Robinson v. Harley-Davidson Motor Co. , 354 Or. 572 ( 2013 )

572 December 19, 2013 No. 63
IN THE SUPREME COURT OF THE
STATE OF OREGON
Hilary P. ROBINSON,
Petitioner on Review,
v.
HARLEY-DAVIDSON MOTOR COMPANY,
an assumed business name for
Harley-Davidson Motor Company Group, LLC,
a foreign limited liability company,
fka Harley-Davidson Motor Company Group, Inc., et al.,
Defendants,
and
GRAND TETON HARLEY-DAVIDSON & BUELL,
an assumed business name for
Grand Teton Cycles, LLC,
an Idaho limited liability company,
Respondent on Review.
(CC 0904-05047; CA A143846; SC S060226)
En Banc
On review from the Court of Appeals.*
Argued and submitted April 30, 2013.
Kathryn H. Clarke, Portland, argued the cause and filed
the brief for petitioner on review. With her on the brief were
Michael L. Rosenbaum and Travis J. Mayor, Portland.
Janet M. Schroer, Hart Wagner, LLP, Portland, argued
the cause for respondent on review. Majorie A. Speirs, Hart
Wagner, LLP, Portland, filed the brief.
Cody Hoesly, Larkins Vacura LLP, Portland, filed the
brief for amicus curiae Oregon Trial Lawyers Association.
______________
* On appeal from Multnomah County Circuit Court, Kathleen M. Dailey,
Judge. 247 Or App 587, 270 P3d 367 (2012).
Cite as 354 Or 572 (2013) 573
BALDWIN, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Plaintiff, an Oregon resident, was riding through Idaho when her motorcy-
cle malfunctioned. Defendant, Grand Teton Cycles, LLC, repaired the motorcy-
cle at its Idaho dealership. Plaintiff was subsequently injured in an accident in
Wyoming, and she later sued defendant and others in Oregon seeking damages
for her injuries. The trial court granted defendant’s motion to dismiss under
ORCP 21 A(2) for lack of personal jurisdiction. The Court of Appeals affirmed,
concluding that personal jurisdiction was lacking because defendant’s activi-
ties in Oregon were not substantively relevant to plaintiff’s complaint and, as a
result, plaintiff’s suit did not “arise out of or relate to” defendant’s forum activi-
ties as required under ORCP 4 L. Held: (1) State ex rel Michelin v. Wells, 294 Or
296, 657 P2d 207 (1982) is disavowed to the extent that it advanced a substantive
relevance test; (2) the appropriate standard instead is a combined but-for and
foreseeability of the litigation test; and (3) in applying that test, the relationship
between defendant’s forum contacts and the litigation at issue is not such that it
was reasonably foreseeable that defendant would be sued in Oregon for repairs
that it undertook in Idaho.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
574 Robinson v. Harley-Davidson Motor Co.
BALDWIN, J.
Plaintiff, an Oregon resident, sustained injuries in
a motorcycle accident that occurred in Wyoming. She subse-
quently filed an action in Oregon seeking damages for her
injuries, naming as a defendant Grand Teton Cycles, LLC,
a Harley-Davidson franchisee with a physical presence in
Idaho and Wyoming. The trial court determined that it
lacked personal jurisdiction over defendant and granted
defendant’s motion to dismiss the complaint. The Court of
Appeals affirmed. Robinson v. Harley-Davidson Motor Co.,
247 Or App 587, 270 P3d 367 (2012). We allowed plaintiff’s
petition for review to determine whether defendant, a non-
resident, had sufficient contacts with Oregon for a court in
this state to exercise specific jurisdiction over it. We con-
clude that this litigation did not arise out of or relate to
defendant’s activities in Oregon. However, we affirm for a
different reason than expressed by the Court of Appeals,
and, in so doing, we disavow the substantive relevance test
to the extent that it was advanced in State ex rel Michelin v.
Wells, 294 Or 296, 657 P2d 207 (1982).
I. BACKGROUND
Defendant is an Idaho-registered limited liability
company that owns and operates Harley-Davidson dealer-
ship franchises. Under the terms of its franchise agreement
with Harley-Davidson, defendant operates two dealerships
in Idaho—in Idaho Falls and Pocatello—and one dealership
in Jackson Hole, Wyoming. Oregon is not included within
defendant’s “Dealer Assigned Territory” under the terms
of its franchise agreement with Harley-Davidson. Nor does
defendant maintain a physical presence or maintain bank
accounts, officers, employees, or agents within Oregon.
Defendant has sold motorcycles, rentals, and ser-
vices to Oregon residents who have visited its franchise
locations, and it has purchased merchandise from, and sold
merchandise to, Harley-Davidson dealerships in Oregon. On
isolated occasions, defendant has sold parts and accessories
to Oregon residents by orders placed through its interactive
website, which is accessible to customers worldwide. On its
website, defendant advertises motorcycle sales, repair ser-
vices, sales of parts and accessories, sponsorship information
Cite as 354 Or 572 (2013) 575
for local events, and promotions for out-of-state residents
to fly to Idaho to purchase motorcycles. Harley-Davidson
also separately promotes defendant’s franchise locations in
its touring handbook, which is distributed nationally and
lists all Harley-Davidson dealerships in the United States.
In addition, defendant annually advertises in a few trade
publications. Defendant’s revenue from sales of accessories,
parts, services, and rentals to Oregon residents and Oregon
dealerships between the years 2002 and 2009 totaled, on
average, approximately $60,000 per year. Although some of
that revenue was attributable to sales to Oregon residents
that occurred through defendant’s online website, nearly all
transactions involving Oregon residents occurred in Idaho.
In 2004, plaintiff purchased a Harley-Davidson motor-
cycle from Latus Motors Harley-Davidson (Latus Motors), a
dealership in Gladstone, Oregon. Thereafter, she regularly
returned to Latus Motors for service and warranty repairs on
the motorcycle. Before the accident that gave rise to this lit-
igation, plaintiff also visited defendant’s Idaho Falls dealer-
ship on two occasions. Plaintiff first stopped at the dealer-
ship in 2004 while driving through Idaho, having learned of
it through friends and the Harley-Davidson touring hand-
book. In 2006, she visited the dealership again while attend-
ing an Idaho-based motorcycle rally that defendant spon-
sored. Plaintiff visited defendant’s website to register for the
2006 rally.
In early August 2007, Latus Motors serviced plain-
tiff’s motorcycle and installed new tires. A few days later,
plaintiff departed on a multistate motorcycle tour. While
riding in Idaho, the front end of plaintiff’s motorcycle began
to “wobble” at highway speeds. Plaintiff took the motorcycle
to defendant’s Idaho Falls dealership to address the front-
end stability problem. Defendant’s employee examined the
motorcycle and completed warranty repairs. The next day,
in Wyoming, plaintiff was riding the motorcycle at highway
speeds when it again began to “wobble.” The motorcycle
went into an uncontrollable front-end weave, and plaintiff
was thrown off the motorcycle and injured.
Plaintiff subsequently commenced an action in
Multnomah County Circuit Court against the motorcycle
576 Robinson v. Harley-Davidson Motor Co.
manufacturer, two dealerships that had serviced the motor-
cycle, including defendant, and two parts manufacturers,
alleging claims for products liability, negligent repair, breach
of warranty, and other claims. As relevant to defendant,
plaintiff specifically alleged that defendant failed to prop-
erly diagnose and repair the cause of the front-end problem,
failed to contact Harley-Davidson for repair instructions or
instruct its employees on proper repairs, and failed to notify
plaintiff that the motorcycle could continue to experience a
high-speed “wobble.”
Defendant filed a motion to dismiss plaintiff’s com-
plaint pursuant to ORCP 21 A(2), asserting that the trial
court lacked personal jurisdiction over defendant. After hear-
ing the parties’ arguments, the trial court concluded that it
lacked personal jurisdiction and granted defendant’s motion
to dismiss. The trial court entered a limited judgment, and
plaintiff appealed. The Court of Appeals affirmed that judg-
ment, and we granted review to address the jurisdictional
issue presented in this case.
In reviewing a trial court’s ruling on a motion to
dismiss for lack of personal jurisdiction, we consider the
facts as alleged in plaintiff’s complaint, any relevant sup-
porting affidavits, and other evidence submitted by the par-
ties. Willemsen v. Invacare Corp., 352 Or 191, 195 n 2, 282
P3d 867 (2012), cert den, ___ US ___, 133 S Ct 984 (2013);
see also ORCP 21 A (providing that a trial court consider-
ing a motion to dismiss for lack of personal jurisdiction may
rely on the pleadings, affidavits, declarations, and other evi-
dence). The burden is on the plaintiff to allege and prove
facts sufficient to establish jurisdiction over a particular
defendant. Michelin, 294 Or at 299 (citing State ex rel Sweere
v. Crookham, 289 Or 3, 6, 609 P2d 361 (1980)). In this case,
the jurisdictional facts are undisputed.
Oregon’s long-arm statute, ORCP 4, sets out the
grounds for an Oregon court to exercise jurisdiction over
an out-of-state defendant in a civil case. The rule outlines
five general bases for establishing personal jurisdiction
under ORCP 4 A, enumerates several more specific bases
for personal jurisdiction under ORCP 4 B through K, and
also provides a catchall provision under ORCP 4 L that
Cite as 354 Or 572 (2013) 577
confers jurisdiction to the extent permitted by due process.
State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or 151,
154-56, 854 P2d 461 (1993); see also Goodyear Dunlop Tires
Operations, S.A. v. Brown, ___ US ___, ___, 131 S Ct 2846,
2850, 180 L Ed 2d 796 (2011) (“A state court’s assertion of
jurisdiction exposes defendants to the State’s coercive power,
and is therefore subject to review for compatibility with the
Fourteenth Amendment’s Due Process Clause.”).
Although plaintiff asserted at trial that defendant’s
contacts—particularly its presence through its interactive
website—were sufficient to establish jurisdiction in accor-
dance with ORCP 4 A, plaintiff does not reprise that argu-
ment before this court. Plaintiff also does not invoke any
basis for jurisdiction enumerated in ORCP 4 B through K.
Rather, plaintiff asserts that, pursuant to ORCP 4 L, defen-
dant’s contacts with this state were sufficient to permit
an Oregon court to exercise jurisdiction over defendant to
the extent permitted by this state’s constitution and the
Constitution of the United States.1 See State ex rel Hydraulic
Servocontrols v. Dale, 294 Or 381, 384, 657 P2d 211 (1982)
(ORCP 4 L confers jurisdiction to the “outer limits of due
process”). Because Oregon does not have a due process
clause in its constitution that would impose a state constitu-
tional limit on jurisdiction, we are guided by decisions of the
Supreme Court of the United States that address the con-
stitutionality of an invocation of jurisdiction under the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution.2 Circus Circus, 317 Or at 156.
Under Supreme Court jurisprudence, an exercise
of jurisdiction over a nonresident defendant comports with
due process if there exists “minimum contacts” between the
1
Oregon’s catchall provision, ORCP 4 L, provides that an Oregon court has
jurisdiction:
“Notwithstanding a failure to satisfy the requirement of sections B
through K of this rule, in any action where prosecution of the action against a
defendant in this state is not inconsistent with the Constitution of this state
or the Constitution of the United States.”
2
The Due Process Clause provides:
“[N]or shall any State deprive any person of life, liberty, or property, without
due process of law * * *.”
US Const, Amend XIV, § 1.
578 Robinson v. Harley-Davidson Motor Co.
defendant and the forum state such that maintaining suit in
the state would “not offend traditional notions of fair play and
substantial justice.” World-Wide Volkswagen Corp. v. Woodson,
444 US 286, 291-92, 100 S Ct 559, 62 L Ed 2d 490 (1980)
(internal quotation marks omitted); see also International
Shoe Co. v. Washington, 326 US 310, 316, 66 S Ct 154, 90
L Ed 95 (1945) (“[D]ue process requires only that in order
to subject a defendant to a judgment in personam, if he be
not present within the territory of the forum, he have certain
minimum contacts with it such that the maintenance of the
suit does not offend ‘traditional notions of fair play and sub-
stantial justice.’ ”). Due process is thus satisfied if “the defen-
dant’s conduct and connection with the forum State are such
that he [or she] should reasonably anticipate being haled into
court there.” World-Wide Volkswagen, 444 US at 297.
In applying that test, the Supreme Court has recog-
nized that jurisdiction over a nonresident may be either gen-
eral or specific. Goodyear, ___ US at ___, 131 S Ct at 2851; see
also Burger King Corp. v. Rudzewicz, 471 US 462, 472, 473
n 15, 105 S Ct 2174, 85 L Ed 2d 528 (1985) (noting distinction
between general and specific jurisdiction); see Willemsen, 352
Or at 197.3 General jurisdiction exists when the defendant’s
affiliations with the forum state “are so ‘continuous and sys-
tematic’ ” as to render the defendant “essentially at home in
the forum State.” Goodyear, ___ US at ___, 131 S Ct at 2851;
see Willemsen, 352 Or at 197. Stated differently, general juris-
diction is present in “ ‘instances in which the continuous * * *
operations within a state [are] so substantial and of such a
nature as to justify suit against [the defendant] on causes
of actions arising from dealings entirely distinct from those
activities.’ ” Goodyear, ___ US ___, 131 S Ct at 2853 (first
alteration in original; quoting International Shoe, 326 US at
318). In abandoning her ORCP 4 A argument, plaintiff has
3
The bases for jurisdiction outlined under ORCP 4 A mirror the continuous
and systematic ties supporting a finding of general jurisdiction as contemplated
under due process jurisprudence, whereas the bases for jurisdiction enumerated
under the remaining provisions of ORCP 4 reflect more discrete affiliations and
activities that may give rise to specific jurisdiction. See Circus Circus, 317 Or at
154-55 (noting the distinction between “general” and “specific” jurisdiction under
ORCP 4); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 US 408, 414 nn
8, 9, 104 S Ct 1868, 80 L Ed 2d 404 (1984) (explaining the difference between
general and specific long-arm jurisdiction).
Cite as 354 Or 572 (2013) 579
effectively abandoned her argument that defendant’s con-
tacts were so continuous and systematic as to constitute a
basis for general jurisdiction. Instead, plaintiff seeks to
assert specific jurisdiction over defendant.
Specific jurisdiction “depends on an ‘affiliatio[n]
between the forum and the underlying controversy,’ princi-
pally, activity or an occurrence that takes place in the forum
State and is therefore subject to the State’s regulation.”
Goodyear, ___ US at ___, 131 S Ct at 2851 (alteration in orig-
inal); see Willemsen, 352 Or at 197. In other words, specific
jurisdiction “is confined to adjudication of ‘issues deriving
from, or connected with, the very controversy that establishes
jurisdiction.’ ” Goodyear, ___ US at ___, 131 S Ct at 2851 (quot-
ing von Mehren & Trautman, Jurisdiction to Adjudicate: A
Suggested Analysis, 79 Harv L Rev 1121, 1136 (1966)).
The analytical framework for determining whether
specific jurisdiction exists consists of three inquiries. See
Circus Circus, 317 Or at 159-60 (laying out analytical
framework). First, the defendant must have “purposefully
avail[ed] itself of the privilege of conducting activities within
the forum State.” Hanson v. Denckla, 357 US 235, 253, 78
S Ct 1228, 2 L Ed 2d 1283 (1958). The requirement that
a defendant purposefully direct activity to the forum state
precludes the exercise of jurisdiction over a defendant whose
affiliation with the forum state is “random,” “fortuitous,” or
“attenuated,” or the “unilateral activity of another party or
a third person.” Burger King, 471 US at 475 (internal cita-
tion marks omitted); see also State ex rel Jones v. Crookham,
296 Or 735, 741-42, 681 P2d 103 (1984) (requirements of due
process not met when defendant’s contacts with Oregon are
“minimal and fortuitous”).
Second, the action must “arise out of or relate
to” the foreign defendant’s “activities in the forum State.”
Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 US
408, 414, 104 S Ct 1868, 80 L Ed 2d 404 (1984); Burger King,
471 US at 472. Stated differently, for an exercise of specific
jurisdiction to be valid, there must be “a ‘relationship among
the defendant, the forum, and the litigation.’  Helicopteros,
”
466 US at 414 (quoting Shaffer v. Heitner, 433 US 186, 204, 97
S Ct 2569, 53 L Ed 2d 683 (1977)). In further explaining that
580 Robinson v. Harley-Davidson Motor Co.
relationship, the Supreme Court recently highlighted two
means by which specific jurisdiction attaches: Jurisdiction
may attach if a party engages in “activity [that] is continu-
ous and systematic and that activity gave rise to the episode-
in-suit.” Goodyear, ___ US at ___, 131 S Ct at 2853 (inter-
nal quotation marks omitted; emphasis in original).
Jurisdiction may also attach if a party’s “certain single or
occasional acts in a State [are] sufficient to render [him or
her] answerable in that State with respect to those acts,
though not with respect to matters unrelated to the forum
connections.” Id. (internal quotation marks omitted). Thus,
as articulated by the Court, an exercise of specific jurisdic-
tion is appropriate in cases where the controversy at issue
“derive[s] from, or connect[s] with” a defendant’s forum-
related contacts. Id. at ___, 131 S Ct at 2851.
Finally, a court must examine whether the exercise
of jurisdiction over a foreign defendant comports with fair
play and substantial justice, taking into account various fac-
tors deemed relevant, including an evaluation of the burden
on a defendant, the forum state’s interest in obtaining con-
venient and effective relief, the interstate judicial system’s
interest in efficient resolution of controversies, and further-
ing fundamental social policies. Asahi Metal Industry Co. v.
Superior Court, 480 US 102, 113, 107 S Ct 1026, 94 L Ed 2d
92 (1987); Burger King, 471 US at 476-77; see Circus Circus,
317 Or at 159-60.
Here, the trial court found that defendant purpose-
fully availed itself of the benefits and protections of this
state, but that its contacts did not arise out of or relate to
this litigation. Although defendant asserted before the Court
of Appeals that its activities did not fulfill the “purposeful
availment” prong of the test, the Court of Appeals declined
to reach that issue, because it determined that the “arise out
of or relate to” requirement was not met. Robinson, 247 Or
App at 592. In doing so, the Court of Appeals applied what
has been labeled the “substantive relevance” test, which led
the Court of Appeals “to the same conclusion that the trial
court reached. No fact relevant to the substance of plaintiff’s
negligence claim occurred in Oregon.”4 Id. at 593.
4
In following a substantive relevance test below, the Court of Appeals rec-
ognized that this court, in Michelin, referenced but “did not expressly adopt
Cite as 354 Or 572 (2013) 581
On review, plaintiff challenges the Court of Appeals’
conclusion that defendant’s contacts did not arise out of or
relate to the events that give rise to this litigation. Defendant
likewise focuses its arguments on that “relatedness inquiry.”
Because the issue of whether this litigation arose out of or
was related to defendant’s forum contacts was central to the
Court of Appeals’ holding in this case, and because that issue
is dispositive, we limit our review to that issue. The question
on review, then, is whether the substantive relevance test
adopted by the Court of Appeals is an appropriate standard
under federal law for determining if the “arising out of or
relating to” requirement supports the exercise of specific
jurisdiction. See Circus Circus, 317 Or at 156 (drawing outer
limits of due process under the Fourteenth Amendment is
an issue of federal law to be decided pursuant to the con-
trolling decisions of the United States Supreme Court). We
now turn to that question.
II. ANALYSIS
Although the imposition of specific jurisdiction
requires a significant nexus between a claim and a defendant’s
contacts within the state for the exercise of state court juris-
diction, the Supreme Court has allowed lower courts to deter-
mine, on a fact-intensive basis, whether the strength of that
‘substantive relevance’ as the test for ‘arising out of or relating to.’  Robinson,
”
247 Or App at 592. In making that observation, the Court of Appeals noted that
“the United States Supreme Court did not announce [the “arising out of or relat-
ing to”] aspect of minimum contacts until Burger King,” which was decided three
years after Michelin. Id. However, as the Court of Appeals went on to explain, in
Horn v. Seacatcher Fisheries, Inc., 128 Or App 585, 876 P2d 352, rev den, 320 Or
407 (1994), cert dismissed, 514 US 1048 (1995), it had adopted the substantive
relevance test and applied it to the “arising out of or relating to” aspect of ORCP
4 L:
“In Horn, the defendant, a Washington corporation, recruited and hired plain-
tiff, an Oregon resident, in Oregon, to work on its fishing vessel in Alaska.
[128 Or App] at 587. The plaintiff was allegedly injured while working on
the vessel. Id. Citing State ex rel Michelin and the substantive relevance
test taken from the Brilmayer law review article, [the court] reasoned that,
although the plaintiff would not have been aboard the vessel but for the
defendant’s recruiting and hiring activities in Oregon, his alleged injuries
arose out of and related to the defendant’s alleged negligence in Alaska and
in international waters, not in Oregon. Id. at 589-90. Thus, [the court] held
the plaintiff’s claim did not arise out of or relate to the defendant’s hiring and
recruiting activities in Oregon. Id. at 591.”
Robinson, 247 Or App at 592-93.
582 Robinson v. Harley-Davidson Motor Co.
nexus in particular cases is sufficient to comport with due
process. The Court has not otherwise defined the scope of its
“arise out of or relates to” requirement.5 To fill in that gap,
some lower federal courts and state courts, in applying that
requirement, have adopted various approaches to test the
sufficiency of forum contacts. The tests fall into four basic
categories: (1) substantive relevance, (2) but-for causation,
(3) substantial connection, and (4) a combined but-for and
foreseeability of litigation test.
We take this opportunity to examine those stan-
dards in light of the Supreme Court’s more recent jurisdic-
tional jurisprudence and, as explained in more detail below,
we now conclude that the substantive relevance test is an
inappropriately rigid formulation. We also reject the but-for
test and substantial connection test, because those tests do
not adequately describe the due process standards for exer-
cising specific jurisdiction as articulated by the Supreme
Court. Instead, we consider the combined but-for and foresee-
ability of litigation test to be the most appropriate approach.
We will address each test in turn.
A.  Substantive relevance test
In applying the “arises out of or relates to”—also
referred to as the “relatedness”—requirement, a number of
courts have adopted a substantive relevance or proximate
cause test that examines whether any of the defendant’s
contacts with the forum are relevant to the merits of the
plaintiff’s claim. The substantive relevance test has been
described as the most stringent approach. It was summa-
rized in O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F3d
312, 318 (3d Cir 2007), as follows:
5
In discussing its use of the terms “arise out of” and “relate to” in Helicopteros,
the Court expressly declined to consider (1) whether the terms “arising out of”
and “relate to” describe different connections between a cause of action and a
defendant’s contacts with a forum, and (2) what sort of tie between a cause of
action and a defendant’s contacts with a forum is necessary to a determination
that either connection exists. 466 US at 415 n 10; see also id. at 425-27 (Brennan,
J., dissenting) (calling for a distinction between the phrases). The Supreme Court
granted certiorari on the scope of the “arise out of or relate to” requirement in
Carnival Cruise Lines, Inc. v. Shute, 499 US 585, 111 S Ct 1522, 113 L Ed 2d 622(1991), but ultimately decided the case on other grounds.
Cite as 354 Or 572 (2013) 583
“The most restrictive standard is the ‘proximate cause’
or ‘substantive relevant’ test. Courts have articulated this
test in a variety of ways. Some hold the defendant’s con-
tacts must be the ‘legal cause’ of the plaintiff’s injury ‘(i.e.,
the defendant’s in-state conduct [must] g[i]ve birth to the
cause of action).’ See, e.g., Mass. Sch. of Law at Andover,
Inc. v. Am. Bar Ass’n, 142 F3d 26, 35 (1st Cir 1998) (quo-
tation marks omitted). Justice Brennan, dissenting in
Helicopteros, similarly described it as a requirement that
‘the cause of action *  * formally “arise out of” the [defen-
*
dant’s] contacts.’ See Helicopteros, 466 US at 426-27, 104
S Ct 1868 (Brennan, J., dissenting). But stated most sim-
ply, this test examines whether any of the defendant’s con-
tacts with the forum are relevant to the merits of the plain-
tiff’s claim. See Lea Brilmayer, How Contacts Count: Due
Process Limitations on State Court Jurisdiction, 1980 Sup
Ct Rev 77, 82-83.”
(Alterations and omission in original; footnote omitted.)
In Michelin, 294 Or 296, we applied a substantive rel-
evance standard to determine whether a nonresident defen-
dant’s contacts with this state were sufficient for the exercise
of personal jurisdiction. We rejected the assertion that the
mere existence of general sales or use of a defendant’s prod-
ucts in Oregon constituted “minimum contacts” sufficient
to establish specific jurisdiction over that defendant. The
plaintiff, an Oregon corporation, brought a suit in Oregon
against the foreign defendant, Michelin France, seeking prop-
erty damages resulting from the explosion of an allegedly
defective tire. Michelin France, however, had no direct pres-
ence in Oregon. Rather, it manufactured tires in France and
had sold its tires to two United States purchasers, which
then distributed the tires nationally.
In Michelin, we stated that our purpose was to
“consider for the first time the reach of Oregon’s long-arm
statute, ORCP 4, and the implication of World-Wide Volkswagen.”
Michelin, 294 Or at 298. In World-Wide Volkswagen, the United
States Supreme Court had recently affirmed that, under the
Due Process Clause, “a state court may exercise personal
jurisdiction over a nonresident defendant only so long as
there exist ‘minimum contacts’ between the defendant and
584 Robinson v. Harley-Davidson Motor Co.
the forum State.” 444 US at 291 (quoting International Shoe,
326 US at 316). The Court reviewed previously established
principles and rejected the argument that jurisdiction may
be proper if it is merely foreseeable; instead, the court empha-
sized that
“the foreseeability that is critical to due process analysis
is not the mere likelihood that a product will find its way
into the forum State. Rather, it is that the defendant’s con-
duct and connection with the forum State are such that he
should reasonably anticipate being haled into court there.
The Due Process Clause, by ensuring the orderly adminis-
tration of the laws, gives a degree of predictability to the
legal system that allows potential defendants to structure
their primary conduct with some minimum assurance as
to where that conduct will and will not render them liable
to suit.
“When a corporation purposefully avails itself of the
privilege of conducting activities within the forum State, it
has clear notice that it is subject to suit there[.]”
World-Wide Volkswagen, 444 US at 297 (internal quotation
marks and citation omitted). Thus, the focus in World-Wide
Volkswagen was on the purposeful nature of the defendant’s
forum contacts, not whether those contacts were related to
the litigation.
This court applied the principles of World-Wide
Volkswagen in Michelin and concluded that Michelin France’s
contacts with Oregon were, as a matter of due process,
insufficient for Oregon courts to exercise jurisdiction. We
concluded that “[t]he mere existence of general sales or
use of Michelin France’s products in Oregon is not enough
for Oregon jurisdiction.” Michelin, 294 Or at 301. In reach-
ing that conclusion, this court determined that “minimum
contacts” between a defendant and a forum state are not
established unless at least one contact with the forum state
is substantively relevant to the cause of action. Id. at 302
(citing Lea Brilmayer, How Contacts Count: Due Process
Limitations on State Court Jurisdiction, 1980 Sup Ct Rev
77, 82-83 (1980)). We observed that “no fact of substantive
relevance, such as sale, use, accident[,] or injury has been
shown to have occurred in Oregon,” and we concluded that
Cite as 354 Or 572 (2013) 585
the plaintiff had failed to demonstrate that Michelin France
was subject to the trial court’s jurisdiction. Id. at 303.
Plaintiff, joined by amicus curiae Oregon Trial
Lawyers Association (OTLA), now challenges this court’s
analysis in Michelin to the extent that we advanced a sub-
stantive relevance test for specific jurisdiction. Both plaintiff
and OTLA emphasize that Michelin was decided before the
Supreme Court fully articulated the “arise out of or relates
to” standard, which they suggest permits a looser affilia-
tion with the forum state than had previously been provided
when we decided Michelin.
Those arguments are well-taken. Given the timing
of Michelin, this court’s analysis in that matter was heavily
informed by World-Wide Volkswagen’s purposeful availment
precepts. However, World-Wide Volkswagen and our analysis
in Michelin predated the Supreme Court’s decisions in
Helicopteros and Burger King, in which the Court more fully
articulated the “arise out of or relates to” requirement that
is now an aspect of the specific jurisdiction inquiry. The tim-
ing of those decisions, therefore, renders the substantive rel-
evance analysis in Michelin incomplete. The Eighth Circuit
also has addressed this conundrum. In Myers v. Casino
Queen, Inc., 689 F3d 904 (8th Cir 2012), the court noted that
its earlier decision in Pearrow v. National Life & Acc. Ins.
Co., 703 F2d 1067 (8th Cir 1983), had been improperly cited
by a circuit court for the proposition that the Eighth Circuit
had adopted the substantive relevance or proximate cause
standard as a jurisdictional test. The court observed:
“Pearrow predated the Supreme Court’s decisions in
Helicopteros and Burger King and could not possibly involve
an application of the ‘arise out of or relate to’ requirement
of a constitutional due process analysis articulated in those
cases.
“Although our cases have not clearly stated our position,
we have not restricted the relationship between a defen-
dant’s contacts and the cause of action to a proximate cause
standard.”
Myers, 689 F3d at 912. Thus, like the Eighth Circuit in
Pearrow, this court, in deciding Michelin, did not have
586 Robinson v. Harley-Davidson Motor Co.
occasion to consider the ramifications of a substantive rel-
evance approach with respect to the relatedness standard
as announced by the Supreme Court in Helicopteros and
Burger King. As we have previously stated, “this court is
willing to reconsider cases when the legal or factual con-
text has changed in such a way as to seriously undermine
the reasoning or result of earlier cases.” Farmers Ins. Co. v.
Mowry, 350 Or 686, 698, 261 P3d 1 (2011); see also Holcomb
v. Sunderland, 321 Or 99, 105, 894 P2d 457 (1995) (reex-
amination of prior statutory construction appropriate when
stated basis for earlier construction no longer applies).
Since Helicopteros and Burger King were decided,
many federal courts have reconsidered the substantive rel-
evance standard, and several circuits have abandoned that
test in favor of tests that more closely reflect the Supreme
Court’s jurisdictional framework. In Nowak v. Tak How
Investments, Ltd., 94 F3d 708, 715 (1st Cir 1996), cert den,
520 US 1155 (1997), for example, the First Circuit relaxed its
substantive relevance or proximate cause standard because
it concluded that “strict adherence to a proximate cause
standard in all circumstances is unnecessarily restrictive.”
The plaintiff in Nowak brought a wrongful death diversity
action against the defendant, a foreign owner of a hotel in
Hong Kong, after the plaintiff’s wife drowned in the hotel’s
swimming pool. The defendant had solicited the travel busi-
ness from the plaintiff’s employer in the forum state follow-
ing an extensive exchange of communications about travel
arrangements, including the promotion of the swimming
pool as an attraction. Notwithstanding the absence of a
proximate cause relationship (the solicitation of travel busi-
ness did not cause the wrongful death), the court found spe-
cific jurisdiction based on a “meaningful link” between the
defendant’s contacts and the harm suffered. Id. at 716. In
relaxing its proximate cause standard in that way, the court
explained that “such flexibility is necessary in the jurisdic-
tional inquiry.” Id. The court moreover recognized that
“[I]t will not always be easy to apply this flexible approach
to particular circumstances, but that is the function of
the complexity of this area of the law. The jurisdictional
inquiry is often a difficult fact specific analysis in which
Cite as 354 Or 572 (2013) 587
‘[t]he greys are dominant and even among them the shades
are innumerable.’ ”
Id. (quoting Pleasant Street, 960 F2d at 1088 (citing Estin v.
Estin, 334 US 541, 545, 68 S Ct 1213, 92 L Ed 1561 (1948))).
See also Miller Yacht Sales, Inc. v. Smith, 384 F3d 93, 100
(3d Cir 2004) (rejection of proximate cause test in favor of
“approach[ing] each case individually and tak[ing] a ‘real-
istic approach’ to analyzing a defendant’s contacts with a
forum”); Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514
F3d 1063, 1078 (10th Cir 2008) (calling the proximate cause
test “considerably more restrictive” than other approaches);
Oldfield v. Pueblo De Bahia Lora, S.A., 558 F3d 1210, 1222
n 32 (11th Cir 2009) (criticizing substantive relevance test
as “somewhat rigid”); Myers, 689 F3d at 912-13 (disavowing
proximate cause test).
We too are persuaded that the substantive rel-
evance test is mechanical and rigid. By requiring that at
least one of a defendant’s contacts with the forum be rele-
vant to the merits of a plaintiff’s claim, the substantive rel-
evance test focuses exclusively on the “arise out of” aspect
of the Supreme Court’s test requiring that an action either
“arise out of” or “relate to” the defendant’s contacts with
the state. The substantive relevance test creates a bright-
line rule for what the Supreme Court has announced as a
fact-specific inquiry into the reasonableness of state court
jurisdiction. See Helicopteros, 466 US at 414; Burger King,
471 US at 472-73; see also Kulko v. California Superior
Court, 436 US 84, 92, 98 S Ct 1690, 56 L Ed 2d 132 (1978) (in
applying the minimum contacts test, “the facts of each case
must be weighed to determine whether the requisite ‘affili-
ating circumstances’ are present”). The Supreme Court has
rejected the use of such mechanical or absolute approaches
in personal jurisdiction cases and has explained that, in
this area, “few answers will be written in black and white.”
Kulko, 436 US at 92 (internal quotation marks omitted); see
also International Shoe, 326 US at 319 (rejecting the use
of “mechanical or quantitative” tests). Moreover, although
the substantive relevance test provides a high level of pre-
dictability, a strict application of the test too severely lim-
its this state’s ability to advance its interest in adjudicating
588 Robinson v. Harley-Davidson Motor Co.
the disputes of its residents in instances in which personal
jurisdiction may properly be exercised. See Burger King, 471
US at 477-78. We therefore disavow Michelin insofar as it
can be read to approve of a substantive relevance test.
B.  But-for test
A number of other courts applying the relatedness
standard have adopted a “but-for” test, under which specific
jurisdiction will be found if the claim would not have arisen
“but for” the defendant’s forum-related activities. That
approach also is fairly summarized in O’Connor:
“A second, more relaxed test requires only ‘but-for’
causation. As the name indicates, this standard is satis-
fied when the plaintiff’s claim would not have arisen in
the absence of the defendant’s contacts. See, e.g., Shute v.
Carnival Cruise Lines, 897 F2d 377, 385-86 (9th Cir 1990),
rev’d on other grounds 499 US 585, 111 S Ct 1522, 113 L Ed
2d 622 (1991).8 In Shute, for example, two Washingtonians
booked a Carnival cruise through a travel agent, and
during the cruise one of them ‘slipped on a deck mat.’ See
id. at 379. Carnival provided brochures to travel agencies
in Washington, and it also held seminars for Washington
travel agents. Id. These contacts satisfied the but-for test
because, ‘[i]n the absence of Carnival’s activity, the Shutes
would not have taken the cruise, and Mrs. Shute’s injury
would not have occurred.’ Id. at 386.
__________
“8  See also Lanier v. Am. Bd. of Endodontics, 843 F2d
901, 909 (6th Cir 1988) (applying a ‘made possible by’ stan-
dard); Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F2d
1209, 1216 (7th Cir 1984) (applying a ‘lies in the wake of’
test); Prejean v. Sonatrach, Inc., 652 F2d 1260, 1270 n 21
(5th Cir 1981) (‘In a case like this, the contractual contact
is a “but for” causative factor for the tort since it brought the
parties within tortious “striking distance” of each other.’);
Tatro v. Manor Care, Inc., 416 Mass 763, 625 NE2d 549,
552-55 (1994) (interpreting the Massachusetts long-arm
statute to adopt a but-for test and holding that the statute
is constitutional).”
O’Connor, 496 F3d at 319.
Cite as 354 Or 572 (2013) 589
In Circus Circus, 317 Or 151, this court had occasion
to determine whether Circus Circus, an out-of-state corpo-
ration, could be compelled to appear in Oregon to answer an
action seeking damages for personal injuries sustained at a
Reno, Nevada hotel that Circus Circus owned and operated.
Circus Circus was not registered to do business and paid
no taxes in Oregon, and it had no bank accounts, offices,
employees, or exclusive agents in this state. Following the
direction of Burger King, this court first determined that
Circus Circus purposefully directed its activities at this
state when it placed advertisements for its Reno facility in
a major Oregon newspaper, supplied brochures to Oregon
travel agents, provided Oregon residents a toll-free tele-
phone service line, and telephoned the plaintiff’s Oregon
residence to confirm his hotel reservation.
We then concluded, however, that the plaintiff’s
“negligence claim against Circus Circus [did] not ‘arise out
of or [relate] to’ the activities of Circus Circus in Oregon.”
Id. at 160 (citing Burger King, 471 US at 472-73). We empha-
sized that the plaintiff “alleged that [his] injury resulted
from Circus Circus’s negligence in various respects relating
solely to the operation of its hotel in Nevada,” and held that
the injury did not sufficiently relate to defendant’s activities
in Oregon in order to sustain jurisdiction in this state. Id.
at 160-61. In reaching that conclusion, we explicitly rejected
the “but-for” test advanced in the Ninth Circuit’s opinion in
Shute because “[t]he Supreme Court of the United States
does not apply a ‘but for’ test, and our reading of the perti-
nent Supreme Court cases convinces us that the Supreme
Court would not do so.” Id. at 161.
We again reject the “but-for” test for relatedness as
overinclusive. First, in its more recent jurisprudence, the
Supreme Court has not been inclined to adopt a mechan-
ical or absolute approach to determine the sufficiency of a
nonresident defendant’s forum contacts. See J. McIntyre
Machinery, Ltd. v. Nicastro, ___ US ___, ___, 131 S Ct 2780,
2793, 180 L Ed 2d 765 (2011) (Breyer, J., concurring) (reject-
ing the application of an “absolute approach” that would
abandon “the heretofore accepted inquiry of whether, focus-
ing upon the relationship between ‘the defendant, the forum,
590 Robinson v. Harley-Davidson Motor Co.
and the litigation,’ it is fair, in light of the defendant’s con-
tacts with that forum, to subject the defendant to suit there”
(emphasis in original; quoting Shaffer, 433 US at 204)); see
also Willemsen, 352 Or at 200-01 (adopting Justice Breyer’s
approach). Moreover, in this context, the but-for test is
overinclusive because it pays too much regard to the state’s
interest in adjudicating disputes and too little regard to
whether litigation in a forum state is reasonably foreseeable
by a nonresident defendant. As explained in O’Connor,
“[A]lthough the analysis may begin with but-for causation,
it cannot end there. *  * Out-of-state residents who ‘exer-
*
cise[  the privilege of conducting activities within a state
]
* * * enjoy[ ] the benefits and protection of’ the state’s laws; in
exchange, they must submit to jurisdiction over claims that
arise from or relate to those activities. But-for causation
cannot be the sole measure of relatedness because it is
vastly overinclusive in its calculation of a defendant’s recip-
rocal obligations. The problem is that it ‘has *  * no limit-
*
ing principle; it literally embraces every event that hind-
sight can logically identify in the causative chain.’ If but-for
causation sufficed, then defendants’ jurisdictional obliga-
tions would bear no meaningful relationship to the scope of
the ‘benefits and protection’ received from the forum.”
496 F3d at 322 (alterations and omissions in original; inter-
nal citations omitted).
C.  Substantial connection test
A third approach taken by courts looks for a sub-
stantial connection or discernible relationship between the
plaintiff’s claim and the defendant’s contacts. That approach
does not focus on causation but instead examines
“whether the tie between the defendant’s contacts and
the plaintiff’s claim is close enough to make jurisdiction
fair and reasonable. * * * See Chew, 143 F3d at 29; see also
Shoppers, 746 A2d at 336 (holding that the court’s ‘discern-
ible relationship’ requirement relaxes in light of ‘extensive
and repeated advertising *  * in the Washington Post’).
*
*  * The degree of relatedness required in a given case is
*
inversely proportional to the overall ‘intensity of [the defen-
dant’s] forum contacts.’ See Vons, 58 Cal Rptr 2d 899, 926
P2d at 1096-97.”
Cite as 354 Or 572 (2013) 591
O’Connor, 496 F3d at 319-20 (some internal citations
omitted).
In considering that standard for the first time,
we conclude that the amount of flexibility it allows fails to
provide the “ ‘degree of predictability to the legal system’  ”
that the Due Process Clause requires. O’Connor, 496 F3d
at 321 (quoting World-Wide Volkswagen, 444 US at 297). As
a result, nonresidents are less able to “
‘structure their pri-
mary conduct with some minimum assurance as to where
that conduct will and will not render them liable to suit.’  ”
Id. Moreover, that approach tends to reduce itself to “a free-
wheeling totality-of-the-circumstances test” that conflates
the separate analyses required for general and specific
jurisdiction. O’Connor, 496 F3d at 321; see also Dudnikov,
514 F3d at 1078 (agreeing with Third Circuit that “the ‘sub-
stantial connection’ test inappropriately blurs the distinc-
tion between specific and general personal jurisdiction”).
For those reasons, we conclude that the substantial connec-
tion or discernible relationship test does not offer sufficient
focus to properly assess the relatedness requirement.
D.  But-for and foreseeability of litigation test
Finally, some courts have adopted an approach that
combines a but-for test and an assessment of the foreseeabil-
ity of litigation to determine the relatedness requirement.
Those courts have concluded that the application of any one
of the above tests is inadequate to assess whether litigation
in a forum state is reasonably foreseeable by a nonresident
defendant. Those courts apply a but-for test as a threshold
standard and then also analyze the defendant’s contacts to
objectively assess the foreseeability of the pending litigation.
O’Connor, 496 F3d 312, is the leading case follow-
ing the approach. In O’Connor, a patron of a Barbados hotel
was injured when he slipped and fell in the hotel’s spa. The
patron previously had visited the hotel with his wife and
subsequently received seasonal mailings from the hotel.
After booking a second stay with the hotel, the hotel sent
the patron a brochure advertising its spa services. Calls
were then placed both to and from the hotel to arrange the
592 Robinson v. Harley-Davidson Motor Co.
spa session that resulted in the patron’s injuries. He and his
wife sued the hotel for negligence in a Pennsylvania court.
The O’Connor court reasoned that the hotel’s mail-
ing was the but-for cause of the plaintiffs’ injuries (i.e.,
the patron purchased the spa treatment as a result of the
hotel’s solicitation). Id. at 323. The court also observed that
“[t]he link [between the solicitation and the massage is]
much closer than mere but-for causation.” Id. Reasoning
that Pennsylvania law permits individuals to contract and
to enforce binding agreements, the court concluded that
the hotel availed itself of the opportunity to make such an
arrangement, and thereby created an implied promise that
the hotel would exercise due care in performing the ser-
vices required. The court also concluded that the plaintiffs’
“claims directly and closely relate to a continuing contrac-
tual obligation that arose in Pennsylvania.” Id. Thus, the
court determined that the plaintiffs’ claims related to the
defendant’s contacts in the forum.
In reaching that result, the O’Connor court observed
that “[t]he animating principle behind the relatedness
requirement is the notion of a tacit quid pro quo that makes
litigation in the forum reasonably foreseeable.” Id. at 322. To
pay heed to that animating principle—which stems from the
Supreme Court’s analysis in Burger King—prior to a forum
imposing jurisdiction, a defendant’s activities must bear a
meaningful relationship to the scope of the benefits and pro-
tection received from the forum state. Id.; see also Burger
King, 471 US at 475-76 (out-of-state residents that conduct
activities in a forum state enjoy benefits and privileges and,
in exchange, must submit to jurisdiction over claims arising
out of or related to those activities).
The O’Connor court described its approach to the
relatedness requirement as grounded in the principle that
a defendant’s contacts in a forum state must be such that
litigation in the forum is reasonably foreseeable to the
defendant:
“We thus hold that specific jurisdiction requires a closer
and more direct causal connection than that provided by
the but-for test. *  * [T]here is no ‘specific rule’ suscepti-
*
ble to mechanical application in every case. * * * The causal
Cite as 354 Or 572 (2013) 593
connection can be somewhat looser than the tort concept of
proximate causation, but it must nonetheless be intimate
enough to keep the quid pro quo proportional and personal
jurisdiction reasonably foreseeable.”
496 F3d at 323 (internal citations omitted).
In Oldfield, 558 F3d 1210, the Eleventh Circuit
applied the principles followed in O’Connor to conclude that
the plaintiff’s claims were not related to the defendant’s
forum contacts. The plaintiff in Oldfield brought a negli-
gence action in Florida against the defendant, a Costa Rican
corporation that owned a fishing village resort in Costa
Rica, seeking to recover damages for injuries sustained on a
fishing charter that he boarded while staying at the Costa
Rican resort. The plaintiff had booked a vacation at the
property via the Internet after discovering the defendant’s
website and made separate arrangements with a fishing
charter service for a one-day fishing trip that ultimately led
to his injuries. The plaintiff alleged that the boat captain’s
negligence caused his injuries and that the defendant was
legally responsible for the captain’s neglect.
In examining the defendant’s contacts, the court
noted that, in its prior case law, it had “utilized a fact-
sensitive analysis consonant with the principle that foresee-
ability [of litigation] constitutes a necessary ingredient of
the relatedness inquiry.” Id. at 1223. The court explained
that its duty in analyzing the facts before it was to examine
whether the injury that the plaintiff suffered was a fore-
seeable consequence of his viewing the defendant’s website,
reserving a room at the defendant’s property, and arranging
a fishing trip on a vessel owned and operated by a third
party. Id. The court reasoned that the connection between
the defendant’s Internet contacts with Florida and the liti-
gation satisfied a but-for test for relatedness, but that the
litigation was not reasonably foreseeable by the defendant
because “the causal nexus between the tortious conduct and
[the defendant’s] purposeful contact” was “too remote” to
provide the defendant fair warning that it could be haled
into court in the forum state.6 Id.; see also Dudnikov, 514
6
The court acknowledged that its approach to the relatedness inquiry was
not a definitive test beyond the application of general principles established by
594 Robinson v. Harley-Davidson Motor Co.
F3d at 1078-79 (commenting on quid pro quo nature of the
relatedness standard and opining that the rationale of the
standard is “to allow a defendant to anticipate his jurisdic-
tional exposure based on this own actions”).
We conclude that the approach adopted by the Third
Circuit in O’Connor and the Eleventh Circuit in Oldfield is
most consistent with the due process principles established
by the Supreme Court in the area of personal jurisdiction.
While we recognize that that approach is not definitive and
may someday be further clarified by the Supreme Court, we
believe that the other approaches we have examined present
significant shortcomings. We therefore hold that the related-
ness standard requires that the litigation must arise out of,
or relate to, at least one of a nonresident defendant’s activi-
ties in this state for our courts to properly exercise specific
jurisdiction. To meet that standard, the activity may not be
only a but-for cause of the litigation; rather, the nature and
quality of the activity must also be such that the litigation is
reasonably foreseeable by the defendant.
In summary, and based on our holding today, the
inquiry as to whether specific jurisdiction exists has three
aspects. First, the defendant must have purposefully
directed its activities at this state. Burger King, 471 US at
472. Second, the litigation must “arise out of or relate to”
at least one of those activities. Helicopteros, 466 US at 414.
That particular activity must be a but-for cause of the litiga-
tion and provide a basis for an objective determination that
the litigation was reasonably foreseeable. O’Connor, 496 F3d
at 323. Finally, the exercise of jurisdiction must otherwise
comport with fair play and substantial justice. Burger King,
471 US at 476; Asahi, 480 US at 113; O’Connor, 496 F3d at
317.
We now apply our holding to the jurisdictional facts
in this case. As previously noted, our examination is limited
the Supreme Court:
“While we do not suggest that our decision today establishes a defini-
tive relatedness standard—as flexibility is essential to the jurisdictional
inquiry—we do find that the fact-sensitive inquiry must hew closely to the
foreseeability and fundamental fairness principles forming the foundation
upon which the specific jurisdiction doctrine rests.”
Oldfield, 558 F3d at 1224 (citations omitted).
Cite as 354 Or 572 (2013) 595
to whether this litigation arose out of or is related to defen-
dant’s activities directed at Oregon.
E.  Application
Plaintiff’s injury occurred in Wyoming as the
result of negligent repairs that allegedly occurred in Idaho.
Plaintiff alleged that defendant was negligent in failing to
properly diagnose and repair the front-end problem on her
motorcycle, failing to contact Harley-Davidson for repair
instructions or to instruct its employees on proper repairs,
and failing to notify plaintiff that her motorcycle could con-
tinue to have a high-speed “wobble.” Those activities all
occurred at defendant’s repair shop in Idaho.
Defendant did, however, advertise the sale of
Harley-Davidson motorcycles, the sale of motorcycle parts
and accessories, repair services it offered, and promotional
events on a website accessible to Oregon customers and cus-
tomers worldwide. While situated in Oregon, plaintiff may
have become familiar with defendant’s dealership in part as
a result of defendant’s website. Although defendant’s website
was interactive—i.e., it allowed customers to place specific
orders, plaintiff did not submit a website order for the repair
services defendant provided in this case. Stated differently,
plaintiff did not contact defendant’s dealership from Oregon
and defendant did not make any implied promises to plain-
tiff in Oregon as a result of the website. Thus, defendant’s
activity in Oregon as relevant to plaintiff’s cause of action
boils down to its generalized website promotions.
With those facts in mind, we first observe that the
question of whether defendant’s website activity is a but-
for cause of this litigation is not free from doubt. Although
plaintiff may have become familiar with defendant’s dealer-
ship as a result of defendant’s website, she also had previ-
ously visited defendant’s dealership in Idaho, and may have
become familiar with defendant’s dealership through friends
and an independently distributed Harley-Davidson hand-
book. We need not decide, however, whether, but for defen-
dant’s website advertising, plaintiff would not have had her
motorcycle repaired at defendant’s Idaho dealership. That is
so because whether or not there is but-for causation in this
596 Robinson v. Harley-Davidson Motor Co.
case, defendant’s contacts in Oregon were not such that it
was reasonably foreseeable that defendant would be sued in
Oregon for repairs it provided to plaintiff in Idaho.
In particular, plaintiff did not secure defendant’s
services when she was in Oregon; she did so when she was
travelling through Idaho during a multistate tour and when,
fortuitously, her motorcycle broke down there and required
repairs. Moreover, the nexus between defendant’s Internet
advertising in Oregon and its allegedly negligent repairs in
Idaho is remote. See Oldfield, 558 F3d at 1223. Thus, the
relationship between defendant’s contacts and this litigation
is tenuous. Under such circumstances, we cannot say that
defendant’s contacts in Oregon were such that it was reason-
ably foreseeable that defendant would be sued in Oregon for
repairs it undertook in Idaho.
III. CONCLUSION
We hold that plaintiff’s claims did not arise out of
or relate to defendant’s activities in Oregon in a manner
that allows our courts to exercise specific jurisdiction over
defendant under ORCP 4 L. Because plaintiff has failed to
establish that her litigation related to defendant’s forum
activities, we need not determine whether the exercise of
jurisdiction by Oregon courts would comport with fair play
and substantial justice. See Asahi, 480 US at 113 (discuss-
ing that standard).
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.