Columbia Boat Sales, Inc. v. Island Packet Yachts , 105 Or. App. 85 ( 1990 )

EDMONDS, J.

Plaintiff appeals an order dismissing its complaint for lack of personal jurisdiction. ORCP 21A. We reverse.

Plaintiff is an Oregon corporation engaged in the business of retail sales of yachts and boats. Defendant is a Florida corporation that builds and sells yachts to retailers for resale. In November, 1988, plaintiff called defendant in Florida and contracted to purchase a yacht. As part of that transaction, plaintiff agreed to become one of defendant’s dealers. In December, 1988, plaintiff, at defendant’s request, sent defendant $2,000 of a $3,000 deposit on the yacht.¹ On March 10,1989, defendant mailed plaintiff a memorandum confirming the transaction. It was accompanied by a production order and invoice form. On March 24,1989, defendant mailed plaintiff a congratulatory letter welcoming plaintiff as a dealer.

Sometime after receiving the letter, plaintiff entered into a contract to sell the yacht to a third party. Defendant failed to deliver the vessel. Plaintiff brought this breach of contract action alleging damages for lost profits, because it was required to obtain a substitute vessel for its customer at a higher price.

Plaintiff argues that jurisdiction over defendant is proper under ORCP 4C, D, E or L. Defendant contends that plaintiff did not specifically rely on ORCP 4C or D in the trial court and, therefore, cannot assert those bases for jurisdiction on appeal. We disagree. Plaintiff raised the issue of personal jurisdiction below, and that is enough. See State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988).

ORCP 4D(1) provides for jurisdiction

“[i]n any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant, provided in addition that at the time of injury, either:

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“D.(l) Solicitation or service activities were carried on within this state by or on behalf of the defendant[.]” (Emphasis supplied.)

We said in Marvel v. Pennington GMC, Inc., 98 Or App 612, 616, 780 P2d 760 (1989):

“ORCP 4D requires that the claimed injury occur in Oregon and presupposes that an act or omission causing the injury occurred outside the state. Aside from the injury, the rule requires additional contact with Oregon, although not necessarily related to the claim, as defined in ORCP 4D(1) and (2). ” (Emphasis supplied.)

Plaintiffs complaint satisfies the requirements of ORCP 4D: It alleges an “injury to person or property within this state” by claiming that it suffered a loss of profits in Oregon. Further, it alleges an “an act or omission outside this state by the defendant”; that is, defendant’s failure to deliver the yacht in Florida. Finally, it alleges conduct that complies with ORCP 4D(1). “Service” is the “performance] of any of the business functions auxiliary to production or distribution.” Webster’s Third New International Dictionary 2075 (1976).² After plaintiff entered into a contract to purchase a yacht built by defendant, defendant sent plaintiff in Oregon a memorandum confirming the transactions, a building order and invoice form and a congratulatory letter welcoming plaintiff to its network. Those actions constitute “service activities,” because they were auxiliary to the production and distribution of defendant’s product. Because we conclude that plaintiff has alleged sufficient facts to establish personal jurisdiction over defendant under ORCP 4D(1), we need not address plaintiffs assertions regarding ORCP 4C, E and L. State ex rel Hydraulic Seruocontrols v. Dale, 294 Or 381, 384, 657 P2d 211 (1982).³

Reversed and remanded.

1 Plaintiff submitted an affidavit stating that the $2,000 was a deposit on the yacht. Defendant submitted an affidavit stating that the $2,000 was “part of plaintiffs request to become an Island Packet dealer.” Although not explicitly stated, it appears that plaintiff could buy a yacht from defendant for resale only if it became one of defendant’s dealers.

2 The legislative history does not indicate what the drafters intended by “service activities.” ORCP 4D(1) is modeled after Wise Stat Ann § 801.05(4) (West 1977). The commentary to that provision states:

“[V]ery little more by way of additional contact is required for the exercise of personal jurisdiction in these cases. This concept that personal jurisdiction may be grounded on the contacts made up of the local injury plus something more (often very little more) has grown recently and rapidly out of the older ‘doing business’ concept.” Revision Notes to Wise Stat Ann § 801.04(5) at 63.

That suggests that however “service activities” is defined, it was intended to be broadly construed.

3 Contrary to the holding of State ex rel Hydraulic Servocontrols v. Dale, supra, the court in Gray & Co. v. Firstenberg Machinery Co., 913 F2d 758 (9th Cir 1990) held that, in order to establish personal jurisdiction, a plaintiff must show that the foreign state’s long-arm statute confers personal jurisdiction over the out-of-state defendant and that the exercise of jurisdiction does not violate federal constitutional principles of due process. Defendant does not make that argument here. The statement, “[furthermore, any jurisdiction must comport with due process” in defendant’s brief, which is relied on by the concurring opinion, is in the context of an argument that, “as a matter of constitutional due process, there is no jurisdiction over defendant.” In other words, defendant makes separate arguments to defeat jurisdiction under standards imposed by ORCP 4L and the constitution. However, it does not argue that, to acquire jurisdiction, plaintiff must prove compliance with both.