Hoskinson Through Fleming v. State of Cal.

• Decision Date: 13 December 1990
• Docket Number: No. 2,CA-CV,2
• Citation: Hoskinson Through Fleming v. State of Cal., 812 P.2d 1068, 168 Ariz. 250 (Ariz. App. 1990)
• Parties: Vicki Lynne HOSKINSON Through the Personal Representative of Her Estate, Robert FLEMING; Deborah Jane Carlson, Individually and as Surviving Parent of Vicki Lynne Hoskinson and George Glenn Carlson, Jr., Husband and Wife; Stephanie Dawn Hoskinson by Her Next Friend and Mother, Deborah Jane Carlson; Carie Lynn Carlson by Her Next Friend and Father, George Glenn Carlson; Brian William Carlson by His Next Friends and Parents, Deborah Jane Carlson and George Glenn Carlson, Jr., Plaintiffs/Appellants, v. STATE OF CALIFORNIA; California Department of Corrections, a State Agency; California Board of Prison Terms; Robert McLean, Individually and in His Official Capacity, and Jane Doe McLean, Husband and Wife; Members of the California Board of Prison Terms, Individually and in Their Official Capacities; John Atwood and Alice Atwood, Husband and Wife; Frank Jarvis Atwood, a Single Man, Defendants/Appellees. Rodney Paul HOSKINSON, Individually and as Surviving Parent of Vicki Lynne Hoskinson, Deceased, Plaintiffs/Appellants, v. STATE OF CALIFORNIA; California Department of Corrections, a State agency; California Board of Prison Terms; Robert McLean and Jane Doe McLean, Husband and Wife; Members of the California Board of Prison Terms, Individually and in Their Official Capacity; John Atwood and Alice Atwood, Husband and Wife, Defendants/Appellees. 90-0048.
• Court: Arizona Court of Appeals

Page 1068

812 P.2d 1068

168 Ariz. 250

Vicki Lynne HOSKINSON Through the Personal Representative of Her Estate, Robert FLEMING; Deborah Jane Carlson, Individually and as Surviving Parent of Vicki Lynne Hoskinson and George Glenn Carlson, Jr., Husband and Wife; Stephanie Dawn Hoskinson by Her Next Friend and Mother, Deborah Jane Carlson; Carie Lynn Carlson by Her Next Friend and Father, George Glenn Carlson; Brian William Carlson by His Next Friends and Parents, Deborah Jane Carlson and George Glenn Carlson, Jr., Plaintiffs/Appellants, v. STATE OF CALIFORNIA; California Department of Corrections, a State Agency; California Board of Prison Terms; Robert McLean, Individually and in His Official Capacity, and Jane Doe McLean, Husband and Wife; Members of the California Board of Prison Terms, Individually and in Their Official Capacities; John Atwood and Alice Atwood, Husband and Wife; Frank Jarvis Atwood, a Single Man, Defendants/Appellees.

Rodney Paul HOSKINSON, Individually and as Surviving Parent of Vicki Lynne Hoskinson, Deceased, Plaintiffs/Appellants, v. STATE OF CALIFORNIA; California Department of Corrections, a State agency; California Board of Prison Terms; Robert McLean and Jane Doe McLean, Husband and Wife; Members of the California Board of Prison Terms, Individually and in Their Official Capacity; John Atwood and Alice Atwood, Husband and Wife, Defendants/Appellees.

No. 2 CA-CV 90-0048.

Court of Appeals of Arizona Division 2, Department A.

Dec. 13, 1990.

Review Denied July 9, 1991. ^*

[168 Ariz. 251] Gonzales & Villarreal by Winton D. Woods and Elizabeth Peasley-Fimbres, Tucson, for plaintiffs/appellants Carlson and Hoskinson and the Estate of Vicki Lynne Hoskinson.

Haralson, Kinerk & Morey by Dale Haralson and Gregory G. Wasley, Tucson, for plaintiff/appellant Rodney Hoskinson.

Lewis and Roca by John P. Frank, Steven J. Labensky and Anne Rachel Aberbach, Phoenix, Bury, Moeller, Humphrey & O'Meara by David C. Bury, Tucson, for defendants/appellees State of Cal., its agencies and officers.

Slutes, Sakrison, Even, Grant & Pelander by A. John Pelander, Tucson, for defendants/appellees John and Alice Atwood.

OPINION

LIVERMORE, Presiding Judge.

Frank Jarvis Atwood, a California parolee, kidnapped, sexually abused, and murdered Vicki Lynne Hoskinson in Tucson in September 1984. He was convicted of his crimes and sentenced to death. Vicki Lynne's parents brought this wrongful death suit against Atwood's parents, his parole officer, the State of California and various California agencies. The theory of the suit was that the defendants knew or reasonably should have known that Atwood was extraordinarily dangerous, that he had travelled through Arizona and might do so again, and that he was imminently likely to engage in sexual violence against a child. Had the defendants exercised reasonable care, it is argued, Atwood's parole would have been terminated or he would have been controlled in some other way and the murder would not have occurred. Plaintiffs appeal from a dismissal of their complaint for lack of personal jurisdiction. They also appeal the trial court's denial of an award of fees, costs and sanctions under A.R.S. § 12-349 arising out of the defendants' improvident removal of this case to federal court. We affirm.

The plaintiffs assert three grounds for jurisdiction: specific jurisdiction, general jurisdiction, and jurisdiction by necessity. As to the first ground, relying on §§ 36 ¹ and 37 ² of the Restatement (Second) of Conflict of Laws (1971), plaintiffs contend that defendants are subject to jurisdiction in Arizona because, by their tortious failure to control Atwood in California, they either committed a tort in this state or engaged in conduct which they should reasonably have expected would cause an effect in this state. Even assuming the truth of plaintiffs' factual assertions, however, their jurisdictional conclusions fly in the face of the decisions of both the United States Supreme Court and the Arizona Supreme Court.

The core of plaintiffs' argument for specific jurisdiction is that the conduct of the defendants had the foreseeable consequence of injury in Arizona. As the Supreme Court has made abundantly clear, however, " 'foreseeability' alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490, 500 (1980). While foreseeability is not irrelevant, the Court explained that "the foreseeability that is critical to due process ... is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Id. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501. Put another way, the defendant must have "fair warning that a particular activity may subject a person to the jurisdiction of a foreign sovereign." Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683, 706 (1977) (Stevens, J., concurring). This fair warning requirement is met

if the defendant has "purposefully directed" his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984), and the litigation results from alleged injuries that "arise out of or relate to" those activities, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984).

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528, 541 (1985). As Justice O'Connor wrote in Asahi Metal Industry Co., Ltd v. Superior Court of California, Solano County, 480 U.S. 102, 112, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92, 104 (1987), "[t]he 'substantial connection' ... between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State." (Citation omitted; emphasis original.)

As our supreme court noted in Batton v. Tennessee Farmers Mut. Ins. Co., 153 Ariz. 268, 273, 736 P.2d 2, 7 (1987), "if a defendant purposefully directs its activities at a particular forum, and the effects of its activities are reasonably foreseeable, jurisdiction is proper because the defendant can reasonably anticipate being called to account for its own actions." As this statement implies, however, and as the supreme court has reiterated, foreseeability of the effects of one's conduct is not alone sufficient. ³ The defendant must also have purposefully directed his conduct or activities at the forum state. In the present case, even assuming that the defendants should have foreseen or did foresee that Atwood would travel to Arizona and sexually assault a child here, there has been no showing of any kind that the defendants' conduct with respect to Atwood was in any way purposefully directed toward Arizona. Accordingly, the assertion of specific jurisdiction in Arizona would violate due process. ⁴

Plaintiffs seek to avoid this result by arguing as to California that it is not a person within the meaning of the Fourteenth Amendment and is therefore not entitled to due process. Accordingly, they argue, the cases requiring minimum contacts for purposes of acquiring jurisdiction are simply inapposite. For this proposition, they cite two cases arising in very different contexts and not addressing due process, Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) and Pennsylvania v. New Jersey, 426 U.S. 660, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976). Moreover, this construction would mean that any state could be sued in any other state on any claim and would constitute a massive intrusion on traditional notions of federalism. Because Chavez v. State of Indiana, 122 Ariz. 560, 596 P.2d 698 (1979), required that due process tests be met to obtain personal jurisdiction over a state, and no case has held the contrary, we reject the argument.

Plaintiffs also contend that general jurisdiction may be asserted over the defendant State of California because its contacts with this state are so routine and continuous apart from the present case that it should be treated as doing business here. As a general proposition, general jurisdiction may be asserted over a nonresident defendant who has substantial or continuous and systematic contacts with the forum state whether or not related to the subject matter of the lawsuit. Helicopteros Nacionales de Colombia, S.A. v. Hall, supra; Batton v. Tennessee Farmers Mut. Ins. Co., supra. However, we have been cited to no decision, nor found any, upholding the assertion of general jurisdiction by one state over another. While Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979), makes it clear that one state may be sued in the courts of another when specific jurisdiction is asserted, nothing in that case suggests that the courts of one state are free to assert jurisdiction over another state regardless of whether the subject of the suit involves activities of the defendant state directed at the forum state. The restrictions on jurisdiction arising out of the Due Process Clause "are a consequence of territorial limitations on the power of the respective States." Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283, 1296 (1958). To hold that one state may assert general jurisdiction over another would obliterate that limitation, as well as the status of states as "coequal sovereigns in a federal system." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 498. Accordingly, we reject the claim of general jurisdiction. ⁵

Finally, it is argued that Arizona might have "jurisdiction by necessity" because "all three defendants could not be sued together in a single forum." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. at 419 n. 13, 104 S.Ct. at 1874 n. 13, 80 L.Ed.2d at 414...