SIMMONS v STATE

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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 , -vsSTATE 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: Decided: Clerk J u n e 1 0 , 1983 October 1 7 , 1983 Mr. Justice L.C. Court. Gulbrandson delivered the Opinion of the 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 considerations of comity warranted dismissal. any event, (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. these facts are not disputed Unless otherwise stated, 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 tests. with an approved laboratory to perform the 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 Public health officials from Idaho, all Nevada, five and A l a s k a . 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 tests the 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 entered the terms of in June, 1977, into screening of according all to blood the interstate Oregon samples set standards 16-2.18(6)-S1820 [now Analysis take place was to Department of notified in first supply section 16.24.201-2131. Oregon. The Montana 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 mail or by telephone to the urgency of of lab disorders, M.A.C. section in to metabolic forth according results by agreed for A.R.M. contract, any t o be abnormal laboratory test 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 agreed o r p h y s i c i a n s of t o p a y Oregon significant findings. $27,000 per year, in four Montana 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. sample Montana would p a y a n a d d i t i o n a l $2.25 in excess of plaintiff nothing 12,000. has not disagreed, more procedures. than Montana the does Oregon that marginal not has argued, the contract cost contribute of to for each and the f e e s cover lab testing the cost of maintaining the laboratory or the establishing of the test procedures. Furthermore, Oregon does not profit from the contractual arrangement. and Oregon, and The contract was signed in Montana 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 process. be unreasonable and contrary to due 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. because This appeal was dismissed 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. P.2d 1132, 37 St.Rep. May v. Figgins (Mont. 1980), 607 493; Haker v. Southwestern Ry. Co. (1978), 176 Mont. 364, 578 P.2d 724. See, generally, International Shoe Co. v. Washington (1945), 326 U.S. 66 S.Ct. 154, 90 L.Ed. 95. 310, 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 jurisdiction. our analysis ends and we must decline 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 court to render a valid nonresident defendant. personal Due p r o c e s s judgment requires a state against that a 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 defendant supra, there and the exist forum a t 316, 326 U.S. "minimum state. contacts" See, 66 S . C t . between I n t e r n a t i o n a l Shoe, a t 158, a t 102. 90 L.Ed. 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 St.Rep. 2017; Reed v . A m e r i c a n A i r l i n e s , 640 P.2d concept since 912, of 39 S t . R e p . "minimum 3 3 5 ; 'May v . contacts" I n t e r n a t i o n a l Shoe, and Corp. v. held that Woodson, an supra, Oklahoma the court latest 1 3 5 , 39 (Mont. undergone the development must be examined h e r e . Inc. Figgins, has the 1982), supra. The development phase of that I n World-Wide Volkswagen United could States not Supreme C o u r t 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 "contact" with no business Oklahoma in that state consisted of and an only 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 , i n a c o l l i s i o n i n Oklahoma. whose t h a t exploded 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 and c a u s e i n j u r y t h e r e . U.S. In a t 288-97, its opinion, 100 S.Ct. the f o r e s e e a b l y end up i n t h a t s t a t e World-Wide Volkswagen, a t 562-7, 62 L.Ed.2d court elaborated on the supra, 444 a t 495-502. concept 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 It protects distinguishable, functions. the defendant against t h e burdens of 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 ual ............................ c o - e q --sovereigns in a federal system." 444 U.S. at 291-2, 100 S.Ct. (emphasis added) at 498. Thus, there is a "federalism component" which we are bound inquiry. at 564, 62 L.Ed.2d to consider in our constitutional 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."' Shoe Co. v. Washington [326 Internatio U.S. &3&31@ 161, quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940). The relationship between the defendant and 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]." a . . 444 U.S. at 292, 100 S.Ct. at 564, 6 2 L.Ed.2d The court observed that "limits at 498. imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against substantially inconvenient relaxed over Volkswagen, supra, 444 U.S. L.Ed.2d at 498. This the litigation, years." been World-Wide at 292, 100 S.Ct. relaxation has have been at 565, 62 effected by improvement in transportation and communication, as well as advancements transactions. L.Ed.2d in the field 444 U.S. at 498-9. of interstate commercial at 292-3, 100 S.Ct. at 565, 62 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 Furthermore, S.Ct. at 565, 62 L.Ed.2d the Court at 499. indicated that the reasonableness of asserting jurisdiction over a nonresident defendant had to be assessed "in the context of our federal system of government 565, 62 L.Ed.2d 326 U.S. . . ." 444 U.S. at 293-4, 100 S.Ct. at at 499, (citing International Shoe, supra, 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. (citing Hanson v. B%+dGh at 565-6, 62 L.Ed.2d (1958), 357 U.S. Denc-his. 78 S.Ct. 1228, 1238, 1240, 2 L.Ed.2d To summarize: our at 499-500 235, 251, 254, 1283, 1296,1298. 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." 991, 993. Taubler v. Giraud (9th Cir. 1981), 655 F.2d 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 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] in "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., 1977), 557 F.2d 1280, 1287. America v. Inc. See, also, Ins. Co. of North Marina Salina Cruz (9th Cir. 1981), 649 F.2d 1266, 1270; Plant Food Co-op v. Wolfkill Feed (9th Cir. 1980), 633 F.2d (9th Cir. & Fertilizer 155, 158-9; Panos Inv. Co. v. , 662 P.2d Schlatter v. Mo-Comm Futures, Ltd. (1983), Kan. District Court (1983), Colo. +8=&; 180 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 within this State. the transactions to "substantial" activity Nor can we say that this contract and 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 enterprises generally that involve actively individual solicit or commercial 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. e (nonresident defendant Connecticut); Reed (D.Conn. 1968), 280 F.Supp. 550 for machinery in Airlines, Inc., contracts v. American 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), (nonresident rock concerts & 613 P.2d 1002, 37 St.Rep. concert promoter actively contracting for services in Montana). 1119 promoting Oregon, on the other hand, has apparently been sought out by Montana and other states to perform a public health service for in these states - Oregon and for a price not designed generate a profit. to 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 the Minnesota subdivision of Minnesota M, is b7 Supreme Court Iowa was subject to courts in a held misplaced. In Wendt, that political the a jurisdiction of 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 reasonable. facts at personal jurisdiction possible and Nevertheless, Wendt is distinguishable from the bar. Osceola County was obliged to perform in services - the State of Minnesota on a continuing basis, whereas Oregon has contracted within that state. to conduct its activities 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." at 501. 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d 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 activities performed in Oregon. read to support the basis of Even if Wendt can fairly be plaintiff's jurisdiction over Oregon on contention, personal 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., Light and Power Co. v. Atlas Corp. F.2d 1301; Lakeside Bridge and Construction (7th Cir. Congregation Am Echad 1979)! (8th Cir. Steel v. 597 F.2d (5th Cir. Iowa Electric 1979), 603 Mountain State 596; Barnstone v. 574 F.2d 286; Anderson v. Schiflett (10th Cir. 1971), 435 F.2d 1036. Most of these cases involved 1978), 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 activities industrial activity therein. were structured around the such, As prospect their 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. was 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 " "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 6 0 3 F.2d a t 1 3 0 6 . t h e forum. Accord: ( 5 t h C i r . 1 9 7 8 ) , 583 F.2d Boat B u i l d i n g Corp. Similarly, Montana, out by 1973), 8 3 0 , 94 S . C t . has no 472 the State of Montana disorders, and property to 723, or 730, 64. agents in Oregon was s o u g h t conduct this F.2d 6 0 , 38 L.Ed.2d and t r a n s a c t s no b u s i n e s s h e r e . metabolic Oregon. 1 8 4 , 189; Benjamin v. Western (5th Cir. Oregon supra, C h a r i a v . C i g a r e t t e R a c i n g Team, Inc. c e r t . d e n i e d , 414 U.S. Iowa E l e c t r i c , lab testing for is conducted service in 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 conducting mail activities communication nature of Montana. the test of contact to itself t h e e x e r c i s e of S t e e l Company Cir. the forum results into a of the privilege of state. Telephone and do transform the not purposeful injection into 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 c a n n o t by in itself v. doing in be considered a t h e modern "contact" personal jurisdiction. National 1 9 8 2 ) , 676 F.2d v . W h i t n e y (N.D.Fla. C i r c u i t noted business 309; Railway for world, justifying See, e .g., Utilization and Scullin Corp. (8th S p o r t i n g Good D i s t r i b u t o r s , Inc. 1 9 8 0 ) , 498 F.Supp. in Scullin Steel, supra, 1088. A s t h e E i g h t h 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 performed results there. reached from tests (And, it is the Montana Department of Health and Environmental Sciences -- in Oregon -- 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 disagreed with plaintiff's Court and assertion. the Ninth Circuit 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 . Lemke v . St. M a r g a r e t Hosp. -- 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 Kennedy v. Ziesmann (E.D.Ky. v. Wileman (W.D.Ky. (D.Neb. -- i n j u r y i n Nebraska); 958 voluntary forum interstate has circumstances, plaintiff economic Draur the of courts [or she] services sought him therein rendered in from the -- 1 9 7 7 ) , 434 injury directed in forum conclude at the the provision of state clientele. where Under that the the these aggrieved [or s h e ] w i l l have t o t h e r e a f t e r complains t h a t t h e the improperly." (D.N.J. (E.D.Pa. activity, solicited t r a v e l again i f he U n i v e r s i t y Hosp. (alleged uniformly distinguished "ought t o expect t h a t he by 822 i n Nebraska markets, outside not 1328 3 0 8 ( a l l e g e d n e g l i g e n c e i n Iowa Kurtz v. economic services provider F.Supp. These c o u r t s have state's medical 468 (alleged negligence Pennsylvania). F.Supp. i n j u r y i n K e n t u c k y ) ; G l o v e r v . Wagner 1 9 7 8 ) , 462 F.Supp. F.Supp. 526 i n j u r y i n Kentucky); Jackson 1979), -- n e g l i g e n c e i n Ohio injury in Illinois) ; 1981), -- ( a l l e g e d n e g l i g e n c e i n Ohio 1 9 8 2 ) , 552 F.Supp. Ill. (N.D. See, e.g., foreign jurisdiction Gelineau 1 9 7 4 ) , 3 7 5 F.Supp. v. New were York 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 the in the cited cases, testing procedure 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 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. results were then returned to Montana for The 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 nonresident felt in Montana, but, like the physician in the above-cited typical 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. District Court held a Utah In McGee, the Federal physician subject to its jurisdiction on the basis of a telephone call made to his patient in Montana regarding a previously condition. treated eye But the plaintiff's only claim of negligence in that case was the new diagnosis given over the telephone; plaintiff was not treatment in Utah. resting any claim on the previous Thus, McGee is distinguishable from the f a c t s of noted t h e i m m e d i a t e case. the negligent relevant Indeed, difference diagnosis and/or the court between treatment 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 cases in the i n McGee involving defendant's 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 (D.N.J. 1 9 7 4 ) , 375 U n i v e r s i t y Hosp. 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. plaintiff treatment at had in jurisdiction. 1278. based Utah, The his then 442 F.Supp. court observed complaint the court that if the upon the previous would have declined 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 itself into the Montana economy. company interjecting 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. the question of reasonableness that we now It is to turn our attention. As the United States Supreme Court observed World-Wide Volkswagen, supra, the burdens imposed in on nonresidents while defending lawsuits in a foreign State have diminished markedly through the years. 292-3, 100 S.Ct. at 565, 62 L.Ed.2d at 498. 444 U.S. at 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 World-Wide Volkswagen, supra, need to be enumerated in considered here. Montana courts certainly have an interest in allowing Montana plaintiffs to seek restitution for tortious conduct. See, World-Wide Volkswagen, S.Ct. at 564, 62 L.Ed.2d supra, 444 U.S. at 292, 100 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 America Marina v. jurisdiction." S a l i n a Cruz 1266, 1273, c i t i n g Kulko, S.Ct. a t 1696, Ins. (9th Cir. 56 1981), of North 649 F.2d a t 9 2 , 98-101, s u p r a , 436 U.S. 1700-1701, Co. at L.Ed.2d 141, 98 145-146. 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. i n World-Wide B u t a s t h e Supreme C o u r t n o t e d Volkswagen, supra, r e i t e r a t e d i n Marina S a l i n a Cruz, and t h e Ninth Circuit 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 justice" b e c a u s e i n Montana, $300,000 under $100,000 our Oregon's decision 661 P.2d limitation in 1272, tort 40 v. St.Rep. Reg. Sess., Mont. Laws 6 7 5 ) ) . decide. jurisdiction We to statute. State of Montana 507, we held the for (Mont. that the t o r t damages was Montana legislature S e e , S.B. 465, 48th S e c t i o n 2 ( 1 ) , ( t o be c o d i f i e d a t 1983 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 to a s opposed (We note here t h a t i n liability although i n t e r e s t s of could r e c e i v e up t o subsequently restored t h i s limitation. Mont.Leg., the liability (1982). White on governmental unconstitutional, serve plaintiff S e c t i o n 30.270 recent 1983), better s t a t e ' s t o r t claims l a w , our under Or.Rev.Stat., would can on w h i c h say, -- t h a t however, forum p r o v i d e s that is f o r a j u r y predicating 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 State of Oregon. there. the The lab tests and diagnosis were conducted 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 Kulko, supra, 436 U.S. at 98, 98 S.Ct. at 498; 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. Court. Because of our state's low birth-rate Supreme 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. e-g., McGee, supra, 442 F.Supp. at 1279. See, Justice undeniably would be would defeated insulate Nevertheless, if the Oregon we refusal from conclude to any that assert jurisdiction malpractice acquiring claims. 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. emphasize We 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 Furthermore, interests in quality medical c o u r t s have recognized t h a t , care. 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 re ects the i n t e r e s t necessaril -------------------y --- j -------E -- p...........................c i e n c y --ro osition that the suffi of out-of-state treatme .........................n t i s s u b j e c t t o 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 interest i n asserting otherwise under "chilling effect program jurisdiction these on available facts the services t o nonresidents," weighs over might Oregon. ultimately availability Gelineau, against of supra, any To f i n d have a professional 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 defending its interests in several foreign states. find that proper respect for the mutual risk Thus, we 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 "federalism componet" given leads high us to consider credence by the 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. Volkswagen, supra, 444 U.S. L.Ed.2d at 499. at 293, 100 S.Ct. World-Wide at 565, 62 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 purposeful." state, if 649 F.2d 557 F.2d at 1288. the act is negligent rather than at 1271, quoting Data Disc., supra, By analogy, the court reasoned that the "reasonableness of jurisdiction upon the seriousness of . . . depends also in part 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 serve the interests of justice. of this case, however, interests in order to better Under the particular facts a de-emphasis on sovereignty 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. Co. v. University of Houston (1980), 49 In Ehrlich-Bober & N.Y.2d. N.E.2d 574, 404 726, 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 220, 371 Bank [Uganda], 37 N.Y.2d 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), 658 P.2d 422; Wendt v. County of Osceola, Nev. I 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. Hall, supra, 440 U.S. 429. They are free to do so." at 426, 99 S.Ct. at 1191, 59 L.Ed2d at 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). regional On the contrary, Oregon is performing a medical service within its boundaries. Furthermore, assumption of jurisdiction under these facts would impinge unnecessarily upon the harmonious interstate relations which are part co-operative federalism. and parcel of the spirit of 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 jeopardize the availability of this service. plaintiff's assertions, jurisdiction would service. our unwillingness not undermine conceivably Contrary to to the quality assume of this 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 of locus 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 , receive a more reluctant just t o use 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 compensation in Montana. We are 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 claim. plaintiff's 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 law merits of jurisdiction onto the would alleged acts unnecessarily of another project Montana 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. constitutional jurisdiction comity. The inquiry should not matters considered a l s o convince be allowed in us the that in our personal interests of 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 comity. should decline jurisdiction as a matter of

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