16 ELR 20262 | Environmental Law Reporter | copyright © 1986 | All rights reserved

Bendick v. Picillo

No. 77-3161 (R.I. Super. Ct. October 9, 1985)

The court holds that it does not have personal jurisdiction under state law over a nonresider corporation and university that generated hazardous waste disposed of in Rhode Island. The court first holds that Rhode Island's jurisdiction statute allows the state to assert personal jurisdiction over nonresident defendants up to the due process limits imposed by the federal constitution. The court then considers whether the constitutional requirements of "minimum contacts" have been met, and rules that they have not. The court first weighs defendant corporation's contacts with the state and finds that they are insufficient to satisfy the "minimum contacts" test. Defendant owns no property, employs no persons, makes no sales and conducts no research within the state. The mere existence of service agreements between the corporate defendant and local universities does not by itself establish minimum contacts. Nor has defendant purposely availed itself of the privilege of conducting activities within the state, thereby invoking the benefits and protections of state laws. Lastly, the presence of defendant's hazardous waste within the state does not constitute tortious contact sufficient to establish minimum contacts. Defendant did not place its waste in interstate commerce; instead it contracted with a firm in New Jersey, where the waste originated, and is not directly responsible for the transportation of the waste to Rhode Island. The court then applies the same test to the university defendant and rules that it also is beyond the court's reach. The only contact the university has with Rhode Island is recruiting students from within the state. The court rejects the state's argument that the university has had tortious contact with the state for much the same reasons it rejected the arguments with respect to the corporate defendant.

[A related decision appears at 16 ELR 20331.]

Counsel for Plaintiffs
Daniel Schatz
Office of the Attorney General
72 Pine St., Providence RI 02903
(401) 274-4400

Counsel for Defendants
Charles J. Rogers Jr.
25 S. Angell St., Providence RI 02906
(401) 272-1000

Joseph E. Gallucci
1192 Westminster St., Providence RI 02907
(401) 421-1810

[16 ELR 20262]

Cawley, J.:


This matter is before the court on defendants' motion to dismiss for lack of personal jurisdiction pursuant to R. Civ. P. 12(b)2.

The facts are as follows. Robert Bendick, in his official capacity as Director of the Department of Environmental Management, filed an action in 1977 against various defendants who were owners of a certain parcel of land located in Coventry, Rhode Island (the "site") upon which certain chemical waste materials had been deposited. One year later the complaint was amended to include certain generators and transporters of the wastes discovered at the site. Five years later another amendment was made to include certain other generators of waste discovered in the intervening years. The defendants bringing this motion to dismiss, Exxon Research and Engineering Company ("Exxon") and Rutgers University ("Rutgers"), were added to the suit in this third amended complaint in 1983.

The original complaint sought injunctive relief and damages. In a separate trial final judgment was entered against the Picillos Wood et al. v. Picillo et al. (Providence County Superior Court, C.A. 77-3161) (Decree May 29, 1979). The complaint as subsequently amended seeks compensatory and punitive damages from the transporters and generators of the waste found at the site.

The defendants, Exxon and Rutgers allege that they are not subject to the jurisdiction of Rhode Island courts as they are non-resident corporations not maintaining the necessary minimum contacts with Rhode Island to sustain jurisdiction as provided by General Laws 1956 (1969 Reenactment) § 9-5-33.

A state court may exercise personal jurisdiction over a non-resident defendant only when a finding can be made that "minimum contacts" exist between said defendant and the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). Absent a finding of sufficient contacts between defendant and forum state a court is prohibited by the Due Process clause of the fourteenth amendment from entering a valid personal judgment against the defendant. The contacts between defendant and forum must be such that the exercise of personal jurisdiction does not "offend traditional notions of fair play and substantial justice." Id. at 316. The requirement of minimum contacts serves to protect defendants from the inconvenience of litigating in distant forums and it acts to safeguard the proper role of states as equal sovereigns in the federal system by preventing states from extending process beyond their territorial limitations without the justification found in the "minimum contacts" standard. McGee v. Inter-national Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957).

The Rhode Island enactment pertaining to personal jurisdiction over non-resident defendants incorporates the federal "minimum contacts" standard and is found at Sectionn 9-5-33 of the General Laws. This long-arm statute allows Rhode Island courts to exercise jurisdiction up to constitutional due process limits. Connecticut v. ITT Aetna Finance Co., 105 R.I. 397, 252 2d 184 (1969).

With these general guidelines in mind an examination must be made of the facts pertaining to these defendants . . . as the sufficiency of minimum contacts must ultimately be decided on the particular facts of each case. Scott Brass, Inc. v. Wire and Metals Specialties Corporation, 344 F. Supp. 711 (D.R.I. 1972).

Each defendants' contacts, ties and relations with this state must be weighed and their sufficiency tested in accordance with the "minimum contacts" standard developed by the federal courts and reflected in the decisions of the Rhode Island Supreme Court.

Defendant Exxon is a Delaware corporation with its principal place of business in New Jersey. Defendants' business contacts with this state appear minimal and are not substantially disputed by the state. Defendant does not do business directly or indirectly in the state of Rhode Island. Exxon owns no property in Rhode Island, has no employees in Rhode Island and makes no sale in Rhode [16 ELR 20263] Island. Furthermore, Exxon carries on no research activities or engineering operations in Rhode Island. The state points to service agreements between Exxon and certain consultants or professors at local universities. Under the most recent Rhode Island Supreme Court decision dealing with personal jurisdiction over non-resident defendants this contact standing alone is not sufficient to establish jurisdiction over defendant. Roger Williams General Hospital v. Fall River Trust Company, 423 A.2d 1384 (1981).

The court in the Roger Williams Hospital case affirmed dismissal of a complaint on 12(b)2 grounds when the defendants' contacts with the state were decidedly more substantial than those presented here. Defendant in that case was a bank which advertised its services in Rhode Island, had customers residing in Rhode Island and administered a trust that owned property located in Rhode Island. The court said that the issue in the case was did defendant "purposefully avail itself of the privilege of conducting activities within the state, thereby invoking the benefits and protections of the laws of Rhode Island, together with the concomitant obligation" (to appear in its courts). 423 A.2d at 1387. The court went on to hold that "none of the above activities, taken individually or collectively is sufficient to establish minimum contacts with Rhode Island." Id. at 1388. In light of this precedent the activities conducted by defendant Exxon "do not invoke the benefits and protections of the law of Rhode Island" and therefore do not measure up to the minimum contacts standard.

Notwithstanding this finding the state feels that Exxon has other sufficient contacts with Rhode Island to subject it to its jurisdiction. They rely on a "tortious contact" theory wherein tortious contact can be sufficient to satisfy minimum contacts even if the foreign corporation did not cause the product to enter the state in which the injury occurred. Atlantic Tubing and Rail Co. v. International Engraving Company, 364 F. Supp. 787 (D.R.I. 1973). Gray v. American Radiator, 176 N.E.2d 761 (1961). Valve Engineering Company v. Gisell, 230 S.E.2d 29 (1976). This line of cases generally depends upon the defendant placing their product in interstate commerce. Defendant Exxon did not contract for removal of its wastes out of state. Exxon dispatched its waste in intrastate commerce, contracting with another New Jersey firm who then became obligated to dispose of it in an environmentally sound and safe manner.

Furthermore, this "tortious contact" theory has been cut back by the most recent United States Supreme Court decision concerning the extent in which due process permits a state to assert jurisdiction over a non-resident defendant. In World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286 (1980), plaintiffs sought "to base jurisdiction on one, isolated occurence . . .: the fortuitous circumstances that a single Audi automobile, sold in New York to New York residents, happened to suffer an accident while passing through Oklahoma." Id. at 295. The Court affirmed dismissal of the complaint despite the fact that the defendant had placed its product into the stream of commerce and its sale and subsequent operation in any state was foreseeable. The Woodson case seems to indicate that personal jurisdiction can not be predicated upon isolated occurrences and fortuity.

Applying the Woodson principle to this case results in a finding of insufficient contacts to support personal jurisdiction under the Due Process clause. The presence of the barrels of waste allegedly generated by defendant are the only contact of defendant to this state and defendant is not even directly responsible for their transportation to this state. "Mere unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirements of contact with forum state." Id. at 298.

Defendant Rutgers' contacts with this state should be examined using the same guidelines. Rutgers is a state university in New Jersey established for educational and research purposes. It does not conduct any business in this state. The only contact with Rhode Island would involve university recruitment of Rhode Island high school students and from time to time their presence at Rutgers subsequent to their election to attend the university. If this contact was sufficient as a basis for personal jurisdiction Rutgers would potentially be amenable to suit in every state court in the country as the university recruits and accepts applicants from across the country. This tenuous and insignificant contact could not be seen as "invoking the benefit and protections of the laws of Rhode Island" pursuant to the standard set in Roger Williams Gen. Hosp., 423 A.2d at 1387.

With regards to the state's assertion of defendants' "tortious contact" with this state as a basis for personal jurisdiction it should be pointed out that Rutgers, like Exxon, did not send its waste in interstate commerce. They contracted with a New Jersey firm for safe disposal. The Woodson principle is again applicable to this question of personal jurisdiction. Mere unilateral activity of those who claim some relationship with a non-resident defendant cannot serve as the basis for personal jurisdiction. Id. at 298.

This Court concludes therefore that it can not exercise personal jurisdiction over either defendant.

For the foregoing reasons the defendants' 12(b)2 motions to dismiss are hereby granted.

16 ELR 20262 | Environmental Law Reporter | copyright © 1986 | All rights reserved