Kohring v. Ballard

No. 26 April 24, 2014 297

IN THE SUPREME COURT OF THE

STATE OF OREGON

Richard A. KOHRING

and Kerstin Kohring,

Plaintiffs-Adverse Parties,

v.

James C. BALLARD, M.D.,

and Oregon Orthopedic & Sports Medicine Clinic, LLP,

Defendants-Relators.

(CC1111-14966; SC S060533)

En Banc

Original proceeding in mandamus.*

Argued and submitted April 30, 2013.

Janet M. Schroer of Hart Wagner LLP, Portland, argued

the cause and filed the brief for defendants-relators. With

her on the brief was Marjorie A. Speirs.

Kathryn H. Clarke, Portland, argued the cause and filed

the brief for plaintiffs-adverse parties. With her on the brief

was Phillip C. Gilbert, Gresham.

Lindsey H. Hughes and Hillary A. Taylor of Keating

Jones Hughes, P.C., Portland, filed the brief for amicus

curiae Oregon Association of Defense Counsel.

Scott A. Shorr of Stoll Stoll Berne Lokting & Shlachter,

P.C., Portland, filed the brief for amicus curiae Oregon Trial

Lawyers Association.

LANDAU, J.

Peremptory writ of mandamus to issue ordering trial

court to grant defendants’ motion to change venue.

______________

*  On petition for alternative writ of mandamus from an order of Multnomah

County Circuit Court, Karin Immergut, Judge.

298 Kohring v. Ballard

Defendant-relators moved to change venue from Multnomah County pur-

suant to ORS 14.110, arguing that neither defendant conducts “regular, sus-

tained business activity” for purposes of residency, and thus, venue, under ORS

14.080(2). The trial court denied defendants’ motion, reasoning that defendants,

by soliciting patients in Multnomah County, purposefully availed themselves of

the court’s jurisdiction in that county and therefore conducted regular, sustained

business activity there. Held: (1) the trial court mistakenly conflated personal

jurisdiction considerations with the statutory requirements for venue; (2) a cor-

poration or partnership conducts “regular, sustained business activity” under

ORS 14.080(2) wherever it conducts its normal, ordinary business activities on

a sustained basis, and such a determination requires evaluating the qualitative

nature of the business activity and the frequency with which it occurs; and (3)

none of defendants’ activities on which plaintiffs relied, taken individually or

collectively, established that defendants conduct “regular, sustained business

activity” in Multnomah County.

Preemptory writ of mandamus to issue ordering trial court to grant defen-

dants’ motion to change venue.

Cite as 355 Or 297 (2014) 299

LANDAU, J.

The issue in this mandamus proceeding is whether

the trial court correctly denied defendants’ motion to change

venue. ORS 14.080(2) provides that venue is proper wher-

ever a defendant engages in “regular, sustained business

activity.” In this case, plaintiffs, a husband and wife, ini-

tiated a medical malpractice action against defendants

in Multnomah County. Defendants argue that venue lies

in Clackamas County, because that is where the clinic is

located, where the doctor who provided the husband’s medi-

cal services resides, and where the husband received treat-

ment. Plaintiffs argue that venue is proper in Multnomah

County, because defendants solicit patients who live in that

county, refer patients to imaging facilities in that county,

use medical education programs in that county, and “iden-

tify” the clinic’s location in its website as the “Portland

area.” The trial court denied defendants’ motion, explain-

ing that defendants, by soliciting patients in Multnomah

County, “purposely availed themselves of the court’s juris-

diction” in that county. We conclude that the trial court mis-

takenly conflated personal jurisdiction considerations with

the statutory requirements for venue and erred in denying

defendants’ motion. We therefore issue a peremptory writ

of mandamus ordering the trial court to grant defendants’

motion to change venue.

I. BACKGROUND

The relevant facts are few and undisputed. Plaintiff

Richard Kohring sustained injuries following hip replace-

ment surgery at a medical facility in Clackamas County.

Plaintiff and his wife initiated a medical malpractice action

in Multnomah County for those injuries and for loss of con-

sortium. Plaintiffs named as defendants Ballard, the sur-

geon who performed the hip replacement operation, and

the clinic that employs him, Oregon Orthopedic & Sports

Medicine Clinic, LLP (“Oregon Orthopedic” or “clinic”).

Defendants moved to change venue to Clackamas

County. In support of that motion, they argued that the med-

ical care that gave rise to the action occurred in Clackamas

300 Kohring v. Ballard

County; that defendant Ballard lives in Clackamas County;

that both of Oregon Orthopedic’s two clinics are located in

Clackamas County; that all of the clinic’s physicians provide

medical care in Clackamas County; that neither the clinic

nor Ballard reside in Multnomah County; that no autho-

rized agent to receive service for either defendant resides

in Multnomah County; that, in fact, plaintiffs served defen-

dants in Clackamas County; and that neither the clinic nor

Ballard conduct “regular sustained business activity” within

the meaning of ORS 14.080(2) in Multnomah County.

Plaintiffs opposed the motion, arguing that defen-

dants do conduct regular, sustained business activity in

Multnomah County. In support of that assertion, they offered

evidence that, among other things, approximately 600 of the

clinic’s 24,000 patients reside in Multnomah County; that

Oregon Orthopedic uses “pdxortho.com” as its website; that

Oregon Orthopedic refers to its clinics as being located “just

outside Portland, Oregon”; that, over a two-year period, its

physicians met with attorneys who practice in Multnomah

County; that, over a five-year period, clinic employees have

attended more than 100 educational seminars conducted in

Multnomah County; that Oregon Orthopedic advertises in

a newspaper and a telephone book that are distributed in

Multnomah County; that the clinic refers some of its patients

to imaging centers located in Multnomah County; and that

defendants send chocolates to medical clinics located in

Multnomah County, and have provided lunches to another

Multnomah County clinic.

At the hearing on defendants’ motion to change

venue, the trial court noted the lack of Oregon case law dis-

cussing the meaning of “regular, sustained business activ-

ity” under ORS 14.080(2). It explained that it found guid-

ance, though, in certain federal and Washington state cases

concerning what constitutes “transacting business.” In par-

ticular, the court mentioned a Washington Supreme Court

decision, State ex rel. Verd v. Superior Court for King County,

31 Wash 2d 625, 198 P2d 663 (1948), which the court read

to hold that “solicitation can constitute the regular, con-

tinuous and sustained course of business.” In light of that

case law, the court concluded that “a necessary part of the

Cite as 355 Or 297 (2014) 301

business of providing medical care is soliciting patients,”

and that Oregon Orthopedic did just that in advertising in

Multnomah County. The court explained that defendants

“purposefully availed themselves of the court’s jurisdiction”

and are therefore “conducting regular sustained business

activity in Multnomah County by marketing Multnomah

County patients.” The trial court denied defendants’ motion

to change venue.

Defendants petitioned for a writ of mandamus,

challenging the trial court’s denial of their motion to change

venue. This court issued an alternative writ ordering a stay

of the trial proceedings until the trial court either granted

defendants’ motion to change venue or showed cause for not

doing so. The trial court did not grant defendants’ motion to

change venue, and the parties filed their briefs before this

court.

II. ANALYSIS

ORS 14.110 provides:

“(1)  The court or judge thereof may change the place of

trial, on the motion of either party to an action or suit,

when it appears from the affidavit of such party that the

motion is not made for the purpose of delay and:

“(a)  That the action or suit has not been commenced in

the proper county[.]”

Notwithstanding the permissive wording of ORS 14.110(a),

this court has held that defendants have a “right” to insist

on proper venue under that statute. Rose v. Etling, 255 Or

395, 399, 467 P2d 633 (1970). Thus, when a civil action has

not been filed in the proper county, and a party files a timely

motion under ORS 14.080(1)(a) to change venue that is not

for the purpose of delaying the litigation, the trial court has

no discretion to deny the motion; if the trial court denies the

motion, a defendant may proceed by mandamus to enforce

the right to change venue. Roskop v. Trent, 250 Or 397, 400,

443 P2d 174 (1968) (“the remedy for an erroneous refusal to

change the venue is by way of mandamus”); Mack Trucks,

Inc. v. Taylor, 227 Or 376, 382, 362 P2d 364 (1961) (“[T]he

defendant’s only remedy is a motion for change of venue. If

the court rules against him and he wishes to pursue the

302 Kohring v. Ballard

matter further, he must then proceed by mandamus in this

court to force the trial court to change the venue.”).1

The standard for determining the proper place of

trial is set out in ORS 14.080, which provides:

“(1)  All other actions shall be commenced in the county

in which the defendants, or one of them, reside at the com-

mencement of the action or in the county where the cause

of action arose. * * *

“(2)  For purposes of this section a corporation incorpo-

rated under the laws of this state, a limited partnership or

a foreign corporation authorized to do business in this state

shall be deemed to be a resident of any county where the

corporation or limited partnership conducts regular, sus-

tained business activity or has an office for the transaction

of business or where any agent authorized to receive pro-

cess resides. A foreign corporation or foreign limited part-

nership not authorized to transact business in this state

shall be deemed not to be a resident of any county in this

state.”

(Emphasis added.) The statute thus defines where a corpo-

ration “resides” for venue purposes in terms of three pos-

sibilities: (1) where the corporation conducts “regular, sus-

tained business activity,” (2) where the corporation “has an

office for the transaction of business,” or (3) where an agent

authorized to receive service of process resides. In this case,

it is undisputed that defendants do not have an office for

the transaction of business in Multnomah County and that

defendants have no agent authorized to receive service in

Multnomah County. The parties’ dispute focuses on whether

defendants conduct “regular, sustained business activity” in

Multnomah County.

Defendants argue that they do not conduct “regu-

lar, sustained business activity” in Multnomah County. In

their view, the statute refers to activity that is part of an

entity’s “normal,” “core,” or “typical” occupation, and, in

this case, that is the provision of medical care. According to

1

In contrast, ORS 14.110(1)(c) authorizes a trial court to change venue

because “the convenience of witnesses and the parties would be promoted by

such a change[.]” That determination requires the exercise of discretion and, as

such, is not subject to review by way of mandamus. State ex rel Douglas County v.

Sanders, 294 Or 195, 198 n 6, 655 P2d 175 (1982).

Cite as 355 Or 297 (2014) 303

defendants, the statutory phrase does not refer to such activ-

ities as meeting with attorneys, attending training sessions,

referring patients, and sending gifts to other businesses,

because those activities are not part of the normal or typi-

cal occupation of a medical clinic. They contend that it also

cannot include advertising and solicitation of potential cli-

ents, because that improperly shifts the focus from where a

defendant resides to where potential plaintiffs might reside,

which they contend is more appropriate to personal jurisdic-

tion analysis than to venue.

Plaintiffs argue that the phrase “regular, sustained

business activity” refers to any activity of a business—

regardless of whether it is in some sense the “core” or “nor-

mal” occupation—so long as it is “regular” and “sustained,”

that is, so long as it occurs on a regular basis over time. In

this case, they contend, any number of activities related to

defendants’ business has occurred on a regular basis over

time in Multnomah County.

The parties’ arguments thus present us with an

issue of statutory construction, which we resolve by apply-

ing the familiar principles set out in PGE v. Bureau of Labor

and Industries, 317 Or 606, 859 P2d 1143 (1993), and State

v. Gaines, 346 Or 160, 206 P3d 1042 (2009). In accordance

with those interpretive principles, we seek the meaning of

the disputed phrase that the legislature most likely intended

when it adopted ORS 14.080(2) by examining the text of

the statute in context, along with any relevant legislative

history, and, if necessary, pertinent canons of construction.

Gaines, 346 Or at 171-73.

A.  Textual Analysis

We begin with the text. ORS 14.080(2) does not

define the phrase “regular, sustained business activity,” so,

assuming that the legislature intended to use those words

in their ordinary senses, we resort to dictionary definitions

to give these words their “plain, natural, and ordinary

meaning.” PGE, 317 Or at 611; State v. Murray, 340 Or 599,

604, 136 P3d 10 (2006). In this case, the parties’ dispute

centers on the meanings of the words “regular,” “sustained,”

and “business.”

304 Kohring v. Ballard

The word “regular” can mean “formed, built, arranged,

or ordered according to some established rule, law, princi-

ple, or type”; “NORMAL, STANDARD.” Webster’s Third

New Int’l Dictionary 1913 (unabridged ed 2002).2 It also can

mean “steady or uniform in course, practice, or occurrence:

not subject to unexplained or irrational variation: steadily

pursued.” Id. Thus, the word can be used in either of two

distinct senses, one connoting a particular quality of activ-

ity and the other connoting the frequency with which an

activity occurs. See, e.g., Burkhart v. Farmers Ins. Co, 144

Or App 594, 599, 927 P2d 1111 (1996) (“The words ‘regular’

and ‘regularly’ have at least two different and distinct uses.

An example of the first is ‘Joe is a regular guy who behaves

in a regular manner.’ An example of the second is ‘Joe is a

regular consumer of American products.’ ”).

We do not interpret statutes solely on the basis of

dictionary definitions, however. State v. Cloutier, 351 Or 68,

96, 261 P3d 1234 (2011) (“In construing statutes, we do not

simply consult dictionaries and interpret words in a vac-

uum.”). Instead, we examine word usage in context to deter-

mine which among competing definitions is the one that the

legislature more likely intended. State v. Fries, 344 Or 541,

547-48, 185 P3d 453 (2008) (context determines which of

multiple definitions is the one the legislature intended).

In this case, ORS 14.080(2) joins the word “regular”

with the word “sustained,” which, as we note below, already

connotes the latter concept of frequency. The assumption

that the legislature does not ordinarily employ such redun-

dancy suggests, then, that the former meaning is more likely

the intended one—that is, the concept of a particular quality

of activity. See Crystal Communications, Inc. v. Dept. of Rev.,

2

This court consults Webster’s Third more often than any other dictionary.

See, e.g., State v. Reinke, 354 Or 98, 107, 309 P3d 1059, adh’d to as modified on

recons, 354 Or 570, 316 P3d 286 (2013) (resorting to Webster’s Third as the source

of “ordinary” meaning); Dept. of Rev. v. Faris, 345 Or 97, 101, 190 P3d 364 (2008)

(same). It has never explained that preference. Most likely, it is rooted in the

assumption that legislatures use words in their ordinary senses, and Webster’s

Third is a dictionary with a “descriptive” focus, reporting ordinary usage, as

opposed to other dictionaries with a “prescriptive” focus, reporting “correct”

usage. See generally Dictionaries and That Dictionary (James Sledd & Wilma

Ebbit eds 1962) (describing critiques of Webster’s Third on the ground that it

described actual, instead of correct, usage).

Cite as 355 Or 297 (2014) 305

353 Or 300, 311, 297 P3d 1256 (2013) (“As a general rule, we

construe a statute in a manner that gives effect, if possible,

to all its provisions.”).3

The word “sustained” is straightforward. It refers to

an activity that is “maintained at length without interrup-

tion, weakening, or losing in power or quality: PROLONGED,

UNFLAGGING.” Webster’s at 2304. In the context of ORS

14.080, it seems clear that the legislature did not intend the

term to be understood literally. Few, if any business activ-

ities are conducted literally “without interruption.” Rather,

the extent to which a given activity is “sustained” necessar-

ily depends on the nature of the activity. Weekly meetings

that occur over a long time may safely be regarded as “sus-

tained,” for example.

The word “business” also has a wide variety of defi-

nitions, including:

“1a *  * purposeful activity : activity directed toward

*

some end *  * an activity engaged in toward an immedi-

*

ate specific end and usu. extending over a limited period

of time : TASK, CHORE, MISSION, ASSIGNMENT *  * *

b (1) : a usu. commercial or mercantile activity custom-

arily engaged in as a means of livelihood and typically

involving some independence of judgment and power of

decision *  *and sometimes contrasted with the arts *  *

*  *

or professions *  * or sport *  * or other activity consid-

*  *

ered less practical, serious, respectful, or mundane *  *[;]

*

OCCUPATION, POSITION, TRADE, LINE (2) : a commer-

cial or industrial enterprise *  * (3) : a place where such

*

an enterprise is carried on * * * (4) : transactions, dealings,

or intercourse of any nature *  * c : serious activity that

*

requires time and effort and usu. the avoidance of distract-

ing influences * * * d : a particular field of endeavor *  * *

2a : AFFAIR, MATTER *  * b : a difficult or complicated

*

matter : PROJECT.”

3

The assumption, of course, is not a hard-and-fast rule. Sometimes—for

clarity or emphasis, for example—the legislature intends to employ a measure of

redundancy. See, e.g., Cloutier, 351 Or at 97 (“Redundancy in communication is a

fact of life and of law.”); Thomas Creek Lumber and Log Co. v. Dept. of Rev., 344

Or 131, 138, 178 P3d 217 (2008) (“[N]othing prohibits the legislature from saying

the same thing twice[.]”). In this case, there is no evidence of such intent.

306 Kohring v. Ballard

Webster’s at 302. In the context of ORS 14.080(2), however, it

seems clear that the legislature used the term in the sense

of a usually “commercial or mercantile activity customarily

engaged in as a means of livelihood” or a “commercial or

industrial enterprise,” as opposed to any “purposeful activ-

ity.” The statute’s focus, after all, is the residence of a cor-

poration incorporated under the laws of this state, a limited

partnership, or a foreign corporation authorized to “do busi-

ness” in the state.

From an analysis of the text of ORS 14.080(2), then,

this much seems clear: The legislature intended that not

just any activity suffices to establish corporate residence for

venue purposes. Under ORS 14.080(2), only activity that is a

“regular” and “sustained” part of the “business” is sufficient.

That strongly suggests that an evaluation of both the quali-

tative nature of the business activity and the frequency with

which it occurs is required. In terms of the quality of the

activity, it must be normal and ordinary in the light of the

nature of the particular commercial or industrial enterprise.

It must be something more than incidental to the ordinary

operation of the enterprise. In terms of its frequency, the

activity must occur often enough to be sustained; it is not

sufficient if the activity is only infrequent and occasional.4

4

It is perhaps worth noting that a number of other states use the same or

similar terminology in their venue statutes. See generally Gregory J. Swain,

Place Where Corporation is Doing Business for Purposes of State Venue Statute,

42 ALR 5th 221 (1996). Among those states, there appears to be something of

a consensus that “doing business,” or “regularly transacting business,” or simi-

lar terms, exclude “mere solicitation” and other activities that are incidental or

peripheral to the normal, ordinary activities of the corporation. See, e.g., King

Motor Company, Inc. v. Capps, 540 So 2d 62 (Ala 1989) (solicitation and advertise-

ments in yellow pages, newspapers, radio, and television not sufficient to estab-

lish venue); City Stores Co. v. Williams, 287 Ala 385, 252 So 2d 45 (1971) (depart-

ment store advertisements in one county held not “doing business” there when

the transactions would ultimately be consummated elsewhere); Baltimore & OR

Co. v. Mosele, 67 Ill 2d 321, 333, 368 NE2d 88 (1977) (“The long-standing rule in

Illinois is that the mere solicitation of business is not ‘doing business.’ ”); Saba v.

Gray, 111 Mich App 304, NW2d 597 (1981) (advertising in newspaper that had

some circulation in Wayne County was not “conducting business” there for venue

purposes); Purcell v. Bryn Mawr Hosp., 525 Pa 237, 248, 579 A2d 1282 (1990)

(“Mere solicitation of business in a particular county does not amount to conduct-

ing business.”); Deeter-Ritchey-Sippel Associates v. Westminster College, 238 Pa

Super 194, 357 A2d 608 (1976) (solicitation of funds and recruiting not regular

business of college for venue purposes); Westmoreland Coal Co. v. Kaufman, 184

WVA 195, 399 SE2d 906 (1990) (hiring attorney is incidental and does not consti-

tute “doing business” for venue purposes).

Cite as 355 Or 297 (2014) 307

B.  Legislative History

Nothing in the legislative history of ORS 14.080(2)

suggests that the Oregon legislature intended something

different from what we have noted the text suggests.

1.  Background: Early Venue Statutes and Case Law

Modern venue rules are predominantly statutory,

but they derive from early common-law principles. See gen-

erally Robert C. Casad and Laura J. Hines, Jurisdiction and

Forum Selection § 426 at 4-88 (2d ed 2012). At common law,

courts distinguished between “local” actions, usually those

involving real property, and “transitory” actions, usually

involving disputes over goods and chattels. See generally

William Wirt Blume, Place of Trial of Civil Cases: Early

English and Modern Federal, 48 Mich L Rev 1, 23-25 (1949).

Common-law courts required local actions to be tried where

the property was located, while transitory actions could be

“laid” anywhere that personal jurisdiction over the defen-

dant could be obtained. Id.

Oregon’s first venue statute was patterned after

that tradition. Actions for the recovery of property were to

be tried “in the county in which the subject of the action or

some part thereof is situated.” General Laws of Oregon, Civ

Code, ch I, title IV, § 41, p 147-48 (Deady 1845-1864). In

other, transitory, cases, the action was to be tried where the

defendant resided or could otherwise be found:

“In all other cases, the action shall be commenced and tried

in the county in which the defendants or either of them

reside, or may be found, at the commencement of the action;

or if none of the parties reside in this state, the same may

be tried in any county which the plaintiff may designate in

his complaint.”

Depending on the nature of the business at issue, such activities as solic-

itation can nevertheless be relevant, as when the orders solicited are actually

filled or completed at the place where the solicitation occurred. See, e.g., Canter

v. American Honda Motor Corp., 426 Pa 38, 231 A2d 140 (1967) (newspaper and

radio advertising followed by personal appearances to demonstrate vehicles con-

stitutes “regularly conduct[ing] business” for venue purposes); Verd, 31 Wash 2d

at 629, 198 P2d at 665 (“ ‘Solicitation in regular course of business, together with

acceptance and performance of the contract *  * will give ample ground for the

*

conclusion of corporate presence.’ ” (citation omitted)).

308 Kohring v. Ballard

Id. § 43, p 148. The early venue statute made no mention

of corporations; it simply referred to “defendants” generally.

In 1876, the legislature added a provision concern-

ing the method of service of process on corporate entities.

Under the new provisions, corporations could be served by

delivering a copy of the complaint on the managing agent or

other corporate officers where they reside, “or in case none

of the officers of the corporation above named shall reside or

have an office in the county when the cause of action arose,”

then by leaving a copy at “the residence or usual place of

abode of such clerk or agent.” The Codes and General Laws

of Oregon, ch I, title V, § 55 (Hill 1887).

The Oregon Supreme Court first addressed how

those statutes applied to corporate entities in Holgate v.

O.P.R.R. Co., 16 Or 123, 17 P 859 (1888), overruled in part

on other grounds by Mutzig v. Hope, 176 Or 368, 158 P2d

110 (1945). In that case, the court concluded that, under the

venue provision, “[t]he residence of the corporation, if an

artificial person can be said to have a residence, must be

deemed to be * * * where it has its principal office and place

of business, and where it is required to pay its taxes.” Id.

at 125. But, in addition, the court held that the 1876 ser-

vice-of-process amendments implicitly assumed that venue

also is proper in the county in which the action arose. Id. at

125-26.

In 1909, the legislature essentially codified the

court’s holding in Holgate, at least as to tort actions. The

amendment was part of a legislative package that the legis-

lature found necessary to respond to the fact that “irrespon-

sible and dishonest persons have instituted or are about to

institute actions in counties many miles distant from the

place of residence of the defendants thereto on mere pretexts

for the sole purpose of annoying said defendants and putting

them to unjust and unnecessary expense.” Or Laws 1909,

ch 43, § 2. The new legislation modified the venue statute to

read:

“In all other cases [than local actions] the action shall be

commenced and tried in the county in which the defendants

or either of them reside or may be found at the commence-

ment of the action; provided that in any action founded on

Cite as 355 Or 297 (2014) 309

an alleged tort, unless the same is instituted in the county

where the cause of action arose or where the defendants

or one of them resides, then, either such action shall at

any time before trial thereof be transferred, upon motion

of defendants, to a county where at least one of the defen-

dants thereto resides; or the plaintiff in such action shall

file a good and sufficient bond securing to defendants the

payment of any judgment that may be rendered therein in

favor of said defendants and against plaintiff[.]”

Id. § 1 (emphasis in original).

In 1929, the legislature eliminated supplying a

bond as an alternative to transferring venue in tort actions.

Or Laws 1929, ch 239 § 1. From that point until 1983, an

action against a corporation could lie either where the cor-

poration resides—that is, the county of its principal place of

business—or where the cause of action arose. See, e.g., Hope,

176 Or at 388 (referring to “the firmly established doctrine

of this state to the effect that a domestic corporation can be

sued only in the county where its principal place of business

is located, or where the cause of action arose”); State ex rel.

v. Updegraff, 172 Or 246, 256, 141 P2d 252 (1943) (“In our

opinion, the only proper venue of transitory actions against

foreign corporations is either the county where they main-

tain their principal place of business or that in which the

cause of action arose.”).

Throughout that time, the court emphasized “the

general rule that statutes relating to the right to change

the venue of actions filed in the wrong place are to be lib-

erally construed so as to attain the objectives of such stat-

utes.” Etling, 255 Or at 400 (footnote omitted). In reference

to those objectives, the court cited cases from other jurisdic-

tions, noting that the purpose of venue statutes has always

been to ensure fairness to defendants by preventing them

from being haled into court in counties where they have lit-

tle or no connection. Id. at n 6.

2.  Enactment History of ORS 14.080(2)

That was the state of the law as of 1983, when the

Oregon legislature adopted the venue statute that is now

ORS 14.080. The bill that became ORS 14.080 was first intro-

duced as Senate Bill (SB) 198 (1983). The bill was proposed

310 Kohring v. Ballard

by the Oregon State Bar. As originally introduced, SB 198

provided that, for purposes of venue, a corporation or lim-

ited partnership resides in “any county where the corpora-

tion or limited partnership transacts business.” University

of Oregon Law School Professor Fred Merrill, representing

the Bar, explained to a Senate committee that the bill was

designed to allow suit not only where the corporation has its

principal place of business, but also “any place where it does

business, which would be broader.” Tape Recording, Senate

Committee on Local Government and Elections, SB 198,

Feb 9, 1983, Tape 14, Side A (statement of Fred Merrill).5

The bill passed out of the Senate with little debate

and was referred to the House Judiciary Committee. When

the bill was taken up by that committee, another represen-

tative of the Bar, Diana Godwin, similarly explained that

it was intended to “clean[  up and partly expand[  ORS

] ]”

14.080. Tape Recording, House Committee on Judiciary, SB

198, Apr 18, 1983, Tape 250, Side A (statement of Diana

Godwin).

At that point, however, the bill ran into opposition

from representatives of the business community who com-

plained that the bill defined corporate residence too broadly.

During the hearing before the House Judiciary Committee,

committee counsel Kirk Hall said that a member of the

banking industry had spoken with him about amending SB

198 “to get at the problem of allowing venue anywhere the

corporation does business.” Minutes, House Committee on

Judiciary, SB 198, April 18, 1983, 3.

The matter was referred to a subcommittee of

the House Judiciary Committee. In that subcommittee,

an amendment was proposed to change the definition of

5

The original version of the bill was modeled after former 28 USC § 1391(c)

(1982), which provided that “[a] corporation may be sued in any judicial district in

which it is incorporated or licensed to do business or is doing business, and such

judicial district shall be regarded as the residence of such corporation for venue

purposes.” Congress amended the statute in 1988 so that it currently provides

that venue is proper “in any judicial district in which any defendant resides.” 28

USC § 1391(b). The statute then provides that the “residence” of a defendant is

“any judicial district in which such defendant is subject to the court’s personal

jurisdiction with respect to that action.” Id. § 1391(c). See generally Charles

Alan Wright, Arthur R. Miller & Edward H. Cooper, 14D Federal Practice and

Procedure: Jurisdiction 3d § 3811 (2007).

Cite as 355 Or 297 (2014) 311

corporate residence from wherever it “transacts business” to

wherever it engages in “regular, sustained business activ-

ity.” At a hearing before the subcommittee, Hall explained

that

“there was some concern that the phrase ‘transact busi-

ness’ could mean that * * * a business entity that maybe did

some business in a particular county of the state * * * on an

irregular basis, didn’t have an office there *  * might still

*

be subject to venue in some county that otherwise it had

virtually no contacts with other than occasional business

transactions. So the suggested change—instead of transact

business—is ‘conducts regular, sustained business activity’

simply to raise the threshold a little bit, and this is accept-

able to Professor Merrill and his group.”

Tape Recording, House Committee on Judiciary Subcom-

mittee 2, May 3, 1983, Tape 288, Side A (statement of Kirk

Hall). As Hall noted, the change was intended to “raise the

threshold a little bit” for the benefit of defendants. Id. Those

amendments were adopted without objections, and the bill

as amended was passed by the legislature without further

discussion of that issue.

The legislative history thus makes clear that, while

SB 198 was intended to “partly expand” the definition of cor-

porate residence for venue purposes, the legislature rejected

wording that would have defined corporate residence in

terms of any place that the corporation or limited partnership

does business. Instead, it adopted wording that was intended

“to raise the threshold” and exclude activities that amount

to doing only “some business” on an “irregular basis” where

the corporation or limited partnership had “virtually no con-

tacts” other than “occasional business transactions.” Id.

To be sure, the foregoing legislative history consists

principally of statements of nonlegislators, which sometimes

provides limited assistance in determining the legislature’s

intent. See, e.g., State v. Guzek, 322 Or 245, 260, 906 P2d

272 (1995), rev’d on other grounds, State v. Moore, 324 Or

396, 927 P2d 1073 (1996) (noting that the testimony of a sin-

gle nonlegislator says little “about the intent of the Oregon

Legislative Assembly as a whole”). In some cases, however,

312 Kohring v. Ballard

it is appropriate to give greater weight to such legislative

history, as when the nonlegislators were the drafters and

principal proponents of a bill, and it is clear that the leg-

islature relied on their explanations. See, e.g., Assoc. Unit

Owners of Timbercrest Condo. v. Warren, 352 Or 583, 596-

97, 288 P3d 958 (2012) (relying on testimony of a represen-

tative of the Oregon State Bar regarding a bill proposed by

the Bar); State ex rel Engweiler v. Felton, 350 Or 592, 626-27,

260 P3d 448 (2011) (considering statements made by the

Chair of the Board of Parole, proponent of the bill at issue);

Snider v. Production Chemical Manufacturing, Inc., 348 Or

257, 266-67, 230 P3d 1 (2010) (considering testimony from

a representative of the Oregon State Bar, the proponent of

the bill).

In short, the legislative history confirms what the

text of ORS 14.080(2) suggests. Although the legislature

intended to expand the definition of corporate residence for

venue purposes to cover more than just a single “principal

place of business,” it also intended to limit corporate resi-

dence to those places where an enterprise conducts its nor-

mal, ordinary business activities on a sustained basis.

C.  Application

With the foregoing in mind, we turn to the trial

court’s denial of defendants’ motion to change venue. As we

have noted, the trial court, finding no controlling Oregon

case law, relied on the Washington Supreme Court’s deci-

sion in Verd in concluding that the determination of corpo-

rate residence for venue purposes is essentially the same

as the evaluation of the sufficiency of business contacts for

personal jurisdiction purposes. Based on a personal juris-

diction analysis, the trial court then concluded that defen-

dants’ solicitation and advertising activities constituted

“purposely avail[ing]” themselves of the court’s jurisdiction

in Multnomah County, and that such purposeful availment

sufficed to establish their residency for venue purposes.

In so doing, the trial court erred. First, personal

jurisdiction and venue are not the same thing. Jurisdiction

refers to the authority of the court to hale a defendant into

court, while venue concerns the particular location where it

is appropriate for the court to exercise that authority. See

Cite as 355 Or 297 (2014) 313

generally Casad & Hines, Jurisdiction and Forum Selection

§ 426 at 4-87 (“A defendant who has the requisite contacts to

a state may be subject to personal jurisdiction in every court

of that state, but the venue rules will designate one or more

counties or districts as the place where the action should be

brought.” (Emphasis in original)).

As we have noted, the current federal definition of

corporate residence for venue purposes does equate venue

and personal jurisdiction. Many states, however, define

venue to require more than just the minimum contacts neces-

sary to establish personal jurisdiction. See generally Swain,

Place Where Corporation is Doing Business for Purposes of

State Venue Statute, 42 ALR 5th at 237-38. And nothing

in the wording of ORS 14.080(2) or its legislative history

suggests that the Oregon legislature intended to define cor-

porate residence for venue purposes to extend to any place

where personal jurisdiction would lie.

Second, on its own terms, Verd is distinguishable. In

that case, the Washington Supreme Court recognized that,

even for personal jurisdiction purposes, the “mere solicita-

tion” of orders does not suffice. 31 Wash 2d at 629, 198 P2d

at 665. The court explained that only “if the solicitation by

the corporation’s agents was regular and systematic and

had resulted in a continuous flow of its products into this

state,” or if “there were additional activities by the corpora-

tion’s agents”—in particular, “acceptance and performance

of the contract within the state”—would solicitation be suffi-

cient to establish jurisdiction. Id.

In this case, there is no such “regular and systematic

flow” of products or services into Multnomah County. Nor

did defendants’ solicitation and advertising activities result

in acceptance and performance in Multnomah County. To

the contrary, it is undisputed that all of defendants’ medical

services were rendered in Clackamas County only.

The question remains whether, using a proper

analysis under ORS 14.080(2), the trial court’s denial of

defendants’ motion nevertheless was correct. As we have

noted, plaintiffs contend that a number of activities estab-

lish the sort of “regular, sustained business activities” that

ORS 14.080(2) requires. We conclude that none of those

314 Kohring v. Ballard

activities, individually or collectively, establishes what the

statute requires.

We begin with evidence that 600 of Oregon

Orthopedic’s patients reside in Portland. At the outset, it is

debatable that such a relatively small portion of defendants’

clientele—2.5 percent—is sufficient to satisfy the statute’s

requirement of “regular, sustained business activities.” See,

e.g., Hernandez v. East Coast Barge and Boat Co., 85 Va Cir

103, 103 (2012) (finding a lack of substantial business activ-

ity for venue purposes for revenue or expenditures below 10

percent). We need not decide that, however, because where

defendants’ patients happen to reside is not a “business

activity” that is “conducted” by defendants. If, for instance,

one of defendants’ patients traveled from her residence in

Uruguay to receive medical services in Clackamas County,

defendants would not have conducted any business activi-

ties in Uruguay. The focus of ORS 14.080(2) is defendants’

activities not their patients’ place of residence.6

We turn to defendants’ advertising and solicita-

tion activities. The record shows that Oregon Orthopedic

advertised in three ways. First, it maintained a web page in

which it referred to its location as being near Portland and

listed its site as “pdxortho.com.” Second, it posted seven job

openings in the Oregonian newspaper in 2007. Third, over

a period of five years, it advertised in the local yellow pages

telephone directory that is distributed in, among other

places, Multnomah County.

We begin by noting that the fact that defendants’

advertising refers to “Portland” or “pdx” hardly establishes

that they conduct regular, sustained business activity in

Multnomah County. The City of Portland, after all, is located

in three different counties—Multnomah, Clackamas, and

Washington. We also conclude that seven job postings in

2007—even assuming for the sake of argument that they

constitute “regular” business activities—do not amount to

the sort of “sustained” business activity that ORS 14.080(2)

requires.

6

That is not to say that where a patient or customer resides is always irrel-

evant. In the case of a doctor who makes house calls, for example, or a plumber

or electrician who provides services in a customer’s home, patient or customer

residence is relevant, because it determines where the business activities occur.

Cite as 355 Or 297 (2014) 315

Aside from that, defendants’ advertising in the yel-

low pages directory and its posting of occasional job open-

ings is not a “regular” part of defendants’ business in this

case. That is not to say that advertising and solicitation are

never relevant. Their relevance will depend on the nature of

the business at issue and where products and services are

actually provided. In this case, defendants’ advertising and

solicitation are incidental to their regular business activity.

That only makes sense. If where a business adver-

tises determines its corporate residence for venue pur-

poses, then advertising (particularly with the advent of the

Internet) would subject it to legal action anywhere that per-

sonal jurisdiction could be established. As we have noted,

nothing in the text or legislative history of ORS 14.080(2)

suggests that the legislature intended that.

Plaintiffs also rely on the fact that some of the

physicians who work at Oregon Orthopedic conferred with

attorneys who practice in Multnomah County for the pur-

pose of providing information in relation to patients’ work-

ers’ compensation claims. It is debatable whether such meet-

ings are “regular” business activities of defendants. See, e.g.,

Westmoreland Coal Co., 399 SE2d at 906 (hiring attorney is

incidental and does not constitute “doing business” for venue

purposes). Nor is it beyond dispute that such activities were

“sustained” within the meaning of the statute. But we need

not resolve those uncertainties, because the record estab-

lishes that only one of those meetings actually took place in

Multnomah County.7

Plaintiffs contend that some physicians who work

for Oregon Orthopedic attended educational seminars that

were offered in Multnomah County. The record does show

that, during a five-year period, Oregon Orthopedic sent

employees to 68 educational seminars and 44 continuing

medical education seminars that took place in Multnomah

County. We conclude that a total of 112 seminars over

7

The record on this point consists of a declaration of defendants’ counsel list-

ing 39 meetings concerning mostly workers’ compensation claims that occurred

between January 2010 and May 2012. In nine instances—each referring to a

physician giving deposition or trial testimony—the location of the meeting

is included. And, in all but one of those instances, the location was outside of

Multnomah County.

316 Kohring v. Ballard

a course of five years is not the sort of “sustained” activi-

ties contemplated by ORS 14.080(2). Moreover, there is no

evidence that defendants conducted the seminars. Merely

attending a seminar put on by someone else is not a busi-

ness activity that defendants “conducted.”

Plaintiffs also rely on evidence that Oregon Orthopedic

has referred patients to medical imaging centers located

in Multnomah County. That defendants may refer some of

its patients to other medical service providers located in

Multnomah County, however, does not constitute a business

activity of defendants conducted there. Moreover, the record

is silent on the number of such referrals. It is therefore

impossible to determine whether they constitute the sort of

“sustained” business activities required by ORS 14.080(2).

Finally, plaintiffs contend that defendants “culti-

vate[  relationships with Multnomah County clinics, send-

]

ing Christmas gifts and on occasion providing lunches.”

What the record reveals, however, is that Oregon Orthopedic

sends Christmas chocolates to two clinics, and provided a

single lunch in 2009. Even assuming for the sake of argu-

ment that those are the sort of “regular * * * business activ-

ities” that ORS 14.080(2) refers to, the fact remains that

they are not in any sense “sustained.”

In short, none of the activities on which plaintiffs

rely satisfies the statutory requirement of “regular, sustained

business activities” within the meaning of ORS 14.080(2).

Nor, when taken collectively, do they establish defendants’

residence in Multnomah County for venue purposes. The

trial court therefore erred in denying defendants’ motion to

change venue.

Peremptory writ of mandamus to issue ordering

trial court to grant defendants’ motion to change venue.