Air Serv Corporation & Abm Aviation, Inc. v. John E. Montgomery , 446 P.3d 659 ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN E. MONTGOMERY and DIVISION ONE
SHARON R. PARCHIA, individually and
as Co-Personal Representatives of the No. 78235-5-1
Estate of DR. ELINOR ELIZABETH
MONTGOMERY, and on behalf of the PUBLISHED OPINION
beneficiaries of the estate to include:
DEBRA E. GRIFFIN, MICHAEL C.
MONTGOMERY, LYNDA R.
ESCALANTE, DANIEL E.
MONGTOMERY,STEPHEN K.
MONTGOMERY, and ENOCH P.
MONTGOMERY
Respondents,
v.
AIR SERV CORPORATION, INC., a for-
profit corporation doing business in King
County, State of Washington; ABM
AVIATION, INC., d/b/a AIR SERV
CORPORATION and AIR SERV, a for-
profit corporation doing business in King
County, Washington, and CLARISSA
ESCALANTE, a single person residing
in Washington State,
Petitioners,
FILED: August 12, 2019
DWYER, J. — Following her death, Dr. Elinor Montgomery's estate filed a
wrongful death action against Air Serv Corporation and ABM Aviation Inc.
No. 78235-5-1/2
(collectively ABM)1 alleging negligence in the provision of wheelchair services by
ABM to Montgomery at the Dallas-Fort Worth (Dallas) airport in Texas.2 On
discretionary review, ABM seeks reversal of the trial court's ruling denying its
motion to dismiss for lack of personal jurisdiction. According to ABM, the trial
court erred by concluding that it had specific jurisdiction over ABM and that the
Estate's claim arose from ABM's contacts with Washington given that
Montgomery was injured in Texas and ABM provided wheelchair assistance
services in Texas but not in Washington. We agree and now reverse.
ABM is an airline and airport services company incorporated in Georgia
with its principal place of business in Georgia. ABM offers a variety of airline and
airport services, including wheelchair assistance, by contracting with airlines and
airports. With respect to wheelchair assistance, passengers requiring such
services request wheelchair assistance directly from their airline. If ABM has a
contract with that airline to provide such services at the airport in which the
passenger requires wheelchair assistance, the airline will then request
wheelchair assistance from ABM on the customer's behalf.
ABM has affiliate locations in numerous airports, including in Dallas and in
Seattle (SeaTac). In July 2015, however, ABM did not provide wheelchair
1 The parties acknowledge that Air Serv Corporation and ABM Aviation Inc. are the same
company. The record does not provide a clear explanation as to how and when this became so.
2 The complaint also sets forth a tort survival action seeking recompense of medical
expenses and general damages, claims brought by Montgomery's surviving relatives individually
for "negligent infliction of emotional distress, mental anguish, and loss of love and
companionship," and claims brought by Montgomery's children individually for "loss of the
parental relationship with their mother." All of these claims arise from ABM's alleged negligence
in the provision of wheelchair assistance services to Montgomery. For purposes of this opinion,
we refer to all plaintiffs as the "Estate" and all claims as the "claim."
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No. 78235-5-1/3
assistance services in the SeaTac Airport but, rather, provided janitorial, cabin
cleaning, and baggage services.
Sharon Parchia, Montgomery's daughter, purchased a ticket from Alaska
Airlines for Montgomery to travel from SeaTac to Dallas in July 2015.3 Parchia
utilized Alaska Airlines' website to purchase the ticket and, at the time of the
booking, checked a box on the website to request wheelchair assistance for
Montgomery for both her departure from SeaTac and her arrival in Dallas. The
website did not identify or offer any suggestion or reference to the company or
companies that would provide the wheelchair assistance. At no time did Parchia
or Montgomery contact ABM during the booking process.
On July 29, 2015, Montgomery's flight arrived at the Dallas airport and
ABM provided Montgomery with wheelchair assistance services. The Estate
alleges that during or immediately following the provision of these services,
Montgomery sustained injuries that ultimately led to her death. Thereafter, the
Estate filed its claim in King County Superior Court against ABM, alleging that
negligence during the provision of wheelchair assistance services in Texas
caused Montgomery's death.4 The complaint alleges that jurisdiction over ABM
is proper because "at all times relevant and material hereto" ABM was "doing
business within King County, Washington, . . . as well as other locations in
Washington State."
Subsequently, ABM filed a motion to dismiss for lack of personal
3 Montgomery ultimately missed her originally scheduled Alaska Airlines flight and was
rebooked on an American Airlines flight for the following day.
4 The Estate also brought suit against Montgomery's granddaughter, Clarissa Escalante,
alleging negligence for failing to adequately escort her grandmother through the Dallas airport.
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No. 78235-5-1/4
jurisdiction. After hearing oral argument, the trial court denied the motion.
During the hearing, the trial court concluded that ABM had purposefully availed
itself of the privilege of conducting business in Washington and that the Estate's
claim was sufficiently connected to ABM's contacts with Washington to subject
ABM to the jurisdiction of Washington courts. Although the trial court considered
the connection between the Estate's claim and the forum to be "a little bit
tenuous," it nevertheless concluded, after discussing the extent of ABM's non-
wheelchair-assistance-related services, that as long as there was some
connection to ABM's acts or transactions in Washington, jurisdiction was proper,
even if that connection was "fairly tenuous."
ABM then moved this court for discretionary review, asserting that review
was warranted pursuant to RAP 2.3(b)(1) because the trial court's denial of its
motion to dismiss constituted an obvious error rendering further proceedings
useless.5 Our commissioner ruled that the trial court's decision appeared
inconsistent with recent case law from the United States Supreme Court
concerning whether claims have arisen from a nonresident defendant's contacts
with a forum state and granted review.
II
ABM contends that the trial court erred by concluding that the superior
court had specific personal jurisdiction over it and denying its CR 12(b)(2) motion
5 RAP 2.3(b)(1) provides:
(b) Considerations Governing Acceptance of Review. Except as provided in
section (d), discretionary review may be accepted only in the following circumstances:
(1)The superior court has committed an obvious error which would render further
proceedings useless.
4
No. 78235-5-1/5
to dismiss for lack of personal jurisdiction. This is so, ABM asserts, because the
Estate's claim does not arise out of, or relate to, ABM's contacts with
Washington. In response, the Estate asserts that ABM purposefully availed itself
of the privilege of conducting business in Washington by entering into contracts
with airlines to provide wheelchair services to Washington residents in Texas and
that the Estate's claim arose from those contracts. ABM has the better
argument.
A
We review de novo the denial of a motion to dismiss for lack of personal
jurisdiction. State v. LG Elecs., Inc., 186 Wash. 2d 169, 176, 375 P.3d 1035 (2016).
"When a motion to dismiss for lack of personal jurisdiction is resolved without an
evidentiary hearing, the plaintiffs burden is only that of a prima facie showing of
jurisdiction." LG Elecs., 186 Wash. 2d at 176. Even when the trial court considers
matters outside the pleadings, we treat the allegations in the complaint as
established for purposes of determining jurisdiction. State v. LG Elecs., Inc., 185
Wash. App. 394, 406, 341 P.3d 346(2015)(quoting Freestone Capital Partners LP
v. MKA Real Estate Opportunity Fund I, LLC, 155 Wash. App. 643, 654, 230 P.3d
625 (2010)), affd, 186 Wash. 2d 169 (2016). For matters outside the pleadings, we
draw reasonable inferences in the light favorable to the nonmoving party. State
v. AU Optronics Corp., 180 Wash. App. 903, 912, 328 P.3d 919 (2014).
"The Due Process Clause of the Fourteenth Amendment sets the outer
boundaries of a state tribunal's authority to proceed against a defendant."
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923, 131 S. Ct.
5
No. 78235-5-1/6
2846, 180 L. Ed. 2d 796 (2011); U.S. CONST. amend. XIV, § 1. "Under
Washington's long arm jurisdiction statute, RCW 4.28.185, personal jurisdiction
exists in Washington over nonresident defendants and foreign corporations as
long as it complies with federal due process." Noll v. Am. Biltrite Inc., 188 Wash. 2d
402, 411, 395 P.3d 1021 (2017). Thus, Washington courts may exercise
personal jurisdiction over a nonresident defendant so long as:(1) purposeful
minimum contacts exist between the defendant and the forum state,(2) the
plaintiff's injuries arise out of or relate to those minimum contacts, and (3) the
exercise of jurisdiction is consistent with notions of fair play and substantial
justice. LG Elecs., 186 Wash. 2d at 176-77.
RCW 4.28.185(1) sets forth a list of acts that defendants may perform to
submit themselves to the jurisdiction of Washington courts:
(1) Any person, whether or not a citizen or resident of this
state, who in person or through an agent does any of the acts in
this section enumerated, thereby submits said person, and, if an
individual, his or her personal representative, to the jurisdiction of
the courts of this state as to any cause of action arising from the
doing of said acts:
(a) The transaction of any business within this state;
(b) The commission of a tortious act within this state;
(c) The ownership, use, or possession of any property
whether real or personal situated in this state;
(d) Contracting to insure any person, property, or risk located
within this state at the time of contracting;
(e) The act of sexual intercourse within this state with
respect to which a child may have been conceived;
(f) Living in a marital relationship within this state
notwithstanding subsequent departure from this state, as to all
proceedings authorized by chapter 26.09 RCW,so long as the
petitioning party has continued to reside in this state or has
continued to be a member of the armed forces stationed in this
state.
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No. 78235-5-1/7
(Emphasis added.) Washington courts have personal jurisdiction over
nonresident defendants for only those causes of action arising from the acts
listed in RCW 4.28.185(1). RCW 4.28.185(3).
Contingent on the particular facts and claims in a case, Washington courts
may possess either general or specific personal jurisdiction over a defendant
corporation. Noll, 188 Wash. 2d at 412. A state court has general jurisdiction to
decide any claim against a defendant corporation when the corporation's
contacts with the state are so substantial that it is essentially at home in the
forum state.6 Goodyear, 564 U.S. at 919. "A court with general jurisdiction may
hear any claim against that defendant, even if all the incidents underlying the
claim occurred in a different State." Bristol-Myers Squibb Co. v. Superior Court
of Cal., U.S. 137 S. Ct. 1773, 1780, 198 L. Ed. 2d 395 (2017). A defendant
corporation is at home in the state of its incorporation and the state of its principal
place of business. BNSF Ry. v. Tyrrell, U.S. 137 S. Ct. 1549, 1558, 198 L.
Ed. 2d 36 (2017). Additionally, in truly exceptional cases, a corporation's
operations in a state may be of such a nature as to make it essentially at home
therein even though the state is neither its state of incorporation nor its principal
place of business.7 Tyrrell, 137 S. Ct. at 1558. Here, the Estate's complaint
6 "General jurisdiction" is also referred to by the United States Supreme Court as "all-
purpose" jurisdiction. Bristol-Myers Squibb Co. v. Superior Court of Cal., U.S._, 137 S. Ct.
1773, 1780, 198 L. Ed. 2d 395(2017).
7 In only one case has the Supreme Court found this test satisfied. During World War II,
a company headquartered in the Philippines transferred its headquarters' operations to Ohio, in
order to avoid the Japanese military occupation of the Philippines. Perkins v. Benguet Consol.
Mining Co., 342 U.S. 437, 447-48, 72 S. Ct. 413, 96 L. Ed. 485(1952). During World War II, the
Court held, the company was "at home" in Ohio. See Keeton v. Hustler Magazine, Inc., 465 U.S.
770, 780 n.11, 104 S. Ct. 1473, 79 L. Ed. 2d 790(1984)("Ohio was the corporation's principal, if
temporary, place of business."); Perkins, 342 U.S. at 448 ("[H]e carried on in Ohio a continuous
and systematic supervision of the necessarily limited wartime activities of the company.").
7
No. 78235-5-1/8
alleges that ABM conducted business in Washington. However, the Estate does
not claim that Washington courts have general jurisdiction over ABM.8 Thus, we
must determine whether Washington courts have specific jurisdiction over ABM
in this case.
A state court may also exercise personal jurisdiction over a corporate
defendant based on the defendant's claim-specific contacts with the forum state.
This is called specific jurisdiction.8 Noll, 188 Wash. 2d at 412. For a state court to
exercise specific jurisdiction, there must be a connection between the forum state
and the controversy. Bristol-Myers Squibb, 137 S. Ct. at 1781. This minimum
contacts analysis looks to the defendant's contacts with the forum state itself, not
the defendant's contacts with persons who reside in the forum state. Walden v.
Fiore, 571 U.S. 277, 285, 134 S. Ct. 1115, 188 L. Ed. 2d 12(2014). Additionally,
"the relationship must arise out of contacts that the 'defendant himself'creates
with the forum State." Walden, 571 U.S. 277 at 284 (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)). A
plaintiff's or a third party's contacts with a forum cannot be "decisive in
determining whether the defendant's due process rights are violated." Rush v.
Savchuk, 444 U.S. 320, 332, 100 S. Ct. 571, 62 L. Ed. 2d 516 (1980).
The United States Supreme Court most recently analyzed the
requirements of specific personal jurisdiction in Bristol-Myers Squibb. In that
8 It is undisputed that ABM is incorporated in Georgia and its principal place of business
is in Georgia. Accordingly, Washington courts do not have general personal jurisdiction over
ABM. Tyrrell, 137 S. Ct. at 1558.
9 The United States Supreme Court sometimes refers to "specific jurisdiction" as "case-
linked" jurisdiction. Bristol-Myers Squibb, 137 S. Ct. at 1780.
8
No. 78235-5-1/9
litigation, the California Supreme Court adopted a "sliding scale" approach to
specific jurisdiction and ruled that California courts had specific jurisdiction over
Bristol-Myers Squibb in a case concerning injuries allegedly sustained from the
consumption of Plavix, a drug produced and sold by Bristol-Myers Squibb.
Bristol-Myers Squibb, 137 S. Ct. at 1778-79. According to the United States
Supreme Court, "[u]nder the California approach, the strength of the requisite
connection between the forum and the specific claims at issue is relaxed if the
defendant has extensive forum contacts that are unrelated to those claims."
Bristol-Myers Squibb, 137 S. Ct. at 1781. The California Supreme Court's ruling
was not unanimous, and the dissenters accused the majority of "expand[ing]
specific jurisdiction to the point that, for a large category of defendants, it
becomes indistinguishable from general jurisdiction." Bristol-Myers Squibb Co. v.
Superior Court, 1 Cal. 5th 783, 816, 206 Cal. Rptr. 3d 636, 377 P.3d 874(2016)
(Werdegar, J., dissenting).
The United States Supreme Court reversed, strongly rebuking the
California Supreme Court for its application of the "sliding scale" approach.
Bristol-Myers Squibb, 137 S. Ct. at 1781. The Court explained that specific
jurisdiction requires that there be "'an affiliation between the forum and the
underlying controversy, principally,[an] activity or an occurrence that takes place
in the forum State." Bristol-Myers Squibb, 137 S. Ct. at 1780 (alteration in
original)(quoting Goodyear, 564 U.S. at 919). The Court further explained that a
corporation's continuous activity within a state is irrelevant to specific jurisdiction
if there is no adequate link between that activity and the claim made in the case.
9
No. 78235-5-1/10
Bristol-Meyers Squibb, 137 S. Ct. at 1781.
ABM contends that the trial court herein erred by concluding that it had
specific jurisdiction over ABM. This is so, ABM contends, because there was no
link between the claim made in this case and ABM's contacts with Washington.
We agree.
The pertinent facts of this case are not disputed and demonstrate that the
Estate's claim did not arise from ABM's contacts with Washington. It is
undisputed that ABM had contacts with Washington at the time of Montgomery's
injuries because it had contracts with airlines to perform janitorial, cabin cleaning,
and baggage services at SeaTac. But it is also undisputed that ABM did not
provide any wheelchair services at SeaTac and that it only provided wheelchair
services to Montgomery in Texas.
The trial court's ruling appears to have implicitly adopted the sliding scale
approach rejected by the United States Supreme Court in Bristol-Myers Squibb.
It is clear from the record that the trial court considered the connection between
the Estate's claim and the forum to be "a little bit tenuous." Nevertheless, the
trial court concluded, after discussing ABM's non-wheelchair-assistance-related
services, that as long as ABM was transacting business in Washington, and
Parchia was in Washington when she requested that wheelchair services be
provided to Montgomery in Texas, personal jurisdiction was proper, even if that
connection was "fairly tenuous." This generous approach to specific
jurisdiction—giving heed to the amount of non related business conducted in the
forum to compensate for the necessary "case-linked" connection between the tort
10
No. 78235-5-1/11
and the forum—was expressly rejected by the Bristol-Myers Squibb Court. 137
S. Ct. at 1781.
While it is undisputed that ABM conducted some business within
Washington, it is not sufficient, for purposes of establishing specific jurisdiction,
that ABM conducted business activities in Washington unrelated to the provision
of wheelchair services when it is from the allegedly negligent provision of such
services in Texas that the Estate's claim arose. See Bristol-Myers Squibb, 137
S. Ct. at 1781 ("Nor is it sufficient—or even relevant—that [Bristol-Myers Squibb]
conducted research in California on matters unrelated to Plavix. What is
needed—and what is missing here—is a connection between the forum and the
specific claims at issue."). Specific jurisdiction is not flexible: a claim must arise
from the nonresident defendant's contacts with the forum state regardless of how
many (or how few) contacts the nonresident defendant has with the forum state.
Bristol-Myers Squibb, 137 S. Ct. at 1781. Because the Estate's claim did not
arise from ABM's contacts with Washington, Washington courts do not have
specific personal jurisdiction over ABM for the claim alleged herein.
The Estate contends that its claim arose from ABM's contacts with
Washington through the third party arrangement ABM has with airlines to provide
wheelchair services in Dallas to Washington residents who fly to Texas.
Essentially, the Estate asserts (1) that ABM purposefully availed itself of the
privilege of doing business in Washington by contracting with airlines to provide
wheelchair services to Washington residents in Texas, and (2) that
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No. 78235-5-1/12
Montgomery's injuries arose from those contracts and, therefore, arose from
ABM's contacts with Washington. This argument is off the mark.
First, RCW 4.28.185 does not permit Washington courts to exercise
jurisdiction over nonresident defendants for business they conduct in other
states. RCW 4.28.185(1)(a) specifically requires that jurisdiction over
nonresident defendants premised on business transactions must be premised on
business transactions made within Washington. The Estate's assertion of
jurisdiction is premised on a contract to provide services in Texas. That does not
meet the requirements of Washington's long-arm statute.
Second, the Estate's assertion evinces a misunderstanding of that which
constitutes purposeful availment. The principal inquiry for whether a corporation
has purposely availed itself of the privilege of conducting business activities in
the forum state is "whether the defendant's activities manifest an intention to
submit to the power of a sovereign." J. McIntyre Mach., Ltd. v. Nicastro, 564
U.S. 873, 882, 131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011). This analysis "looks to
the defendant's contacts with the forum State itself, not the defendant's contacts
with persons who reside there." Walden, 571 U.S. at 285. The necessary
contact cannot be created by the actions of the plaintiff or a third party or by the
"random, fortuitous, or attenuated' contacts [the defendant] makes by interacting
with other persons affiliated with the State." Walden, 571 U.S. at 286 (quoting
Burger King Corp., 471 U.S. at 475).
For example, in World-Wide Volkswagen Corp. v. Woodson,444 U.S.
286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980), the United States Supreme Court
12
No. 78235-5-1/13
concluded that the state courts of Oklahoma could not exercise specific personal
jurisdiction over World-Wide Volkswagen Corp. and other corporate defendants.
Therein, the Court explained that "if the sale of a product of a manufacturer or
distributor . . . arises from the efforts of the manufacturer or distributor to serve,
directly or indirectly, the market for its product in other States, it is not
unreasonable to subject it to suit in one of those States if its allegedly defective
merchandise has there been the source of injury to its owner or to others."
World-Wide Volkswagen Corn., 444 U.S. at 297(emphasis added). The Court
further explained, however, that World-Wide Volkswagen Corp. and other
corporate defendants did not carry on any "activity whatsoever in Oklahoma" and
the defendant's contact with Oklahoma was due only to the "fortuitous
circumstance that a single Audi automobile . . . happened to suffer an accident
while passing through Oklahoma." World-Wide Volkswagen Corp., 444 U.S. at
295. The Court concluded that this "isolated occurrence" and "the mere
'unilateral activity of those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact with the forum State."
World-Wide Volkswagen Corp., 444 U.S. at 295, 298 (quoting Hanson v.
Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283(1958)).
The Estate asserts that ABM purposefully availed itself of the privilege of
doing business in Washington by entering into contracts with airlines to provide
wheelchair services to Washington residents in Texas. This is not sufficient to
establish case-linked personal jurisdiction. Providing services in Texas does not
manifest an intention to submit to the jurisdiction of Washington courts. And the
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No. 78235-5-1/14
presence of third parties in Washington cannot substitute for the absence of a
link between the forum and the defendant's wrongful act that gave rise to the
claim.
The trial court erred when it denied ABM's motion to dismiss for lack of
personal jurisdiction. We therefore reverse and remand for dismissal, without
prejudice, of all claims against ABM.
Reversed.
WE CONCUR:
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