Timothy King, et al v. American Family Mutual Insuran, et al
Filing
FILED OPINION (CYNTHIA HOLCOMB HALL, FERDINAND F. FERNANDEZ and M. MARGARET MCKEOWN) AFFIRMED. Judge: FFF Dissenting, Judge: MMM Authoring. FILED AND ENTERED JUDGMENT. [7629751]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY R. KING,
Plaintiff-Appellant,
v.
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY; AMERICAN
STANDARD INSURANCE COMPANY OF
WISCONSIN,
Defendants-Appellees.
No. 08-35988
D.C. No.
1:08-cv-00014-CSO
OPINION
Appeal from the United States District Court
for the District of Montana
Carolyn S. Ostby, Magistrate Judge, Presiding
Submitted* June 7, 2010
Portland, Oregon
Filed January 31, 2011
Before: Cynthia Holcomb Hall, Ferdinand F. Fernandez, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown;
Dissent by Judge Fernandez
*The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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KING v. AMERICAN FAMILY MUTUAL
COUNSEL
Guy W. Rogers, Jon A. Wilson, Brown Law Firm, Billings,
Montana, for the plaintiff-appellant.
Lynn M. Grant, Cashmore & Grant, Billings, Montana, for the
defendants-appellees.
OPINION
McKEOWN, Circuit Judge:
Imagine this scenario:
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An out-of-state insurance company is contemplating doing
business in Montana. Preliminary to any authorization to sell
policies or the transaction of any business, state law requires
the company to appoint the Commissioner of Insurance for
service of process, which it did. Although the company began
the licensure application process, the company cannot yet sell
policies in Montana and has not completed the regulatory process to do so. The company has no contacts or contracts, no
sales agents or producers, no employees, and no offices in
Montana, nor has it filed insurance rates and other forms necessary to do business, solicited any business, advertised, sold
any policies, collected any premiums, or transacted any business in Montana. The company is, in short, 99.99% “Montana
free.” Although it has done nothing more than dip its toe in
the water to test the idea and preserve its option of doing business in Montana at some undetermined point in the future, the
company now faces the prospect of being subject to general
jurisdiction.
We hold that this toe—the mere appointment of an agent
for service of process—does not subject the company to general personal jurisdiction in Montana. Numerous Supreme
Court opinions and Montana law counsel that such testing of
the waters does not constitute a generalized consent to be sued
in Montana. Nor is the appointment of an agent for service of
process sufficient to confer either general or specific personal
jurisdiction over the company under our controlling standards.
The constitutional standard of “minimum contacts” has practical meaning in the context of personal jurisdiction. Mere
appointment of an agent for service of process cannot serve
as a talismanic coupon to bypass this principle. We therefore
affirm the district court’s dismissal of this suit for lack of personal jurisdiction.
BACKGROUND
In 2007, Timothy King and his wife, Gwynne King,1 were
1
Gwynne King has since been dismissed as a party to this appeal.
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involved in a motorcycle accident in Montana. The Kings are
Colorado residents who own four vehicles, all of which are
garaged in Colorado and are insured under policies that were
issued in Colorado by either American Family Mutual Insurance Company or American Standard Insurance Company of
Wisconsin (collectively, “the Companies”). None of the
insured vehicles were involved in the accident that gave rise
to this dispute.2 The Companies do not sell insurance policies
in Montana, although the Kings’ policies do provide coverage
for accidents occurring anywhere within the United States.
The Companies are organized under Wisconsin state law,
and their principal places of business are in Wisconsin. In
2000, the Companies began exploring the possibility of
becoming authorized to issue insurance policies in Montana.
As an initial step, the Companies applied for certificates of
authority to transact business in the state.
In applying for the certificates, and under the governing
Montana statute, the Companies executed a form appointing
the Montana Commissioner of Insurance as their registered
agent for service of process in Montana. See Mont. Code Ann.
§ 33-1-601 (2010). This appointment is “irrevocable, binds
the insurer and any successor in interest or to the assets or liabilities of the insurer, and remains in effect as long as there
is in force in Montana any contract made by the insurer or
obligations arising from a contract.” Id.
The state issued certificates of authority to the Companies
in July 2001. However, neither company has completed the
process of obtaining authorization to sell insurance and transact business in Montana. Before the Companies may issue
insurance policies in Montana, the Companies must also, for
example, submit their rate schedules to the Insurance Com2
We express no opinion about where the dispute between the parties
actually “arose.” This issue was not before the district court, and the parties do not raise it on appeal.
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missioner, see Mont. Code Ann. § 33-16-203, submit and
obtain approval of all insurance forms that will be used in
Montana, see id. § 33-1-501(1)(a), and submit a list of sales
agents and producers, see id. §§ 33-17-231, 33-17-236. As of
June 2008, the Companies had not taken any of these steps.
They had, however, paid annual fees from 2002 through 2008
in order to preserve their Montana business names and the
progress made on their applications to do business in the state.
In accordance with Montana law, the Companies have not
conducted any business in the state of Montana. They have no
offices in Montana, no employees, agents, or officers in Montana, and have never solicited business in Montana. Between
2001 and 2007, the Companies did not issue or sell any insurance policies in Montana and did not collect any premiums in
the state. Had the Companies done so, because they were not
authorized to sell insurance in Montana, they would have
been subject to penalties and other remedies. See Mont. Code
Ann. §§ 33-1-317, 33-1-318, 33-2-118, and 33-2-119.
ANALYSIS
I.
MONTANA STATUTES AND CASE LAW GOVERN THE QUESWHETHER THE COMPANIES HAVE CONSENTED TO
PERSONAL JURISDICTION
TION OF
We review de novo the district court’s ruling that it lacked
personal jurisdiction over the Companies. Love v. Associated
Newspapers, Ltd., 611 F.3d 601, 608 (9th Cir. 2010). Our
analysis of whether the Companies’ appointment of an agent
for service of process is a sufficient hook for the exercise of
personal jurisdiction begins with a line of venerable Supreme
Court cases.
The Court first considered the issue in Pennsylvania Fire
Insurance Co. of Philadelphia v. Gold Issue Mining & Milling
Co., 243 U.S. 93 (1917). In Pennsylvania Fire, the defendant
insurer executed a power of attorney that made service on the
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superintendent of the insurance department of Missouri equivalent to personal service. 243 U.S. at 94. The Supreme Court
held that the insurer’s appointment of a resident agent for service of process constitutionally subjected the insurer to suit in
Missouri for cases growing out of the insurer’s activities both
in Missouri and elsewhere. See id. at 95. The linchpin that
made this holding possible, however, was the Supreme Court
of Missouri’s interpretation of the governing state statute.
The Missouri statute at issue in Pennsylvania Fire
requir[ed] all [insurers doing business in Missouri]
to appoint the insurance commissioner of [Missouri]
as their agent to accept service of process . . . and to
acknowledge receipt of the same when ‘issued by
any court of record, justice of the peace or other
inferior court, and upon whom such process may be
served for and in behalf of such company in all proceedings that may be instituted against such company in any court of this state.’
Gold Issue Mining & Milling Co. v. Pa. Fire Ins. Co. of
Phila., 184 S.W. 999, 1004-05 (Mo. 1916) (quoting Mo. Rev.
Stat. § 7042 (1909)).3 Previous versions of the Missouri statute had “limit[ed] the process of the [Missouri] courts . . . to
causes of action arising out of contracts . . . made in [Missouri].” Id. at 1005. The Missouri Supreme Court held that, by
contrast with those earlier versions, the more expansive language of the current version of § 7042 “clearly authorized the
superintendent of insurance to acknowledge the receipt and
service of process for any such company in any and all transitory causes of action that might be brought by any one against
it in the [Missouri] courts.” Id. (emphasis added). The state
supreme court went on explain at length that, so construed,
§ 7042 was constitutional. See id. at 1005-21.
3
The appointment of the insurance commissioner remained valid “so
long as [the insurer had] any policies or liabilities outstanding in [Missouri].” Mo. Rev. Stat. § 7042 (1909).
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[1] On appeal, the Supreme Court noted that the insurer
had “appoint[ed] an agent in language that rationally might be
held to” subject it to personal jurisdiction for any and all suits,
and noted that “[t]he language has been held to go to that
length” by the state supreme court. Pennsylvania Fire, 243
U.S. at 95. The Court then affirmed the constitutionality of
the statute as construed by the Missouri Supreme Court, concluding that when an insurer executes a document consenting
to jurisdiction, the insurer “takes the risk of the interpretation
that may be put upon [the document] by the courts.” Id. at 96.
Pennsylvania Fire, in other words, holds that the appointment
of an agent for service of process will subject a foreign
insurer to general personal jurisdiction in the forum if the governing state statute so provides.
Later Supreme Court cases reinforce this rule. Just three
years later, in Chipman, Ltd. v. Thomas B. Jeffrey Co., 251
U.S. 373 (1920), the Court applied a similar analysis, albeit
without citation to Pennsylvania Fire. The Court in Chipman
held that a New York statute requiring foreign corporations to
designate an in-state person for service of process only
extended personal jurisdiction over the corporation to cases
involving business the corporation conducted in New York.
Chipman, 251 U.S. at 379. The Court rested its decision on
the New York courts’ interpretation of the statute, quoting a
state court decision holding that “ ‘[u]nless a foreign corporation is engaged in business within the state, it is not brought
within the state by the presence of its agents.’ ” Id. (quoting
Tauza v. Susquehanna Coal Co., 115 N.E. 915, 917-18 (N.Y.
1917)). The Supreme Court thus held that there was no personal jurisdiction over a defendant corporation that, by the
time of litigation, had ceased doing business in New York,
even though the corporation had not yet revoked the designation of its agent for service of process. Id. at 379-80.
The Court faced a similar issue the following year. In Robert Mitchell Furniture Co. v. Selden Breck Construction Co.,
257 U.S. 213 (1921), the defendant corporation had at one
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point conducted business in Ohio, “but its last work [there]
was finished” roughly six months before suit was filed. Id. at
215. The corporation had maintained its ability to do business
in Ohio—and therefore retained an agent for service of process in that state. See id. Nevertheless, citing to both Pennsylvania Fire and Chipman, the Court held that if “the long
previous appointment of the agent is the only ground for
imputing to the defendant an even technical presence,” then
“[u]nless the state law [requiring appointment of a statutory
agent] either expressly or by local construction gives to the
appointment a larger scope, we should not construe it to
extend to suits in respect of business transacted by the foreign
corporation elsewhere.” Id. at 216.4 Noting that “the Ohio
Statutes, so far as they go, look to ‘liability incurred within
this State’ ” and that the state supreme court had not interpreted the statute more broadly, the Court held that service on
the agent was defective. Id.
[2] Robert Mitchell thus confirms that federal courts
should look first and foremost to a state’s construction of its
own statute to determine whether appointment of an agent for
service of process is a sufficient basis for the exercise of personal jurisdiction over a foreign corporation. But Robert
Mitchell does more than settle a dispute over the meaning of
Ohio law. It also announces the default rule that, in the
absence of broader statutory language or state court interpretations, the appointment of an agent for the service of process
is, by itself, insufficient to subject foreign corporations to
suits for business transacted elsewhere.
That principle played out eight years later in Louisville &
Nashville Railroad Co. v. Chatters, 279 U.S. 320 (1929). The
Court heard a dispute in which two out-of-state railway com4
The Court grounded this common-sense interpretation in the fact that
“[t]he purpose in requiring the appointment of such an agent is primarily
to secure local jurisdiction in respect of business transacted within the
State.” Robert Mitchell, 247 U.S. at 215 (emphasis added).
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panies designated agents in Louisiana “to receive service of
process as required by a state law exacting formal consent by
the corporation that any ‘lawful process’ served on the designated agent should be ‘valid service’ upon the corporation.”
Id. at 323-24. The Court held that jurisdiction was proper over
a defendant on the ground that it was doing business in Louisiana. See id. at 326-29. Nevertheless, the Court noted that
“[f]or present purposes we may assume that the effect of the
designation of the statutory agent by the [railway company]
is, as the state decisions cited seem to show, that a cause of
action arising wholly outside and wholly unconnected with
any act or business of the corporation within the state may not
be sued upon there.” Id. at 325 (emphasis added). As in Robert Mitchell, the Supreme Court looked to state decisions to
determine the reach of personal jurisdiction in Louisiana.
Finally, in Perkins v. Benguet Consolidated Mining Co.,
342 U.S. 437 (1952), the Supreme Court clarified that it is the
corporate activities of the defendant, not just the mere designation of a statutory agent, that is helpful in determining
whether the court has personal jurisdiction over the defendant.
In upholding an Ohio state court’s exercise of jurisdiction
over a non-resident corporation, the Court stated that “[t]he
corporate activities of a foreign corporation which, under state
statute, make it necessary for it to secure a license and to designate a statutory agent upon whom process may be served
provide a helpful but not a conclusive test.” Id. at 445.
Whether the activities of a particular corporation “make it reasonable and just to subject the corporation to the jurisdiction
of that state are to be determined in each case.” Id. In short,
the degree to which a defendant is present in the forum is an
important factor in determining personal jurisdiction. The
simple act of appointing a statutory agent is not, nor has it
ever been, a magical jurisdictional litmus test.
[3] Pennsylvania Fire, Chipman, and Robert Mitchell thus
collectively stand for the proposition that federal courts must,
subject to federal constitutional restraints, look to state stat-
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utes and case law in order to determine whether a foreign corporation is subject to personal jurisdiction in a given case
because the corporation has appointed an agent for service of
process.5 Perkins suggests that the inquiry is particularly vital
when the prospective defendant—unlike the railroads in Louisville & Nashville Railroad Co.—has done no more than
explore the possibility of doing business in the forum state.6
We accordingly turn to the relevant Montana statutes and
decisions.
5
Several influential secondary sources adopt this principle. As the
Restatement (Second) of Conflict of Laws puts it,
[i]f a corporation has authorized an agent or a public official to
accept service of process in actions brought against it in the state,
the extent of the authority thereby conferred is a question of
interpretation of the instrument in which the consent is expressed
and of the statute, if any, in pursuance of which the consent is
given. It is a question of interpretation whether the authority
extends to all causes of action or is limited to causes of action
arising from business done in the state . . . . By qualifying under
one of these statutes, the corporation renders itself subject to
whatever suits may be brought against it within the terms of the
statutory consent as interpreted by the local courts provided that
this interpretation is one that may fairly be drawn from the language of the enactment.
Restatement (Second) of Conflict of Laws § 44 cmt. c (1971) (emphasis
added); see also 36 Am. Jur. 2d Foreign Corporations § 172 (2010) (“A
corporation which engages in business in a state other than its state of
incorporation is presumed to have accepted the conditions imposed by the
laws of that state on the right of foreign corporations to do business
therein and is bound by them accordingly, except insofar as they are subject to attack on constitutional grounds.”).
6
The dissent emphasizes that none of the later cases overruled Pennsylvania Fire. We agree. But the dissent’s interpretation of Pennsylvania Fire
cannot be squared either with the carefully circumscribed analysis in that
case or with the Supreme Court’s later decisions. The dissent implicitly
recognizes as much by noting that, in Robert Mitchell and Louisville, the
Court emphasized that it all depended on how broadly or narrowly the
appointment was treated by the state itself.” Dissent 1862 (citing Louisville, 279 U.S. at 329); see also id. (discussing Robert Mitchell). The dissent, however, fails to extend that principle to this case.
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II.
A.
1851
THE MONTANA APPOINTMENT STATUTE DOES NOT
CONFER JURISDICTION OVER THE COMPANIES FOR
BUSINESS DONE OUTSIDE MONTANA
THE GOVERNING STATUTE
[4] Title 33 of the Montana Code regulates insurance companies. Pursuant to § 33-2-101, a foreign corporation that
seeks to transact business in Montana must obtain a certificate
of authority.7 As part of the application process to obtain this
certificate, the insurer must “appoint the commissioner [of
insurance] as its attorney to receive service of legal process
issued against it in Montana” and file with the commissioner
the name and address to which the commissioner should forward any summons or complaint received against the insurer.
Mont. Code Ann. § 33-1-601. The appointment of this agent
is “irrevocable, binds the insurer and any successor in interest
or to the assets or liabilities of the insurer, and remains in
effect as long as there is in force in Montana any contract
made by the insurer or obligations arising from a contract.”
Id. The plain language of the statute therefore does not answer
the question of whether the appointment subjects the Companies to suit in Montana for business conducted elsewhere.
B.
MONTANA’S
SCHEME
INTERPRETATION
OF
ITS
STATUTORY
The Supreme Court of Montana has not specifically determined the effect of § 33-1-601 on personal jurisdiction over
foreign defendants. Nonetheless, in Reed v. Woodmen of the
World, 22 P.2d 819 (Mont. 1933), the state supreme court
construed an earlier, similar statute that also required foreign
7
Montana law specifies that no certificate of authority is required to
issue a policy to subjects “not resident, located, or expressly to be performed in Montana at time of issuance, and which coverage was lawfully
solicited, written, and delivered outside Montana.” Mont. Code Ann. § 332-102 (2010).
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corporations to “maintain an agent within the state upon
whom service of process may be made.” Id. at 822. Specifically, the statute provided that the corporation “shall agree
that any lawful process against it which is served upon such
attorney shall be of the same legal force and validity as if
served upon the society, and that the authority shall continue
in force so long as any liability remains outstanding in this
state.” Mont. Code Ann. § 6322 (1921). Although “liability
. . . outstanding in this state” could be read quite broadly, the
Montana Supreme Court restricted the reach of the statute,
stating that “[t]he object of statutes of this nature is to provide
for the collection of debts due from foreign corporations from
its citizens and to enforce the contracts made here by foreign
corporations though its agents.” Reed, 22 P.2d at 822 (emphasis added).8
[5] Reed counsels that Montana’s statutory scheme governing the appointment of an agent for the service of process was
not meant to initiate a jurisdictional free-for-all by expanding
personal jurisdiction to companies that have not transacted
any business in Montana. To the extent that Reed is not dispositive, the default rule in Robert Mitchell applies—“we should
not construe [the state statute] to extend to suits in respect of
business transacted by the foreign corporation” outside Montana. Robert Mitchell, 257 U.S. at 216. Thus, under either
Reed or Robert Mitchell, the appointment of an agent for the
service of process in Montana does not confer personal jurisdiction over the Companies.
We note that the Kings’ insurance policies provide coverage for any accident that occurs anywhere in the United
States. This scope of coverage does not, however, mean that
the Kings may hale the Companies into any court in this
nation, see, e.g., Carter v. Miss. Farm Bureau Cas. Ins. Co.,
8
This principle is not a startling one; Reed puts Montana law in the
company of the Ohio and New York laws discussed in Chipman and Robert Mitchell.
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109 P.3d 735, 739 (Mont. 2005) (“[I]t is important to emphasize that this appeal is not about whether Carter and Schmidt
are covered by Carter’s [insurance] policy; rather, the question is whether or not they can litigate the coverage dispute
in Montana.”), and it does not support the exercise of personal
jurisdiction over the Companies. The Montana statute does
not say that personal jurisdiction is proper so long as a contract is in force in Montana. Rather, it says that the appointment of an agent for service of process is effective as long as
that condition holds. And, as Reed and Robert Mitchell illustrate, there is an important difference between the appointment of an agent and the extension of wide-ranging personal
jurisdiction over a corporation. In other words, this case is not
about whether an insurance policy might cover an incident in
Montana but whether there is an insurance contract or insurance business conducted in Montana.
[6] In sum, the Montana law regarding appointment of an
agent for service of process does not, standing alone, subject
foreign corporations to jurisdiction in Montana for acts performed outside of Montana, at least when the corporations
transact no business in the state. Here, the Companies merely
contemplated doing business in Montana; they are not amenable to suit in that state simply because they appointed the
Commissioner of Insurance as their agent for service of process.
III.
PERSONAL JURISDICTION UNDER MONTANA’S LONG-ARM
STATUTE
Because § 33-1-601 does not confer jurisdiction over the
Companies, we consider whether the district court had jurisdiction over the Companies under other theories of general or
specific personal jurisdiction.
“Where, as here, there is no applicable federal statute governing personal jurisdiction, the district court applies the law
of the state in which the district court sits.” Yahoo! Inc. v. La
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Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199,
1205 (9th Cir. 2006). We have recognized that Montana Rule
of Civil Procedure 4B(1), which serves as the state’s long-arm
statute, “permit[s] the exercise of personal jurisdiction over
nonresident defendants to the maximum extent permitted by
federal due process.”9 Davis v. Am. Family Mut. Ins. Co., 861
F.2d 1159, 1161 (9th Cir. 1988). As a result, “the jurisdictional analyses under state law and federal due process are the
same.” Yahoo!, 433 F.3d at 1205.
9
Montana Rule of Civil Procedure 4B(1) provides as follows:
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:
(a) the transaction of any business within this state;
(b) the commission of any act which results in accrual within this
state of a tort action;
(c) the ownership, use or possession of any property, or of any
interest therein, situated within this state;
(d) contracting to insure any person, property or risk located
within this state at the time of contracting;
(e) entering into a contract for services to be rendered or for
materials to be furnished in this state by such person; or
(f) acting as director, manager, trustee, or other officer of any
corporation organized under the laws of, or having its principal
place of business within this state, or as personal representative
of any estate within this state.
Mont. R. Civ. P. 4B(1). The Montana Supreme Court has explained that
“[t]he first sentence of Rule 4B(1) . . . states the requirements for general
jurisdiction. The remainder of Rule 4B(1) . . . states the requirements for
specific long-arm jurisdiction.” Cimmaron Corp. v. Smith, 67 P.3d 258,
260 (Mont. 2003).
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A.
1855
THE COMPANIES ARE NOT SUBJECT TO GENERAL
PERSONAL JURISDICTION IN MONTANA
[7] The exercise of general personal jurisdiction allows
courts to hear any cases involving a particular defendant.
However, “[t]he standard for general jurisdiction is high . . . .
[A] defendant must not only step through the door, it must
also ‘[sit] down and [make] itself at home.’ ” Tuazon v. R.J.
Reynolds Tobacco Co., 433 F.3d 1163, 1169 (9th Cir. 2006)
(internal citation omitted) (quoting Glencore Grain Rotterdam
B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1125 (9th
Cir. 2002)). The standard is met only by “continuous corporate operations within a state [that are] thought so substantial
and of such a nature as to justify suit against [the defendant]
on causes of action arising from dealings entirely distinct
from those activities.” Int’l Shoe Co. v. Washington, 326 U.S.
310, 318 (1945); accord Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984) (holding that if a
defendant’s contacts with a state are “continuous and systematic,” it may be haled into court in that state in any action).
For general jurisdiction to obtain, the defendant’s contacts
must approximate physical presence in the forum. See Yahoo!,
433 F.3d at 1205.
[8] The Companies’ contacts in Montana do not come
close to meeting this standard. The Companies have no
offices or employees in Montana, have made no sales in Montana, have solicited no business in Montana, and are unable to
issue or sell insurance in the state. In fact, the Companies’
sole contacts with Montana are their initial Certificates of
Authorization and their appointments of the Insurance Commissioner as an agent for service of process. These contacts
hardly approximate physical presence and are not “continuous
and systematic.” American Family has not set up a “home” in
Montana. Accordingly, the court cannot exercise general personal jurisdiction over the Companies.
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B.
THE COMPANIES ARE NOT SUBJECT TO SPECIFIC
PERSONAL JURISDICTION IN THIS CASE
We employ a familiar three-prong test to evaluate whether
a party has sufficient minimum contacts to be susceptible to
specific personal jurisdiction:
(1) The non-resident defendant must purposefully
direct his activities or consummate some transaction
with the forum or resident thereof; or perform some
act by which he purposefully avails himself of the
privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its
laws;
(2) the claim must be one which arises out of or
relates to the defendant’s forum-related activities;
and
(3) the exercise of jurisdiction must comport with
fair play and substantial justice, i.e. it must be reasonable.
Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d
1124, 1128 (9th Cir. 2010). “If any of the three requirements
is not satisfied, jurisdiction in the forum would deprive the
defendant of due process of law.” Omeluk v. Langsten Slip &
Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995).
[9] Under the first prong, the Montana Supreme Court has
previously considered whether Montana courts have specific
personal jurisdiction over an insurer that, like the Companies,
“has no offices or agents in Montana, does not advertise
[t]here, and is not authorized to conduct business in Montana
as a foreign insurer.” Carter, 109 P.3d at 738. The court held
that, even though the accident triggering coverage under a
nationwide insurance policy took place in Montana, “there
was no basis for a finding of jurisdiction under” the state
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1857
long-arm statute. Id. at 742. Carter thus precludes the exercise
of specific personal jurisdiction over the Companies under
Rule 4B(1).10
CONCLUSION
The Companies have dipped their toes in Montana to test
the waters for doing business, but their actions do not amount
to a foot planted in the state for purposes of personal jurisdiction. Under Montana law, the Companies’ acts of beginning
the process of applying to do business and appointing an
agent for service of process provide an insufficient basis for
the exercise of personal jurisdiction.
AFFIRMED.
FERNANDEZ, Circuit Judge, dissenting:
Timothy King1 appeals the district court’s dismissal for
lack of personal jurisdiction of his action against American
Family Mutual Insurance Company and American Standard
Insurance Company of Wisconsin (collectively “the Companies”). The majority agrees with the district court; I do not.
Thus, I respectfully dissent.
10
Our decision in Farmers Ins. Exch. v. Portage La Prairie Mut. Ins.
Co., 907 F.2d 911 (9th Cir. 1990), is not to the contrary. Although we held
in Farmers that a foreign insurer could be subjected to personal jurisdiction in Montana, Farmers was an indemnity dispute. As a result, Farmers
was “a case in which a company’s insured is sued as a result of a car accident in a foreign state,” “arguably [giving rise to] an obligation to appear
and defend the driver,” while this is a case, like Carter, in which “the
insured is suing its . . . insurer in a foreign state for breach of contract.”
Carter, 109 P.3d at 741.
1
Gwynne King, Timothy King’s wife, was dismissed as a party to this
appeal on June 1, 2009, subsequent to the filing of the opening brief.
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The sole question before us is whether the district court has
personal jurisdiction over the Companies. In answering that
question, I will first refine what I see as the nature of the
Companies’ connection to Montana and will then determine
the personal jurisdiction questions.
Under Montana law, if a company wishes to sell insurance
in the state, it must obtain a certificate of authority. See Mont.
Code Ann. § 33-1-312(2). In order to obtain the certificate the
company “shall appoint the [Commissioner of Insurance of
the State of Montana] as its attorney to receive service of
legal process issued against it in Montana.” Mont. Code Ann.
§ 33-1-601(1). The Companies did just that,2 and their certificates of authority were duly issued. Each certificate by its
terms provides that it “shall continue in force as long as the
Company is entitled thereto under the laws of the State of
Montana and until suspended or revoked or otherwise terminated.” Neither certificate has been terminated; indeed, the
Companies acknowledge that they have paid the necessary
fees to maintain the certificates because, as they put it, they
wish to “preserve the level of progress made on their approval” and want to preserve their business names in Montana.
Were it not for the Appointments, even that could not be
accomplished.
The Companies point out, however, that they have no officers or employees in Montana, do not advertise or solicit business in Montana, and have not yet issued policies or collected
premiums in Montana. In fact, they cannot actually issue poli2
Each filed an “Appointment of Attorney to Accept Service of Process,”
which stated that the company “does hereby make, constitute and appoint
JOHN MORRISON, DULY ELECTED STATE AUDITOR AND COMMISSIONER OF INSURANCE OF THE STATE OF MONTANA, AND
HIS SUCCESSORS IN OFFICE, to be its true and lawful Attorney upon
whom all legal process in any action or proceeding [may be served], . . .
and does consent and agree that any lawful process against it which is
served upon said Attorney shall be of the same legal force and validity as
if served upon the said company . . . .” (Hereafter, “the Appointment.”)
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cies in Montana until they also submit their policy forms,
their rate schedules and a list of their agents who would sell
policies in Montana. Nevertheless, the Appointments are still
on file and their certificates are still valid.
I am mindful of the provision of the Montana Code which
states that: “The appointment is irrevocable, binds the insurer
and any successor in interest or to the assets or liabilities of
the insurer, and remains in effect as long as there is in force
in Montana any contract made by the insurer or obligations
arising from a contract.” Mont. Code Ann. § 33-1-601(1). The
Appointment itself contains similar language. As I see it, that
is effective to cover this case, even if the Companies have not
yet issued policies in Montana. In the first place, the Appointments here must be in effect; otherwise the certificates of
authority would not be in force, and the Companies have
made sure that the certificates remain in force. The Companies’ failure to submit other documents does not obnebulate
that fact. Secondly, there can be no doubt that transitory contracts between the Companies and King exist; and the contracts themselves indicate that they insure King throughout
the United States. It would be bizarre to decide that the contracts are not in force (effective) in Montana simply because
the Companies do not do any business there. While the Montana Supreme Court has not specifically so stated, I am satisfied that, if asked, it would declare that the contracts are in
force in that state, even if the policies on which they are based
were not issued there.3 That being the case, I would so determine at this time. See Hemmings v. Tidyman’s Inc., 285 F.3d
1174, 1203 (9th Cir. 2002). Moreover, unlike a situation
3
Cf. Carter v. Miss. Farm Bureau Cas. Ins. Co., 109 P.3d 735, 740
(Mont. 2005) (In a first party case (the one at hand is a first party case)
where no authorization for service of process existed, the mere fact of a
policy’s national coverage would not confer personal jurisdiction on the
Montana courts.) Note, however, that in a third party case, even the lack
of an authorization would not preclude personal jurisdiction. See Farmers
Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 913-914 (9th
Cir. 1990).
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where an insurance company had no contacts with Montana,
and could not reasonably foresee being hailed into a Montana
court,4 here the Companies had obtained and retained certificates of authority by, among other things, filing the Appointments. They should have foreseen the possibility of having to
appear and litigate in the Montana courts.5
Therefore, I would hold that the Appointments do apply to
this action. What remains is the question of whether they conferred personal jurisdiction upon the Montana courts.
We have held that the law of Montana permits “the exercise
of personal jurisdiction over nonresident defendants to the
maximum extent permitted by federal due process.” Davis v.
Am. Family Mut. Ins. Co., 861 F.2d 1159, 1161 (9th Cir.
1988). “Where the state and federal limits are coextensive, we
must determine whether the exercise of jurisdiction comports
with federal constitutional principles of due process.” Id. at
1161. Here, the taking of personal jurisdiction in this instance
does comport with due process.
Over ninety years ago, the Supreme Court decided a case
with facts very similar to the case before us. See Pa. Fire Ins.
Co. of Phila. v. Gold Issue Mining & Milling Co., 243 U.S.
93, 37 S. Ct. 344, 61 L. Ed. 610 (1917). There a Pennsylvania
insurance company had issued a policy of insurance in Colorado to an Arizona corporation “insuring buildings in Colorado.” Id. at 94, 37 S. Ct. at 345. The “insurance company had
obtained a license to do business” in Missouri, and had “filed
with the superintendent of the insurance department a power
4
See Carter, 109 P.3d at 741.
I express no opinion about where the dispute between King and the
Companies can be said to have arisen; that was not before the district court
and it is not before us. Of course, the dispute is closely related to the accident in Montana and, on that account, the Companies were joined in the
action against the other motorist and her insurer. After removal, the others,
apparently, settled and the matter was dismissed as to them.
5
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of attorney” for service of process, as required by statute. Id.
The insurance company asserted that the power of attorney
could only apply to contracts issued in Missouri and that if it
extended further, due process would be violated. See id. at
94-95, 37 S. Ct. at 345. The Court had little difficulty in
rejecting that proposition. As it said:
The construction of the Missouri statute thus
adopted hardly leaves a constitutional question open.
The defendant had executed a power of attorney that
made service on the superintendent the equivalent of
personal service. If by a corporate vote it had
accepted service in this specific case, there would be
no doubt of the jurisdiction of the state court over a
transitory action of contract. If it had appointed an
agent authorized in terms to receive service in such
cases, there would be equally little doubt. It did
appoint an agent in language that rationally might be
held to go to that length. The language has been held
to go to that length, and the construction did not
deprive the defendant of due process of law even if
it took the defendant by surprise, which we have no
warrant to assert.
Id. at 95, 37 S. Ct. at 345 (citations omitted). That determination appears dispositive here.
However, the Companies point out that the Supreme Court
has issued a number of opinions since Pennsylvania Fire,
which adopt a flexible approach to personal jurisdiction
issues. See, e.g., Helicopteros Nacionales de Colombia, S.A.
v. Hall, 466 U.S. 408, 413-16, 104 S. Ct. 1868, 1872-73, 80
L. Ed. 2d 404 (1984); Perkins v. Benguet Consol. Mining Co.,
342 U.S. 437, 445-47, 72 S. Ct. 413, 418-19, 96 L. Ed. 485
(1952); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316-19,
66 S. Ct. 154, 158-60, 90 L. Ed. 95 (1945); see also Bendix
Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888,
891-92, 108 S. Ct. 2218, 2221, 100 L. Ed. 2d 896 (1988). No
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doubt what the Companies say is true, but it makes no difference here.
In the first place, the Court has never revisited Pennsylvania Fire, nor has it stated that its holding is no longer viable.
The contrary is so. For example, in a case decided a few years
after Pennsylvania Fire, the Court cited that case and noted
that a corporation which appoints an agent for service of process in a state will find itself bound by the scope the state
gives to the statute which governs that document. See Robert
Mitchell Furniture Co. v. Selden Breck Constr. Co., 257 U.S.
213, 215-16, 42 S. Ct. 84, 85, 66 L. Ed. 201 (1921). As it was,
that case involved business transacted elsewhere, and the state
in question seemed to limit the scope of its statute to liability
incurred within the state itself. Id. at 216, 42 S. Ct. at 85.
Later on the Court, again with citation of Pennsylvania Fire,
noted that the appointment of an agent “operates as a consent”
when an “obligation [is] incurred within the state although the
breach occurred without.” Louisville & N.R. Co. v. Chatters,
279 U.S. 320, 329, 49 S. Ct. 329, 332, 73 L. Ed. 711 (1929).
Again, the Court emphasized that it all depended on how
broadly or narrowly the appointment was treated by the state
itself. Id. And in International Shoe, 326 U.S. at 317, 66 S.
Ct. at 159, the Court made it apparent that it was discussing
situations where “no consent to be sued or authorization to an
agent to accept service of process has been given.” As a final
example, it is interesting to consider Perkins, 342 U.S. at
445-47, 72 S. Ct. at 418-19, where the Court noted that due
process did not prohibit a state from opening or compel it to
open its courts to in personam jurisdiction over actions that
did not arise out of a corporation’s activities in the state, and
alluded to the appointment of an agent for service of process
as one possible method of conferring jurisdiction. In so doing,
the Court cited to Pennsylvania Fire. Id. at 446 n.6, 72 S. Ct.
at 418-19 n.6. Not so much as an example but as a matter of
interest, I should also say a bit about Bendix Autolite, 486
U.S. at 891-93, 108 S. Ct. at 2220-21, not for what it did say,
but for what it did not say. There, the Court opined on an
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Ohio statute that required foreign corporations to designate an
agent for service of process, which would subject the corporation to the jurisdiction of the state courts, or else suffer the
loss of the benefit of statutes of limitations. Id. The Court did
not indicate that appointment of an agent for service of process simply could not accomplish the state’s goal; it held,
instead, that the confluence of the agent requirement and the
other state laws violated the Commerce Clause. Id. In other
words, Pennsylvania Fire remains applicable to the case at
hand, despite any susurrant or even plangent suggestions that
the principles behind it are not as strong as they once were.
Secondly, as the Eighth Circuit Court of Appeals has
pointed out, in the cases after International Shoe, the issues
involved are rather different from those involved in Pennsylvania Fire. See Knowlton v. Allied Van Lines, Inc., 900 F.2d
1196 (8th Cir. 1990). In that case, there was an automobile
accident in Iowa involving Knowlton and a van operated by
an Iowa corporation which acted as an agent for Allied, a Delaware corporation with its principal place of business in Illinois, but which did business in Minnesota and had appointed
an agent for service of process there. Id. at 1197-98. Knowlton sued Allied in the United States District Court in Minnesota. The court of appeals determined that there was personal
jurisdiction over Allied in Minnesota. It reasoned as follows:
Plaintiff in this case claims that Allied’s business
activities in Minnesota are so pervasive that jurisdiction exists even as to claims, such as this one, that
are not related to those activities. Because we hold
that there is jurisdiction based on consent, we find it
unnecessary to pursue this aspect of the analysis.
Consent is the other traditional basis of jurisdiction, existing independently of long-arm statutes.
Personal jurisdiction, unlike subject-matter jurisdiction, is primarily concerned with fairness to individual parties. Objections to jurisdiction over the person
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may be waived, either expressly or by not asserting
them in a timely manner. A defendant may voluntarily consent or submit to the jurisdiction of a court
which otherwise would not have jurisdiction over it.
One of the most solidly established ways of giving
such consent is to designate an agent for service of
process within the State.
Id. at 1199 (citation omitted). This, of course, supports the
continuing viability of Pennsylvania Fire.
The Supreme Court of Delaware has reached the same conclusion, and it has specifically declared that the later Supreme
Court decisions are “entirely consistent with the continued
viability of its earlier holding in [Pennsylvania Fire].” Sternberg v. O’Neil, 550 A.2d 1105, 1113 (Del. 1988). It did so
because it saw Pennsylvania Fire as a kind of express consent
case.6 Id. at 1111.
In short, even if the principles behind Pennsylvania Fire
have been somewhat weakened, it is not for us to determine
that Pennsylvania Fire is a valetudinarian case and must be
absterged from the law of personal jurisdiction. As the
Supreme Court has recently reminded the Courts of Appeals:
“[I]f the ‘precedent of this Court has direct application to a
case, yet appears to rest on reasons rejected in some other line
of decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative
of overruling its own decisions.’ ” Tenet v. Doe, 544 U.S. 1,
10-11, 125 S. Ct. 1230, 1237, 161 L. Ed. 2d 82 (2005); see
also State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S. Ct. 275,
284, 139 L. Ed. 2d 199 (1997); Agostini v. Felton, 521 U.S.
203, 237, 117 S. Ct. 1997, 2017, 138 L. Ed. 2d 391 (1997);
Rodriguez de Quijas v. Shearson/American Express, Inc., 490
6
In a different context, we have declared that voluntary consent will suffice to confer personal jurisdiction. See SEC v. Blazon Corp., 609 F.2d
960, 965 (9th Cir. 1979).
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U.S. 477, 484, 109 S. Ct. 1917, 1921-22, 104 L. Ed. 2d 526
(1989). Therefore, as far as the present record shows, the district court did have personal jurisdiction over the Companies.
I would reverse the district court’s order dismissing the
action against the Companies for lack of personal jurisdiction
and remand for further proceedings. Thus, I respectfully dissent.
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