MBM Fisheries, Inc. v. Bollinger Mach. Shop and Shipyard, Inc.

• Decision Date: 28 January 1991
• Docket Number: No. 24925-8-I,24925-8-I
• Parties: MBM FISHERIES, INC., Respondent, v. BOLLINGER MACHINE SHOP AND SHIPYARD, INC., Appellant.
• Court: Washington Court of Appeals

Page 414

60 Wn.App. 414

804 P.2d 627

MBM FISHERIES, INC., Respondent, v. BOLLINGER MACHINE SHOP AND SHIPYARD, INC., Appellant.

No. 24925-8-I.

Court of Appeals of Washington,

Division 1.

Jan. 28, 1991.

Beth A. Ginsberg, Bogle & Gates, Seattle, for appellant.

Margaret A. Sundberg, Williams, Kastner & Gibbs, Seattle, for respondent.

WINSOR, Judge. ^*

Bollinger Machine Shop and Shipyard, Inc., (Bollinger) seeks review of the denial of its motion for summary judgment of dismissal. Bollinger, a Louisiana corporation, unsuccessfully argued that the trial court lacked both general and personal jurisdiction over contract and tort claims brought against Bollinger by MBM Fisheries, Inc. (MBM). We reverse the trial court and dismiss the action against Bollinger.

I. Background

Bollinger, a shipyard that builds and repairs boats, is incorporated in Louisiana and has its principal place of business in Lockport, Louisiana. MBM is a commercial fishing operation based in Seattle and incorporated in Washington.

The dispute out of which this case arises began when Jaromir Mach, a principal of MBM, took one of MBM's boats to Bollinger in Lockport, Louisiana, to obtain an estimate of the cost of converting the vessel into a crab boat. Mach and Bollinger negotiated a contract in Louisiana for the repair work. Bollinger later put the agreement in writing and sent it to Mach, who was then in Alaska, via a Seattle telecopier machine. Mach made some changes to the written agreement and sent it back via Seattle to Bollinger in Louisiana. Mach returned to Louisiana in August 1988 to pick up the boat. At that time, a dispute arose as to the amount owed under the contract. Mach paid the amount Bollinger demanded but reserved MBM's right to sue.

MBM filed suit against Bollinger in King County Superior Court, alleging breach of contract, breach of warranty, negligence and conversion. Bollinger moved for a summary judgment of dismissal for lack of personal jurisdiction. The trial court denied Bollinger's motion. This court granted discretionary review.

The parties do not dispute the extent of Bollinger's other contacts with the state of Washington. Bollinger has no office or employees in Washington, is not listed in any Washington telephone directory, and has no appointed agent for service of process in Washington. Bollinger had run advertisements in four trade publications: one regional publication entitled "Alaska Fishermen's Journal" published in Seattle and three national publications that may or may not have been sold in Washington. None of the advertisements generated any response from Washington residents. Bollinger had also done business with four Washington residents other than MBM. Three of the business transactions involved repair work on vessels in Louisiana. In the fourth transaction, Bollinger used a Washington boat broker to locate a barge for a client of Bollinger's. The Washington broker suggested the name of a Louisiana resident from whom Bollinger's client ultimately purchased a barge, and the broker paid Bollinger a commission. Finally, a vice president of Bollinger and another Bollinger employee represented the company at a trade show in Seattle in November 1988, 3 months after MBM picked up its boat in Louisiana. MBM served process on Bollinger at that time.

II. Standard of Review

If the underlying facts are undisputed, the trial court's assertion of personal jurisdiction is a question of law reviewable de novo. Shute v. Carnival Cruise Lines, 897 F.2d 377, 380 (9th Cir.1988), cert. granted, --- U.S. ----, 111 S.Ct. 39, 112 L.Ed.2d 16 (1990). MBM, as plaintiff, bears the burden of proving that jurisdiction exists. Shute, 897 F.2d at 379. When, as in this case, the trial court's ruling is based solely on a consideration of affidavits and discovery, only a prima facie showing of jurisdiction is required. Pedersen Fisheries, Inc. v. Patti Indus., Inc., 563 F.Supp. 72, 74 (W.D.Wash.1983). The allegations in MBM's complaint must be taken as correct for purposes of appeal. Shute, 897 F.2d at 380.

III. General Jurisdiction

Under Washington law, a state court may exercise either general or specific personal jurisdiction over a nonresident defendant. RCW 4.28.080(10) authorizes general jurisdiction over a nonresident defendant without regard to whether the cause of action is related to the defendant's contacts with the forum state. Although that provision appears only to address service of process, the Washington Supreme Court has held that it confers general jurisdiction over a nonresident defendant "doing business" in this state, that is, transacting substantial and continuous business of such character as to give rise to a legal obligation. See Crose v. Volkswagenwerk Aktiengesellschaft, 88 Wash.2d 50, 54, 558 P.2d 764 (1977).

In upholding the trial court's assertion of general jurisdiction over a nonresident automobile manufacturer, the court in Crose first determined that the defendant corporation was "doing business" in Washington. Id. at 54-55, 558 P.2d 764. Responding to the defendant's argument that the exercise of jurisdiction would nonetheless violate due process, the Crose court went on to observe that five factors are relevant in determining whether the exercise of general jurisdiction over a nonresident defendant violates due process: (1) the interest of the state in providing a forum for its residents; (2) the ease with which the party asserting jurisdiction could gain access to another forum; (3) the amount, kind and continuity of activities carried on by the foreign corporation in the state; (4) the significance of economic benefits accruing to the foreign corporation as a result of activities purposefully conducted in the state; and (5) the foreseeability of injury resulting from the use of the foreign corporation's product. Crose, 88 Wash.2d at 57, 558 P.2d 764.

As this court recently observed, the Crose court essentially resolved the issue of general jurisdiction by employing a "doing business" analysis, the same inquiry as the third factor under the Crose test for due process. ¹ See Hein v. Taco Bell, Inc., 60 Wash.App. 325, 330, 803 P.2d 329 (1991). The Crose court recited the other five factors only summarily in order to confirm that the assertion of general jurisdiction over the defendant did not violate due process. ² Presumably, this is because assertion of jurisdiction over a nonresident corporation that is "doing business" in Washington necessarily comports with due process. Id. at 330, 803 P.2d 329. We therefore concluded in Taco Bell that the primary inquiry in a general jurisdiction analysis is whether the nonresident defendant is "doing business" in Washington, that is, whether the amount, kind and continuity of activities carried on by the nonresident defendant in Washington are continuous and substantial and of such character as to give rise to a legal obligation. Id. at 330, 803 P.2d 329.

Bollinger's contacts with Washington are isolated and minimal and do not support a finding that Bollinger engaged in continuous or substantial activity in this state. Although Bollinger did perform vessel repair work for three Washington residents other than MBM, all of this work was performed in Louisiana. Moreover, Bollinger did not solicit any of this repair work: in each case the Washington customer contacted Bollinger in Louisiana and delivered the vessel to Bollinger's shipyard in Louisiana. The business deal for which Bollinger received a brokerage fee and Bollinger's one time participation in the Seattle trade show were the only Washington business contacts initiated by Bollinger. This is hardly continuous or substantial activity.

MBM also points to Bollinger's magazine advertisements as evidence that Bollinger is "doing business" in Washington. Although Bollinger arguably placed the ads to solicit clients in Washington, advertisements in four magazines--three of which may not have even been distributed in Washington, and none of which generated any Washington business--do not suggest continuous or substantial business activity. See Shute, 897 F.2d at 381 (contacts, including advertising in local media, not sufficient to confer general jurisdiction).

Finally, MBM points to the fact that MBM served process on Bollinger's vice president in Seattle. Service of process on an agent of a foreign corporation who is merely "present" in this state, however, cannot alone confer general jurisdiction. See Bershaw v. Sarbacher, 40 Wash.App. 653, 657, 700 P.2d 347 (1985); see generally 14 L. Orland & K. Tegland, Wash.Prac., Trial Practice-Civil § 8 (4th ed. 1986 & Supp.1990). ³

Nor do Bollinger's contacts with Washington, each individually de minimis, collectively constitute continuous and substantial contact with Washington. See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-18, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (no general jurisdiction over foreign corporation that sent officers to forum state for a negotiating session, accepted checks drawn on bank in forum state, purchased equipment in forum state and sent personnel to forum state for training); Shute, 897 F.2d at 381 (contacts limited to advertising in local media, mailing of brochures and payment of commissions to local travel agents, conducting of promotional seminars and small percentage of total sales to Washington residents not sufficient to establish general jurisdiction); Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1242-43 (9th Cir.1984) (foreign corporation's sales and marketing efforts in forum state, including solicitation of orders, promotion of products to potential customers through mail and showroom displays and attendance at trade shows and sales meetings, were insufficient to support general jurisdiction); Banton v. Opryland U.S.A., Inc., 53 Wash.App. 409, 417-18, 767 P.2d 584 (1989), overruled on other grounds by Shute v. Carnival Cruise Lines, 113 Wash.2d 763, 783...