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Wallace v. Holden

Court of Appeals of Oregon

June 5, 2019

Minka WALLACE, Plaintiff-Appellant,
v.
Stephen C. HOLDEN, Defendant-Respondent.

          Argued and submitted December 18, 2018.

          Multnomah County Circuit Court 16CV31763 Thomas M. Ryan, Judge.

          Dean Heiling argued the cause for appellant. Also on the briefs was Heiling Dwyer.

          Jonathan Henderson argued the cause for respondent. Also on the brief were Cari Waters and Davis Rothwell Earle & Xóchihua, P.C.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Plaintiff appeals a judgment dismissing her complaint with prejudice, raising two assignments of error. First, she argues that the trial court erred in concluding it lacked personal jurisdiction. Plaintiff contends that Oregon courts have jurisdiction over defendant, a resident and citizen of the United Kingdom, for a negligence action arising out of a motor vehicle accident that occurred in Vancouver, Washington, because defendant had an active Oregon driver's license. Next, plaintiff argues that the trial court erred in dismissing the case with prejudice. Held: The trial court lacked personal jurisdiction under ORCP 4. As to general personal jurisdiction, defendant's maintenance of his Oregon driver's license, without more, does not amount to "substantial and not isolated activities within this state" such that he would be "present" or "at home" in Oregon. As to specific personal jurisdiction, defendant's limited contacts in Oregon did not make it reasonably foreseeable that he would be sued here for negligent driving in another state. However, because the dismissal was based on procedure and not the merits, the trial court erred in dismissing plaintiff's case with prejudice.

          [297 Or.App. 825]

          [297 Or.App. 826] DeVORE, J.

         Plaintiff appeals a judgment dismissing her complaint with prejudice for lack of personal jurisdiction over defendant. Plaintiff raises two assignments of error. First, plaintiff argues that Oregon courts have personal jurisdiction over defendant, a resident and citizen of the United Kingdom (UK), for a negligence action arising out of a motor vehicle accident that occurred in Vancouver, Washington, because defendant had an active Oregon driver's license. Next, plaintiff argues that the court erred in dismissing her case with prejudice. We affirm the dismissal for lack of personal jurisdiction but reverse and remand for entry of a judgment of dismissal without prejudice.

         I. PROCEEDINGS

         The issue in this case was presented on the pleadings, affidavits, declarations, and other evidence as permitted by ORCP 21 A.[1] Plaintiff bears the burden of alleging and proving the facts necessary to establish jurisdiction. Sutherland v. Brennan, 131 Or.App. 25, 28, 883 P.2d 1318 (1994), affd on other grounds, 321 Or. 520, 901 P.2d 240 (1995). When, as in this case, a trial court has found the jurisdictional facts after taking evidence, we review the trial court's factual findings to determine whether they are supported by "any competent evidence." O'Neil v. Martin, 258 Or.App. 819, 828, 312 P.3d 538 (2013), rev den, 355 Or. 381 (2014), abrogated on other grounds, 358 Or. 383 (2015); Sutherland, 131 Or.App. at 28. Where the trial court made no express findings, we assume that the court found facts consistent with its judgment and likewise review to determine whether they are supported by "any competent evidence." Sutherland, 131 Or.App. at 28; Management Recruiters v. Harold Moore & Assoc, 118 Or.App. 614, 616, 848 P.2d 644, rev den, 317 Or [297 Or.App. 827] 162 (1993). Ultimately, we review the court's legal conclusion for errors of law. O'Neil, 258 Or.App. at 828; Sutherland, 131 Or.App. at 28.

         We recount the facts consistently with that standard. Defendant, a citizen of the United Kingdom, was an Oregon resident from about 2011 until May 2015. During his residency in Oregon, he acquired an Oregon driver's license. About May 6, 2015, defendant terminated the rental agreement for his residence and moved from Oregon back to the UK with the intent to remain there permanently. Defendant kept his Oregon driver's license, despite his permanent move to the UK, to use on future trips to the United States. He also had a UK license, permitting him to drive there, but he believed an Oregon license might allow him to rent a car more cheaply. At some point after his move to the UK, defendant changed the address listed with the Oregon DMV to a different Oregon address.

         In July 2015, defendant went to Washington for a short business trip. He used his Oregon driver's license to rent a car in Washington.[2] On July 19, 2015, plaintiff and defendant were involved in a car accident in Vancouver, Washington. At the time of the accident, about 10 weeks after moving, defendant was a resident of the UK and not a resident of Oregon, nor domiciled in Oregon.[3] At the scene of the accident, defendant showed the Washington state police officer his passport, his Oregon driver's license, and provided his UK address. At that time, an Oregon address was listed on defendant's Oregon driver's license.

         On September 28, 2016, plaintiff filed suit against defendant in Multnomah County Circuit Court, alleging negligence claims. Plaintiff alleged that defendant was negligent in driving at an excessive speed, failing to stop for a red light, failing to keep a proper lookout, and failing to keep his car under control. At the time plaintiff commenced [297 Or.App. 828] the suit, defendant was still a resident of the UK and had been living in the UK for about 16 months. In January 2017, defendant changed the address on his Oregon license to his UK address. Defendant was not personally served with a summons and complaint in Oregon.

         Defendant filed a motion to dismiss plaintiffs complaint pursuant to ORCP 21 A(2), asserting that the trial court lacked personal jurisdiction over him. The trial court agreed with defendant and granted defendant's motion. The court's judgment dismissed the case with prejudice.

         On appeal, plaintiff argues that the court erred in dismissing for lack of personal jurisdiction and in dismissing the case with prejudice. Plaintiff argues that Oregon courts have personal jurisdiction over defendant because defendant had an active Oregon driver's license that he maintained despite his change of residency to the UK and because defendant was "driving under the authority of that license when he caused a car collision in Vancouver, Washington." Plaintiff claims that "[f]air play and substantial justice support that a defendant who avails himself of the rights and privileges granted by having an Oregon driver license is subject to Oregon's jurisdiction for wrongful acts while using that license." Defendant disagrees, arguing that plaintiff failed to establish that Oregon courts have personal jurisdiction over him, a nonresident, because plaintiff neither demonstrated that ORCP 4, Oregon's long-arm statute, was satisfied nor that defendant had minimum contacts with Oregon to satisfy due process under the federal constitution.

         As framed by the parties, the question in this case is whether a nonresident defendant, who has maintained an Oregon driver's license, may be haled into Oregon courts for a negligence action arising out of a car accident that occurred in another state.

         II. PERSONAL JURISDICTION

         A. General Personal Jurisdiction

         Personal jurisdiction is examined as either a question of general personal jurisdiction or specific personal jurisdiction. Not long ago, the United States Supreme Court [297 Or.App. 829] emphasized that general and specific personal jurisdiction are not the same. In a case that happened to involve corporations, the court stressed:

"A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State. Specific jurisdiction, on the other hand, depends on an affiliatio[n] between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation. In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction."

Goodyear Dunlop Tires Operations, S.A., v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (internal citations and quotation marks omitted). We will return to the distinction between general and specific jurisdiction when we address the dissenting opinion in this case.

         Our jurisdictional inquiry begins with a determination whether any of the provisions described in of ORCP 4 apply. Initially, plaintiff argues that ORCP 4 A supports jurisdiction over defendant. That rule provides:

"A court of this state having jurisdiction of the subject matter has jurisdiction over a party served in an action *** under any of the following circumstances:
"A. In any action, whether arising within or without this state, against a defendant who when the action is commenced:
'A(1) Is a natural person present within this state when served; or "A(2) Is a natural person domiciled within this state; or "A(3) Is a corporation created by or under the laws of this state; or "A(4) Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise; or
[297 Or.App. 830] "A(5) Has expressly consented to the exercise of personal jurisdiction over such defendant."

ORCP 4 A. Plaintiff contends that defendant's maintenance of his Oregon driver's license, including changing the address on his license to a Portland address, constitutes "substantial and not isolated activities within" Oregon under ORCP 4 A(4).[4]

         Oregon courts have recognized that ORCP 4 A provides for "general" personal jurisdiction. See, e.g., Swank v. Terex Utilities, Inc., 274 Or.App. 47, 49-50, 360 P.3d 586 (2015), rev den, 358 Or. 551 (2016) (stating that ORCP 4 A provides for "general" jurisdiction). If ORCP 4 A(4) applies- if defendant has "substantial and not isolated contacts" with Oregon "when the action commenced"-then general jurisdiction exists regardless of where the accident occurred. Our case law indicates that ORCP 4 A(4) does not apply.

         In Circus Circus, the Oregon Supreme Court considered whether Oregon courts had general jurisdiction under ORCP 4 A(4) over a nonresident defendant for injuries plaintiff sustained in Reno, Nevada. State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or. 151, 854 P.2d 461 (1993). The defendant owned and operated a hotel in Reno. The plaintiff, an Oregon resident, was injured in Reno when he was hit by a liquor bottle thrown by an unknown person from a window of defendant's hotel. The plaintiff brought an action for negligence against defendant in Oregon state court, and the defendant moved to dismiss for lack of personal jurisdiction. The Oregon Supreme Court observed:

"It is undisputed by the parties that [the defendant] is not registered to do business in Oregon, pays no business tax here, and has no bank accounts, offices, real estate, employees, or exclusive agents in the state. [The plaintiff] argues, however, that the activities of [the defendant] in Oregon [297 Or.App. 831] nevertheless are 'substantial,' because [the defendant] 'regularly' advertises its Reno hotel in The Oregonian, because it distributed brochures describing that hotel to [the plaintiffs] Oregon travel agent, because it maintains a toll-free number for the use of Oregon residents, and because, after [the plaintiff] reserved a room at its Reno hotel, [the defendant] called [the plaintiff] at his Oregon residence to confirm the reservation.
"We are not persuaded that those activities are 'substantial and not isolated activities within this state.' ORCP 4 A(4). See Merrill, supra, at 9 (citing Helicopteros Nacionales de Colombia v. Hall, supra, for examples of activities that were insufficient to support an exercise of general jurisdiction, including the defendant's negotiation of a contract and purchase of goods in the forum state, its ...

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