NO. 83--102
IIJ T E SUPREME COURT O THE STATE O M I T N
H F F OJ A A
1953
DAN SII@4ONS, a s G u a r d i a n A L i t e m
d
o f B r e t o n Simmons, A Minor,
P l a i n t i f f and A p p e l l a n t ,
-vs-
STATE O M N A A a n d STATE O OREGON,
F OTN F
D e f e n d a n t s and R e s p o n d e n t s .
APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e James B. W h e e l i s , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Douglas R. A u s t i n , M i s s o u l a , Montana
Alan G. S t a r k o f f a r g u e d ; S t a r k o f f & S t a r k o f f Co.,
C l e v e l a n d , Ohio
F o r Respondents:
G a r l i n g t o n , Lohn & Robinson; L a r r y E . R i l e y , > ' I i s s o u l a ,
Montana
Pamela L. A b e r n a t h y a r g u e d , A s s t . A t t y . G e n e r a l , Salem,
Oregon
Boone, K a r l b e r g & Haddon; Tom Boone, M i s s o u l a , Montana
- .-
Submitted: J u n e 1 0 , 1983
Decided: October 1 7 , 1983
Clerk
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.
Plaintiff, acting as guardian ad litem for his minor
son, appeals from an order of the District Court of the
Fourth Judicial District, Missoula County, granting
defendant State of Oregon's motion to dismiss plaintiff's
lawsuit on grounds that Oregon did not have sufficient
minimum contacts with Montana so as to subject it to this
state's jurisdiction, and also that, in any event,
considerations of comity warranted dismissal. (The action
by plaintiff against the State of Montana is still pending
in the District Court). We affirm the District Court on
both grounds.
The following pertinent facts are taken from the
transcript of proceedings before the District Court, the
pleadings, and relevant exhibits. Unless otherwise stated,
these facts are not disputed or controverted by the
respective parties.
Section 50-19-203, MCA, requires that a test designed
to detect inborn metabolic disorders be performed on all
children born in Montana. The attending physician or person
responsible for birth registration must ensure that a blood
sample is taken from each child so that a test can be done.
The Montana Department of Health and Environmental Sciences
is responsible for either conducting the tests itself or
contracting with an approved laboratory to perform the
tests. Since 1977, the department has contracted with the
Health Division of the Oregon Department of Human Resources
to perform the test in its laboratory in Portland. Oregon
a l s o performs t h i s s e r v i c e f o r Idaho, Nevada, and A l a s k a .
Public health officials from all five states apparently
d e c i d e d t h a t i t was more c o s t e f f e c t i v e t o h a v e t h e O r e g o n
laboratory conduct the tests for the entire region.
Montana, f o r e x a m p l e , h a s s u c h a low y e a r l y b i r t h r a t e t h a t
it is cheaper to have the samples sent to the Oregon
laboratory for analysis.
Under the terms of the interstate contract, first
entered into in June, 1977, Oregon agreed to supply lab
screening of all blood samples for metabolic disorders,
according to standards set forth in M.A.C. section
16-2.18(6)-S1820 [now A.R.M. section 16.24.201-2131.
Analysis was to take place in Oregon. The Montana
Department of H e a l t h a n d E n v i r o n m e n t a l S c i e n c e s was t o be
notified by mail or by telephone of any abnormal test
results according to the urgency of laboratory findings.
Normal t e s t r e s u l t s were t o b e r e p o r t e d a t w e e k l y i n t e r v a l s
by mail. Oregon maintained an in-house specialist in
m e t a b o l i c d i s o r d e r s , who would b e a v a i l a b l e f o r c o n s u l t a t i o n
w i t h t h e S t a t e o f Montana o r t h e Montana p h y s i c i a n who t o o k
blood samples. The S t a t e o f Montana a g r e e d t o c o l l e c t t h e
blood samples f o r forwarding t o Oregon, and a g r e e d t o n o t i f y
hospitals o r p h y s i c i a n s of significant findings. Montana
agreed t o p a y Oregon $27,000 per year, in four quarterly
i n s t a l l m e n t s , b a s e d on a n a v e r a g e o f 1 2 , 0 0 0 t e s t s p e r f o r m e d
per year. Montana would p a y a n a d d i t i o n a l $2.25 for each
sample in excess of 12,000. Oregon has argued, and the
plaintiff has not disagreed, that the contract f e e s cover
nothing more than the marginal cost of lab testing
procedures. Montana does not contribute to the cost of
maintaining the laboratory or the establishing of the test
procedures. Furthermore, Oregon does not profit from the
contractual arrangement. The contract was signed in Montana
and Oregon, and finally approved by Oregon budget
authorities in 1977.
Breton Simmons was born in Missoula, Montana, on June
22, 1977. Shortly thereafter, a sample of his blood was
taken and forwarded to Oregon not long after the interstate
contract was signed. For some reason, however, the
laboratory failed to detect the presence of a particular
metabolic disorder, congenital athyrotic hypothyroidism, the
symptoms of which became apparent a few months after Breton
was born. Breton did not receive initial treatment for the
illness until late September, 1977. As a consequence, the
boy has allegedly suffered permanent and irreparable brain
and neuromuscular damage.
Dan Simmons, as guardian ad litem for the boy, filed
an action in Oregon District Court in August, 1979, alleging
negligence on the part of Oregon authorities with respect to
conduct of the lab test. Plaintiff's counsel in Oregon did
not pursue the case, and it was subsequently dismissed for
want of prosecution, although plaintiffs apparently have the
option to refile in Oregon within the next few months. This
appeal stems from a related suit filed in Montana, naming
the State of Montana and the State of Oregon as defendants.
Oregon filed a motion to dismiss the suit on grounds that it
had not purposely availed itself of the privilege of
conducting activities in Montana, and that the assertion of
jurisdiction would be unreasonable and contrary to due
process. In the alternative, Oregon argued that Montana
should decline jurisdiction as a matter of comity.
Plaintiff countered that Oregon has sufficient minimum
contacts with this State, and that comity did not preclude
jurisdiction in this instance.
The trial court granted Oregon's motion to dismiss on
both grounds. Plaintiff appealed from the trial court's
order, asserting that the trial court erred by not finding
that there were sufficient minimum contacts, and that comity
did not preclude jurisdiction. This appeal was dismissed
because it lacked proper certification under Rule 54(b),
t4.R.Civ.P. Subsequently, the appeal was properly certified,
and plaintiff again asks us to reverse the trial court on
the issues of minimum contacts and comity.
In a recent decision, the United States Supreme Court
has emphasized that the reasonableness of asserting
jurisdiction over a nonresident defendant must be assessed
in the context of our federal system of government. See,
World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286,
100 S.Ct. 559, 62 L.Ed.2d 490. In other words, we are
obliged to give serious consideration to the consequences
acquiring jurisdiction will have on the maintenance of
harmonious relations with other states.
For a Montana court to exercise jurisdiction over a
nonresident defendant, two questions must be considered.
(1) Does the nonresident defendant come within the
provisions of Montana's long-arm jurisdiction statutes; and
(2) would exercise of long-arm jurisdiction over the
nonresident comport with traditional notions of fair play
and substantial justice. May v. Figgins (Mont. 1980), 607
P.2d 1132, 37 St.Rep. 493; Haker v. Southwestern Ry. Co.
(1978), 176 Mont. 364, 578 P.2d 724. See, generally,
International Shoe Co. v. Washington (1945), 326 U.S. 310,
66 S.Ct. 154, 90 L.Ed. 95. If we find, as a matter of
statutory construction, that the nonresident does not engage
in any of the several activities enumerated in our long-arm
statute, then our analysis ends and we must decline
jurisdiction. However, even if the nonresident has done
something which potentially confers jurisdiction, we must
advance to the due process component which is ultimately
determinative of the jurisdictional question.
The relevant statute is Rule 4B(1), M.R.Civ.P., which
provides, in pertinent part, that:
"All persons found within the state of
Montana are subject to the jurisdiction
of the courts of this state. In
addition, any person is subject to the
jurisdiction of the courts of this state
as to any claim for relief arising from
the doing personally, through an
employee, or through an agent, of any of
the following acts:
"(b) the commission of any act which
results in accrual within this state of a
tort action;
"(e) entering into a contract for
services to be rendered or for materials
to be furnished in this state by such
person;
Oregon cannot be said to be "found within" Montana, so our
attention is turned to subsections (b) and (e). Neither
plaintiff nor the State of Oregon has devoted much space to
this aspect of the statutory question, as both appear to
agree that either one or both subsections potentially
confers jurisdiction over Oregon. Therefore, we turn our
attention t o the crucial constitutional inquiry.
The Due P r o c e s s C l a u s e o f t h e F o u r t e e n t h Amendment t o
t h e U n i t e d S t a t e s C o n s t i t u t i o n l i m i t s t h e power o f a state
court to render a valid personal judgment against a
nonresident defendant. Due p r o c e s s requires that a state
may e x e r c i s e p e r s o n a l j u r i s d i c t i o n o v e r t h e n o n r e s i d e n t o n l y
so long as there exist "minimum contacts" between the
defendant and the forum state. See, I n t e r n a t i o n a l Shoe,
supra, 326 U.S. a t 316, 66 S . C t . a t 158, 90 L.Ed. a t 102.
S e e a l s o , Benham v . W o l t e r m a n n ( M o n t . 1 9 8 2 ) , 6 5 3 P.2d 1 3 5 , 39
St.Rep. 2017; Reed v . A m e r i c a n A i r l i n e s , Inc. (Mont. 1982),
640 P.2d 912, 39 S t . R e p . 3 3 5 ; 'May v . Figgins, supra. The
concept of "minimum contacts" has undergone development
since I n t e r n a t i o n a l Shoe, and the latest phase of that
development must be examined h e r e . I n World-Wide Volkswagen
Corp. v. Woodson, supra, the United States Supreme C o u r t
held that an Oklahoma court could not exercise personal
j u r i s d i c t i o n o v e r N e w York w h o l e s a l e a n d r e t a i l a u t o d e a l e r s
who transacted no business in that state and whose only
"contact" with Oklahoma consisted of an automobile,
p u r c h a s e d i n N e w York by N e w York r e s i d e n t s , t h a t exploded
i n a c o l l i s i o n i n Oklahoma. The c o u r t r e j e c t e d a n y a t t e m p t
t o c o n n e c t t h e d e a l e r s t o t h e Oklahoma f o r u m o n t h e b a s i s
that their product might f o r e s e e a b l y end up i n t h a t s t a t e
and c a u s e i n j u r y t h e r e . World-Wide Volkswagen, supra, 444
U.S. a t 288-97, 100 S.Ct. a t 562-7, 62 L.Ed.2d a t 495-502.
In its opinion, the court elaborated on the concept of
minimum c o n t a c t s , t o w i t :
"The c o n c e p t o f minimum c o n t a c t s . . .
c a n be s e e n t o p e r f o r m two r e l a t e d , b u t
distinguishable, functions. It protects
the defendant against t h e burdens of
litigating in a distant or inconvenient
forum. And it acts to ensure that the
States, throuqh their courts, d o n o t
-- ......................
reach out beyond the limits imposed on
t h e m by t h e i r s t a t u s a s
............................ c o - e q ---
ual
sovereigns in a federal system."
444 U.S. at 291-2, 100 S.Ct. at 564, 62 L.Ed.2d at 498.
(emphasis added) Thus, there is a "federalism component"
which we are bound to consider in our constitutional
inquiry. Before examining this component in some detail, we
first look to the considerations relevant to protecting
nonresident defendants from inconvenient litigation in the
forum state. In World-Wide Volkswagen, supra, the Supreme
Court enumerated these criteria:
"We have said that the defendant's
contacts with the forum State must be
such that maintenance of the suit 'does
not offend "traditional notions of fair
play and substantial justice."'
Internatio
a Shoe Co. v. Washington [326
U.S. &3&31@ 161, quoting Milliken v.
Meyer, 311 U.S. 457, 463 (1940).
relationship between the defendant and
The
the forum state must be such that it is
'reasonable . .
to require the
corporation to defend the particular suit
which is brought there.' [citation
omitted] Implicit in this emphasis on
reasonableness is the understanding that
the burden on the defendant, while always
a primary concern, will in an appropriate
case be considered in light of other
relevant factors, including the forum
state's interest in adjudicating the
dispute [citation omitted] ; the
plaintiff's interest in obtaining
convenient and effective relief [citation
omitted], at least when that interest is
not adequately protected by the
plaintiff s power to choose the forum
[citation omitted]; the interstate
judicial system's interest in obtaining
the most efficient resolution of
controversies; and the shared interest of
the several States in furthering
fundamental substantive social policies
[citation omitted]."
444 U.S. at 292, 100 S.Ct. at 564, 6 2 L.Ed.2d at 498.
The court observed that "limits imposed on state
jurisdiction by the Due Process Clause, in its role as a
guarantor against inconvenient litigation, have been
substantially relaxed over the years." World-Wide
Volkswagen, supra, 444 U.S. at 292, 100 S.Ct. at 565, 62
L.Ed.2d at 498. This relaxation has been effected by
improvement in transportation and communication, as well as
advancements in the field of interstate commercial
transactions. 444 U.S. at 292-3, 100 S.Ct. at 565, 62
L.Ed.2d at 498-9. But these historical changes have not
rendered the "federalism component" less critical to the due
process inquiry. On the contrary, the court emphasized
that:
". . . we have never accepted the
proposition that state lines are
irrelevant for jurisdictional purposes,
nor could we, and remain faithful to the
principles of interstate federalism
embodied in the Constitution. ...
[Tlhe
Framers also intended that the States
retain many essential attributes of
sovereignty, including, in particular,
the sovereign power to try causes in
their own courts. The sovereignty of
each State, in turn, implied a limitation
on the sovereignty of all of its sister
States --- a limitation express or
implicit in both the original scheme of
the Constitution and the Fourteenth
Amendment."
444 U.S. at 293;100 S.Ct. at 565, 62 L.Ed.2d at 499.
Furthermore, the Court indicated that the
reasonableness of asserting jurisdiction over a nonresident
defendant had to be assessed "in the context of our federal
system of government . . ." 444 U.S. at 293-4, 100 S.Ct. at
565, 62 L.Ed.2d at 499, (citing International Shoe, supra,
326 U.S. at 317, 66 S.Ct. at 158, 90 L.Ed. at 102). That
this observation is to be construed as a requirement that
the "federalism component" be controlling in the due process
inquiry is supported by the Court's closing remarks on the
relevant constitutional test of appropriate jurisdiction:
"Even if the defendant would suffer
minimal or no inconvenience from being
forced to litigate before the tribunals
of another State; even if the forum State
has a strong interest in applying its law
to the controversy; even if the forum
state is the most convenient location for
litigation, the Due Process Clause,
acting as an instrument of interstate
federalism, may sometimes act to divest
the State of its power to render a valid
judgment. "
444 U.S. at 294, 100 S.Ct. at 565-6, 62 L.Ed.2d at 499-500
(citing Hanson v. B%+dGh (1958), 357 U.S. 235, 251, 254,
Denc-his.
78 S.Ct. 1228, 1238, 1240, 2 L.Ed.2d 1283, 1296,1298.
To summarize: our constitutional inquiry must
recognize that the United States Supreme Court has "cut
short any trend toward unlimited personal jurisdiction and
emphasized that an isolated and unanticipated injury within
the foreign state is not sufficient to support in personam
jurisdiction." Taubler v. Giraud (9th Cir. 1981), 655 F.2d
991, 993. Because this Court has not had an opportunity to
consider the effect of World-Wide Volkswagen on due process
analysis, we look to opinions from federal and other state
courts for persuasive guidance.
The Court of Appeals for the Ninth Circuit has
developed a standard of review commensurate with traditional
due process analysis and the concerns expressed in
World-Wide Volkswagen:
"If the nonresident defendant's
activities within a state are
'substantial' or 'continuous and
systematic,' there is a sufficient
relationship between the defendant and
the state to support jurisdiction even if
the cause of action is unrelated to the
defendant's forum activities. [citations
omitted]
"If, however, the defendant's activities
are not so pervasive as to subject him to
general jurisdiction, the issue whether
jurisdiction will lie turns on the nature
and quality of the defendant's contacts
in relation to the cause of action. In
our circuit, we use the following
approach in making this evaluation: (1)
The nonresident defendant must do some
act or consumate 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 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.
[citations omitted]."
Data Disc, Inc. v. Systems Tech. Assoc., Inc. (9th Cir.
1977), 557 F.2d 1280, 1287. See, also, Ins. Co. of North
America v. Marina Salina Cruz (9th Cir. 1981), 649 F.2d
1266, 1270; Plant Food Co-op v. Wolfkill Feed & Fertilizer
(9th Cir. 1980), 633 F.2d 155, 158-9; Panos Inv. Co. v.
District Court (1983), Colo. , 662 P.2d +8=&;
180
Schlatter v. Mo-Comm Futures, Ltd. (1983), Kan. I
662 P.2d 553, 562; Markby v. St. Anthony Hosp. Systems (Wyo.
1982), 647 P.2d 1068, 1073. Inherent in this approach is
the recognition that while a nonresident defendant may be
found to have purposely availed itself of activities within
a forum state, the exercise of jurisdiction may still be
unreasonable.
The threshold question, then, is whether Oregon's
activities in Montana are so pervasive as to subject it to
the general personal jurisdiction of our courts. We cannot
say that Oregon's contract with the Department of Health and
Environmental Sciences amounts to "substantial" activity
within this State. Nor can we say that this contract and
the transactions related to it are "continuous and
systematic" in the sense this concept is usually applied.
Cases cited by plaintiff for the proposition that Oregon has
either substantial or continuous and systematic connections
with Montana generally involve individual or commercial
enterprises that actively solicit business within other
states and derive substantial revenue from their activities.
There is, in other words, a conscious effort to be involved
in the economic life of a particular state. See, Southern
Machine Co. v. Mohasco Industries, Inc. (6th Cir. 1968), 401
F.2d 374 (nonresident company actively transacting machinery
parts business in Tennessee); Electric Regulator Corp. v.
St2rling Extruder Corp. (D.Conn. 1968), 280 F.Supp. 550
e
(nonresident defendant contracts for machinery in
Connecticut); Reed v. American Airlines, Inc., supra
(nonresident airline company advertising and doing business
in Montana, training instate travel agents, and deriving
substantial revenue therefrom); State of North Dakota v.
Newberger (Mont. 1980), 613 P.2d 1002, 37 St.Rep. 1119
(nonresident rock concert promoter actively promoting
concerts & contracting for services in Montana). Oregon, on
the other hand, has apparently been sought out by Montana
and other states to perform a public health service for
these states - Oregon and for a price not designed
in to
generate a profit. This is not the same as deliberate,
focused commercial activity.
Plaintiff's reliance on Wendt v. County of Osceola,
Iowa (Minn. 1979), 289 N.W.2d M, is misplaced. In Wendt,
b7
the Minnesota Supreme Court held that a political
subdivision of Iowa was subject to the jurisdiction of
Minnesota courts in a tort action arising from a road
accident along the Minnesota-Iowa border. Plaintiffs in
that case were injured on a road one-half of which lay on
the Iowa side of the border. Osceola County, Iowa, had a
long-standing contract with a neighboring Minnesota county
to maintain the entire road. The Minnesota high court held
that the maintenance contract amounted to continuous and
systematic contract with Minnesota, and that this factor,
inter alia, made personal jurisdiction possible and
reasonable. Nevertheless, Wendt is distinguishable from the
facts at bar. Osceola County was obliged to perform
services - the State of Minnesota on a continuing basis,
in
whereas Oregon has contracted to conduct its activities
within that state. In World-Wide Volkswagen, supra, the
Supreme Court reasoned that nonresident defendants can
usually foresee that their conduct or actions may ultimately
have an impact in another state, but that the crucial factor
with respect to due process analysis was that "the
defendant's conduct and connection with the forum state are
such that he should reasonably anticipate being haled into
Court there." 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d
at 501. While it is reasonable for an Iowa county to
ancitipate being called into a Minnesota court located
scarcely a few miles away to defend itself in an action
related to work done in Minnesota, we think it less
reasonable for Oregon to assume that it should expect to
defend a similar action in Montana on the basis of
activities performed in Oregon. Even if Wendt can fairly be
read to support plaintiff's contention, personal
jurisdiction over Oregon in this case would still be
unreasonable for reasons expressed later in this opinion.
Because Oregon's activities in Montana are not so
pervasive, we turn to an analysis of that state's contacts
under the three-prong test enunciated by the Ninth Circuit
and deemed persuasive here. Because Oregon concedes that
plaintiff's claim arises out of or results from Oregon's
contract with the State of Montana, we need only consider
the first and third prongs of the test.
Turning to the first prong, we consider whether Oregon
has done something by which it has purposely availed itself
of the privilege of conducting activities in Montana,
thereby invoking the benefits and protections of our laws.
See Data Disc. and related cases, supra. Case law from
other jurisdictions involving commercial contracts and
provision of medical services are most apropos for
evaluating Oregon's activities under the first prong.
It is well-settled that a nonresident defendant's mere
act of entering into a contract with a forum resident does
not provide the necessary jurisdictional contact between the
defendant and the forum state. See, e.g., Iowa Electric
Light and Power Co. v. Atlas Corp. (8th Cir. 1979), 603
F.2d 1301; Lakeside Bridge and Steel v. Mountain State
Construction (7th Cir. 1979)! 597 F.2d 596; Barnstone v.
Congregation Am Echad (5th Cir. 1978), 574 F.2d 286;
Anderson v. Schiflett (10th Cir. 1971), 435 F.2d 1036. Most
of these cases involved situations where nonresident
defendants and forum state plaintiffs contracted for various
goods and services, but where all or most of defendant's
performance took place outside the forum state. The
defendants did not maintain businesses, property, or agents
in the forum state, and they did not actively transact
commercial o r industrial activity therein. As such, their
activities were structured around the prospect that they
would n o t b e l i t i g a t i n g c o n t r a c t d i s p u t e s i n t h e c o u r t s o f
another state. The k n o w l e d g e t h a t t h e d e f e n d a n t ' s " p r o d u c t "
was "destined" in some form for the forum was not a
s u f f i c i e n t contact with t h a t s t a t e s o a s t o confer personal
j u r i s d i c t i o n over t h e defendant, a s t h e c r i t i c a l performance
had taken place outside t h e forum. Iowa E l e c t r i c , supra,
6 0 3 F.2d a t 1 3 0 6 . Accord: C h a r i a v . C i g a r e t t e R a c i n g Team,
Inc. ( 5 t h C i r . 1 9 7 8 ) , 583 F.2d 1 8 4 , 189; Benjamin v. Western
Boat B u i l d i n g Corp. (5th Cir. 1973), 472 F.2d 723, 730,
c e r t . d e n i e d , 414 U.S. 8 3 0 , 94 S . C t . 6 0 , 38 L.Ed.2d 64.
Similarly, Oregon has no property or agents in
Montana, and t r a n s a c t s no b u s i n e s s h e r e . Oregon was s o u g h t
out by the State of Montana to conduct lab testing for
metabolic disorders, and this service is conducted in
Oregon. Although it is aware t h a t t e s t r e s u l t s a r e d e s t i n e d
f o r Montana, t h i s is n o t enough c o n t a c t t o w a r r a n t a h o l d i n g
that it h a s purposely a v a i l e d itself of the privilege of
conducting activities in the forum state. Telephone and
mail communication of test results do not transform the
nature of the contact into a purposeful injection into
Montana. I n t e r s t a t e communication is a n a l m o s t i n e v i t a b l e
accompaniment to doing business in t h e modern world, and
c a n n o t by itself be considered a "contact" for justifying
t h e e x e r c i s e of personal jurisdiction. See, e .g., Scullin
S t e e l Company v. National Railway Utilization Corp. (8th
Cir. 1 9 8 2 ) , 676 F.2d 309; S p o r t i n g Good D i s t r i b u t o r s , Inc.
v . W h i t n e y (N.D.Fla. 1 9 8 0 ) , 498 F.Supp. 1088. A s t h e E i g h t h
C i r c u i t noted in Scullin Steel, supra, t e l e p h o n i c and m a i l
communication are generally "secondary or ancillary factors"
to underlying transactions, and therefore do not provide the
crucial minimum contacts. 676 F.2d at 314. In the
immediate case, Oregon's mail and telephone communications
merely confirm results reached in Oregon from tests
performed there. (And, it is the Montana Department of
Health and Environmental Sciences -- not the State of Oregon
-- that has agreed to contact Montana physicians directly
concerning test results.) These communications are within
the realm of "secondary or ancillary factors."
An examination of cases involving the interstate
provision of medical services also suggests that Oregon, in
its role as a regional provider of lab testing for metabolic
disorders, cannot be said to have purposely availed itself
of the benefits and protections of the Montana forum. In
Wright v. Yackley (9th Cir. 1972), 459 F.2d 287, the Ninth
Circuit explored the ramifications of interstate medical
services and their connections to a particular state. Mina
Wright, while a resident of South Dakota, had been treated
by Yackley, a South Dakota doctor, and at his urging had
taken medication prescribed and obtained in South Dakota.
Wright later moved to Idaho, and when her prescription
expired, sought to have it filled in Idaho. The local
druggist required confirmation of the prescription, so
Wright wrote the South Dakota doctor for a copy of the old
prescription, which he provided at no charge. Wright had
the old prescription filled in Idaho, but later alleged that
she had suffered injury as a consequence of using the drugs.
She filed a malpractice action in Federal District Court in
Idaho, asserting that the court had jurisdiction over the
South Dakota doctor by virtue of the prescription mailed to
her. 459 F.2d at 288.
Both the District Court and the Ninth Circuit
disagreed with plaintiff's assertion. The Ninth Circuit
held that:
"[ilf [the doctor] was guilty of
malpractice, it was through acts of
diagnosis and prescription performed in
South Dakota. The mailing of the
prescriptions to Idaho did not constitute
new prescription. It was not diagnosis
and treatment by mail. It was simply
confirmation of the old diagnosis and
prescription and was recognized by the
druggist as such. It did, of course, put
the doctor on notice that consequences of
his South Dakota services would be felt
in Idaho and that it was by his very act
of mailing that this would be made
possible. In our view, however, this
does no more than put the doctor in the
------------
position of one who, in South D a k o t a ,
treats an Idaho resident with knowledge
of her imminent return to Idaho and that
his treatment thus may cause effects
there."
'f@
4 3 % F.2d at 288-9. (emphasis added) Furthermore, the
exercise of personal jurisdiction would be unreasonable:
"In the case of personal services focus
must be on the place where the services
are rendered, since this is the place of
the receiver's (here the patient's) need.
The need is personal and the services
rendered are in response to the
dimensions of that personal need. They
are directed to no place but to the needy
person herself. It is in the very nature
of such services that their consequences
will be felt wherever the person may
choose to go. However, the idea that
tortious rendition of such services is a
portable tort which can be deemed to have
been committed whenever the consequences
foreseeably were felt is wholly
inconsistent with the public interest in
having services of this sort generally
available. Medical services in
particular should not be proscribed by
the doctor's concerns as to where the
patient may carry the consequences of his
treatment and in what distant lands he
may be called upon to defend it. . . .
The s c o p e o f m e d i c a l t r e a t m e n t s h o u l d b e
d e f i n e d by t h e p a t i e n t ' s n e e d s , a s
d i a g n o s e d by t h e d o c t o r , r a t h e r t h a n by
geography."
The r e a s o n i n g o f t h e N i n t h C i r c u i t h a s b e e n f o l l o w e d
i n similar circumstances i n other j u r i s d i c t i o n s . See, e.g.,
Lemke v . St. M a r g a r e t Hosp. (N.D. Ill. 1 9 8 2 ) , 552 F.Supp.
833 ( a l l e g e d n e g l i g e n c e i n I n d i a n a -- injury in Illinois) ;
Kennedy v. Ziesmann (E.D.Ky. 1981), 526 F.Supp. 1328
( a l l e g e d n e g l i g e n c e i n Ohio -- i n j u r y i n Kentucky); Jackson
v. Wileman (W.D.Ky. 1979), 468 F.Supp. 822 (alleged
n e g l i g e n c e i n Ohio -- i n j u r y i n K e n t u c k y ) ; G l o v e r v . Wagner
(D.Neb. 1 9 7 8 ) , 462 F.Supp. 3 0 8 ( a l l e g e d n e g l i g e n c e i n Iowa
-- i n j u r y i n Nebraska); Kurtz v. Draur (E.D.Pa. 1 9 7 7 ) , 434
F.Supp. 958 (alleged negligence i n Nebraska -- injury in
Pennsylvania). These c o u r t s have uniformly distinguished
voluntary interstate economic activity, directed at the
forum state's economic markets, from the provision of
medical services outside of the forum state where the
provider has not solicited clientele. Under these
circumstances, the courts conclude that the aggrieved
plaintiff "ought t o expect t h a t he [or s h e ] w i l l have t o
t r a v e l again i f he [or she] t h e r e a f t e r complains t h a t t h e
services sought by him in the foreign jurisdiction were
therein rendered improperly." Gelineau v. New York
U n i v e r s i t y Hosp. (D.N.J. 1 9 7 4 ) , 3 7 5 F.Supp. 6 6 1 , 667.
W b e l i e v e t h a t t h e f a c t s i n Wright, s u p r a , and l a t e r
e
cases, c l o s e l y resemble t h o s e of t h e immediate c a s e . The
residence of p l a i n t i f f here i s n o t t o t a l l y i r r e l e v a n t a s it
was in the cited cases, b e c a u s e h i s c h i l d was e n t i t l e d t o
the testing procedure as part of the Oregon-Montana
contract. As in the case of personalized medical services,
however, the plaintiff, or more specifically, the blood
sample, "traveled" to Oregon for tests conducted there. The
results were then returned to Montana for the ultimate
benefit of the child, while Oregon was compensated only for
its marginal costs of operation. Oregon is certainly aware
that the negative as well as positive consequences of its
service will be felt in Montana, but, like the typical
nonresident physician in the above-cited cases, it
reasonably expects liability for the negative consequences
only in its own state. In short, we think the facts of this
case are more akin to the services discussed in Wright v.
Yackley, supra, wherein the Ninth Circuit concluded that,
because of the locus of performance and nature of the
contract, the physician had not "purposely avail [ed] itself
of the privilege of conducting activities within the forum
State." 459 F.2d at 290, quoting Hanson v. Beak&+ (1958),
DenckIs,
357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283,
Plaintiff insists that the facts of the immediate case
are virtually the same as those in McGee v. Riekhof (D.Mont.
1978), 442 F.Supp. 1276, and that the other medical services
cases are therefore inapplicable. In McGee, the Federal
District Court held a Utah physician subject to its
jurisdiction on the basis of a telephone call made to his
patient in Montana regarding a previously treated eye
condition. But the plaintiff's only claim of negligence in
that case was the new diagnosis given over the telephone;
plaintiff was not resting any claim on the previous
treatment in Utah. Thus, McGee is distinguishable from the
f a c t s of t h e i m m e d i a t e case. Indeed, the court i n McGee
noted the relevant difference between cases involving
negligent diagnosis and/or treatment in the defendant's
s t a t e , and n e g l i g e n t d i a g n o s i s a n d / o r t r e a t m e n t i n t h e forum
state:
" I n e a c h o f t h e s e cases [ A y l s t o c k v . Mayo
Found. (D.Mont. 1 9 7 2 ) , 3 4 1 F.Supp. 5 6 0 ;
McAndrew v . B u r n e t t (M.D.Penn. 1 9 7 4 ) , 374
F.Supp. 460; G e l i n e a u v. N e w York
U n i v e r s i t y Hosp. (D.N.J. 1 9 7 4 ) , 375
F.Supp. 6611 t h e p l a i n t i f f had t r a v e l e d
o u t o f t h e f o r u m s t a t e t o seek m e d i c a l
services elsewhere. While they were
o u t s i d e t h e forum, a l l e g e d n e g l i g e n t a c t s
o c c u r e d , a n d upon r e t u r n i n g t o t h e f o r u m ,
they suffered injury. I n e a c h case t h e
b a s i s f o r t h e E ----------a u s e o f t h e
-------------- roximate c
i n j u r i e s occured o u t s i d e t h e forum. It
is t o these cases, that the 'portable
------------
t o r t ' language of Wright [v. Yackley] - is
most apropos. The case a t b a r i s
s i n g u l a r l y d i s t i n g u i s h a b l e because t h e
alleged negligent act -- a d v i s i n g
p l a i n t i f f t o r e t u r n t o work p r e m a t u r e l y
-- o c c u r e d i n Montana. T h i s is n o t a
case o f d e f e n d a n t t r e a t i n g p l a i n t i f f i n
Utah and t h e n h a v i n g t h e e f f e c t s of t h e
treatment f e l t only after plaintiff
r e t u r n e d t o Montana. P l a i n t i f f McGee was
i n Montana when t h e d i a g n o s i s was
rendered."
442 F.Supp. at 1278. The court observed that if the
plaintiff had based his complaint upon the previous
treatment in Utah, then the court would have declined
jurisdiction. 442 F.Supp. a t 1278.
P l a i n t i f f i n t h e i m m e d i a t e case i s c l a i m i n g n e g l i g e n c e
i n t h e t e s t i n g p r o c e d u r e and t h e d i a g n o s i s d e r i v e d t h e r e f r o m
i n O r e g o n , u n l i k e McGee who c o u l d p o i n t t o a new d i a g n o s i s
w h i c h was r e n d e r e d w h e r e i t was r e c e i v e d -- i n Montana. In
sum, w e f i n d M c G e e t o b e i n a p p o s i t e u n d e r t h e f a c t s o f t h e
immediate case.
T h u s , we c a n n o t s a y t h a t O r e g o n h a s p u r p o s e l y a v a i l e d
itself of the privilege of conducting activities in this
forum. Admittedly, a fair argument to the contrary can be
made if one accepts an analogy between Oregon's contractual
obligations and those of a private company interjecting
itself into the Montana economy. Nevertheless, even if we
accept this analogy for the purpose of argument, the
assertion of jurisdiction would not pass muster under the
"reasonableness" aspect of the three-pronged test. It is to
the question of reasonableness that we now turn our
attention.
As the United States Supreme Court observed in
World-Wide Volkswagen, supra, the burdens imposed on
nonresidents while defending lawsuits in a foreign State
have diminished markedly through the years. 444 U.S. at
292-3, 100 S.Ct. at 565, 62 L.Ed.2d at 498. Oregon, without
great difficulty, can adequately prepare for out-of-state
suits and fairly defend its interests beyond its borders.
But, this factor alone does not render it reasonable to
subject the state to jurisdiction. Other criteria
enumerated in - -
World-Wide Volkswagen, supra, need to be
considered here.
Montana courts certainly have an interest in allowing
Montana plaintiffs to seek restitution for tortious conduct.
See, World-Wide Volkswagen, supra, 444 U.S. at 292, 100
S.Ct. at 564, 62 L.Ed.2d at 498; cf. Kulko v. California
Superior Court (1978), 436 U.S. 84, 98, 98 S.Ct. 1690, 1700,
56 L.Ed.2d 132, 145. (forum state has legitimate interest
in protecting child welfare in interstate custody dispute.)
However, it can almost always be said that a state has a
legitimate interest in protecting legal rights. And this
right may not be so compelling "as to outweigh the factors
militating against jurisdiction." Ins. Co. of North
America v. Marina S a l i n a Cruz (9th Cir. 1981), 649 F.2d
1266, 1273, c i t i n g Kulko, s u p r a , 436 U.S. a t 9 2 , 98-101, 98
S.Ct. a t 1696, 1700-1701, 56 L.Ed.2d at 141, 145-146.
L i k e w i s e , t h e Montana f o r u m may p r o v i d e b o t h c o n v e n i e n t a n d
effective relief for plaintiff, especially i f a multiplicity
of l a w s u i t s c a n be avoided. B u t a s t h e Supreme C o u r t n o t e d
i n World-Wide Volkswagen, supra, and t h e Ninth Circuit
r e i t e r a t e d i n Marina S a l i n a Cruz, supra, 6 4 9 F.2d a t 1273,
t h i s i n t e r e s t o f p l a i n t i f f ' s m i g h t n o t b e as s i g n i f i c a n t i f
t h e p l a i n t i f f h a s t h e power t o s e l e c t a d i f f e r e n t f o r u m . It
is c l e a r f r o m t h e r e c o r d t h a t p l a i n t i f f h a d t h a t c h o i c e a n d
e x e r c i s e d i t i n f a v o r o f t h e Oregon forum i n 1979. And, t h e
o p t i o n t o r e f i l e i n t h e n e a r f u t u r e is s t i l l open. Indeed,
i n its reply b r i e f , p l a i n t i f f argues t h a t "the imposition of
personal jurisdiction would better serve the i n t e r e s t s of
justice" b e c a u s e i n Montana, plaintiff could r e c e i v e up t o
$300,000 under our s t a t e ' s t o r t claims l a w , a s opposed to
$100,000 under Oregon's tort liability statute.
Or.Rev.Stat., S e c t i o n 30.270 (1982). (We note here t h a t i n
our recent decision in White v. State of Montana (Mont.
1983), 661 P.2d 1272, 40 St.Rep. 507, we held that the
limitation on governmental liability for t o r t damages was
unconstitutional, although the Montana legislature
subsequently restored t h i s limitation. S e e , S.B. 465, 48th
Mont.Leg., Reg. Sess., S e c t i o n 2 ( 1 ) , ( t o be c o d i f i e d a t 1983
Mont. Laws 6 7 5 ) ) . W e cannot s a y whether t h e evidence p o i n t s
t o t h e j u s t i c e o f any p a r t i c u l a r award -- t h a t is f o r a j u r y
to decide. We can say, however, that predicating
jurisdiction on w h i c h forum p r o v i d e s the highest possible
damage award would be conducive to the unacceptable practice
of "forum-shopping."
From the standpoint of efficient resolution of this
case, it is clear that Oregon may provide a better forum for
adjudication. Plaintiff seems to focus his complaint almost
solely on allegedly negligent acts committed within the
State of Oregon. The lab tests and diagnosis were conducted
there. Apparently, the most important witnesses for both
parties will be located there. Since the case would most
likely turn on testimony of these witnesses, a hearing in
the nonresident's home state may be more advantageous. See,
Marina Salina Cruz, supra, 649 F.2d at 1273.
The reasonableness of asserting jurisdiction over
Oregon must also be assessed in light of the shared interest
of both Montana and Oregon in advancing the state of quality
medical testing technology. See, World-Wide Volkswagen
supra, 444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 498;
Kulko, supra, 436 U.S. at 98, 98 S.Ct. at 1700, 56 L.Ed.2d
at 145. The regional metabolic disorder testing program
provided by Oregon is a by-product of the spirit of
"co-operative federalism" as discussed by the U.S. Supreme
Court. Because of our state's low birth-rate and the
apparently high start-up costs of developing lab facilities
and procedures, Montanans would normally not have the
benefit of suitable testing procedures without access to
Oregon's program. In expressing support for access to
progressive out-of-state medical services, however, we do
not belittle the significance of having those services
performed according to the highest quality standards. See,
e-g., McGee, supra, 442 F.Supp. at 1279. Justice undeniably
would be defeated if the refusal to assert jurisdiction
would insulate Oregon from any malpractice claims.
Nevertheless, we conclude that acquiring i n personam
j u r i s d i c t i o n o v e r Oregon u n d e r t h e f a c t s o f t h i s c a s e would
be unreasonable.
We emphasize that the s e r v i c e s being attacked here
were p e r f o r m e d i n O r e g o n , and t h a t Oregon c o u r t s a r e o p e n t o
vindicate the interests in quality medical care.
Furthermore, c o u r t s have recognized t h a t , in the situation
where m e d i c a l s e r v i c e s have been performed o u t s i d e t h e forum
state, c o n s i d e r a t i o n s of d u e p r o c e s s r e q u i r e more t h a n a n
appreciation f o r q u a l i t y medical care. I n Wright, supra,
t h e Ninth C i r c u i t reasoned t h a t :
" t h e forum s t a t e ' s n a t u r a l i n t e r e s t i n
t h e p r o t e c t i o n of i t s c i t i z e n s is h e r e
c o u n t e r e d by a n i n t e r e s t i n t h e i r a c c e s s
t o m e d i c a l s e r v i c e s whenever needed. In
our o p i n i o n , a s t a t e ' s dominant i n t e r e s t
on b e h a l f o f i t s c i t i z e n s i n s u c h a c a s e
a s t h i s is n o t t h a t t h e y s h o u l d b e f r e e
from i n j u r y by o u t - o f - s t a t e d o c t o r s , b u t
r a t h e r t h a t they should be a b l e t o s e c u r e
a d e q u a t e m e d i c a l s e r v i c e s t o meet t h e i r
n e e d s w h e r e v e r t h e y may g o . This s t a t e
-------------------y --- j --------
i n t e r e s t necessaril re ects the
E -- p...........................c i e n c y ---
ro osition that the suffi of
.........................n t i s s u b j e c t t o
out-of-state treatme
in-state inquiry."
4 5 9 F.2d a t 291 ( e m p h a s i s a d d e d ) . S e e a l s o Kennedy, supra,
We f i n d t h e reasoning of t h e Ninth C i r c u i t persuasive,
and c o n c l u d e t h a t t h e concern f o r keeping t h i s i n t e r s t a t e
medical testing program available weighs against any
interest i n asserting jurisdiction over Oregon. To f i n d
otherwise under these facts might ultimately have a
"chilling effect on the availability of professional
services t o nonresidents," Gelineau, supra, 375 F. Supp. at
667, to say nothing for the negative impact on the spirit of
"co-operative federalism." If we found that jurisdiction
was reasonable under the given facts, we would be creating
precedent for jurisdiction over Oregon by other states that
contracted with it for regional blood testing services. In
that event, we think it highly likely that Oregon might
refrain from providing the service rather than risk
defending its interests in several foreign states. Thus, we
find that proper respect for the mutual interests of
interstate access to medical services and quality rendering
of those same services requires that plaintiff pursue his
malpractice claim in the Oregon courts.
The previous discussion leads us to consider the
"federalism componet" given high credence by the United
States Supreme Court in World-Wide Volkswagen. The focus of
our discussion here is not that the defendant is a sovereign
state, but rather, the right of Oregon courts to try actions
pertaining to those entities "found within" it. World-Wide
Volkswagen, supra, 444 U.S. at 293, 100 S.Ct. at 565, 62
L.Ed.2d at 499. In Marina Salina Cruz, supra, the Ninth
Circuit, in construing World-Wide Volkswagen, observed that
"it may be unreasonable to subject an out-of-state defendant
to jurisdiction where the allegedly tortious act is
committed outside of the forum state, having only an effect
within the state, if the act is negligent rather than
purposeful." 649 F.2d at 1271, quoting Data Disc., supra,
557 F.2d at 1288. By analogy, the court reasoned that the
"reasonableness of jurisdiction . . . depends also in part
upon the seriousness of the potential affront to the
sovereignty of a defendant's state." 649 F.2d at 1272.
In the immediate case, the alleged negligent acts of
the Oregon laboratory were apparently committed in that
state and without intention of creating injury in Montana.
It would, therefore, seem unwise to subject the State of
Oregon to the jurisdiction of the courts of Montana.
Plaintiff might still insist that the higher limitation on
damage awards against the State of Montana would better
serve the interests of justice. Under the particular facts
of this case, however, a de-emphasis on sovereignty
interests in order to insure the possibility of higher
monetary damages would serve as an affront to the political
decisions of Oregon, whose legislature has decided that a
$100,000 limitation in suits against governmental agencies
is appropriate .
In summary, Oregon has not structured its activities
in such a way as to purposely avail itself of the privilege
of functioning in Montana. More importantly, careful
evaluation of the interests of sovereighty, efficiency of
resolution, and provision of important interstate medical
services, compel the conclusion that subjecting Oregon to
jurisdiction under these facts would be unreasonable.
Even if we assume, for the purpose of argument, that
the nature of Oregon's contacts with Montana are such that
asserting jurisdiction would not offend due process,
considerations of comity would compel dismissal of the suit.
In Ehrlich-Bober & Co. v. University of Houston (1980), 49
N.Y.2d. 574, 404 N.E.2d 726, 427 N.Y.S.2d 604, the Court of
Appeals of New York defined comity as:
"'not a rule of law, but one of practice,
convenience, and expediency' (Mast, Foos
& Co. v. Stover Mfg. Co., 177 U.S. 485,
488, 20 S.Ct. 708, 710, 44 L.Ed 856). It
does not of its own force compel a
particular course of action. Rather, it
is an expression of one state's entirely
voluntary decision to defer to the policy
of another (Zeevi & Sons v. Grindlay's
Bank [Uganda], 37 N.Y.2d 220, 371
N.Y.S.2d 892, 333 N.E.2d 168 cert. den.
423 U.S. 866, 96 S.Ct 126, 46 L.Ed2d 95).
Such a decision may be perceived as
promoting uniformity of decision, as
encouraging harmony among participants in
a system of co-operative federalism, or
as merely an expression of hope for
reciprocal advantages in some future case
in which the interests of the forum are
more critical."
Evaluation of these factors in the context of the immediate
case lead us to the conclusion that plaintiff's lawsuit
should be dismissed.
We agree with plaintiff that a state like Oregon is
not constitutionally immune from suit in another state, see
Nevada v. Hall (1979), 440 U.S. 410, 99 S.Ct. 1182, 59
L.Ed2d 416, and we recognize that some state courts have, in
light of the Hall decision, rejected comity arguments and
asserted personal jurisdiction over other states, see, e.g.,
Mianecki v. Second Judicial Dist. Ct. (1983), Nev. I
658 P.2d 422; Wendt v. County of Osceola, Iowa, supra.
However, even plaintiff notes that the rule expressed in
Hall does not require this court to assume jurisdiction over
Oregon. Indeed, the Hall court reasoned that " [i]t may be
wise policy, as a matter of harmonious interstate relations,
for states to accord each other immunity or to respect any
established limits on liability. They are free to do so."
Hall, supra, 440 U.S. at 426, 99 S.Ct. at 1191, 59 L.Ed2d at
429. Thus, we are "free to close [our] courts to suits
against a sister state as a matter of comity rather than
constititional command." Struebin v. State (Iowa 1982), 322
N.W.2d 84, 87.
We find that our earlier observations with respect to
due process apply with comparable force to the matter of
comity . The instant case does not, so far as we can
surmise, involve facts like those of Hall and related cases
wherein non-resident defendants were clearly engaging in
activities within the forum states. See Hall, supra,
(Nevada employee involved in automobile collision with
California residents on California highway); Mianecki, supra
(Wisconsin parolee in Nevada involved in criminal conduct in
Nevada); Wendt, supra (Iowa county involved in contract work
in Minnesota). On the contrary, Oregon is performing a
regional medical service within its boundaries.
Furthermore, assumption of jurisdiction under these facts
would impinge unnecessarily upon the harmonious interstate
relations which are part and parcel of the spirit of
co-operative federalism. Principles of comity, as well as
due process, require that we not subject Oregon to the
possibility of lawsuits in every state served by its medical
testing facilities. To do otherwise could conceivably
jeopardize the availability of this service. Contrary to
plaintiff's assertions, our unwillingness to assume
jurisdiction would not undermine the quality of this
service. The Oregon forum is still open to vindicate any
claim of negligence on the part of that state's medical
laboratory. And, as we emphasized earlier in this opinion,
the locus of the alleged negligent acts warrant
consideration of the Oregon forum as the most convenient and
efficient for resolution of this claim. Critical evidence
and witnesses are located there, and therefore Oregon courts
have j u s t a s much, if n o t more, interest i n adjudicating
t h i s dispute.
Once a g a i n , w e n o t e a s p e c i a l e m p h a s i s by p l a i n t i f f o n
t h e f a c t t h a t Montana h a s a h i g h e r l i m i t o n t o r t l i a b i l i t y
f o r n e g l i g e n t a c t s by p u b l i c a g e n c i e s t h a n t h a t a d o p t e d by
t h e Oregon l e g i s l a t u r e , a n d t h a t p l a i n t i f f would t h e r e f o r e
receive a more just compensation in Montana. We are
reluctant t o use t h i s a s j u s t i f i c a t i o n f o r h a u l i n g Oregon
b e f o r e a Montana d i s t r i c t c o u r t . W e a r e i n n o p o s i t i o n now
t o d e t e r m i n e what c o n s t i t u t e s a " j u s t " award i n t h i s c a s e ,
a s t h e r e h a s b e e n n o t r i a l on t h e merits of plaintiff's
claim. Moreover, under t h e f a c t s of t h i s c a s e , a s s e r t i o n o f
personal jurisdiction would unnecessarily project Montana
law onto the alleged acts of another sovereign state.
Comity u r g e s u s , a t l e a s t i n t h i s i n s t a n c e , t o g i v e Oregon
c o u r t s t h e o p p o r t u n i t y t o hear t h i s c a s e under t h e laws of
that state.
I n conclusion, we hold t h a t a s s e r t i o n of j u r i s d i c t i o n
o v e r Oregon i n t h i s c a s e would n o t c o m p o r t w i t h p r i n c i p l e s
of due process. The matters considered in our
constitutional inquiry a l s o convince us that personal
jurisdiction should not be allowed in the interests of
comity. A c c o r d i n g l y , t h e judgment o f t h e d i s t r i c t c o u r t i s
,'
?
a £f irmed.
Justice ,
/
W e concur:
Justices
Mr. Justice Fred J. Weber specially concurs as follows:
I concur in the foregoing majority opinion only on the
ground that we should decline jurisdiction as a matter of
comity.