Lead Opinion
delivered the opinion of the Court.
Plаintiff, 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
The following pertinent facts are taken from the transcript of proceedings before the District Court, the pleadings, and relevant exhibits. Unless otherwise stated, these facts are not disputed 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 attеnding 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 with an approved laboratory to perform the tests. 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 also performs this service for Idaho, Nevada, and Alaska. Public health officials from all five states apparently decided that it was more cost effective to have the Oregon laboratory conduct the tests for the entire region. Montana, for example, has such a low yearly birth rate that it is cheaрer to have the samples sent to the Oregon laboratory for analysis.
Under the terms of the interstate contract, first entered into in June, 1977, Oregon agreed to supply lab screening of all blood samples for metabolic disorders, according to standards set forth in M.A.C. section 16-2.18(6)-S1820 [now A.R.M. section 16.24.201-213]. Analysis was to take place in Oregon. The Montana Department of Health and Environmental Sciences was to be notified by mail or by telephone of any abnormal test results according to the urgency of
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
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 sufficiеnt minimum contacts, and that comity did not preclude jurisdiction. This appeal was dismissed because it lacked proper certification under Rule 54(b), M.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),
For a Montana court to exercise jurisdiction over a nonresident defendant, two questions must be considered. (1) Does thе 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. May v. Figgins (Mont.1980),
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 оf this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, or 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 to the crucial constitutional inquiry.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution limits the power оf a state court to render a valid personal judgment against a nonresident defendant. Due process requires that a state may exercise personal jurisdiction over the nonresident only
“The concept of minimum contacts . . . can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as co-equal sovereigns in a federal system.”
“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.” International Shoe Co. v. Washington [326 U.S. 310 , 316,66 S.Ct. 154 , 158, 90 L.Ed.95], quoting Milliken v. Meyer,311 U.S. 457 , 463 [61 S.Ct. 339 , 343,85 L.Ed. 278 ] (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 proteсted 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].”
The court observed that “limits imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against inconvenient litigation, have been substantially relaxed over the years.” World-Wide Volkswagen, supra,
“. . . 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 fedеralism embodied in the Constitution. . . . [T]he Framers also intended that the States retain many essential attributes of*275 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 S.Ct. at 565 ,62 L.Ed.2d at 499 .
Furthermore, the Court indicated that the reasonableness of asserting jurisdiction over a nonresident defendant had to be assessed “in the context of our federal system of government ...”
“Even if the defendant would suffer minimаl 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. at 565-6 ,62 L.Ed.2d at 499-500 (citing Hanson v. Denckla (1958),357 U.S. 235 , 251, 254,78 S.Ct. 1228 , 1238, 1240,2 L.Ed.2d 1283 , 1296, 1298.)
To summarize: our 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.” Taubler v. Giraud (9th Cir.1981),
The Court of Appeals for the Ninth Circuit has developed a standard of review commensurate with traditional due process analysis and the concerns expressed in 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]
“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 consummate 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., Inc. (9th Cir.1977),
The threshold question, then, is whether Oregon’s activities in Montana are so pervasive as to subject it to the
Plaintiff’s reliance on Wendt v. County of Osceola, Iowa (Minn.1979),
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 сontract 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
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., Iowa Electric Light and Power Co. v. Atlas Corp. (8th Cir.1979),
Similarly, Oregon has no property or agents in Montana, and transacts no business here. Oregon was sought out by the State of Montana to conduct lab testing for metabolic disоrders, and this service is conducted in Oregon. Although it is aware that test results are destined for
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),
Both the District Court and the Ninth Circuit disagreed with plaintiff’s assertion. The Ninth Circuit held that:
“[i]f [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 Dakota, treats an Idaho resident with knowledge of her imminent return to Idaho and that his treatment thus may cause effects there.”
“In the case of рersonal 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*282 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 scope of medical treatment should be defined by the patient’s needs, as diagnosed by the doctor, rather than by geography.”
The reasoning of the Ninth Circuit has been followed in similar circumstances in other jurisdictions. See, e.g., Lemke v. St. Margaret Hosp. (N.D.Ill.1982),
We believe that the facts in Wright, supra, and later cases, closely resemble those of the immediate case. The residence of plaintiff here is not totally irrelevant as it was in the cited cases, because his child was entitled to the testing procedure 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. The results were then
Plaintiff insists that the facts of the immediate case are virtually the same as those in McGee v. Riekhof (D.Mont.1978),
“In each of these cases [Aylstock v. Mayo Found (D.Mont.1972),
Plaintiff in the immediate case is claiming negligence in the testing procedure and the diagnosis derived there from in Oregon, unlike McGee who could point to a new diagnosis which was rendered where it was received — in Montana. In sum, we find McGee to be inapposite under the facts of the immediate case.
Thus, we cannot say that Oregon has purposely availed itself of the privilеge 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 company interjecting itself into the Montana economy. 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. It is to the question of reasonableness that we now turn our attention.
As the United States Supreme Court observed in World-Wide Volkswagen, supra, the burdens imposed on nonresidents while defending lawsuits in a foreign State have diminished markedly through the years.
Montana courts certainly have an interest in allowing Montana plaintiffs to seek restitution for tortious conduct. See, World-Wide Volkswagen, supra,
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 the State of Oregon. The lab tests and diagnosis were conducted there. 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,
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,
We emphasize that the services being attаcked here were performed in Oregon, and that Oregon courts are open to vindicate the interests in quality medical care. Furthermore, courts have recognized that, in the situation where medical services have been performed outside the forum state, considerations of due process require more than an appreciation for quality medical care. In Wright, supra, the Ninth Circuit reasoned that:
“the forum state’s natural interest in the protection of its citizens is here countered by an interest in their access to medical services whenever needed. In our opinion, a state’s dominant interest on behalf of its citizens in such a case as this is not that they should be free from injury by out-of-state doctors, but rather that they should be able to secure adequate medical services to meet their needs wherever they may go. This state interest necessarily rejеcts the proposition that the sufficiency of out-of-state treatment is subject to in-state inquiry.”
We find the reasoning of the Ninth Circuit persuasive, and conclude that the concern for keeping this interstate medical testing program available weighs against any interest in asserting jurisdiction over Oregon. To find otherwise under these facts might ultimately have a “chilling effect on the availability of professional services to nonresidents,” Gelineau, supra,
The previous discussion leads us to consider the “federalism component” given high credence by 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. World-Wide Volkswagen, supra,
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 better serve the interests of justice. Under the particular facts of this case, however, a de-emphasis on sovereignty interests in order to 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 aрpropriate.
In summary, Oregon has not structured its activities in such a way as to purposely avail itself of the privilege of
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. In Ehrlich-Bober & Co. v. University of Houston (1980),
“ ‘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 Bank [Uganda], 37 N.Y.2d 220,371 N.Y.S.2d 892 ,333 N.E.2d 168 cert. den.423 U.S. 866 ,96 S.Ct. 126 ,46 L.Ed.2d 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.”
We agree with plaintiff that a state like Oregon is not constitutionally immune from suit in another state; see Nevada v. Hall (1979),
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 statеs. 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). On the contrary, Oregon is performing a regional medical service within its boundaries. Furthermore, assumption of jurisdiction under these facts would impinge unnecessarily upon the harmonious interstate relations which are part and parcel of the spirit of co-operative federalism. 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 conceivably jeopardize the availability of this service. Contrary to plaintiff’s assertions, our unwillingness to assume jurisdiction would not undermine the quality of this service. 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 locus of the alleged negligent warrant consider
Once again, we note a special emphasis by plaintiff on the fact that Montana has a higher limit on tort liability for negligent acts by public agencies than that adopted by the Oregon legislature, and that plaintiff would therefore receive a more just compensation in Montana. We are reluctant tо use this as justification for hauling Oregon before a Montana District Court. We are in no position now to determine what constitutes a “just” award in this case, as there has been no trial on the merits of plaintiff’s claim. Moreover, under the facts of this case, assertion of personal jurisdiction would unnecessarily project Montana law onto the alleged acts of another sovereign state. Comity urges us, at least in this instance, to give Oregon courts the opportunity to hear this case under the laws of that state.
In conclusion, we hold that assertion of jurisdiction over Oregon in this case would not comport with principles of due process. The matters considered in our constitutional inquiry also convince us that personal jurisdiction should not be allowed in the interests of comity. Accordingly the judgment of the District Court is affirmed.
Concurrence Opinion
specially concurs as follows:
I concur in the foregoing majority opinion only on the ground that we should decline jurisdiction as a matter of comity.