Opinion
Civil No. 99-917-KI
December 5, 2000
Steven H. Corey, Patricia Sullivan, Corey, Byler, Tew, Lorenzen Hojem, L.L.P, 222 Southeast Dorion Avenue, Pendleton, Oregon 97901,
David Reeve, Sarah E. Hall, Kroschel Gibson Kinerk Reeve, L.L.P., 110 110th Avenue N.E., Suite 607, Bellevue, Washington 98004, Attorneys for Plaintiff
Thomas H. Tongue, Kathryn M. Pratt, Dunn, Carney, Allen, Higgins Tongue, 851 Southwest Sixth Avenue, Suite 1500, Portland, Oregon 97204-1357, Attorneys for Defendant Groupe Goyette, Inc.
Charles D. Harms, Mitchell, Lang Smith, 101 Southwest Main Street, Suite 2000, Portland, Oregon 97204, Attorney for Defendants Forexport Inc.; Forex St. Michel; and Le Groupe Forex, Inc.
OPINION AND ORDER
A train carrying a railcar loaded with lumber products derailed in Umatilla County. Plaintiff Union Pacific Railroad Company ("Union Pacific") contends that improper loading of the lumber products caused the derailment. It brought this action against companies that owned and shipped the lumber products and loaded the railcar. On December 14, 1999, I dismissed defendant Groupe Goyette, Inc. Before the court is plaintiff's motion for reconsideration of order dismissing defendant Groupe Goyette (#64) and plaintiff's motion to file an amended complaint (#62).
FACTS
Evidence supporting the following facts was filed to support the motion to dismiss:
Forex manufactures oriented strand board ("OSB"), a substitute for plywood, at its plant in St-Michel, Quebec. The lumber products in question were shipped by truck from the plant to Groupe Goyette's facility in St. Hyacinthe, Quebec. Forex contracted to have Groupe Goyette load railcar CHTT38001 (the "Railcar") with lumber products, based on bundling requirements set forth by Forex, and deliver the Railcar to Canadian National Rail ("CN Rail"). Forex provided Groupe Goyette with the bill of lading which indicates that freight is prepaid to Chicago by Forex but once the Railcar reaches Chicago, the freight would be paid on a collect basis by Sellwood Group, Inc. ("Sellwood"), a company in Portland, Oregon. Groupe Goyette received the Railcar on behalf of Forex on March 31, 1998, delivered the loaded Railcar to CN Rail in St. Hyacinthe on April 3, 1998, and billed Forex $448.60 Canadian dollars for the service. The Notice of Car Release for the Railcar, generated by Groupe Goyette, states that CN Rail is the transporter of the car and Sellwood in Portland is the consignee. The goods were accompanied by an invoice generated by Forex, indicating the terms of sale between it and Sellwood. Groupe Goyette has no contractual relationship with either Union Pacific or Sellwood.
Groupe Goyette and Entreposage Maska, Ltd., a former division of Groupe Goyette and a separate corporation since January 1998, provide trucking services, storage, and intermodal services in Canada. The two companies are highly interrelated. I will refer to both as Groupe Goyette.
Union Pacific contracted with Forex to provide transportation for the lumber products. Forex was responsible for the proper loading of the railcars. On April 6, 1998, Union Pacific received the Railcar from CN Rail in Chicago for transport to Portland. The train with the Railcar derailed on April 19, 1998, in Umatilla County, Oregon. Union Pacific alleges that the cause of the derailment was the improper loading of the Railcar containing the Forex lumber products.
In the preliminary discovery that I allowed concerning these motions, Union Pacific sorted through boxes of Groupe Goyette documents which were sorted by customer name. By concentrating on documents for Forex and Oregon corporations, it located documents for: (1) 165 shipments with Groupe Goyette as shipper, an Oregon corporation as the consignee, and delivery to another state; (2) 16 shipments unrelated to Groupe Goyette or Forex but delivered to Oregon; and (3) 1,024 shipments with Forex as shipper, an Oregon corporation as consignee, and delivery to another state.
Actually, Entreposage Maska.
Since my ruling dismissing Groupe Goyette, the remaining parties have completed discovery. Union Pacific now has evidence of the following additional facts:
The OSB was an unusual size, four feet by six feet sheets. A few weeks before the main shipment, Forex arranged for a single railcar to be sent to Sellwood to see if the company was happy with the product. A loading plan for that railcar had to be designed because of the odd size of the sheets. John Woods, of Forex, designed a loading plan with Louis Rousseau, of Groupe Goyette.
Jean-Louis Goyette is the owner of Groupe Goyette. When the main shipment was being loaded, he told Rousseau and other Groupe Goyette employees to load the car differently from the plan in order to save time and money. Rousseau argued with Goyette and pointed out that the change would load bundles of OSB above the line drawn on the Railcar indicating the highest level for the load. He was also concerned about gaps in the load, which would allow shifting. Goyette told Rousseau not to discuss the change with Forex and threatened to fire him. Rousseau then left the loading area and returned to his office, leaving Goyette to oversee the loading.
Goyette disputes this, but for purposes of this motion, I will rely on the evidence provided by plaintiff.
Gilles Gauthier, a Groupe Goyette employee, told Goyette that his method of loading was not safe and could cause the Railcar to turn over. Gauthier was concerned the load could shift. Goyette told Gauthier, "You're not here to think, you're here to work." Gauthier Depo. at 17. Goyette also refused to let Gauthier add straps to the load to stabilize it.
DISCUSSION
I. Reconsideration
Group Goyette contends that there are insufficient reasons to reconsider the dismissal order under Fed.R.Civ.P. 60(b), which allows relief because of newly discovered evidence or fraud. By its terms, however, Rule 60(b) relieves a party from a "final judgment, order, or proceeding." No judgment has been entered in this case. Groupe Goyette has not provided any authority showing that the dismissal order is a final order or is appealable. I consider it an interlocutory order which I may modify without considering the limitations under Rule 60(b).
II. Personal Jurisdiction
Union Pacific contends that the additional evidence uncovered during discovery for liability is sufficient for this court to extend personal jurisdiction over Groupe Goyette. It contends that Groupe Goyette's intentional improper loading of the Railcar had a foreseeable effect on Oregon residents, by either a possible derailment in Oregon or a possible injury to people in Oregon unloading the Railcar.
Two cases are instructive. In Raffaele v. Compagnie Generale Maritime, S.A., 707 F.2d 395 (9th Cir. 1983), the court extended personal jurisdiction over a German defendant that loaded shipping containers. Plaintiff was a longshoreman who was injured when he unloaded the container from a ship in Oregon and a crate inside the container fell on him. The defendant had loaded 94 containers destined for Oregon in the prior three years, the container at issue was marked "VIA PORTLAND," and the contract between the defendant and the carrier committed the defendant to submit to the jurisdiction of courts in which the carrier might bring a recourse action against it, as happened in an Oregon court. Based on these contacts, the court held that the defendant had reason to anticipate that it might be sued in Oregon. Id. at 397.
Although the facts are similar, Raffaele is distinguishable because of the contract clause agreed to by the defendant.
The Ninth Circuit recently elaborated on the purposeful availment analysis when a foreign act has an effect in the forum state in Bancroft Masters, Inc. v. Augusta National, Inc., 223 F.3d 1082 (9th Cir. 2000). To meet the effects test, the defendant must have (1) committed an intentional act, which was (2) expressly aimed at the forum state, and (3) caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state. Moreover, there must be an "express aiming" at the forum state, namely when the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state. Id. at 1087. Based on this test, the Georgia defendant was found to have purposefully availed itself of the right to conduct activities in California when it sent a letter to the registrar of Internet domain names, located in Virginia, challenging the domain name of a California company and triggering the dispute resolution policy. Id. at 1087-88. The concept has also been applied in defamation actions when the defamed plaintiff lived in the forum state, Gordy v. Daily News, L.P., 95 F.3d 829, 833 (9th Cir. 1996), and an action in which an Alabama resident was brought into a California court on the basis of a letter she sent to an insurance company stating that she was entitled to an insurance payment actually belonging to a California resident, Metropolitan Life Insurance Co. v. Neaves, 912 F.2d 1062 (9th Cir. 1990).
I conclude that plaintiff has failed to meet the effects test for the purposeful availment requirement, as stated in Bancroft. Although, based on plaintiff's evidence, Groupe Goyette intentionally loaded the Railcar improperly, it did not intend to cause harm to anyone. Consequently, Groupe Goyette could not know that the harm was likely to be suffered in Oregon. Any tortious act on the part of Groupe Goyette was more akin to negligence than to the defamation in Gordy or the letters being sent inBancroft and Metropolitan Life. Those letters were intended to cause a change in the status quo in the forum state. Groupe Goyette was allegedly trying to cut corners with no one finding out. Thus, I decline to extend personal jurisdiction over Groupe Goyette.
CONCLUSION
Plaintiff's motion for reconsideration of order dismissing defendant Groupe Goyette (#64) is denied. Plaintiff's motion to file an amended complaint (#62) is granted to allow an amendment consistent with this opinion, to be filed within 14 days.