Shoppers Food Warehouse v. Moreno

SCHWELB, Associate Judge,

with whom STEADMAN, Associate Judge, joins, dissenting:

When this case was before the division, I explained in some detail why, in my view, Ms. Moreno has failed to establish that her claim “ar[ose] from” Shoppers’ contacts with the District of Columbia. See Shoppers Food Warehouse v. Moreno, 715 A.2d 107, 112-16 (D.C.1998) (Moreno I) (dissenting opinion). I pointed out that “[s]o far as we can discern from the record, Ms. Moreno would have suffered the injuries for which she seeks compensation in this action even if Shoppers had not advertised in the District at all.” Id. at 113 . The suggestion that Ms. Moreno’s claim “arises from” Shoppers’ advertising, when she would have sustained her injuries even in the absence of a single ad, ascribes a distinctly odd meaning to the rather straightforward statutory language. I continue to adhere to the position I took in Moreno I, and rather than burdening a second volume of the Atlantic 2d Reporter with the same dissenting prose, I incorporate by reference my separate opinion at the division level. Because the en banc majority now invokes the legislative history of our long-arm statute, D.C.Code § 13-423(b) (1995), as well as the case law of certain other jurisdictions, I think it appropriate to add the following observations to the views expressed in my opinion in Moreno I.

*339 i.

In its discussion of the issue presently before us, the court surveys a plethora of federal and local decisions, and correctly notes that there is no District of Columbia case “squarely on point.” See maj. op. at 329. But as the majority points out, “[t]he legislative history of the District’s long arm statute makes it clear that it was Congress’ intent to provide the District with a long-arm statute equivalent in scope to those already in effect in Maryland and Virginia.” Id. at 326 (quoting Environmental Research Int’l Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 810 (D.C.1976) (en banc)). The legislature having focused on Maryland and Virginia, we should surely explore the construction by courts in these neighboring jurisdictions of the statutes on which our own legislation was based.

Maryland’s specific jurisdiction long-arm statute is identical to the District’s in all material respects. See Md.Code Ann. Cts. & Jud. Proc. § 6-103 (1994). The Maryland Court of Appeals has stated that in enacting the statute, the legislature intended “to expand the exercise of personal jurisdiction to the limits allowed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” Camelback Ski Corp. v. Behning, 307 Md. 270 , 513 A.2d 874, 876 (1986) (Camelback I), vacated and remanded on other grounds, 480 U.S. 901 , 107 S.Ct. 1341 , 94 L.Ed.2d 512 (1987). The exercise of specific jurisdiction is permissible in Maryland if the suit arises out of, or is directly related to, the defendant’s activities in the state. See Camelback Ski Corp. v. Behning, 312 Md. 330 , 539 A.2d 1107, 1111 (1988) (Camelback II); accord, Presbyterian Univ. Hosp. v. Wilson, 337 Md. 541 , 654 A.2d 1324, 1329-30 (1995); Talegen Corp. v. Signet Leasing and Fin. Corp., 104 Md.App. 663 , 657 A.2d 406, 410-11 (1995); Piracci v. New York City Employees’ Retirement Sys., 321 F.Supp. 1067, 1072 (D.Md.1971). 1 Although the Maryland cases do not specifically decide the question presented to us here, I think it unlikely that, in the absence even of a “but for” connection between Shoppers’ advertising and Ms. Moreno’s accident, the Maryland courts would conclude either that the plaintiffs injury “arose from” Shoppers’ activities in the District or that it was “directly related” to them.

Ms. Moreno’s prospects would be even less promising under Virginia law. That state’s long-arm statute is also identical to the corresponding District provision in all material respects. See Virginia Code § 8.01-328.1(A)-(B) (1992). In construing the extent of in personam jurisdiction under Virginia’s long-arm statute, the Supreme Court of Virginia, much like its counterparts in the District and in Maryland, has stated that the legislative purpose was “to assert jurisdiction over nonresidents who engage in some purposeful activity in this State to the extent permissible under the due process clause.” Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736 , 180 S.E.2d 664, 667 (1971).

When jurisdiction is based solely on an out-of-state defendant’s transaction of business in Virginia, the plaintiffs claim must arise from the business transacted in the state. See Virginia Code § 8.01-328.1(A)-(B). The United States District Court for the Eastern District of Virginia has interpreted the phrase “arising from” as follows:

Plain meaning is the starting point in the analysis, and “caused by’’ is the phrase’s plain meaning. Thus, it is evident that Virginia’s General Assembly used the phrase “arising from” to require that there be a causal link between the acts relied on for personal jurisdiction and the cause of action asserted. *340 Significantly, courts agree that this causation element requires more than simple “but-for” causation; it requires something akin to legal or proximate causation.

Chedid v. Boardwalk Regency Corp., 756 F.Supp. 941, 943 (E.D.Va.1991) (emphasis added) (citing Pizarro v. Hoteles Concorde Int’l, C.A., 907 F.2d 1256, 1259 (1st Cir.1990)) 2 ; see also City of Virginia Beach v. Roanoke River Ass’n, 776 F.2d 484, 487 (4th Cir.1985) (“[i]n order for a cause of action to arise from business transacted in Virginia, the activities that support the jurisdictional claim must coincide with those that form the basis of the plaintiffs substantive claim”); Verosol v. Hunter Douglas, Inc., 806 F.Supp. 582, 589-90 (E.D.Va.1992). 3

In Chedid , the plaintiff slipped and fell in an elevator at a New Jersey casino. He brought a negligence action in a United States District Court in Virginia against the corporate owner of the establishment. The plaintiff argued that the court had jurisdiction over the defendant under Virginia’s long-arm statute because the casino had solicited customers and placed ads in Virginia, and because his claim had arisen from these activities in the forum. Although the plaintiff alleged that the defendant’s telephonic solicitation, in which it had offered free limousine travel to and from New Jersey, had induced him to go to the casino, 4 the court held that it did not have jurisdiction over the corporation, reasoning that there was no causal relationship between the plaintiffs accident and the corporation’s transaction of business in Virginia. Chedid, supra, 756 F.Supp. at 943 . “[P]laintiffs cause of action is one ‘arising from’ the defendant’s alleged negligence in leaving the elevator floor wet and slippery, not from defendant’s wholly unrelated advertising and solicitation activities.” Id.

The phrase “arising from” in the Virginia statute has thus been construed as requiring a strong causal link between the defendant’s transaction of business in the state and the plaintiffs claim. No such causal link is alleged here. The common sense interpretation of the statutory language by the court in Chedid is fatal to Ms. Moreno’s position in this case.

II.

In my opinion, the foregoing authorities render it most improbable that Ms. Moreno could prevail if the controversy were to be decided under the Maryland or Virginia statutes. The majority, however, has chosen not to look to Maryland or Virginia law, on which the District’s statute was based, but to rely instead on precedents from Connecticut and California. But the cases from these jurisdictions were decided under statutes that differ significantly from the District’s, and they therefore provide scant support for the majority’s position.

In Thomason v. Chemical Bank, 234 Conn. 281 , 661 A.2d 595, 601 (1995), the Supreme Court of Connecticut held that the phrase “arising out of’ in the Connecticut long-arm statute “does not require a causal connection between the defendant’s forum-directed activities and the plaintiffs’ lawsuit.” Connecticut’s long-arm statute, however, provides that a suit must arise *341 out of the defendant’s contacts with the state in order to permit Connecticut’s courts to exercise either general or specific jurisdiction. The court recognized that if the words “arising out of’ were construed as imposing a causation requirement, 5 “the statute would limit our courts to the exercise of ‘specific’ jurisdiction and prohibit our courts from exercising any ‘general’ jurisdiction.” Id. at 600-01. The court sensibly reasoned that the legislature had not intended to exclude general jurisdiction entirely, but had elected instead to enact a more restrictive test for general jurisdiction than the Constitution requires. Id. at 602. In fact, Thomason was brought and decided as a general jurisdiction case. Id. at 603-05.

Unlike the Connecticut statute, the District’s general jurisdiction long-arm statute permits the Superior Court to exercise jurisdiction even if a plaintiffs claim does not arise out of an out-of-state defendant’s activities in the forum. See D.C.Code § 13-334(a). Thus, Thomason is unhelpful to Ms. Moreno for two reasons: (1) unlike the Supreme Court of Connecticut, this court need not accord an artificially broad construction to the words “arising from” in the District’s specific jurisdiction statute, for the Superior Court may exercise general jurisdiction without a showing that the claim arises from the defendant’s activities in the forum; and (2) in Thomason , the court was construing the phrase “arising out of’ as it appears in Connecticut’s general jurisdiction long-arm statute, while Ms. Moreno brought her case solely under the District’s specific jurisdiction statute.

The majority also cites California’s “substantial connection” test as support for the Superior Court’s exercise of jurisdiction in this case. See maj. op. at 335. The Supreme Court of California has stated:

A claim need not arise directly from the defendant’s forum contacts in order to be sufficiently related to the contact to warrant the exercise of specific jurisdiction. Rather, as long as the claim bears a substantial connection to the nonresident’s forum contacts, the exercise of specific jurisdiction is appropriate. The due process clause is concerned with protecting nonresident defendants from being brought unfairly into court in the forum, on the basis of random contacts. That constitutional provision, however, does not provide defendants with a shield against jurisdiction when the defendant purposefully has availed himself or herself of benefits in the forum.

Vons Cos. v. Seabest Foods, Inc., 14 Cal.4th 434 , 58 Cal.Rptr.2d 899 , 926 P.2d 1085, 1096 (Ca.1996).

Unlike its counterpart in the District, California’s long-arm statute does not have an “arising from” requirement. Rather, California’s long-arm statute states that “[a] court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Cal.Code Civ. Proc. § 410.10 (1999). Thus, even if one were to assume that Ms. Moreno’s claim has a “substantial connection” with Shoppers’ activities in the District — a distinctly dubious assumption — the analysis in Vons sheds little light on the proper construction of the phrase “arising from” in § 13-423(b).

*342 III.

There is a widespread perception in the community at large that lawyers and judges sometimes make things unnecessarily complicated. I suggest that if one were to tell an intelligent lay citizen that Shoppers advertised widely in the District but that there was no evidence that Ms. Moreno ever read Shoppers’ ads, and if one were then to ask that citizen whether Ms. Moreno had proved that her “slip and fall” accident “arose from” Shoppers’ advertising, the interrogated individual would look at the questioner rather incredulously and then answer “of course not,” or words to that effect. I believe that the result would be the same if this issue were posed to a professor of English. This is a case in which, in my judgment, the legal profession could profitably look at the problem as the average citizen would, and accord the words used by the legislature their common sense meaning.

I respectfully dissent.

. In Camelback I, 513 A.2d at 881 n. 7, the court left open the questions whether the terms “arising out of” and "related to” have different meanings and, if they do, whether specific jurisdiction may be asserted where the plaintiff’s claim relates to, but does not arise out of, the defendant’s activities in Maryland.

.In Pizarro , the court stated:

Whether certain events "arise out of” a nonresident defendant's actions within Puerto Rico is comparable or analogous to whether certain actions can be said to be the legal, or proximate cause of injuries suffered by a plaintiff.

907 F.2d at 1259 . It appears obvious to me that Ms. Moreno's fall was not proximately caused by Shoppers’ advertising.

. It appears that the Virginia state courts have not yet addressed this issue. See Chedid, supra, 756 F.Supp. at 944 .

. Unlike the plaintiff in Chedid , Ms. Moreno offered no evidence that she was induced to go to Shoppers Food Warehouse by Shoppers' advertising in the District. The court in Chedid thus went further than I find it necessary to go in order to conclude that jurisdiction was lacking in the present case.

. Significantly, the court explained:

Some [federal] courts have suggested, in dicta, that specific jurisdiction may be exercised without proof of a causal connection between the defendant’s forum-directed activities and the lawsuit. All of those courts, however, have based their conclusion on the fact that the specific jurisdiction test merely requires that the cause of action "arise out of or relate to " the defendant’s forum-directed activities.... Thus, even if the constitutional test for specific jurisdiction does not require a causal connection between the defendant’s contacts with the forum and the lawsuit, it is only because that test contains not only the "arising out of” language, but also the "relating to” language. If the constitutional test employed only the “arising out of’ language, a causal connection would be required.

Id. at 600 n. 4 (emphasis added). The District’s statute, of course, does not contain the words "relate to.”