Horn v. Seacatcher Fisheries, Inc.

• Citation: 876 P.2d 352,128 Or.App. 585
• Parties: Charles E. HORN, Appellant, v. SEACATCHER FISHERIES, INC., a Washington corporation, and Emerald Resource Management, Inc., a Washington corporation, Respondents. 9303-02021; CA A80715.
• Decision Date: 22 June 1994
• Court: Court of Appeals of Oregon

Page 352

876 P.2d 352

128 Or.App. 585

Charles E. HORN, Appellant, v. SEACATCHER FISHERIES, INC., a Washington corporation, and Emerald Resource Management, Inc., a Washington

corporation, Respondents.

9303-02021; CA A80715.

Court of Appeals of Oregon.

Argued and Submitted May 6, 1994.

Decided June 22, 1994.

Kevin Keaney, Portland, argued the cause for appellant. With him on the brief were Kimberley Chaput, Robert K. Udziela and Pozzi, Wilson & Atchison.

Rex Armstrong, Portland, argued the cause for respondents. With him on the brief was Bogle & Gates.

Before DEITS, P.J., and RIGGS and HASELTON, JJ.

HASELTON, Judge.

Plaintiff appeals the dismissal of his maritime personal injury action for lack of personal jurisdiction. We affirm.

The material jurisdictional facts are undisputed. Defendant Seacatcher Fisheries, Inc., is a Washington corporation that owns the fishing vessel F/T HEATHER SEA. Defendant Emerald Resources Management, Inc. (Emerald), managed the HEATHER SEA in 1990, when the conduct relevant to plaintiff's claims occurred. Neither defendant is registered to do business in Oregon, maintains offices or employees in Oregon, or leases or owns property in Oregon. The HEATHER SEA has never fished in Oregon waters or had any continuing contact with Oregon.

In early 1990, Emerald placed advertisements in The Oregonian, seeking crew members for the HEATHER SEA. Plaintiff, an Oregon resident, responded to these advertisements and was interviewed by an Emerald representative at an Oregon State Employment Division office in Portland. The Emerald representative subsequently called plaintiff at his home in Oregon and offered him a job as a crew member of the HEATHER SEA. Plaintiff accepted that offer and flew at Emerald's expense to Alaska, where he joined the HEATHER SEA at Dutch Harbor. ¹

In April and May 1990, plaintiff allegedly sustained personal injuries while working on board the HEATHER SEA. Plaintiff brought this action for his injuries in Multnomah County Circuit Court, asserting claims for negligence under the Jones Act, 46 U.S.C.App. § 688, and for unseaworthiness. Plaintiff argued that defendants were subject to the circuit court's jurisdiction under ORCP 4L. The circuit court rejected that argument, and dismissed plaintiff's complaint for lack of personal jurisdiction.

On appeal, plaintiff relies exclusively on ORCP 4 L. That "catch-all" provision provides for personal jurisdiction over a defendant:

"Notwithstanding a failure to satisfy the requirement of sections B. through K. of this rule, in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States."

State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or. 151, 854 P.2d 461 (1993), frames our jurisdictional inquiry. There, the court adopted a two-part test for determining whether, in accordance with ORCP 4 L, an exercise of jurisdiction over a non-Oregon defendant comports with due process:

"First, the defendant must have 'minimum contacts' with the forum state. 'Minimum contacts' will be found where the defendant has 'purposefully directed' its activities at residents of the forum state and where the litigation 'arises out of or relates to' those activities. * * * Second, even if minimum contacts exist, the exercise of jurisdiction must be reasonable; in the light of various factors deemed relevant by the Court, the exercise of jurisdiction must comport with 'fair play and substantial justice.' " 317 Or. at 159-60, 854 P.2d 461. (Quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 476-77, 105 S.Ct. 2174, 2182, 2184-85, 85 L.Ed.2d 528 (1985).) (Emphasis in original; citation omitted.)

Here, defendants do not dispute that they "purposefully directed" their recruiting and hiring activities at Oregon residents, including plaintiff. Indeed, those activities are closely analogous to the advertising and solicitation activities that established "purposeful direction" in State ex rel Circus Circus Reno, Inc. v. Pope, supra. ²

The jurisdictional dispute turns, instead, on the second, "arising out of or relating to" minimum contacts element. Plaintiff contends that his claims "related to" his employment status which, by virtue of defendants' conduct, originated in Oregon.

We disagree. Assuming arguendo that the employment relationship was created in Oregon, ³ defendants' conduct in recruiting and hiring plaintiff has no "substantive relevance" to plaintiff's personal injury claims. See State ex rel Michelin v. Wells, 294 Or. 296, 303, 657 P.2d 207 (1982). Although plaintiff's status as an employee at the time he was allegedly injured is a material element of his Jones Act claim, ⁴ allegations pertaining to the creation of the employment relationship are immaterial to the personal injury gravamen of that claim and, hence, cannot support jurisdiction:

" 'A contact is related to [a] controversy if it is the geographical qualification of a fact relevant to the merits. A forum occurrence which would ordinarily be alleged as part of a comparable domestic complaint is a related contact. In contrast, an occurrence in the forum State of no relevance to a totally domestic cause of action is an unrelated contact, a purely jurisdictional allegation with no substantive purpose. If a fact is irrelevant in a purely domestic dispute, it does not suddenly become related to the controversy simply because there are multistate elements.' " State ex rel Michelin v. Wells, supra, 294 Or. at 302, 657 P.2d 207, quoting Brilmayer, How Contacts Count: Due Process Limitations on State Court Jurisdiction, 1980 Sup Ct Rev 77, 82-83 (1980).

Circus Circus Reno is similar. There, a liquor bottle thrown from the defendant's hotel struck and injured the plaintiff. Although the plaintiff would not have been in Reno (and, thus, in a position to be struck by the bottle) but for Circus Circus's Oregon advertising and solicitation activities, the court held that the plaintiff's injuries did not arise out of or relate to the defendant's activities in Oregon. Instead, those injuries arose from the defendant's alleged negligence, including failure to keep the hotel windows bolted and failure to warn, that occurred in Nevada. In so holding, the court expressly declined the plaintiff's invitation to apply a "but for" test to the "arise out of or relates to" element.

So too here. Although plaintiff would not have been aboard the HEATHER SEA but for defendants' recruiting and hiring activities in Oregon, his alleged injuries arose out of and related to defendants' alleged negligence, including failure to provide adequate equipment and inadequate instruction, which occurred in Alaskan and international waters. ⁵

Finally, plaintiff argues that, regardless of the particular application of the "arises out of or relates to"...