiction is proper in this case, but rather to the conclusion that a hearing must be held before that determination can be made.

The majority holds that the issue of whether Dunn was acting within the scope of his employment is a necessary part of the personal jurisdictional inquiry, maj. op. at 68-70, perhaps because of the uncertainty regarding Hydramatic’s role in sending Dunn to Colorado.3 However, the majority does not directly address the scope of employment issue itself, choosing instead to resolve the issue in Goettman’s favor for now. Id. at 70. In my view, the record is insufficient at this point to arrive at such a conclusion. There was very *75little discussion of Dunn’s scope of employment in the briefing before the trial court. Hydramatie noted that “work related activities related to ARO’s Colorado customer were completed in the afternoon on March 11, 2005,” and that “[t]he accident occurred at approximately 2:00 a.m.” the following morning. Moreover, it is not appropriate to decide this issue merely on the record developed during the Pennsylvania workers’ compensation ruling because, as noted above, that proceeding considered a different question than the one before us today. Given these circumstances, this case should be remanded to the trial court, and Goettman and Hydramatie should be permitted to re-brief the issue of personal jurisdiction, to conduct limited discovery on the issue, and to present evidence at a hearing.

II.

We should remand this case to the trial court to hold a hearing on whether it may, within the dictates of due process, assume personal jurisdiction over Hydramatie. Because the majority permits the trial court to assume jurisdiction without such a hearing, I respectfully dissent from its opinion.

I am authorized to say that Justice RICE joins in this dissent.

. It appears that whether scope of employment is part of the jurisdictional inquiry (as opposed to the merits) depends upon the facts and circumstances of the case. If there is sufficient purposeful availment on the part of the principal without considering whether the conduct of the agent was within the scope of employment, consideration of that issue in the context of personal jurisdiction may not be necessary. If the contacts of the agent are necessary to a finding of personal jurisdiction over the principal, however, those contacts may not be imputed to the principal unless they occur within the scope of the agent’s employment. See, e.g., Shepherd, 94 F.Supp.2d at 1142. I agree with the majority that this case falls into the latter category. See maj. op. at 70 ("Goettman’s allegations must establish a reasonable inference that Dunn's tor-tious conduct was sufficiently connected to Hy-dramatic's business.”).

. While scope of employment is ordinarily a fact question for the jury, there may be some situations in which an employee has deviated so far outside the scope of employment that the question should be decided as a matter of law. See Moses v. Diocese of Colo., 863 P.2d 310, 331 (Colo.1993) (holding, as a matter of law, that clergy’s tortious sexual conduct toward parishioner was not within the scope of the clergy's employment); see also Lytle, 728 P.2d at 310 (stating that a directed verdict on the scope of employment issue is appropriate where there is "no evidence or inference” that the employee was acting within the scope of employment).

.In its motion to dismiss for lack of personal jurisdiction, Hydramatic argued that it did not have sufficient purposeful contacts with Colorado because it did not send Dunn to Colorado, but rather to ARO’s headquarters in Pennsylvania. According to Hydramatic, it was ARO's decision — and ARO’s decision alone — to send him to Colorado. Goettman responded that ARO is Hy-dramatic’s agent and that therefore the acts and knowledge of ARO should be imputed to Hydra-matic. Hydramatic's relationship with ARO and its participation in the decision to send Dunn to Colorado, if any, are disputed factual issues further justifying a hearing in this case.