A recent Ninth Circuit opinion sets out an expansive jurisdiction analysis. The case was for copyright infringement.

The opinion sets out the minimum contacts requirement for jurisdiction.

“This Court employs a three-prong test to determine 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.”

The Court then discussed the first requirement, of purposeful direction or availment. A purposeful availment analysis applies to contract actions; a purposeful direction analysis applies to tort actions.

Since copyright infringement is characterized as a tort, purposeful direction is determined using the three-part “Calder-effects” test, taken from the U. S. Supreme Court’s decision in Calder v. Jones, 465 U.S. 783 (1984).

Under this test, “the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.”

The mere maintenance of a passive website alone cannot satisfy the express aiming requirement.

The express aiming requirement is satisfied when the defendant engaged in wrongful conduct targeted at a plaintiff, and the defendant knows the plaintiff is a resident of the forum state.

“By thus individually targeting Brayton Purcell, a known Forum resident, Recordon expressly aimed its conduct at the Forum. Assuming the dissent is correct that something more than knowledge of the residence of the plaintiff is required for there to be express aiming at the Forum, such a requirement is satisfied here; the parties are competitors in the same business so that the intentional infringement will advance the interests of the defendant to the detriment of the Forum interests of the plaintiff. The express aiming prong is therefore satisfied.”

The dissent argues that this was not enough.

“Pebble Beach and Schwarzenegger establish that knowledge of the plaintiff’s residence and a foreseeable harm to the plaintiff are, standing alone, insufficient to establish express aiming; ’something more’ is required in order for the state of the plaintiff’s residence to constitute a proper forum.”

The opinion is available at Brayton Purcell v Recordon & Recordon.

On the job accidents

The workplace, especially construction sites, can be dangerous. The landlord may not have inspected and corrected unsafe conditions. The general contractor may have tolerated a dangerous situation, and a construction worker can be injured or killed.

If the person injured or killed was on the job, then he will be covered by workers compensation. The injury will be covered, and there is no requirement to prove that anyone was at fault or negligent. Moreover, the worker is covered even if the worker himself was negligent. The disadvantage of workers compensation is that the amount paid out is low. The workers compensation law includes a bar to any additional claim against the employer.

There can be additional claims, beyond the workers comp claim, against other companies in the case of a job site injury.

For example, the injury could have been caused by dangerous equipment. This is called a products liability claim.

In addition, there can be an Employer Liability Law claim. Some states, including Oregon, provides a law that protects the worker. The Employer Liability Law applies generally as follows.

Before the Employer Liability Law can be made basis of claim for relief by injured worker suing defendant other than employer of worker, defendant must be in charge of or have responsibility for work involving risk or danger in either (a) situation where defendant and plaintiff’s employer are simultaneously engaged in carrying out work on common enterprise, or (b) situation in which defendant retains right to control or actually exercises control as to manner or method in which risk-producing activity is performed. Miller v. Georgia-Pacific, 294 Or 750, 662 P2d 718 (1983)

Here is the general provision requiring every care, even when expensive:

Oregon Revised Statutes 654.305 Protection and safety of persons in hazardous employment generally. Generally, all owners, contractors or subcontractors and other persons having charge of, or responsibility for, any work involving a risk or danger to the employees or the public shall use every device, care and precaution that is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.

In applying the ORS 654.305 requirements, “Public” includes worker whose employer is engaged in common enterprise with in-charge third party. Trout v. Liberty Northwest Ins. Corp., 154 Or App 89, 961 P2d 235 (1998).

All owners and companies involved must comply with the Employer Liability Law safety requirements:

Oregon Revised Statutes 654.310 Places of employment; compliance with applicable orders, rules. All owners, contractors, subcontractors, or persons whatsoever, engaged in the construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure, or in the erection or operation of any machinery, or in the manufacture, transmission and use of electricity, or in the manufacture or use of any dangerous appliance or substance, shall see that all places of employment are in compliance with every applicable order, decision, direction, standard, rule or regulation made or prescribed by the Department of Consumer and Business Services pursuant to ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780.
Oregon Revised Statutes 654.315 Persons in charge of work to see that ORS 654.305 to 654.336 are complied with. The owners, contractors, subcontractors, foremen, architects or other persons having charge of the particular work, shall see that the requirements of ORS 654.305 to 654.336 are complied with.
Oregon Revised Statutes 654.320 Who considered agent of owner. The manager, superintendent, foreman or other person in charge or control of all or part of the construction, works or operation shall be held to be the agent of the employer in all suits for damages for death or injury suffered by an employee.

The law is well established that there are 3 ways a company can have liability for an injury on the job: To recover under Employer Liability Law against person other than the injured worker’s employer, the injured worker must establish that defendant

• had actual charge of plaintiff’s work; or
• had right to control manner in which plaintiff performed that work; or
• that defendant and plaintiff’s employer were engaged in work on common enterprise.

Torres v. US National Bank of Oregon, 65 Or App 207, 670 P2d 230 (1983), Sup Ct review denied; Quackenbush v. PGE, 134 Or App 111, 894 P2d 535 (1995), Sup Ct review denied; Moe v. Eugene Zurbrugg Construction Co., 202 Or App 577, 123 P3d 338 (2005).

If you or a loved one had a serious injury or death on the job, you should consider whether additional companies, beyond the employer, have liability for an Employer Liabilty Law claim. For more articles about accidental injury claims, see the personal injury accident page. If you would like a free consultation, see the contact page.

These resources are for those injured in accidents, and their families.

Construction site injuries, including Employer Liability Law claims. According to OSHA, one of every five workplace fatalities is a construction worker.

If the injured person died as a result of the accident, see death accident claims.

Electrical accident injuries, including trees left to grow and hide power lines.

Forms:

Form of Notice of Deposition under Federal Rules of Civil Procedure 30(b)(6)

This form is based on a notice of deposition used in a major personal injury case. Time spent on the topics to be covered will be valuable. Answers to requests for admissions can sometimes be avoided, but it is difficult for an adverse party to avoid deposition answers made by a witness who knows the party’s history.

[Caption and format as required by local rules, typically including:
Plaintiff's Notice of Deposition to Defendant XYZ Company Under FRCP 30 (b) (6) Duces Tecum]

To:  defendant XYZ COMPANY, and its Attorneys,
John Smith, Esq.
Karen Jones, Esq.
Smith Jones Brown
1000 SW Main
Portland OR 97204

You and each of you please take notice that at 9:00 a.m., on July 9, 200_, at the offices of Smith Jones Brown, 1000 SW Main, Portland OR 97204, the undersigned will take the deposition of defendant XYZ COMPANY upon oral examination before a court reporter. You are required to attend and are invited to cross-examine.  The oral examination will continue until complete. The testimony will be recorded by stenographic means and by video taping.

The deposition will be in accordance with Federal Rules of Civil Procedure 30 (b) (6), and the designee(s) will be examined on these topics:

1. Safety standards used or referred to by XYZ Company that relate to [cause of the injury or death] as applicable to the period of 200_ through 200_. Plaintiff’s counsel expects that this will include 29 CFR _____ [set out known safety standards]. In any event the witness will need to testify about sources XYZ Company referred to for safety standards for the relevant period. The witness will need to be familiar with the specific application of the relevant standards to [the situation that caused the injury or death].

2. As pertaining to the [other relevant writing]: what XYZ Company understood to be its obligations for _____________ in 200_ and 200_ as to _________, what did XYZ Company do to communicate its expectations about ___________, what did _______ do or communicate in response, and what did XYZ Company know, before [relevant date, perhaps date of injury], about [the condition that led to the injury or death].

3. Other information about the incident that resulted in [injury or death].

AND BRING WITH YOU the following documents:

1. Sources XYZ Company refers to for safety standards, as applicable to the period of 200_ through 200_.

Signed ______________.

s/ E. J. Simmons
____________________________
E. J. Simmons
[additional information as required by local rule]
Attorney for Plaintiff ________

[Certificate of service]

You may want to include the letter to adverse counsel that I recommend in the post about forcing efficient 30(b)(6) depositions.

When someone is killed in an accident, and it was caused by someone’s negligence, it is called wrongful death.

A claim for death caused by negligence is brought under the wrongful death statute. The quotes below are from Oregon Revised Statutes 30.020.

“Action for wrongful death; when commenced; damages. (1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents … may maintain an action against the wrongdoer …”

The statute of limitations for wrongful death is generally three years:

“In no case may an action be commenced later than the earliest of:
(a) Three years after the death of the decedent; or
(b) The longest of any other period for commencing an action under a statute of ultimate repose …”

However, the tort claim notice statute has additional time limits for giving notice of the claim and filing the case. An attorney should be consulted on death cases.

The amount to be awarded for wrongful death is based upon these factors:

“reasonable charges necessarily incurred for … medical services, burial services and memorial services …;
… for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death;
… for pecuniary loss to the decedent’s estate;
… compensates the decedent’s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and
… the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.”

Most wrongful death claims present similar issues to other personal injury cases, including proof of the negligence of the defendant company.

This site now offers a fast and free search engine, to find relevant Oregon cases from the last ten years. Included are Oregon cases about civil law, criminal law, negligence, contracts and all the other issues that were appealed. The search results link to the slip opinions of the Oregon Supreme Court and Oregon Court of Appeals.

You can get much of what you need in 10 minutes using this feature. Just put the relevant words into the search box, and click on the Go! button.

If you get more than 50 results, add more words to the search box to narrow down the results. You may see that you need to put in a negative term to eliminate irrelevant results that tend to include your search words.

Then, print the first results page. The first page of results will have the top 10 cases, put at the top by the statistical ranking calculated by the search program.

With the print out in hand, start clicking on the results, top to bottom. If a case is irrelevant, cross it off and go to the second, etc. In a few minutes you will have close to a finished understanding of the relevant law.

This search facility is fast. I suspect it is much faster than the competition. In fairness to the competition, the database is only 10 years of case law. You are invited to run a speed test comparison and let me know what your experiment reveals.

The site works reasonably well if you use an iPhone or a T-Mobile G1 phone, given the limitation of using the small screen on such a smart phone. Making a search from your smart phone may be of use if you need a quick look while you are out of the office, perhaps while waiting in the courthouse and you just spotted another issue.

Your comments are invited, and will help improve the search facility.

- E. J. Simmons

Click here to return to the Search Page.

Search slip opinions of the Oregon Supreme Court, Oregon Court of Appeals, and Oregon Tax Court, from 1998 through April 2, 2009 for the Oregon Supreme Court and through April 1, 2009 for the Oregon Court of Appeals.

Easy search

Click in the check box to agree to the terms and conditions, then type a word or words of interest in the box above, then click on the Go! button.

For example, enter the word “easement” (without the quotation marks) and click on the Submit button. You will get back your query with a list of cases. The search engine uses a statistical analysis to rank the matching cases for you.

Phrases

To search for a phrase, put the phrase in quotation marks, as in “ballot title”.

If you forget to put parentheses around the phrase “ballot title”, then you will get all the cases that use the word “title” including car title cases and real estate title cases. Many irrelevant cases. When there are no quotation marks around the words, the search engine assumes that you want every case that includes the given words even if not together in the case.

Read the cases found

You can click on the case number and read the opinion. Use right-click (Windows) or Ctrl-click (Mac) to open the opinion in a new tab, much more convenient for referring back to the search results.

Click here to return to the Search Page.

Boolean search

Most searches will be done by simply putting words into the box. But if you get too many cases, or need to make a more complicated search, you will want to use Boolean search terms in the box. This will allow exclusion of cases with certain words and other conditions

Boolean queries allow the following special operators to be used:
For AND use “&” (without the quotes).

For OR use “|” (without the quotes). This is not the lower case L “l” or number one “1? character, this is the pipe character, a vertical line usually found above the “\” key on the right of your keyboard.

For NOT use “-” or “!” (without the quotes).

For GROUPING enclose the terms in parentheses. Grouping is used for some very specialized searches.

Here are some examples:
* explicit operator AND: hello & world
* operator OR: hello | world
* operator NOT: hello -world [or the same thing: hello !world ]
* grouping: ( hello world )

Here is an example of a Boolean search query which uses all these operators:
( cat -dog ) | ( cat -mouse)

The AND operator is always implied, so “hello world” query (witout the quotation marks) actually searches for the same thing as “hello & world” (without the quotation marks).

OR operator precedence is higher than AND, so “looking for cat | dog | mouse” means “looking for ( cat | dog | mouse )” and not “(looking for cat) | dog | mouse”. That is, the search will return opinion that satisfy any one or more of these 3 conditions: “looking for cat”, “looking for dog”, or “looking for mouse”.

Queries like “-dog”, that is, search for every opinion that does not not include the word “dog”, might include every single case. To prevent this, such a search will not be accepted by the system.

No Wildcard: No wildcard is provided for this search. Longer words that include what you enter, will be returned. For example, “employ” will search for employ, employer, employee, employment. Also, words with the same word root will be returned. For example, “employer” will return “employee”.

Click here to return to the Search Page.

Questions?: If you have any questions or feedback, please use the contact email form.

Of course, no warranty is intended by providing this service. Traditional means should be used to verify any opinion language before it is used or relied upon. Any non-lawyer who may access this page is warned: consult a lawyer. If you do not have a lawyer, you may call the Oregon State Bar’s Lawyer Referral Service at 503-684-3763 or visit the Lawyer Referral web page.

The search page is provided as a convenience
for the Members of the Bar
by SimmonsTrialPractice.com

Search instructions
Ask questions

In March of 2009, the United States Court of Appeals for the Ninth Circuit upheld the dismissal of a case with prejudice. The plaintiff had agreed to arbitration but could not afford the $220,000 advance arbitration fee. Kam-Ko Bio-Pharm v. Mayne Pharma, No. 07-35449. This left the party with no remedy.

The decision follows settled law. That is, if you are a business (not a consumer or employee) and you sign an arbitration contract, you are bound by the contract terms. But the unfortunate parties who sign ridiculous arbitration contracts do not understand the implications of an agreement to arbitrate.

There are 2 problems with the arbitration process: It is more expensive than Court proceedings, and the decisions are of lower quality, i.e., arbitrary.

I recommend arbitration generally in situations where you are wealthier than the other party and you do not care about the outcome.

Arbitration is expensive

As in the case cited, the parties have to pay for private arbitration.

On the other hand, in the Court setting, access to the system is a benefit of our government, already paid for by our taxes. For a $350 filing fee you get the benefit of an excellent system.

Lower quality because of less experience

Many arbitrators are attorneys who are considering becoming Judges someday. The typical arbitrator has heard a small fraction of the number of cases heard by the typical Judge.

“Early on the learning curve” translates to “increased probability of mistakes”.

To lesson the effect of random factors, the arbitration agreement can require 3 arbitrators. Of course, this triples the arbitrator fees.

Lower quality because of lack of feedback

Arbitrators and Judges are human. As a result, they make mistakes.

If a Judge makes a mistake in a big case, the parties may appeal. But there is no appeal from a wrong arbitration decision. So the arbitrator who makes incorrect decisions may never learn.

Furthermore, there is no public record of incorrect arbitration decisions. Data on the performance of arbitrators in actual proceedings is, to be charitable, incomplete. You can ask around, but this is not as reliable as the written record of appeals.

Those who prefer arbitrations believe that arbitrations are fast and less expensive. They may be faster, but flipping a coin is faster and less expensive yet. So consider this thought experiment: would you be willing for disputes under this contract to be decided by flipping a coin? If so, then sign the arbitration clause, and specify one random arbitrator.

When an arbitration clause is used

Some clients want an arbitration clause. In a few situations, arbitration is better for the client. In such situations I add a requirement to the arbitration clause: the arbitrator selected must be a retired Judge.

If the arbitrator is a retired Judge, then you get an experienced decision maker. This greatly increases the quality of the process and the quality of the decision at no added expense.

If you have an arbitration experience or comment to share, please leave your comment below. And to my arbitrator friends: I am not writing about you.

- E. J. Simmons

The other day, another attorney asked me to provide my opinion, in affidavit form, about the value of a personal injury case, in support of a motion in the Federal Court. I suggested a declaration instead of an affidavit.

Both Federal and State courts in Oregon allow declarations for most purposes in lieu of affidavits, including in support of or in opposition to motions for summary judgment.

Every time this comes up, I spend a frustrating few minutes trying to remember where to find the statute or rule to verify the required language. This post points to the statutory or rule language for each Court.

Federal cases:

28 U.S.Code Section 1746
Unsworn declarations under penalty of perjury
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)”.
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.

Note that the language differs for declarations signed outside of the United States.

Oregon State Court cases:

Oregon Rules of Civil Procedure 1E. Use of declaration under penalty of perjury in lieu of affidavit; “declaration” defined. A declaration under penalty of perjury may be used in lieu of any affidavit required or allowed by these rules. A declaration under penalty of perjury may be made without notice to adverse parties, must be signed by the declarant and must include the following sentence in prominent letters immediately above the signature of the declarant: “I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.” As used in these rules, “declaration” means a declaration under penalty of perjury.

Some other States similarly allow declarations. E.g.
Revised Code of Washington 9A.72.085;
Utah Code Annotated § 46-5-101;
Rule 7(g) of the Rules of the Circuit Courts of the State of Hawai`i

The declaration is recommended as more efficient, especially for clients who will not have to seek a notary.