Simmons v. State

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 ,

-vs-

STATE 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: J u n e 1 0 , 1983

Decided: October 1 7 , 1983

Clerk

Mr. Justice L.C. Gulbrandson delivered the Opinion of the

Court.

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 any event,

considerations of comity warranted dismissal. (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. 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 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 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

a l s o performs t h i s s e r v i c e f o r Idaho, Nevada, and A l a s k a .

Public health officials from all five 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 the tests 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 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 16.24.201-2131.

Analysis was to take place in Oregon. The Montana

Department of 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 t o be

notified by mail or by telephone of any abnormal test

results according to the urgency of laboratory 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 o r p h y s i c i a n s of significant findings. Montana

agreed t o p a y Oregon $27,000 per year, in four 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. Montana would p a y a n a d d i t i o n a l $2.25 for each

sample in excess of 12,000. Oregon has argued, and the

plaintiff has not disagreed, that the contract f e e s cover

nothing more than the marginal cost of lab testing

procedures. Montana does not contribute to the cost of

maintaining the laboratory or the establishing of the test

procedures. Furthermore, Oregon does not profit from the

contractual arrangement. The contract was signed in Montana

and Oregon, and 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 be unreasonable and contrary to due

process. 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. This appeal was dismissed

because 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. May v. Figgins (Mont. 1980), 607

P.2d 1132, 37 St.Rep. 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. 310,

66 S.Ct. 154, 90 L.Ed. 95. 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 our analysis ends and we must decline

jurisdiction. 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 a state

court to render a valid personal judgment against a

nonresident defendant. Due p r o c e s s requires that 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 there exist "minimum contacts" between the

defendant and the forum state. See, I n t e r n a t i o n a l Shoe,

supra, 326 U.S. a t 316, 66 S . C t . a t 158, 90 L.Ed. a t 102.

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 1 3 5 , 39

St.Rep. 2017; Reed v . A m e r i c a n A i r l i n e s , Inc. (Mont. 1982),

640 P.2d 912, 39 S t . R e p . 3 3 5 ; 'May v . Figgins, supra. The

concept of "minimum contacts" has undergone development

since I n t e r n a t i o n a l Shoe, and the latest phase of that

development must be examined h e r e . I n World-Wide Volkswagen

Corp. v. Woodson, supra, the United States Supreme C o u r t

held that an Oklahoma court could not 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 no business in that state and whose only

"contact" with Oklahoma consisted of an 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 , t h a t exploded

i n a c o l l i s i o n i n Oklahoma. 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 f o r e s e e a b l y end up i n t h a t s t a t e

and c a u s e i n j u r y t h e r e . World-Wide Volkswagen, supra, 444

U.S. a t 288-97, 100 S.Ct. a t 562-7, 62 L.Ed.2d a t 495-502.

In its opinion, the court elaborated on the concept of

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

distinguishable, functions. It protects

the defendant against t h e burdens 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

............................ c o - e q ---

ual

sovereigns in a federal system."

444 U.S. at 291-2, 100 S.Ct. at 564, 62 L.Ed.2d at 498.

(emphasis added) Thus, there is a "federalism component"

which we are bound to consider in our constitutional

inquiry. 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."'

Internatio

a Shoe Co. v. Washington [326

U.S. &3&31@ 161, quoting Milliken v.

Meyer, 311 U.S. 457, 463 (1940).

relationship between the defendant and

The

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]."

444 U.S. at 292, 100 S.Ct. at 564, 6 2 L.Ed.2d at 498.

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, 444 U.S. at 292, 100 S.Ct. at 565, 62

L.Ed.2d at 498. This relaxation has been effected by

improvement in transportation and communication, as well as

advancements in the field of interstate commercial

transactions. 444 U.S. at 292-3, 100 S.Ct. at 565, 62

L.Ed.2d at 498-9. 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 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 . . ." 444 U.S. at 293-4, 100 S.Ct. at

565, 62 L.Ed.2d at 499, (citing International Shoe, supra,

326 U.S. 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. at 565-6, 62 L.Ed.2d at 499-500

(citing Hanson v. B%+dGh (1958), 357 U.S. 235, 251, 254,

Denc-his.

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), 655 F.2d

991, 993. 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 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 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., Inc. (9th Cir.

1977), 557 F.2d 1280, 1287. See, also, Ins. Co. of North

America v. Marina Salina Cruz (9th Cir. 1981), 649 F.2d

1266, 1270; Plant Food Co-op v. Wolfkill Feed & Fertilizer

(9th Cir. 1980), 633 F.2d 155, 158-9; Panos Inv. Co. v.

District Court (1983), Colo. , 662 P.2d +8=&;

180

Schlatter v. Mo-Comm Futures, Ltd. (1983), Kan. 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 to "substantial" activity

within this State. Nor can we say that this contract and

the transactions 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 generally involve individual or commercial

enterprises that actively solicit 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. (D.Conn. 1968), 280 F.Supp. 550

e

(nonresident defendant contracts for machinery in

Connecticut); Reed v. American Airlines, Inc., 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), 613 P.2d 1002, 37 St.Rep. 1119

(nonresident rock concert promoter actively promoting

concerts & contracting for services in Montana). Oregon, on

the other hand, has apparently been sought out by Montana

and other states to perform a public health service for

these states - Oregon and for a price not designed

in to

generate a profit. 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 M, is misplaced. In Wendt,

b7

the Minnesota Supreme Court held that a political

subdivision of Iowa was subject to the jurisdiction of

Minnesota courts in a 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 personal jurisdiction possible and

reasonable. Nevertheless, Wendt is distinguishable from the

facts at bar. Osceola County was obliged to perform

services - the State of Minnesota on a continuing basis,

in

whereas Oregon has contracted to conduct its activities

within that state. 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." 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d

at 501. 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 on the basis of

activities performed in Oregon. Even if Wendt can fairly be

read to support plaintiff's contention, personal

jurisdiction over Oregon 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., Iowa Electric

Light and Power Co. v. Atlas Corp. (8th Cir. 1979), 603

F.2d 1301; Lakeside Bridge and Steel v. Mountain State

Construction (7th Cir. 1979)! 597 F.2d 596; Barnstone v.

Congregation Am Echad (5th Cir. 1978), 574 F.2d 286;

Anderson v. Schiflett (10th Cir. 1971), 435 F.2d 1036. Most

of these cases involved 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 industrial activity therein. As such, their

activities were structured around the prospect 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. 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 "

was "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 t h e forum. Iowa E l e c t r i c , supra,

6 0 3 F.2d a t 1 3 0 6 . Accord: C h a r i a v . C i g a r e t t e R a c i n g Team,

Inc. ( 5 t h C i r . 1 9 7 8 ) , 583 F.2d 1 8 4 , 189; Benjamin v. Western

Boat B u i l d i n g Corp. (5th Cir. 1973), 472 F.2d 723, 730,

c e r t . d e n i e d , 414 U.S. 8 3 0 , 94 S . C t . 6 0 , 38 L.Ed.2d 64.

Similarly, Oregon has no property or agents in

Montana, and t r a n s a c t s no b u s i n e s s h e r e . Oregon was s o u g h t

out by the State of Montana to conduct lab testing for

metabolic disorders, and this service is conducted in

Oregon. 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 itself of the privilege of

conducting activities in the forum state. Telephone and

mail communication of test results do not transform the

nature of the contact into a purposeful injection into

Montana. 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 to doing business in t h e modern world, and

c a n n o t by itself be considered a "contact" for justifying

t h e e x e r c i s e of personal jurisdiction. See, e .g., Scullin

S t e e l Company v. National Railway Utilization Corp. (8th

Cir. 1 9 8 2 ) , 676 F.2d 309; S p o r t i n g Good D i s t r i b u t o r s , Inc.

v . W h i t n e y (N.D.Fla. 1 9 8 0 ) , 498 F.Supp. 1088. A s t h e E i g h t h

C i r c u i t noted in Scullin Steel, supra, 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 results reached in Oregon from tests

performed there. (And, it is the Montana Department of

Health and Environmental Sciences -- 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 Court and the Ninth Circuit

disagreed with plaintiff's assertion. 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 . See, e.g.,

Lemke v . St. M a r g a r e t Hosp. (N.D. Ill. 1 9 8 2 ) , 552 F.Supp.

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 -- injury in Illinois) ;

Kennedy v. Ziesmann (E.D.Ky. 1981), 526 F.Supp. 1328

( a l l e g e d n e g l i g e n c e i n Ohio -- i n j u r y i n Kentucky); Jackson

v. Wileman (W.D.Ky. 1979), 468 F.Supp. 822 (alleged

n e g l i g e n c e i n Ohio -- i n j u r y i n K e n t u c k y ) ; G l o v e r v . Wagner

(D.Neb. 1 9 7 8 ) , 462 F.Supp. 3 0 8 ( a l l e g e d n e g l i g e n c e i n Iowa

-- i n j u r y i n Nebraska); Kurtz v. Draur (E.D.Pa. 1 9 7 7 ) , 434

F.Supp. 958 (alleged negligence i n Nebraska -- injury in

Pennsylvania). These c o u r t s have uniformly distinguished

voluntary interstate economic activity, directed at the

forum state's economic markets, from the provision of

medical services outside of the forum state where the

provider has not solicited clientele. Under these

circumstances, the courts conclude that the aggrieved

plaintiff "ought t o expect t h a t he [or s h e ] w i l l have t o

t r a v e l again i f he [or she] t h e r e a f t e r complains t h a t t h e

services sought by him in the foreign jurisdiction were

therein rendered improperly." Gelineau v. New York

U n i v e r s i t y Hosp. (D.N.J. 1 9 7 4 ) , 3 7 5 F.Supp. 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 in the cited cases, 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

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 returned to Montana for 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 felt in Montana, but, like the typical

nonresident physician in the above-cited 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. In McGee, the Federal

District Court held a Utah physician subject to its

jurisdiction on the basis of a telephone call made to his

patient in Montana regarding a previously treated eye

condition. But the plaintiff's only claim of negligence in

that case was the new diagnosis given over the telephone;

plaintiff was not resting any claim on the previous

treatment in Utah. Thus, McGee is distinguishable from the

f a c t s of t h e i m m e d i a t e case. Indeed, the court i n McGee

noted the relevant difference between cases involving

negligent diagnosis and/or treatment in the defendant's

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 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

U n i v e r s i t y Hosp. (D.N.J. 1 9 7 4 ) , 375

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. at 1278. The court observed that if the

plaintiff had based his complaint upon the previous

treatment in Utah, then the court would have declined

jurisdiction. 442 F.Supp. 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 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. 444 U.S. at

292-3, 100 S.Ct. at 565, 62 L.Ed.2d at 498. 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

enumerated in - -

World-Wide Volkswagen, supra, need to be

considered here.

Montana courts certainly have an interest in allowing

Montana plaintiffs to seek restitution for tortious conduct.

See, World-Wide Volkswagen, supra, 444 U.S. at 292, 100

S.Ct. at 564, 62 L.Ed.2d 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 jurisdiction." Ins. Co. of North

America v. Marina S a l i n a Cruz (9th Cir. 1981), 649 F.2d

1266, 1273, c i t i n g Kulko, s u p r a , 436 U.S. a t 9 2 , 98-101, 98

S.Ct. a t 1696, 1700-1701, 56 L.Ed.2d at 141, 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. B u t a s t h e Supreme C o u r t n o t e d

i n World-Wide Volkswagen, supra, and t h e Ninth Circuit

r e i t e r a t e d i n Marina S a l i n a Cruz, 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 would better serve the i n t e r e s t s of

justice" b e c a u s e i n Montana, plaintiff could r e c e i v e up t o

$300,000 under our s t a t e ' s t o r t claims l a w , a s opposed to

$100,000 under Oregon's tort liability statute.

Or.Rev.Stat., S e c t i o n 30.270 (1982). (We note here t h a t i n

our recent decision in White v. State of Montana (Mont.

1983), 661 P.2d 1272, 40 St.Rep. 507, we held that the

limitation on governmental liability for t o r t damages was

unconstitutional, although the Montana legislature

subsequently restored t h i s limitation. S e e , S.B. 465, 48th

Mont.Leg., Reg. Sess., S e c t i o n 2 ( 1 ) , ( t o be c o d i f i e d a t 1983

Mont. Laws 6 7 5 ) ) . 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 -- t h a t is f o r a j u r y

to decide. We can say, however, that predicating

jurisdiction on w h i c h forum p r o v i d e s 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 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, 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 at 498;

Kulko, supra, 436 U.S. at 98, 98 S.Ct. 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. Supreme

Court. Because of our state's low birth-rate 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. See,

e-g., McGee, supra, 442 F.Supp. at 1279. Justice undeniably

would be defeated if the refusal to assert jurisdiction

would insulate Oregon from any malpractice claims.

Nevertheless, we conclude that acquiring 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.

We emphasize 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 interests in quality medical care.

Furthermore, c o u r t s have recognized t h a t , 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

-------------------y --- j --------

i n t e r e s t necessaril re ects the

E -- p...........................c i e n c y ---

ro osition that the suffi of

.........................n t i s s u b j e c t t o

out-of-state treatme

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 program available weighs against any

interest i n asserting jurisdiction over Oregon. To f i n d

otherwise under these facts might ultimately have a

"chilling effect on the availability of professional

services t o nonresidents," Gelineau, supra, 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 risk

defending its interests in several foreign states. Thus, we

find that proper respect for the mutual 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 leads us to consider the

"federalism componet" 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, 444 U.S. at 293, 100 S.Ct. at 565, 62

L.Ed.2d at 499. 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 state, if the act is negligent rather than

purposeful." 649 F.2d at 1271, quoting Data Disc., supra,

557 F.2d at 1288. By analogy, the court reasoned that the

"reasonableness of jurisdiction . . . depends also in part

upon the seriousness of 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 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 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.

In Ehrlich-Bober & Co. v. University of Houston (1980), 49

N.Y.2d. 574, 404 N.E.2d 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

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.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), Nev. I

658 P.2d 422; Wendt v. County of Osceola, 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. They are free to do so."

Hall, supra, 440 U.S. at 426, 99 S.Ct. at 1191, 59 L.Ed2d at

429. 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). 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 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 , 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

receive a more just compensation in Montana. We are

reluctant t o use 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 merits of plaintiff's

claim. 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 jurisdiction would unnecessarily project Montana

law onto the alleged acts of another 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. The matters considered in our

constitutional inquiry a l s o convince us that personal

jurisdiction should not be allowed in the interests of

comity. 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 should decline jurisdiction as a matter of

comity.