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FILE

IN CLERKS OFFICE

lllJPREME COURT, 8TA1E OIWI·IIII·iiii·II\'CIIIIalal

DATE OCT .0 2 2014 \

·)/1~~·

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

KRISTINE FAIL LA, )

) No. 89671-2

Petitioner, )

)

v. ) EnBanc

)

FIXTUREONE CORPORATION; and )

KENNETH A. SCHUTZ, )

)

Respondents. ) Filed OCT 0 2 2014

__________________________ )

Yu, J.-This case asks whether Washington's long-arm statute, RCW

4.28.185, confers personal jurisdiction over an officer of a foreign corporation that

employs a Washington resident. On the facts before us, we conclude it does for

wage claims arising from that employment relationship and reverse the Court of

Appeals.

FACTS AND PROCEDURAL HISTORY

In 2009, Kristine Failla, a Washington resident and experienced salesperson,

was looking for a job she could perform from her Gig Harbor home. She e-mailed

Kenneth A. Schutz looking for such a position. Schutz is the founder and chief

executive officer (CEO) ofFixtureOne Corporation, which sells fixtures,              

Failla v. FixtureOne Corp., eta!., No. 89671-2

casework, and displays for use in retail stores. Clerk's Papers (CP) at 62. Both

FixtureOne and Schutz are based in Pennsylvania, and at the time of Failla's e-

mail, FixtureOne had no physical presence or customers in Washington.

Failla's inquiry caught the interest of Schutz, who replied to Failla that she

"may be a fit" for FixtureOne because the company did "not have a sales

representative in [this] area of the country." CP at 93. The parties continued

negotiating, and Schutz eventually invited Failla to interview with FixtureOne in

Pennsylvania knowing she lived and planned to work in Washington. Schutz

admits the nature ofFixtureOne's business allows sales representatives to work

anywhere with Internet and telephone access. CP at 63.

FixtureOne hired Failla as an account executive in November 2009 and

agreed to pay her an annual salary of $75,000, plus an additional three percent

commission on sales. Failla's job responsibilities included, among other duties,

"leading the company" in "[p]lanning, execution and management of profitable

growth and expansion of the company's revenue base and market share." CP at 30.

The job also involved the "[d]esign, implementation and management of business

development, client acquisition, and sales strategies." Jd. Failla reported directly to

Schutz, and the two communicated extensively by e-mail.

In December 2010, Failla requested a promotion and a raise. Schutz agreed

and promoted her to FixtureOne's vice president of sales, increasing her salary to

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Failla v. FixtureOne Corp., et al., No. 89671-2

$135,000. Although there were outstanding commissions owed, Failla accepted the

promotion and salary increase based on the assurances that the commissions would

be paid. CP at 36. Schutz provided a draft employment agreement for Failla to sign

in connection with the promotion. Among other things, the agreement contained a

provision that it would be interpreted in accordance with Pennsylvania law. Failla

proposed revisions to the agreement, but for reasons unknown neither Failla nor

Schutz ever signed it.

Failla continued working for FixtureOne from her Washington home until

May 2011. She received regular paychecks, and the only issue in this case is the

sales commissions owed to her that were not paid. On May 26, 2011, Schutz e-

mailed Failla to tell her that FixtureOne was "clos[ing] its doors" and ending her

employment the following day. CP at 44. He assured Failla that FixtureOne would

"pay your commissions and expenses asap in the next several weeks." !d. For two

months following her termination, Schutz returned Failla's requests for payment

with various explanations as to why the commissions remained unpaid. At one

point he told Failla that he signed her commission check and blamed another

employee for not mailing it. At other times he faulted the company's comptroller

for failing to calculate the commission amount. Schutz eventually advised Failla

that she would not receive a commission check and for the first time disputed

whether such commissions were even owed. CP at 50.

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Failla v. FixtureOne Corp., et al., No. 89671-2

Failla filed suit against FixtureOne and Schutz for the wilfull withholding of

wages, including an allegation that Schutz was individually liable under

Washington's wage laws, RCW 49.52.050 and .070. Failla served Schutz in

Pennsylvania but was unable to serve FixtureOne. Consequently the suit proceeded

against Schutz alone.

Failla and Schutz cross moved for summary judgment. 1 Schutz argued that

the trial court lacked personal jurisdiction because he did not have the requisite

minimum contacts with the state, and even if Washington could exercise

jurisdiction over him, there were genuine issues of material fact preventing the

entry of summary judgment. The trial court concluded it had personal jurisdiction

and denied Schutz's summary judgment motion. Instead, the court granted

summary judgment to Failla, awarding double damages pursuant to RCW

49 .52.070, which provides for such damages when an employer wilfully withholds

wages due an employee.

The Court of Appeals reversed, holding that Washington's long-arm statute

did not reach Schutz because the employment relationship between Failla and

FixtureOne was inadequate to confer jurisdiction over Schutz. Failla v. FixtureOne

1

Schutz styled his motion as one to dismiss, but because he relied on materials outside the

complaint, the superior court properly treated the motion as one for summary judgment. CR

12(b), 56.

4              

Failla v. FixtureOne Corp., et al., No. 89671-2

Corp., 177 Wn. App. 813,312 P.3d 1005 (2013). We granted review. Failla v.

FixtureOne Corp, 180 Wn.2d 1007, 321 P.3d 1207 (2014).

Both parties agree FixtureOne, not Schutz, was the employer entity that

hired Failla and that Failla performed work for FixtureOne in Washington. The

disputed issue is whether Schutz, as the president and CEO of FixtureOne, is

subject to Washington's jurisdiction and, if so, whether the trial court erred in

finding he is liable under Washington's wage statute for nonpayment of wages

under RCW 49.52.050 and .070. We hold that Schutz is subject to Washington's

jurisdiction based on his level of contacts and transactions in Washington,

regardless of whether he ever personally set foot in the state, and that the record

supports the trial court's finding of liability.

ANALYSIS

I. Standard of Review

We review the grant of summary judgment de novo and engage in the same

inquiry as the trial court, determining whether any genuine issue of material fact

exists and whether the moving party is entitled to judgment as a matter of law.

Lewis v. Bours, 119 Wn.2d 667, 669, 835 P.2d 221 (1992). "In so doing, '[t]he

court must consider the facts in the light most favorable to the nonmoving party,

and the motion should be granted only if, from all the evidence, reasonable persons

5              

Failla v. FixtureOne Corp., et al., No. 89671-2

could reach but one conclusion."' I d. (alteration in original) (quoting Marincovich

v. Tarabochia, 114 Wn.2d 271,274, 787 P.2d 562 (1990)).

Similarly, a trial court's assertion of personal jurisdiction is a question of

law that we review de novo, where, as here, the jurisdictionally relevant facts are

undisputed. Id.

II. Personal Jurisdiction

Washington courts are authorized to assert personal jurisdiction over

nonresident defendants to the extent permitted by the federal due process clause.

Shute v. Carnival Cruise Lines, 113 Wn.2d 763, 766-67, 783 P.2d 78 (1989).

States ca~ exercise jurisdiction without violating due process if the nonresident

defendant has certain minimum contacts with the state such that the maintenance

of the suit does not offend traditional notions of fair play and substantial justice.

Daimler AG v. Bauman,_ U.S._, 134 S. Ct. 746, 754, 187 L. Ed. 2d 624

(2014) (citing the Court's canonical opinion International Shoe Co. v. Washington,

326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). The central concern ofthe

federal constitutional inquiry is the relationship between the defendant, the forum,

and the litigation. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977).

Our long-arm statute, designed to be coextensive with federal due process,

subjects nonresident defendants to personal jurisdiction of Washington courts for

6              

Failla v. FixtureOne Corp., et al., No. 89671-2

any cause of action that arises from the transaction of any business within the state,

among other conduct. RCW 4.28.185(1)(a). Three factors must coincide for the

long-arm statute to apply:

"( 1) The nonresident defendant or foreign corporation must purposefully do

some act or consummate some transaction in the forum state; (2) the cause

of action must arise from, or be connected with, such act or transaction; and

(3) the assumption of jurisdiction must not offend traditional notions of fair

play and substantial justice, considering the quality, nature, and extent of the

activity in the forum state, the relative convenience of the parties, the

benefits and protections of state laws afforded the respective parties, and the

basic equities of the situation."

Shute, 113 Wn.2d at 767 (quoting Deutsch v. W. Coast Mach. Co., 80 Wn.2d 707, 711,497 P.2d 1311 (1972)). This inquiry encompasses both the statutory and due

process concerns of exercising personal jurisdiction. FutureSelect Portfolio Mgmt.,

Inc. v Tremont Grp. Holdings, Inc., 180 Wn.2d 954,964, 331 P.3d 29 (2014).

Schutz argues he is not subject to Washington's jurisdiction because he has

never been to Washington and because he acted only as an employee and officer of

the corporation that employed Failla. He asserts that jurisdiction and liability, if

any, rests exclusively with the employing corporation.

We agree that a corporation's actions cannot be simply imputed to a

corporate officer or employee for purposes of determining whether there are

minimum contacts necessary to establish jurisdiction. But it is just as true that an

officer or employee is not automatically shielded from personal jurisdiction just

because his contacts occurred in the context of his employment. Calder v. Jones,

7              

Failla v. FixtureOne Corp., et al., No. 89671-2

465 U.S. 783, 790, 104 S. Ct. 1482,79 L. Ed. 2d 804 (1984). Instead, "[e]ach

defendant's contacts with the forum State must be assessed individually." Id.; see

also Davis v. Metro Prods. Inc., 885 F.2d 515, 522 (9th Cir. 1989) (affirming

states' authority to assert personal jurisdiction over corporate officers based on

contacts performed in that capacity). We determine personal jurisdiction on a case-

by-case basis.

Schutz is the founder and CEO ofFixtureOne. He was the individual who

responded to Failla's job inquiry, interviewed her, and hired her because of the

potential benefits to FixtureOne of having a sales representative in Washington.

During the two-year course of her employment, Schutz set her salary, issued her

payroll checks, promoted her, gave her a raise, and calculated her commissions. He

appeared to be the primary contact for Failla, and in fact, there is no evidence in

the record that Failla had contact with anyone other than Schutz. Failla was

FixtureOne's employee located in the State of Washington who, while working in

this state, generated over $700,000 in revenue for the company in 2010. CP at 40.

The Court of Appeals held that Washington could not exert jurisdiction over

Schutz because

FixtureOne did not register to do business in Washington and never

had operations, officers, or customers in this state. Nothing about

Schutz's employment of Failla anticipated that her activities in

Washington would consist of more than residing here, working from

home, and collecting a paycheck. Nothing in the record shows any

8              

Failla v. FixtureOne Corp., et al., No. 89671-2

attempt to do business with a Washington company, let alone any

transactions with Washington companies.

Failla, 177 Wn. App. at 823-24. The Court of Appeals' analysis relies upon a

finding that a person or company must target potential consumers in Washington, a

subset of all this state's residents, to have transacted business here and to come

within reach ofthe long-arm statute. But we have interpreted RCW 4.28.185(1)(a)

more broadly.

For example, in Toulouse v. Swanson, 73 Wn.2d 331, 334,438 P.2d 578

(1968), we held that it was "beyond dispute" that an Idaho resident transacted

business in this state under the long-arm statute when he employed a Washington

lawyer. We found it particularly relevant that the parties' contract "'called for

services over an extended period of time,'" giving the nonresident defendant an

ongoing connection to this state.Jd. at 331 (quoting trial court order). Likewise, in

Thornton v. Interstate Securities Co., 35 Wn. App. 19,23-25, 666 P.2d 370 (1983),

the Court of Appeals determined that Washington could assert personal jurisdiction

over a Kansas successor corporation on the basis that it consummated a transaction

when it employed a Washington resident. "It has availed itself, however, of the

knowledge and services of [the Washington employee] to collect accounts

receivable here. It has thus carried on activity which touched the matter in issue-

use of [the employee's] services under the employment contract." Jd. at 25.

9              

Failla v. FixtureOne Corp., et al., No. 89671-2

Similarly, in Cofinco of Seattle, Ltd. v. Weiss, 25 Wn. App. 195, 196, 605 P.2d 794 (1980), the Court of Appeals exercised jurisdiction over a nonresident

defendant who agreed to work for a Washington corporation selling shoes on the

East Coast. Jurisdiction was proper despite the fact that the defendant, who lived

and worked in New York, had never been to Washington, never owned real

property situated in Washington, and "never engaged in any activities, business or

otherwise, in the state." !d. The court correctly held that Washington courts had the

jurisdictional power to adjudicate the employment dispute and that by entering into

the employment contract, the employee purposefully availed himself of the

privilege of conducting activities within the state of Washington. !d. at 197.

Logically, if a nonresident employee defendant in New York is afforded the

protection of Washington's laws governing the employer-employee relationship, at

the very least a Washington resident should also be afforded the statutory

protection of Washington's wage laws. A Pennsylvania employer that employs a

Washington resident, and through that employee, conducts business from

Washington for over two years forms a sufficient connection to the state such that

it should reasonably anticipate defending a wage dispute here. 2

2

A relevant inquiry in this case is whether Schutz could '"reasonably anticipate being haled into

court"' in Washington. Calder, 465 U.S. at 790 (quoting World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980)). This standard "ensures

that a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,' or

'attenuated' contacts, or 'the unilateral activity of another party or a third person."' Burger King

10              

Failla v. FixtureOne Corp., et al., No. 89671-2

Thus, we hold that employing a Washington resident to perform work in

Washington constitutes the "transaction of any business within this state" under

RCW 4.28.185(l)(a) and satisfies the first Shute prong. Jurisdiction is proper in

Washington for wage claims arising from that employment, and employees may

seek redress in this state's courts absent an enforceable contract selecting an

alternative forum and assuming fair play and substantial justice are not offended.

This analysis is a practical application of the principles delineated in

Toulouse, Thornton, and Cofinco and conforms the long-arm statute to the

Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) (citations

omitted) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984)); World-Wide Volkswagen, 444 U.S. at 229; Helicopteros Nacionales de

Colombia, SA v. Hall, 466 U.S. 408, 417, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984)).

The dissent agrees the "contact" in question here is Schutz's correspondence with and decision to

hire Failla. But it fails to evaluate the extent of contact and subsequent contacts under the proper

precedent. Instead, the dissent concludes Washington lacks minimum contacts because Failla

"did not solicit any business in Washington, and there is no record that [FixtureOne] made any

sales or did any advertising in Washington." Dissent at 3. The dissent does not explain why

Schutz would have been better able to foresee Failla's lawsuit for unpaid wages ifFixtureOne

had solicited more business in Washington.

Moreover, the dissent relies principally on Walden v. Fiore,_ U.S. _, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014), a case easily distinguishable. Walden involved a federal agent who stopped a

couple at an airport in Georgia, seized from them $97,000 in cash, and allegedly filed a false and

misleading affidavit in support of forfeiture. !d. at 1120-21. The couple, who had residences in

California and Nevada, sued in Nevada. Id. at 1121. The United States Supreme Court

unanimously held theN evada court lacked personal jurisdiction over the agent, who "never

traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to

Nevada." Id. at 1124 (emphasis added). The plaintiffs' residence in Nevada was, from the point

ofview ofthe defendant, random and fortuitous.

Schutz's connection to Washington was not random and fortuitous. It was the product of

deliberate negotiation with Failla over the terms of her employment and salary and apparently

stemmed in part from his decision that FixtureOne needed a sales representative in that part of

the country. For this reason, Walden is inapposite. ·

11              

Failla v. FixtureOne Corp., et al., No. 89671-2

"phenomena of [the] modern economy." Griffiths & Sprague Stevedoring Co. v.

Bayly, Martin & Fay, Inc., 71 Wn.2d 679, 684, 430 P.2d 600 (1967) (interpreting

RCW 4.28.185 consistently with contemporary business practices). We recognize

many employers no longer do business in physical buildings or rely upon hands-on

or face-to-face presence for there to be actual presence in a geographical location.

In this case, as outlined above, Schutz is not just any corporate officer, and

we do not hold today that any corporate officer of a nonresident corporation may

be subject to the state's jurisdiction. Rather, Schutz was the officer directly

responsible for the hiring, firing, promotion, and payment of Failla's wages.

Schutz's contacts with the state of Washington were sufficient to confer

jurisdiction over him for wage disputes arising from those contacts.

Likewise, it does not offend fair play or substantial justice to require Schutz

to defend Failla's wage claim here. It is not unreasonable to require a company that

knowingly employs a Washington resident to abide by this state's wage laws, nor

is it unreasonable to require the individual responsible for payroll to answer for

failing to comply with those laws. Schutz knew from the outset that he was hiring

an employee in Washington and, as Failla's primary contact at FixtureOne, was

ultimately responsible for paying her. Employers have fair notice of our laws

governing the employer-employee relationship, including RCW 49.52.050 and

.070, which impose individual liability. We cannot say under the facts of this case

12              

Failla v. FixtureOne Corp., et al., No. 89671-2

that exercising jurisdiction violates due process. This satisfies the third Shute

prong, 3 and the trial court was correct to exercise personal jurisdiction over Schutz.

III. Summary Judgment

The trial court entered judgment in favor of Failla under RCW 49.52.050

and .070. Together these statutes create a cause of action against

[a]ny employer or officer, vice principal or agent of any employer ...

who ...

[w]ilfully and with intent to deprive the employee of any part of

his or her wages, [pays] any employee a lower wage than the wage

such employer is obligated to pay such employee by any statute,

ordinance, or contract.

RCW 49.52.050(2) (emphasis added). The critical, but not stringent, prerequisite to

liability is that the employer's (or officer's) failure to pay wages was "wilfull."

Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 159-60,961 P.2d 371 (1998).

The employee need show only that the refusal to pay was a volitional act, not the

product of mere carelessness and not the result of a bona fide dispute. Id. at 160.

Usually wilfullness is a question of fact, but as with all fact questions, summary

judgment is proper as a matter of law ifthe evidence supports a single reasonable

conclusion. Id.

3

The second Shute prong is not at issue. Neither party contests that Failla's claim arises from

Schutz's contacts with Washington (the non-payment of wages due under the employment

relationship).

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Failla v. FixtureOne Corp., et al., No. 89671-2

We affirm the trial court's judgment. The evidence that Schutz offered the

trial court-e-mails in which he faults other employees under his direction for not

calculating and paying the commissions to Failla-does not create a genuine issue

of fact regarding wilfullness such that it requires a trial on the issue. RCW

49.52.050 and .070 express the legislature's "strong policy in favor of ensuring the

payment of the full amount of wages earned." Morgan v. Kingen, 166 Wn.2d 526, 538, 210 P.3d 995 (2009). Corporations act only through individuals, and by

extending personal liability to individual officers for wages owed by the

corporation, the legislature recognized that "officers control the choices over how

the corporation's money is used." Id. at 537. Thus, officers, vice principals, and

agents act wilfully if those individuals exercise control over the employer's funds

and still fail to pay their employees. Ellerman v. Centerpoint Prepress, Inc., 143 Wn.2d 514, 522-23,22 P.3d 795 (2001) (rejecting liability based on mere agency).

We affirmed summary judgment for the employees in Morgan based on the

employing CEO's ultimate control of the business's finances, which included the

authority to hire employees and set compensation. 166 Wn.2d at 531.

Schutz's evidence creates a factual dispute only if we accept as reasonable

his suggestion that he lacked power over FixtureOne's assets. Thee-mails on

which Schutz relies to negate wilfullness, all of which he sent after he terminated

Failla, conflict with Schutz's obvious control of the company during Failla's

14              

Failla v. FixtureOne Corp., et al., No. 89671-2

employment. He interviewed her. He hired her. He unilaterally promoted her and

directed the company's comptroller to increase her salary. Schutz even admitted

his fiscal authority in an e-mail to Failla. CP at 50 ("I know [the comptroller] cut a

payroll check for you and I signed it."). The trial court found it possible to draw

only one conclusion from this evidence-that Schutz controlled FixtureOne's

finances, had the ability to pay Failla, and failed to do so wilfully. We agree.

Nor do we find persuasive Schutz's argument that a bona fide dispute exists

regarding the amount of commissions owed to Failla. See Schilling, 136 Wn.2d at 160 (recognizing a bona fide dispute over wages negates wilfullness under RCW

49.52.050 and .070). Schutz offered the trial court no evidence refuting Failla's

accounting and instead relies upon bare allegations in his summary judgment

response. Unsupported allegations do not create a question of fact. Young v. Key

Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).

CONCLUSION

For the above stated reasons, we reverse the Court of Appeals and reinstate

the judgment of the trial court.

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Failla v. FixtureOne Corp., et al., No. 89671-2

WE CONCUR:

16              

Failla v. FixtureOne Corp.

No. 89671-2

OWENS, J. (dissenting) - The constitutional right to due process prohibits

courts from asserting personal jurisdiction over a defendant unless he or she has

certain "minimum contacts" with the forum. U.S. CONST. amend. XIV,§ 1; World-

Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). Importantly, the '"minimum contacts' analysis looks to the defendant's

contacts with the forum State itself, not the defendant's contacts with persons who

reside there." Walden v. Fiore,_ U.S. _ _, 134 S. Ct. 1115, 1122, 188 L. Ed. 2d 12 (2014). In this case, the out-of-state employer had no contacts with Washington

other than hiring the plaintiff, who chose to reside here. Yet, the majority holds that

Washington courts have jurisdiction over the employer in his personal capacity.

Because this is contrary to the United States Supreme Court's rule that "it is the              

Failla v. FixtureOne Corp.

89671-2

Owens, J., Dissenting

defendant, not the plaintiff or third parties, who must create contacts with the forum

State," id. at 1126, I respectfully dissent.

ANALYSIS

A state's authority to assert jurisdiction over a nonresident defendant is limited

by the due process clause of the Fourteenth Amendment. World-Wide Volkswagen,

444 U.S. at 291. A nonresident defendant is subject to personal jurisdiction only

when he or she has had "certain minimum contacts ... such that the maintenance of

the suit does not offend 'traditional notions of fair play and substantial justice.'" Int'l

Shoe Co. v. Washington, 326 U.S. 310,316,66 S. Ct. 154,90 L. Ed. 95 (1945)

(quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278 (1940)).

The United States Supreme Court has reiterated that "the 'minimum contacts' inquiry

principally protects the liberty of the nonresident defendant, not the interests of the

plaintiff." Walden, 134 S. Ct. at 1125 n.9 (citing World-Wide Volkswagen, 444 U.S. at 291-92).

In evaluating whether a defendant had such "minimum contacts," courts look to

the relationship between the defendant and the forum. Id. at 1121. The United States

Supreme Court recently pointed out two key aspects of this relationship in a personal

jurisdiction case: first, whether the relationship arose "out of contacts that the

'defendant himself create[d] with the forum State," and second, whether the

2              

Failla v. FixtureOne Corp.

89671-2

Owens, J., Dissenting

defendant had contacts with the forum state itself, not just contacts with persons who

reside there. Id. at 1122.

In this case, the only contact that the defendant had with this state was his

contact with the plaintiff, who chose to reside here. The plaintiff was the one who

initiated the relationship by contacting the defendant in Pennsylvania, seeking

employment. She then flew to Pennsylvania to interview for the position. The

plaintiff then conducted all of her work via phone, e-mail, and occasional travel. She

did not solicit any business in Washington, and there is no record that the business

made any sales or did any advertising in Washington. Even the payroll checks signed

by the employer were signed in Pennsylvania. In sum, the defendant did not initiate

any contact with Washington nor did he conduct any business in Washington. The

only contact the defendant had with Washington came from the plaintiff.

The United States Supreme Court has "consistently rejected attempts to satisfy

the defendant-focused 'minimum contacts' inquiry by demonstrating contacts between

the plaintiff(or third parties) and the forum State." Id. (emphasis added). In fact, no

matter how "significant the plaintiffs contacts with the forum may be," they cannot

be decisive when determining whether the defendant had minimum contacts. Id. As

described above, the employer's only contacts with Washington were his contacts

with the plaintiff. He took no actions related to this state. The majority's inquiry is

focused on the defendant's contact with the plaintiff, but none of those contacts

3              

Failla v. FixtureOne Corp.

89671-2

Owens, J., Dissenting

related to Washington. Since the plaintiff has not demonstrated minimum contacts

between the defendant and the state, there is not a sufficient basis for personal

jurisdiction.

Furthermore, the decision of the plaintiff to reside in Washington was hers

alone. The "unilateral activity of another party or a third person is not an appropriate

consideration when determining whether a defendant has sufficient contacts with a

forum State to justify an assertion of jurisdiction." Helicopteros Nacionales de

Colombia, SA v. Hall, 466 U.S. 408, 417, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984). If

the plaintiff had chosen to move to another state, there is no indication that the move

would have had any effect on the defendant, his actions, or his business. The

defendant had no contact with the state other than the plaintiffs unilateral choice to

reside here. This is insufficient to confer personal jurisdiction over the defendant.

The Court of Appeals properly noted that "[n]othing about [the defendant's]

employment of [the plaintiff] anticipated that her activities in Washington would

consist of more than residing here, working from home, and collecting a paycheck."

Failla v. FixtureOne Corp., 177 Wn. App. 813,823,312 P.3d 1005 (2013), review

granted, 180 Wn.2d 1007,321 P.3d 1207 (2014). The Court of Appeals correctly

concluded that the defendant did not have minimum contacts with the state and thus

the state's courts lacked personal jurisdiction. !d. at 827. I would affirm.

4              

Failla v. FixtureOne Corp.

89671-2

Owens, J., Dissenting

CONCLUSION

As the United States Supreme Court has explained, "the plaintiff cannot be the

only link between the defendant and the forum." Walden, 134 S. Ct. at 1122. Here,

the plaintiff is the only lin1c between the defendant and Washington. Following the

rules laid out by the United States Supreme Court, I do not see how the state courts

have personal jurisdiction in this case.

I respectfully dissent.

5              

Failla v. FixtureOne Corp.

89671-2

Owens, J., Dissenting

6