Record and brief — BMW of North America, Inc. v. Grove

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81-829

Office - Supreme Court

51175

ugy 2 1981

No. ———

— ä ——

IN THE

CLERK

Supreme Court of the United States

Octosern Trau 1981

BMW or Nonrn Amenica, Inc.

and

BayeriscHe Morozren Werke A. G.

Petitioners

vs.

Dax m G. Grove, Executor of the

Estate of Srvuart Sri

and

HIs RMA BMW, Inc.

and

Lonn & Bromxkamp GmbH

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Leonarp L. LirpsHULTzZ

Counsel of Record

JouN LLEWELLYN Hone

LiPsHULTZ AND Hone, CHART” RED

Suite 702 - Paramount Buiiding

1735 Eye Street, N.W.

Washington, D.C. 20001

872-0909

Counsel of Record for Petitioners,

BMW of North America Inc. and

Bayerische Motoren Werke A.G.

Panes or Braon S. Avams Pawrina, Inc., Wasntnoton, D. C.

QUESTIONS PRESENTED FOR REVIEW

1. Whether every transfer order entered by the

United States District Court for the District of Co-

lumbia is subject to an interlocutory review by the

United States Court of Appeals for the District of

Columbia Circuit via a petition for a writ of manda-

mus because every such transfer order, by definition

of the District of Columbia Circuit, involves a trans-

fer to a district court beyond the appellate jurisdic-

tion of the United States Court of Appeals for the

District of Columbia Circuit.

2. Whether the United States Court of Appeals for

the District of Columbia Circuit erred in refusing to

follow the clear holding of this Court in Bankers Life

and Casualty Company v. Holland, 346 US. 379

(1953) that mandamus is not an appropriate remedy

to vacate a transfer order entered by a district court

judge on the ground of improper venue under 28

U.S. C. § 1406(a).

3. Whether the United States Court of Appeals for

the District of Columbia Circuit erred in refusing to

follow the Federal Rules of Appellate Procedure and

its on local rules by granting a petition for a writ

of mandamus by a two judge panel without notice to

the parties that it would do so without oral argument

and by ruling on an issue not before the court, and

hence, not briefed by the respondents therein.

PARTIES BELOW

The respondents in the mandamus proceeding in

the United States Court of Appeals for the District

of Columbia Circuit, In re: Daniel G. Grove, Executor

of the Estate of Stuart Stiller, No. 81-1482, were

BMW of North America, Inc., Bayerische Motoren

Werke A.G., Heishman BMW, Iuc., Lohr & Brom-

kamp GmbH and the Honorable June L. Green, Judge,

United States District Court for the District of Co-

lumbia. Respondent Grove is the plaintiff in the dis-

trict court proceedings and was the petitioner in the

court of appeals.

TABLE OF CONTENTS

Page

Questions Presextev von Review WW i

Z ii

Won . o oo eee iv

resse dees 2

JURISDICTIONAL rar wk kk 2

re sees 3

ende oe ee 3

r eee ss beses 7

L Review by This Court Is of Imperative Public

Importance and Is Necessary To Prevent the

Usurpation of Judicial Power by the United States

Court of Appeals for the District of Columbia

Cireuit and To Define the Proper Scope of Manda-

mus Within the District of Columbia Cireuit ..... 7

A. A Writ of Mandamus is an Inappropriate

Remedy to Vacate a Transfer Order Entered

Pursuant to 28 U.S.C. 5 1406%ꝓ))))) x

B. A Writ of Mandamus is an ay

Remedy to Review Every Transfer of

the United States District Court for the District

Sr PEE SeteGdecccvcovescvosenennsécede 11

1. Resort to mandamus is authorized only in

extraordinary eireumstan ces 11

2. Resort to mandamus to vacate a transfer

order encourages piecemeal appeals ....... 17

II. The United States Court of A for the Dis-

trict Of Columbia Circuit, in Refusing to Follow

the Federal Rules of Appellate Procedure and Its

Own Local Rules, Has so far Departed from the

Table of Contents Continued

Accepted and Usual Course of Judicial Proceed-

ings as to Call for an Exercise of This Court’s

Power of Supervision ...........0ccceccccceeee 21

A. The Petition for a Writ of Mandamus Was

Granted Without Notice to the Parties that the

Court would do so Without Oral Argument. 22

B. The Oral A t Was Denied Without the

Unanimous Consent of a Three Judge Panel 24

Conclusion ........ e 26

roses e eee esse 0 1a

TABLE OF AUTHORITIES

Cases:

*Bankers Life and Casualty Co. v. Holland, 346 US.

„„ passim

De Beers Consol. Mines, Lid. v. United States, 325

5 fF eee error 11

mel 15 ’ American Steel Barrel Co., 230 US. 7. 9

e Sis coNseeevecounders ,

Ez parte ‘is 332 U.S. 258 (1947y)ꝗ0 11

Ez parte Roe, 234 U.S. 70 (191))))))))) 9, 10

Goldlawr v. Heiman, 369 U. S. 463 (1962) 10

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) 20

Hoffman v. Blaske, 363 U.S. 335 (1960) 20

International Shoe Co. v. Washington, 326 U.S. 310

r bees esse eee 1

Kerr v. eee eee 426 US. 394

— — bees 11

Cases or authorities chiefly relied upon are marked by asterisks.

Table of Authorities Continued

Page

Mouzavires v. Bazter, slip op., No. 11696 (D.C. App.

e „„ „ „„ „„ 10

McKenna v. Udall, 135 U.S. App. D. C. 335, 418 F. 2d

un e.. . . „6666 „„

acer v. Nationwide Ae yg Inc., 485 F. 2d 418

(Temp. Em. Ct. App. D.C. 1973) 19, 23

National Right to Work Legal Defense Fund v.

Richey, 167 US. App. D.C. 18, 510 F.2d 1239

cert. denied, 422 U.S. 1008 (19759) 15-16

Remington-Rand, Inc. v. Knapp Monarch Co., 139 F.

Supp. 613 (E. D. Pa. 19560)ꝗ·

Noche v. Evaporated Milk Ass'n, 319 US. 21

eee eee 9, 11, 18

Thermtron Products, Inc. v. Hermansdorfer, 423 US.

Torres v. Walsh, 221 F.2d 319 (2d Cir.), cert. denied,

eee ee eee sees ere 17

Van Dusen v. Barrack, 376 U.S. 612 (196640) 19

Will v. Calvert Fire Insurance Co., 437 US. 655

„eee dees ebe 17

Will v. United States, 389 US. 90 (1967) 777 11,17

*World-Wide Volkswagen Corp. v. Woodson, 444 US.

286 (1980) ........ eee ss eee ee 10, 21, 23

Sratures:

rr se had 6oés0e6edssndéeeoesves’ 16

eee .es eeesbessbeeeee 16

Z 3, 12, 15

28 U.S.C. 6 12546()))) 90s bébbedtosese 3

eee. es ese ceoderes 3, 12, 15

Cases or authorities chiefly relied upon are marked by asterisks.

Table of Authorities Continued

Page

ED esse 65 3, 5, 17

F ̃ 2. es 5, 10

28 U.S.C. 6 11 e) 2, 3, 8, 10, 16, 19, 20,

eee .. see ee bodese 16

r 3, 15, 19

J BS Ee 2, 3, 8, 10, 19, 20

, ͤ; A ee a 3

13 D. C. Code Ann. § 423 (1981 d.)) 5, 10, 23

Ruies:

ED Ee 00 24

eee .es eee 22, 24

rere .es eee 24

MisceLLanrous:

In-House Report of the United States District

Court for the District of Columbia .......... 16

Cases or authorities chiefly relied upon are marked by asterisks.

No. —

IN THE

Supreme Court of the Anited States

Octoser Texm 1981

BMW or Nonrn Amenica, Inc.

and

Bayeriscue Moronen Werke A.G.

Petitioners

vs.

Dante. G. Grove, Executor of the

Estate of Srvuart STiL_er

and

HeisumMan BMW, Inc.

and

Lone & Bromxkame GmbH

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioners, BMW of North America, Inc., and

Bayerische Motoren Werke A.G., respectfully pray

that a writ of certiorari issue to review the issuance

of a writ of mandamus by the United States Court

of Appeals for the District of Columbia Circuit on

July 2, 1981, (rehearing en bane denied August 5,

1981), and that the Order issuing the writ of manda-

mus be reversed.

The Honorable June L. Green, Judge of the United

States District Court for the District of Columbia, is-

sued an unreported memorandum opinion and order

on February 27, 1981, in which this action was trans-

ferred to the United States District Court for the Dis-

trict of Maryland, pursuant to 28 U.S.C. § 1406(a) on

the ground of improper venue under 28 U.S. C. § 1391

(e) (App. E). The United States Court of Appeals

for the District of Columbia Circuit, upon petition by

Respondent Grove, then issued a writ of mandamus in

an unreported per curiam order and opinion dated

July 2, 1981 which vacated the transfer order and re-

manded the case for further proceedings (App. A). A

motion to set aside the order issuing the writ of man-

damus and a petition for rehearing was denied per

curiam without opinion by the Court of Appeals on

August 5, 1981 (App. B). Also, on August 5, 1981, the

United States Court of Appeals for the District of Co-

lumbia Circuit, en banc, denied, per curiam without

opinion, a suggestion for rehearing en banc. (App. C).

JURISDICTIONAL STATEMENT

Jurisdiction to review these Orders of the Court of

Appeals dated July 2 and August 5, 1981, by Writ of

Certiorari is conferred on this Court by 28 U.S. C.

91254 (1).

STATUTORY PROVISIONS

This case involves the fuiiowing statutory provisions

which are set forth in Appendix K:

28 U.S.C. 5 41

28 U.S.C. 5 1254(1)

28 U.S.C. § 1291

28 U.S.C. § 1292(b)

U.S. C. 5 1391(¢)

U.S. C. 5 1404(a)

U.S. C. § 1406 (a)

U.S. C. 5 1651 (a)

D. C. Code Ann. § 423 (1981 ed.)

BSS

On April 22, 1980, Respondent Daniel Grove, a resi-

dent of the State of Maryland, commenced the under-

lying survival and wrongful death action as the Execu-

tor of the Estate of Stuart Stiller who died on August

4, 1979, in the State of Maryland, as a result of in-

juries sustained in Maryland in a one car automobile

accident (App. M). The accident occurred on August

4, 1979, as Stuart Stiller was driving a 1978 BMW

530i automobile which allegedly went out of control

and struck a tree as he was travelling northward on

Maryland State Route 355 (App. T at 76a). Mr. Stiller

was taken by members of a Maryland Rescue Squad to

a Maryland hospital ( App. T at 78a) where he received

treatment by Maryland physicians. The accident was

investigated by the police department of

County, Maryland (App. T at 79a). The automobile

was towed from the scene by a Maryland towing com-

pany to Bethesda, Mar) land (App. T at 79a) where it

remained until August 6, 1979, when it was towed to

the Montgomery County Police Department Substa-

tion located in Rockville, Maryland for examination

by the Montgomery County Police Department (App.

T at 79a). On September 10, 1979, the car was towed

to Dehn’s Auto Repair in Rockville, Maryland, alleg-

edly for the purpose of storage (App. T at 79a).

The sole eyewitness to the accident was Barbara

Butler, who resides in Daytona Beach, Florida ( App.

Tat 77a). The plaintiff's tentative experts are resi-

dents of the States of Michigan and Maryland’ (App.

T at 78a). These Petitioners’ witnesses are all residents

of jurisdictions other than the District of Columbia.’

This underlying action was brought in the United

States District Court for the District of Columbia

against Heishman BMW, Inc., BMW of North Amer-

ica, Inc.“ (hereinafter referred to as BMWNA), Bay-

Robert Brenner s address is 6400 Goldsboro Road, Bethesda,

Maryland, 20034, erroneously listed as being in Washington, D.C.

by plaintiffs.

These facts are recited herein so that this Court will fully

appreciate the jurisdictional foundations and the venue considera-

tions of this case as they relate to the discussion of the propriety

of transfer, infra.

* Heishman is a closed corporation incorporated under the laws

of the State of Virginia. Heishman sold the BMW vehicle which

Stuart Stilier was operating at the time of his demise to the Mary-

land National Bank (not a party herein) which in turn leased the

vehicle to Stiller, Adler and Schwartz, P.C., the law firm with

which Mr. Stiller was associated (App. T at 77a). Heishman does

business in Virginia, Maryland and the District of Columbia.

*BMWNA is a corporation incorporated under the laws of the

a wholly owned subsidiary of BMWAG (App. 0).

erische Motoren Werke A. G.“ (hereinafter referred to

as BMWAG), and Lohr & Bromkamp GmbH (here-

inafter referred to as Lohr), on various theories of

alleged negligence in repair, maintenance, assembly,

manufacture and design of the automobile Stuart Stil-

ler was driving at the time of the accident (App. M).

The basis for jurisdiction in the district court is alleg-

edly founded upon 28 U.S.C. § 1332 and 13 D.C. Code

Ann. § 423 (1981 ed.), (App. E).

Subsequently, BMWNA, BMWAG and Lohr timely

moved to dismiss this action or to transfer it to the

United States District Court for the District of Mary-

land on the grounds of lack of jurisdiction and im-

proper venue (App. N, P). These motions were initially

denied by the trial court. (App. I. J). These Petitioners

and Lohr, after seeking reconsideration of the afore-

mentioned denials of their motions to dismiss or trans-

fer, (App. H), then sought, pursuant to 28 U.S.C.

§ 1292(b), certification of the orders denying the said

motions. At a status call the district court treated these

motions to certify as motions to reconsider its previous

*BMWAG is the manufacturer of BMW automobiles and is

organized under the law of the Federal Republie of Germany,

having its principal place of business in Munich, Federal Republic

of Germany. BMWAG does no business in the District of Columbia

(App. Q).

* Lohr is also organized under the laws of the Federal Republic

of Germany. Its principal place of business is in Offenbach am

Mein, Federal Republic of Germany. Lohr designs, manufactures

and assembles component automobile parts, and is the manufacturer

and seller of the constant velocity joint which Respondent Grove

alleges was defective, and caused the automobile which Stuart

Stiller was driving to go out of control. Lohr conducts no business

in the United States ( App. R).

ruling (App. U at 86-87a). As a result of this reconsid-

eration, the district court on February 27, 1981, issued

a memorandum opinion which denied the motions to

certify (App. F) and held that venue was improper in

the District of Columbia as none of the moving defend-

ants were doing business in the District of Columbia

and that this case should therefore be transferred to the

United States District Court for the District of Mary-

land ( App. E at 9a) where venue was proper (App. U).

Respondent Grove immediately sought reconsidera-

tion of the memorandum opinion (App. L at 25a) and

thereafter moved for certification under 28 U.S.C.

§1292(b) (App. L at 25a). When these motions were

denied by the district court, Respondent Grove peti-

tioned the United States Court of Appeals for the Dis-

trict of Columbia Circuit for a writ of mandamus, pri-

marily to compel Judge Green to vacate her transfer

order. On May 27, 1981, the Court of Appeals ordered

these Petitioners to respond to the aforesaid petition

for a writ of mandamus App. D) in accordance with

F.R. App. P. 21(b). Petitioners BMWAG and

BMWNA timely responded to the petition for a writ

of mandamus on June 16, 1981, and Lohr responded

on June 17, 1981. The issuance of a writ of mandamus

by the Court of Appeals came on July 2, 1981 ( App.

A) without notice to the parties of the dates on which

briefs were to be filed or of a date for oral argument.

These Petitioners on July 16, 1981, then jointly with

Lohr, moved to set aside the order issuing the writ of

mandamus and petitioned the Court of Appeals for a

rehearing en banc. Both the motion and the petition

were denied per curiam on August 5, 1981 (App. B, C).

This Petition for a Writ of Certiorari followed.

A writ of certiorari must issue in this case to prevent

the patent injustice which these Petitioners will suffer

as a result of the impermissibly broad expansion of the

scope of mandamus by the United States Court of

Appeals for the District of Columbia Circuit. In issu-

ing a writ of mandamus herein, the Court of Appeals

has ignored the explicit holdings of this Court and es-

poused the view that a writ of mandamus is available

to review every transfer order entered by the United

States District Court for the District of Columbia.

Such an interpretation of the All Writs Act’ allows

the United States Court of Appeals for the District of

Columbia Cireuit to exercise supervisory power over

its district court unparalleled by the power of any

other court in the United States. The procedure uti-

lized by the Court of Appeals transforms an extraordi-

nary remedy into one which sanctions piecemeal ap-

peals prior to final judgment and deprives the district

court of its authority to decide questions of law. The

unsupportable action of the Court of Appeals evi-

dences the need for this Court to invoke its supervisory

powers over the United States Court of Appeals for

the District of Columbia Circuit so that interlocutory

decisions in the United States District Court for the

District of Columbia will not be under constant and

continuous review by that appellate court.

728 USC. § 1651.

A. A Writ of Mandamus is an Inappropriate Remedy to Vacate a

Transier Order Entered Pursuant to 28 U.S.C. § 1406(a).

The issue affirmatively decided by the United States

Court of Appeals for the Distrist of Columbia Circuit

was that a writ of mandamus is an appropriate rem-

edy to vacate a transfer order of its district court

under 28 U.S. C. § 1406(a) (App. A). However, this

Court in Bankers Life and Casualty Co. v. Holland,

346 U.S. 379 (1953), decided the very issue before the

Court of Appeals when this Court held that mandamus

is not an appropriate remedy to vacate a severance

and transfer order entered by a district court judge on

the ground of improper venue under 28 U.S.C. § 1406

(a) In fact, no opinion of this Court subsequent to

Bankers Life has allowed a court of appeals through a

writ of mandamus to vacate a transfer order of a dis-

trict court under 28 U.S. C. § 1406(a). The total lack

of authority for the actions of the Court of Appeals

and the flagrant refusal to follow the clear holding of

Bankers Life underscores the need for this Court to

reverse the Order of the United States Court of Ap-

peals for the District of Columbia Circuit.

In granting mandamus, the Court of Appeals appar-

ently ignored this Court’s lengthy discussion in Bank-

ers Life on the unavailability of mandamus in cases

precisely like the case at bar. In Bankers Life, this

*In Bankers Life, the district court had first determined that it

had jurisdiction of the cause under 28 U.S.C. § 1391. The district

court in Bankers Life then decided that venue was improper and,

under the identical statute invoked herein, transferred the case to

another district. A writ of mandamus directed to the trial judge

was then sought by the Petitioner, Bankers Life and Casualty Co.,

to vacate the transfer order and this Court subsequently affirmed

the denial of the petition for a writ of mandamus by the Court

of Appeals.

Court, in language particularly instructive here,

stated :

... the ‘traditional use of the writ of mandamus

in aid of appellate jurisdiction both at common

law and in the federal courts has been to confine

an inferior court to a lawful exercise of its pre-

scribed jurisdiction or to compel it to exercise its

authority when it is its duty to do so.’ Here, how-

ever, petitioner admits that the court had juris-

diction both of the subject matter of the suit and

of the person of Commissioner Cravey and that it

was necessary in the due course of the litigation

for the respondent judge to rule on the motion.

The contention is that in acting on the motion and

ordering transfer he exceeded his legal powers and

the error ousted him of jurisdiction. But jurisdie-

tion need not run the gauntlet of reversible errors.

The ruling on a question of law decisive of the

issue presented by Cravey’s motion and the repli-

cation of the petitioner was made in the course of

the exercise of the court’s jurisdiction to decide

issues p brought before it. Ez e Amer-

ican Steel Barrel Co., 230 U.S. 35, (1913);

Ex parte Roe, 234 U.S. 70, 73 (1914). Its decision

against petitioner, even if erroneous—which we

do not pass upon—involved no abuse of judicial

oche v. Evaporated Milk Aas u. [319 US.

1 (1943), and is reviewable upon appeal after

final j t. If we applied reasoning ad-

vanced by the petitioner, then every interlocutory

order which is wrong might be reviewed under the

— 8 Act. (Footnote Omitted) 346 US. at

It is therefore submitted, based upon the reasoning

above, that Bankers Life and Casualty Co. v. Holland

is indistinguishable from the present case and that

mandamus under the circumstances of this action was

inappropriate.

Judge Green, much like the district court judge in

Bankers Life, first determined that jurisdiction over

these defendants was conferred on her court pursuant

to 28 U.S.C. § 1332 and D. C. Code Ann. § 13-423 (a)

(1)’ (1981 ed.) (App. E at 7a). Similarly, the district

court herein then found that venus was improper un-

der 28 U.S.C. § 1391 and transferred this case under

28 U.S.C. § 1406(a)” (App. E at Sa). After reviewing

the facts, the decision to transfer was, as in Bankers

Life, a ruling on a question of law which was made

during the course of the exercise of the district court’s

jurisdiction, Ez parte American Steel Barrel Co., 230

US. 35 (1913), Ez parte Roe, 234 U.S. 70 (1914), and

is reviewable upon direct appeal after final judgment,

Bankers Life, supra; thus, mandamus was unneces-

sary.

*Tnese Petitioners have vigorously contested this in personam

jurisdiction of the district court under D.C. Code Ann. § 13-423(a)

(1) (1981 ed.) since the outset of this case and have recently filed

& joint motion for reconsideration of the district eourt s jurisdic-

tional findings based upon this Court’s holding in World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), and the Dis-

triet of Columbia Court of Appeals’ recent decision in Mouzavires

v. Bazter, slip op. No. 11696 (D.C. App., August 5, 1981). In any

event, a finding by the transferor court that it has jurisdiction of

an action is unnecessary and irrelevant to a decision to transfer the

ease to another district on the basis of improper venue. See, Gold-

lawr v. Heiman, 369 U.S. 463 (1962).

% Under 28 U.S.C. § 1406(a), the district court of a district in

which venue is laid in the wrong district is required to either dis-

miss the action or to transfer it to any district in which it could

have been brought (App. K at 18a).

B. A Writ of Mandamus is an Inappropriate Remedy o Review

Every Transier Order of the United States District Court for

the District of Columbia

1, Resort to Mandamus is authorized only in

extraordinary circumstances.

The first requirement for the invocation of one of

„the most potent weapons in the judicial arsenal,“

Will v. United States, 389 U.S. 90 (1967), is that the

petitioner show that his right to the issuance of the

writ is ‘‘clear and indisputable. Id. at 96. A classic

example of the proper use of the extraordinary writ

to protect appellate jurisdiction appeared in Therm-

tron Products, Inc. v. Hermansdorfer, 423 U.S. 336

(1976), wherein the action had been remanded to a

state court on grounds completely unauthorized by

statute. As this Court has said, the proper use of

mandamus arises only in exceptional and extraordi-

nary circumstances to confine a lower court to a lawful

exercise of its prescribed jurisdiction or to compel

it to exercise its authority when it has a duty to do

so, Roche v. Evaporated Milk Ass’n., 319 US. 21

(1943), Kerr v. United States District Court, 426 US.

394 (1976), Bankers Life and Casualty Co. v. Holland,

supra, and only those circumstances amounting to a

judicial usurpation of power will justify the invoca-

tion of this drastic remedy. De Beers Consol. Mines,

Lid. v. United States, 325 U.S. 212 (1945). Mandamus,

as an extraordinary remedy, is reserved for ‘‘really

extraordinary causes.”’ Ez parte Fahey, 332 U.S. 258,

260 (1947).

In issuing a writ of mandamus to vacate the order

of the United States District Court for the District of

Columbia transferring this action to the United States

District Court for the District of Maryland, the Court

of Appeals relied upon the incorrect rationale that

the district court’s finding of improper venue in the

District of Columbia would evade review absent the

remedy of mandamus.” (App. A). However, this state-

ment is in error as the finding of improper venue by

the district court would be reviewable upon direct ap-

peal to the United States Court of Appeals for the

Fourth Circuit once a final judgment is rendered. 28

U.S. C. § 41; 28 U.S.C. § 1291; Bankers Life and Cas-

ualty Co. v. Holland, supra at 382. What the Court of

Appeals must have intended, therefore, is that the

venue ruling would not be subject to its own review

absent the remedy of mandamus. However, the Court

of Appeals did not explain why the United States

Court of Appeals for the Fourth Circuit is not equally

as competent to decide a question of federal law as is

the United States Court of Appeals for the District of

Columbia Circuit. Nor did the Court of Appeals ex-

plain how this transfer order was distinguishable from

any other transfer order entered by its district court

or any transfer of litigation between district courts of

different circuits, thus justifying resort to the extra-

ordinary writ.

The Court of Appeals was similarly in error when

it attempted to distinguish the holding in Bankers

Life™ by stating:

A writ of mandamus is the a te remedy in

this case to vacate the transfer of the district

court. Bankers Life d Casualty Co. v. Holland,

346 U.S. 379 (1953) is not dispositive. In that case,

“whatever ‘judicial inconvence [sic] and hard-

ship’ [existed would] remain, after transfer,

n Bankers Life was the only case cited in the Court of Appeals

pertaining to mandamus.

within the realm of the same court of a Is,

which had denied the writ, since both of the dis-

tricts were within that circuit ... (App. A).

Under the above interpretation by the Court of Ap-

peals, whenever a transfer is ordered between circuits,

mandamus is available to the parties to cause the trans-

feror court of appeals to review the correctness of the

ruling of its district court and to avoid “‘judicial in-

convenience and hardship.’’ This interpretation, how-

ever, is based upon a partial quotation from Bankers

Life which seemingly is supportive of the Court of

Appeals’ view of judicial inconvenience and hard-

ship.’’ An analysis of the full statement of this Court,

however, reveals that a wholly different interpretation

is to be given to the concept of judicial inconvenience

and hardship:

being delayed until after final judgment.

establi that the extraordinary writs cannot be

out the writ may not be done with it. ... We may

assume that, as petitioner contends, the order of

transfer defeats the objective of trying related

issues in a single action and will give rise to a my-

riad of legal and practical problems as well as in-

convenience to both courts; but Congress must

have contemplated those conditions in ore

that only final judgments are reviewable. Peti-

tioner has alleged no special circumstances such

as were present in the cases which it cites. Fur-

thermore, whatever ‘judicial inconvenience and

7 a remain after trans-

fer, wi the realm of the same court of appeals

which has denied the writ, since both of the dis-

tricts are within that circuit; and it is not clear

that adequate remedy cannot be afforded peti-

tioner in due course by that court to ent some

of the conflicts and procedural problems antici-

ae BH citations and footnotes omitted) 346 US.

at 12

The United States Court of Appeals for the Distriet

of Columbia Circuit illogically assumes that a corollary

to the statement quoted in its Order is that if a trans-

fer involves a district court in a different circuit the

writ of mandamus lies because the same court of

appeals which has denied the writ will lose appellate

jurisdiction. However, when there is simply a transfer

between district courts of different circuits (without a

severance) there is no judicial inconvenience or hard-

ship existing after transfer within the transferor cir-

cuit. The transferee circuit assumes the hardship in-

In Bankers Life the United States District Court for the

Northern District of Florida was presented with a motion to dis-

moving defendant was

case

BETSEEEE

Tidal

i 170 Hj

+ 125

THLE

biet

Hin

herent in the transfer, if any, and any errors commit-

ted by either of the district courts will be reviewable

by the court of appeals of the transferve circuit upon

appeal after final judgment consistent with the contem-

plation of Congress and this Court as identified in

Bankers Life.

Furthermore, the fallacy in the rationale of the

Court of Appeals in authorizing mandamus as a means

of reviewing transfer orders is readily apparent on

other grounds. By the very definition of the District

of Columbia Circuit every transfer order entered by

the United States District Court for the District of

Columbia involves a transfer to a district court beyond

the appellate jurisdiction of the United States Court

of Appeals for the District of Columbia Circuit, since

that circuit contains only one district court. 28 U.S.C.

§ 41; 28 U.S.C. § 1291. Thus, under the Court of Ap-

peals’ rationale for granting mandamus here, trans-

fers for want of jurisdiction or improper venue en-

tered pursuant to, for example, 28 U.S.C. § 1404(a) or

28 U.S.C. 5 1406(a) will be potential candidates for

pre-judgment review because the basis for the transfer

will not otherwise be reviewable by the United States

Court of Appeals for the District of Columbia Circuit.

This view of the scope of the power of the Court of

Appeals to issue writs of mandamus increases the ap-

pellate power of the Court of Appeals while simul-

taneously reducing the power of its district court to

decide questions of law. This view also creates an un-

certainty in the District of Columbia Circuit as to

when mandamus is warranted” and it overlooks the

Compare the Order of the Court of Appeals in this case with

that Court s opinion on the proper scope of mandamus in National

Right to Work Legal Defense Fund v. Richey, 167 U.S. App. D.C.

comity of the circuits in the United States Court of

Appeals. It further conflicts with the point that the

Congress of the United States, in providing for review

of only final judgments, must have contemplated that

some judicial inconvenience and hardship results in

transfers between circuits. Lastly, this view ignores the

extraordinary nature of mandamus, and encourages a

policy of piecemeal appeals prior to final judgment.

The implications of the decision of the Court of Ap-

peals for future litigation also go beyond the holding

in this case because venue under 28 U.S.C. § 1391 (e) is

not the only venue provision potentially subject to

transfer; the Judicial Code provides many venue sec-

tions (which include, but are not limited to, those con-

tained in the Clayton Antitrust Act, 15 U.S.C. § 15;

the Patents and Copyrights Act, 28 U.S.C. § 1400; and

the Securities and Exchange Act of 1934, 15 U.S.C.

§ 78aa). In the calendar year 1980 there were one hun-

dred eighteen (118) transfer orders entered by the

United States District Court for the District of Colum-

bia in civil cases. Through the end of August, 1981,

there were ninety five (95) such transfer orders.”

Since each of these transfers by definition involves a

18, 510 F.2d 1239, cert. denied, 422 U.S. 1008 (1975), wherein the

Court of Appeals stated ‘‘the writ of mandamus is not to be used

These figures appear in the In-House Report of the United

for the District of Columbia on the Civil

transfer to a circuit other than the District of Colum-

bia Circuit, under the rationale of the Court of Ap-

peals in this case, approximately one hundred cases

each year are potentially subject to an early review

ly a petition for a writ of mandamus in the United

States Court of Appeals for the District of Columbia

Cireuit. Thus, the allowance of the writ of mandamus

by the Court of Appeals herein evidences that appel-

late court’s willingness to transform. . . the ordinary

run-of-the-mill type of litigation which goes through*

the District Courts from day to day,“ Torres v. Walsh,

221 F.2d 319, 322 (2d Cir.), cert. denied, 350 U.S. 836

(1955), into an exceptional, extraordinary case for

which mandamus is appropriate.

2. Resort to Mandamus to vacate a transfer order

encourages piecemeal appeals.

A major difficulty with the holding of the Court of

Appeals in the instant action is that it encourages a

procedure of pre-judgment appeals. This Court has

repeatedly stressed the importance of the proscription

against piecemeal appeals even where there has been

a simple error which would justify reversal on direct

appeal. Will v. Calvert Fire Insurance Co., 437 US.

655 (1978), Will v. United States, supra.

The opinion of the Court of Appeals demonstrates

an assumption of power by that court heretofore un-

recognized by any opinion of this Court. The Court of

Appeals is now apparently willing to review the cor-

rectness of each transfer order via mandamus before

the record escapes its appellate jurisdiction.” This

% The proper remedy for relief from an allegedly incorrect venue

ruling is to either seek certification of the ruling under 28 U.S.C.

§ 1292(b) or to directly appeal the final judgment rendered in the

ease. Congress in enacting 28 U.S.C. § 1292(b) provided one eireum-

stance in which a pre-judgment appeal could be entertained and

view of mandamus jurisdiction flies in the face of the

decisions of this Court and particularly the language

of Roche v. Evaporated Milk Ass’n., 319 U.S. 21 (1943)

where, in reversing the court of appeals, this Court

sta‘ed:

In the ene ease, the district court has acted

within its jurisdiction and has rendered a decision

which, even if erroneous, involved no abuse of ju-

dicial er. In issuing the writ, the court of ap-

peals below has done no more than substitute

mandamus for an a 1 contrary to the statutes

and the policy of , which has restricted

that court’s appellate review to final judgments

of the district court. 319 U.S. at 32.

It cannot be argued that the district court herein acted

beyond its jurisdiction in ruling that the venue was

improper in the District of Columbia as Bankers Life

disposes of such a contention and under Roche and

Bankers Life the Court of Appeals should not even

have reviewed the lower court’s venue decision. Thus,

the Court of Appeals has unlawfully sanctioned the

premature review of venue rulings by the use of man-

damus. The Court of Appeals in this case apparently

felt that Judge Green applied the incorrect test in

ordering a transfer and therefore mandamus was ap-

propriate to correct that error” (App. A). However,

Judge Green’s memorandum opinion shows that she

expressed its intent to limit other appellate review to appeals from

final judgments. Since certification under § 1292(b) was denied here

(App. G) review of the district court s venue ruling should there-

fore await the final judgment in this case.

The Court of Appeals refused to allow these Petitioners to

brief this issue in that Court. A separate discussion of the prejudice

these Petitioners have suffered thereby appears in Part II, infra.

ably followed the holdings of other courts which have

addressed the question of whether the conduct of the

particular defendants met the criteria of ‘‘doing busi-

ness within the meaning of 28 U.S.C. 5 1391(c). In

fact, one of the authorities relied upon by the district

court in the memorandum opinion, Mosley v. Nation-

wide Purchasing, Inc., 485 F.2d 418 (Temp. Em. Ct.

App. D.C. 1973) was a District of Columbia authority

for the very proposition which Judge Green invoked.

The opinion of the Court of Appeals in granting man-

damus, however, shows that that Court was forced to

look to a decision outside the District of Columbia Cir-

cuit to vacate Judge Green’s order.” Since the question

of whether venue was improper in the District of Co-

lumbia became a question of law after a factual deter-

mination, Judge Green acted within her jurisdiction

and discretion in ruling upon it, and mandamus there-

fore cannot be used to alter that decision. Bankers Life

and Casualty Co. v. Holland, supra.

The fact that transfers under 28 U.S. C. § 1406(a)

involve a question of law distinguishes those decisions

to transfer or dismiss under 28 U.S. C. § 1404(a). As

this Court stated in Van Dusen v. Barrack, 376 US.

612 (1964):

Although both sections were broadly designed to

allow transfer instead of dismissal, § 1406(a) pro-

vides for transfers from forums in which venue

% Whether the doing business test under 28 U.S.C. § 1391 (e)

is identical to the jurisdictional standards first set forth in Inter-

national Shoe Co. v. Washington, 326 U.S. 310 (1945), is an open

question in the District of Columbia because the case cited by the

Court of Appeals, McKenna v. Udall, 135 US. App. D.C. 335, 418

F.2d 1171 (1969), does not support this notion and in fact ex-

presses no clear view at all on the subject.

or improperly laid, w!ereas, in con-

2 71 (a) operates on the eee See

pian ff has properly anode’ b is venue privi-

. [and] despite the propriety of the —

b 's venue se on, the chosen forum was an in-

1 one. (footnotes omitted) 376 U.S. at

Furthermore, unlike § 1406(a), transfers under § 1404

(a) involve, inter alia, factual considerations of con-

venience to parties and witnesses. See Gulf Oil Corp. v.

Gilbert, 330 U.S. 501 (1947) and Hoffman v. Blaski,

363 U.S. 335 (1960). Therefore, unlike cases involving

§ 1406(a), mandamus may be appropriate in a § 1404

(a) situation because venue has been determined to be

proper in the forum and mandamus may be needed

to analyze whether the district court considered the

proper factors in ordering a transfer. But where, as

here, venue is improper in the first instance as a mat-

ter of law, mandamus is clearly unavailable as there is

no usurpation of judicial power or abuse of discretion

justifying the extraordinary writ. Bankers Life and

Casualty Co. v. Holland, supra.

The circumstances of this case emphasize the im-

portance of the policy of requiring a final judgment

as a prerequisite to appeal and the prohibition against

interlocutory appeals. Here, the Court of Appeals

ruled that both jurisdiction and venue were proper in

the District of Columbia, yet there was no factual basis

for such a finding. Every affidavit on file reflects that

none of the moving defendants are doing business in

the District of Columbia (App. O, Q, R, 8) and that

their conduct and connection with the District of Co-

lumbia are not such that they could reasonably antici-

pate being called upon to answer a suit in that forum.

Sce, World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286 (1980). Aside from the lack of a factual foun-

dation for the court’s ruling, the issues in this case

have not narrowed to the point where appellate review

is meaningful,” nor have all the potential issues of this

case surfaced. Despite these considerations, these Pe-

titioners are now forced to seek relief from this Court

because the dicta in the Order of the Court of Appeals

concerning the jurisdiction and venue issues which

were never briefed or properly before that Court, may

be construed as the law of the case at both the trial

and appellate levels absent review by this Court.

IL. The United States Court of Appeals for the District of Co-

lumbia Circull, in Refusing to Follow the Federal Rules of

Appellate Procedure and lis Own Local Rules, Has so far

Departed from the Accepted and Usual Course of Judicial Pro-

ceedings as to Call for an Exercise of This Court's Power of

Supervision.

The judgment of the Court of Appeals should be re-

versed not only because mandamus was inappropriate,

but also because the Court of Appeals failed to follow

the applicable appellate rules in its consideration of

this case. The petition for a writ of mandamus was

filed in the Court of Appeals on May 4, 1981. These

Petitioners (respondents in the Court of Appeals)

were then ordered on May 27, 1981, to respond to the

aforesaid petition within twenty days (App. D). Re-

sponses were timely filed, but thereafter, without no-

tice to the respondents of when to file briefs or of the

% For example, the petition for a writ of mandamus identified

three issues relating in general to discovery, dismissal and choice-

of-law in addition to the jurisdictional and venue issues presented

to the Court of Appeals.

date for oral argument, the Court of Appeals ordered

that the writ of mandamus should issue (App. A). The

decision not to allow oral argument was in violation of

appellate procedure as it was presun ably made by only

two judges rather than the required three judge panel

since ‘‘Circuit Judge McGowan did not participate in

the] order (App. A at 2a).

A. The Petition for a Writ of Mandamus Was Granted Without

Notice to the Parties that the Court would do so Without the

Requirement of Briefs or Oral Argument.

Rule 21 of the Federal Rules of Appellate Procedure

governs the issuance of extraordinary writs. The perti-

nent text of F.R. App. P. 21(b)” evidences that two

responses to a petition for a writ of mandamus were

contemplated by the <rafters of the rule. The first re-

sponse is an answer to the petition addressing whether

the extraordinary writ is available; if so, briefs are to

ing rise to the extraordinary writ. By the use of the

word shall“ in F.R. App. P. 21(b), the respondent

La ate

1 f

ant

rele

is allowed to anticipate this bifurcated procedure and

is prejudiced when not allowed to submit a brief in

support of the actions of the lower court.

Had a brief been allowed these Petitioners would

have addressed the issue which the Court of Appeals

apparently felt was crucial, that is, whether the doing

business test for in personam jurisdiction under the

local long-arm statute, 13 D.C. Code Ann. § 423 (1981

ed.), is identical to the doing business test for venue

under 28 U.S. C. § 1391 (e). These Petitioners

did not brief that issue as the only question properly

before the court was whether mandamus was appro-

priate to vacate the transfer order of the district court

pursuant to 28 U.S. C. § 1406(a) and because an appel-

late court will not normally decide issues not properly

before it. These Petitioners vigorously contend that

their total absence of any contact or connection with

the District of Columbia and their lack of conduct with

respect to that forum would have proven decisive of

both the jurisdictional and venue issues. See, e. g.,

World Wide Volkswagen Corp. v. Woodson, 444 U.S.

286 (1980). In addition, there is respectable authority

for the proposit. n that the doing business tests for

jurisdiction and venue purposes involve different cri-

teria. See, Remington-Rand, Inc. v. Knapp Monarch

Co., 139 F.Supp. 613 (E.D. Pa. 1956), and Mosley v.

Nationwide Purchasing, Inc., 485 F.2d 418 (Temp.

Em. Ct. App. D.C. 1973), and See Part I, supra. Thus,

the failure to allow these Petitioners the opportunity

to elaborate on the aforementioned issues seriously

;

ition for a writ of

B. The Oral Argument Was Denied Without the Unanimous

Consent of a Three Judge Panel.

These authorities could also have been further ex-

plained had the Court of Appeals allowed oral argu-

ment as required by F.R. App. P. 21(b). The reliance

upon Rule 21(b) by these Petitioners was based not

only on that rule but also on F. R. App. P. 34,” and

local Rule 11(d)” of the United States Court of Ap-

* F. R. App. P. 34 states: Rule 34, Oral Argument. (a) In Gen-

nal, Loca Ruiz. Oral argument shall be allowed in all cases

unless pursucnt to local rule a panel of three judges, after exami-

nation of the briefs and record, shall be unanimously of the

opinion that oral argument is not needed. Any such local rules

any party with an opportunity to file a statement

setting forth the reasons why, in his opinion, oral argament should

be heard. A general statement of the criteria employed in the

administration of such local rule shall be published in or with the

appeal is frivolous or (2) the dispositive lens or set of issues has

been recently authoritatively decided; or, (3) the facts and legal

arguments are adequately presented in the briefs and record and

peals for the District of Columbia Circuit. As pre-

viously mentioned, these Petitioners were never ad-

vised of the determination of the Court of Appeals to

proceed without oral argument. Therefore, Petitioners

were not able to move the Court for restoration of the

case to the argument calendar. Further, the local rule

states that a three judge division must unanimously

decide to forego oral argument and the federal rule has

the similar wording: shall unanimously [be] of the

opinion that oral argument is not needed. Here, these

rules were ignored since Judge McGowan did not par-

ticipate in the decision (App. A at 2a). Finally, there

is no record that the Court of Appeals duly considered

the three factors cited in the local rule, thus making

an examination of this issue by this Court impossible.

The failure of the Court of Appeals to follow its own

rules or the Federal Rules of Appellate Procedure

ory power over the Court of Appeals and reverse the

judgment of the Court of Appeals.

others thought appropriate in the context of the particular

: (1) the appeal is frivolous or (2) the dispositive issue or

of issues has been recently authoritatively decided; or (3) the

and legal arguments are adequately presented in the briefs

record and oral argument would not significantly aid the

Motions for restoration to the argument calendar may be

five days of the date of the order advising counsel of

determination that the case is to be decided without

argument. Counsel should be aware, however, that the Court

thoroughly evaluated the case before the issuance of the order.

TLE

The decision of the United States Court of Appeals

for the District of Columbia Circuit must be reviewed.

That Court has granted a writ of mandamus despite

the dispositive holding of this Court that mandamus

is not available under the circumstances presented be-

low. The ramifications of the procedural and substan-

tive law set forth in the opinion of the Court of Ap-

peals have implications far beyond the particular facts

of this case, as that Court has expressed its willingness

to review every transfer order of its district court via

mandamus. Literally hundreds of cases are potentially

affected by the Order of the Court of Appeals herein.

If the Order is allowed to stand, an extraordinary rem-

edy will be transformed into a typical appellate pro-

cedure contrary to the expressed policy of Congress

and this Court to restrict appeals prior to final judg-

ment. The power thus assumed by the United States

Court of Appeals for the District of Columbia Circuit

is unmatched by any other court of appeals and ignores

the comity of those courts of appeals.

It is clear that the Court of Appeals did not consider

the implications of its holding as demonstrated by that

Court’s refusal to follow its own rules and the Federal

Rules of Appellate Procedure. These Petitioners will

suffer great prejudice by the unreasoned opinion of

the Court of Appeals as that Court ruled on issues

which may be determinative of this case without allow-

ing these Petitioners to brief those issues. Thus, for the

reasons stated above, the Writ of Certiorari should be

granted, the Writ of Mandamus vacated, and the Or-

der of the district court transferring this case to the

United States District Court for the District of Mary-

land should be reinstated.

Respectfully submitted,

Lroxanůb L. LirsHvLtTz

Counsel of Record

Joun Liewei_yn Hone

LipsHULTZ AnD Hone, CHARTERED

Suite 702 - Paramount Building

1735 Eye Street, N.W.

oa D.C. 20001

Counsel of Record for Petitioners,

BMW of North America Inc. and

Bayerische Motoren Werke A.G.

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Serremprr Team, 1980

No. 81-1482

Civil Action No. 80-1012

IN RE:

Darm. G. Grove,

Executor of the Hstate

of Stuart Stiller,

Petitioner

Berounz: McGowan, Tamm and Edwards, Cireuit Judges

Filed July 2, 1981

Upon consideration of the petition for a writ of manda-

mus and the responses thereto, it is

Onvenen that the writ of mandamus shall issue. The

order of the district court transferring this case to the

District of Maryland is vacated, and the case is remanded

for further proceedings.

A writ of mandamus is the appropriate remedy in this

ease to vacate the transfer order of the district court.

Bankers Life & Casualty Co. v. Holland, 346 US. 379

(1953) is not dispositive. In that ease, whatever judi-

cial inconvence and hardship’ [existed would] remain,

after transfer, within the realm of the same court of ap-

peals which had denied the writ, since both of the districts

were within that eireuit . Id. at 384. In this case

the district court’s finding of improper venue in the Dis-

trict of Columbia would evade review absent the remedy

of mandamus. The district court found that the defend-

ants were doing business in the District of Columbia

under the standards of International Shoe v. Washington,

326 U.S. 310 (1945), and under 13 D.C. Code § 423(a)(1).

The defendants were, therefore, doing business in the

District of Columbia for purposes of venue under 28

U.S.C. §1391(c). See Houston Fearless Corp. v. Teter,

318 F.2d 822, 825 (10th Cir. 1963); see aleo McKenna v.

Udall, 418 F.2d 1171 (D.C. Cir. 1969).

Per Curiam

Cireuit Judge McGowan did not participate in this order.

APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Serrempen Team, 1980

No. 81-1482

Civil Action No. 80-01012

IN RE:

Darm. G. Grove,

Executor of the Estate

of Stuart Stiller,

Petitioner

Berone: Tamm and Edwards, Circuit Judges

ORDER

Filed August 5, 1981

On consideration of respondents’ joint motion to set

aside order issuing writ of mandamus, and respondents’

petition for rehearing, it is

Onpvenep by the Court that the aforesaid motion to set

aside is denied, and, it is

Fvurrner Oxvenen by the Court that the petition for

rehearing is denied.

Per Curiam.

For tne Court:

George A. Fisher,

Clerk

By:, Rosert A. Bonnen

Robert A. Bonner

Chief Deputy Clerk

APPENDIX C

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Serremoven Team, 1980

No. 81-1482

Civil Action No. 80-01012

IN RE:

Dax G. Grove,

Executor of the Hstate

of Stuart Stiller

Petitioner

Berone: Robinson, Chief Judge, Wright, McGowan, Tamm,

MacKinnon, Robb, Wilkey, Wald, Mikva, Edwards

and Ginsburg, Circuit Judges

ORDER

Filed August 5, 1981

On consideration of respondents’ motion to set aside

order issuing writ of mandamus, and of the suggestion

for rehearing en banc, it is

Onvenen by the Court en banc that the motion to set

aside is denied, and, no member of the Court having called

for a vote on the suggestion for rehearing en banc, it is

Furtner Onvenep by the Court en banc that the afore-

said suggestion is denied.

APPENDIX D

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Serrempen Team, 1980

No. 81-1482

Civil Action No. 80-01012

IN RE:

Darm, G. Grove,

Executor of the Estate

of Stuart Stiller

Petitioner

Berore: Wright, MacKinnon and Mikva, Circuit Judges

Filed May 27, 1981

On consideration of petitioner’s petition for writ of

mandamus, filed May 4, 1981, it is

Oxvenen that response(s) to the aforesaid petition be

filed within twenty days from the date of this order.

Per Curiam

Cireuit Judge Mikva did not participate in the foregoing

order.

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-1012

Daniet G. Grove

Executor of the Fstate of

Stuart Stiller

Plaintiff

Heisuman BMW, Inc., et al

Defendants

MEMORANDUM OPINION

Filed February 27, 1981

This matter is before the Court on motion of defendants’

Bayerische Motoren Werke (BMWAG), BMW of North

America, Inc. (BMWNA) and Lohr & Bromkamp GmbH

(Lohr) for reconsideration of the Court’s orders denying

their motions to dismiss or in the alternative to transfer

this action to the District of Maryland. Heishman BMW,

Inc., a fourth defendant, has not so moved but has ex-

pressed no objection. After their motions were denied, de-

fendants moved to certify the Court’s orders denying their

motions under 28 U.S.C. §1292(b). For the reasons set

juries resulting in death sustained in an automobile acei-

dent which oceurred in the State of Maryland. Plaintiff

alleges principally that death was caused by a defect in

a 1978 BMW 530i automobile manufactured in Germany

by BMWAG, a German corporation, and imported and

distributed in this country by defendant BMWNA, a Dela-

ware corporation, with its principal place of business in

New Jersey. The defect is said to originate in a component

part manufactured in Germany by defendant Lohr, a Ger-

man corporation. The auto involved herein was purportedly

sold by defendant Heishman BMW, Inc., a Virginia cor-

poration, to the Maryland National Bank, a Maryland

corporation, and not a party herein. The bank leased it

to the D.C. law firm of Stiller, Adler, Schwartz & Kaswell,

P. C., also not a party herein. The decedent resided in the

District of Columbia. Subject matter jurisdiction is con-

ferred on this Court by 28 U.S.C. § 1332.

Jurisdiction

Defendants are subject to the jurisdiction of this Court

pursuant to D.C. C. 5 13-423(a)(1). The jurisdictional ex-

tent of D.C. C. § 13-423(a)(1) is co-extensive with that of

the due process clause; e.g., Environmental Research In-

ternational, Inc. v. Lockwood Greene Engineers, Inc., 355

A.2d 808, 810-811 (DCCA 1976) (en banc), and is limited

only by principles first set forth in International Shoe v.

Washington, 326 U.S. 310 (1945) and developed further

in its progeny. Defendants’ conduct in connection with

the automobile at issue is such that they shouid reasonably

anticipate being brought inio court. The distribution and

sale of BMW autos are not isolated occurrences. Substan-

tial numbers are sold in this country. It is certain that

BMWAG manufactures all BMW 530i’s, all of which con-

tain Lohr’s part, and all of which are imported and dis-

tributed by BMWNA. These elements of certainty provide

reasonable anticipation of suit.

Venue

The venue statute, 28 U.S.C. 41391, provides in per-

tinent part:

(a) a civil action wherein jurisdiction is founded only

on diversity of citizenship may. . be brought only

in the judicial district where all the plainiiffs or all

defendants reside or in which the claim arose.

Plaintiff herein maintains an office in D.C. but resides

in Maryland. It is his residence that is relevant for venue

purposes. Leonard v. Wharton, 268 F Supp. 715 (D. Md.

1968), appeal dismissed, 396 F. 2d 452 (4th Cir. 1968), cert.

denied, 393 U.S. 1028 (1969).

None of the moving defendants reside here. Section

1391(¢) provides:

A corporation may be sued in any judicial district in

which plaintiff is incorporated or licensed to do busi-

ness or is doing business, and such judicial district

shall be regarded as the residence of such corporation

for venue purposes.

None of the moving defendants is incorporated or licensed

to do business in D.C. Additionally, although the Court

finds their conduct sufficient to confer in personam juris-

diction consistent with the due process clause, no moving

defendants’ activities constitute doing business within the

meaning of Section 1391(c). Remington Rand, Inc. v.

Knapp-Monarch Co., 139 F. Supp. 613, 617, 618 (E. D. Pa.

1956) ; see Meslcy v. Nationwide Purchasing, Inc., 485 F. 2d

418, 421 and n4 (Temp. Em. Ct. App. 1973).

Moreover, the fatal injury and subsequent death oc-

curred in Maryland, and this claim, therefore, arose in

Maryland. Lamont v. Haig, 590 F.2d 1124 (D.C. Cir. 1978).

The Court notes parenthetically that Maryland substantive

law applies. Lewis v. Reconstruction Finance Corp., 8

US. App. D.C. 339 (1949).

The Court finds, therefore, that venue is improper in

this district. 28 U.S.C. § 1406 (a) in pertinent part states:

The District Court of a district in which is filed a case

laying venue in the wrong . . district shall dismiss,

or if it be in the interest of justice, transfer such case

to any district . . . in which it could have been brought.

The Court will transfer this action to the District of Mary-

land where the plaintiff resides, Leonard, supra, and the

claim herein arose. Lamont, supra.

An appropriate order is entered herewith.

/s/ June L. Gueew

June L. Green

US. District Judge

Dated: February 27, 1981

10a

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-1012

Dax. G. Grove

Executor of the Estate of

Stuart Stiller

Plaintiff

Heiwsnumax BMW, Iwc., et al

Defendants

ORDER

Filed February 27, 1981

In accordance with the memorandum opinion filed here-

with, it is by the Court, this 27th day of February 1981,

Oxpexep that the Clerk of this Court transfer the record

herein to the United States District Court for the District

of Maryland; and it is further

Onpenep that defendants’ motions to certify under 28

U.S.C. 5 1292 (b) be denied.

/s/ June L. Gueew

June L. Green

US. District Judge

lla

APPENDIX G

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action Number: 80-1012

Danis. G. Grove

Executor of the Estate of

Stuart Stiller

Plaintiff

VS.

Heisuman BMW, Inc.

BMW or Nonru Amenica, Inc.

Bayveriscne Moronen Werk AG,

Lom & Bromkxame GmbH

Defendants

Filed April 6, 1981

Upon consideration of the Plaintiff’s Motion to Recon-

sider the Memorandum Opinion of February 27, 1981, and

the Oppositions thereto, it is this 3rd day of April, 1981,

Onprnrep, that the Plaintiff’s Motion for Reconsideration

is denied, and it is further

Onxvenep, that the Clerk of this Court transfer the record

herein to the United States District Court for the District

of Maryland.

/8/ June L. Gueex

June L. Green

United States District Judge

United States District Court

for the District of Columbia

12a

APPENDIX H

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-1012

(Green, J.)

Daniet G. Grove,

Executor of the Kstate of

Stuart Stiller,

Plaintiff,

Hzunuax BMW, Inc.

BMW or Nortn Amenica, Inc.

Bayveniscne Mororen Werke AG.

Long & Baonkaur Gmbll.,

Defendants.

ORDER

Filed August 11, 1980

Upon consideration of the Motion of Defendants BMW

of North America, Inc. and Bayerische Motoren Werke

AG. for Reconsideration of their Motions to Dismiss for

Want of Jurisdiction or in the Alternative for Change of

Venue, and the opposition thereto,

Ir Is Henesy Onvenep, this 11th day of August, 1980,

that the Motion for Reconsideration is denied.

/s/ June L. Gueew

United States District Judge

13a

APPENDIX I

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-1012

(Green, J.)

Damier G. Grove,

Executor of the Estate of

Stuart Stiller,

PI * tiff,

Heiwsumax BMW, Inc.

BMW or Nortn Amenica, Inc.

Bayeniscne Moronzx Wenxe AG.

Long & Baomxamre GmbH.

Defendants.

ORDER

Filed July 23, 1980

Upon consideration of the Motion of Bayerische Motoren

Werke, AG. to Dismiss for Want of Jurisdiction or in the

Alternative for Change of Venue, and the opposition

thereto,

Ir Is Henesy Onvenen, this 22nd day of July, 1980, that

the Motion is denied in all respects.

/s/ June L. Guru

United States District Judge

l4a

APPENDIX J

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-1012

(Green, J.)

Dax. G. Grove,

Executor of the Estate of

Stuart Stiller,

Plaintiff,

Heisuman BMW, Ixc.

BMW or Nonru Amenica, Inc.

Bavenriscue Moronzx Weaxe AG.

Lous & Bromxame GmbH.

Defendants.

ORDER

Filed July 23, 1980

Upon consideration of the Motion of BMW of North

America, Inc. to Dismiss for Want of Jurisdiction or in

the Alternative for Change of Venue, and the opposition

thereto,

Ir Is Henesy Onvenep, this 22nd day of July, 1980, that

the Motion is denied in all respects.

/s/ Jux L. Garex

United States District Judge

15a

APPENDIX K

PERTINENT STATUTORY PROVISIONS

(a) 28 U.S.C.$41. Number and composition of circuits

The twelve judicial circuits of the United States are

constituted as follows:

Cireuits Composition

District of Columbia—District of Columbia.

First—Maine, Massachusetts, New Hampshire, Puerto Rico,

Rhode Island.

Second—Connecticut, New York, Vermont.

Third—Delaware, New Jersey, Pennsylvania, Virgin Is-

lands.

Fourth—Maryland, North Carolina, South Carolina, Vir-

ginia, West Virginia.

Fifth—District of the Canal Zone, Louisiana, Mississippi,

Texas.

Sixth—Kentucky, Michigan, Ohio, Tennessee.

Seventh—Illinois, Indiana, Wisconsin.

Eighth—Arkansas, Iowa, Minnesota, Missouri, Nebraska,

North Dakota, South Dakota.

Ninth—Alaska, Arizona, California, Idaho, Montana, Ne-

vada, Oregon, Washington, Guam, Hawaii,

Tenth—Colorado, Kansas, New Mexico, Oklahoma, Utah,

Wyoming.

Eleventh—Alabama, Florida, Georgia.

(b) 28 U.S.C. $1291. Final decisions of district courts

The courts of appeals shall have jurisdiction of appeals

from all final decisions of the district courts of the United

16a

States, the United States District Court for the District of

the Canal Zone, the District Court of Guam, and the Dis-

trict Court of the Virgin Islands, except where a direct

review may be had in the Supreme Court.

(e) 28 U.S.C. § 1292. interlocutory decisions

(b) When a district judge, in making in a civil action

an order not otherwise appealable under this section, shall

be of the opinion that such order involves a controlling

question of law as to which there is substantial ground

for difference of opinion and that an immediate appeal

from the order may materially advance the ultimate termi-

nation of the litigation, he shall so state in writing in such

order. The Court of Appeals may thereupon, in its disere-

tion, permit an appeal to be taken from such order, if

application is made to it within ten days after the entry

of the order: Provided, however, That application for an

appeal hereunder shall not stay proceedings in the district

court unless the district judge or the Court of Appeals or

a judge thereof shall so order.

(d) 28 U.S.C. $1254. Courts of apeals: certiorari: appeal: certified

questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree;

(e) 28 U.S.C. $1332. Diversity of citizenship: amount in contro-

versy: costs

(a) The district courts shall have original jurisdiction

of all civil actions where the matter in controversy exceeds

the sum or value of $10,000, exclusive of interest and costs,

and is between—

(1) citizens of different States;

17a

(2) citizens of a State and citizens or subjects of a

foreign state;

(3) citizens of different States and in which citizens

or subjects of a foreign state are additional parties;

and

(4) a foreign state, defined in section 1603(a) of this

title, as plaintiff and citizens of a State or of different

States.

* * *

(e) For the purposes of this section and section 1441

of this title, a corporation shall be deemed a citizen of

any State by which it has been incorporated and of the

State where it has its principal place of business: . . .

(d) The word ‘‘States,’’ as used in this section, includes

the Territories, the District of Columbia, and the Common-

wealth of Puerto Rico.

(f) 28 U.S.C. $1391. Venue generally

(a) A civil action wherein jurisdiction is founded only

on diversity of citizenship may, except as otherwise pro-

vided by law, be brought only in the judicial district where

all plaintiffs or all defendants reside, or in which the claim

arose.

* — *

(e) A corporation may be sued in any judicial district

in which it is incorporated or licensed to do business or is

doing business, and such judicial district shall be regarded

as the residence of such corporation for venue purposes.

(g) 28 U.S.C. § 1404. Change of venue

(a) For the convenience of parties and witnesses, in the

interest of justice, a district court may transfer any civil

action to any other district or division where it might have

been brought.

18a

(th) 28 U.S.C. $1406. Cure or waiver of defects

(a) The district court of a district in which is filed a

ease laying venue in the wrong division or district shall

dismiss, or if it be in the interest of justice, transfer such

ease to any district or division in which it could have been

brought.

(i) 28 U.S.C. $1651. Writs

(a) The Supreme Court and all courts established by

Act of Congress may issue all writs necessary or appro-

priate in aid of their respective jurisdictions and agreeable

to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a

justice or judge of a court which has jurisdiction.

) 13 DC. Code Ann. $423. Personal Jurisdiction based upon

conduct

(a) A District of Columbia court may exercise personal

jurisdiction over a person, who acts directly or by an

agent, as to a claim for relief arising from the person’s—

(1) transacting any business in the District of Co-

lumbia ;

(2) contracting to supply services in the District of

Columbia;

(3) causing tortious injury in the District of Co-

lumbia by an act or omission in the District of Co-

lumbia ;

(4) causing tortious injury in the District of Co-

lumbia by an act or omission outside the District of

Columbia if he regularly does or solicits business, en-

gages in any other persistent course of conduct, or

derives substantial revenue from goods used or con-

sumed, or services rendered, in the District of Co-

lumbia ;

19a

(5) having an interest in, using, or possessing real

property in the District of Columbia; or

(6) contracting to insure or act as surety for or on

any person, property, or risk, contract, obligation, or

agreement located, executed, or to be performed within

the District of Columbia at the time of contracting,

unless the parties otherwise provide in writing.

(b) When jurisdiction over a person is based solely upon

this section, only a claim for relief arising from acts enu-

merated in this section may be asserted against him.

20a

APPENDIX L

PLAINTIFFS

Dante G. Grove, Executor of the Estate of Stuart Stiller

DEFENDANTS

I. Hewuman BMW, Isc.

2. BMW or Norrn Amenica, Inc.

3. Baveniscne Moroxes Winx AG.

4. Loun & Bromkamr GingH.

JUNE L. GREEN, J.

CAUSE

Survival and wrongful death action arising our of the

death of Stuart Stiller on August 4, 1979, from injuries

sustained in an automobile accident on that date. 28 U.S.C.

§ 1332.

ATTORNEYS

Paul Martin Wolff

David N. Webster

Kevin T. Baine

Hill Building

Washington, D.C. 20006

(202) 331-5000

4. John J. McGrath, Jr.

1850 K St., N. W., #1200

Wash., D.C. 20006

862-4730

1. John Jude O’Donnell

730 15th St., N.W. #810

Washington, D.C. 20005

628-2244

2. Leonard L. Lipshultz

John Llewellyn Hone

Suite 108 Montgomery Center

Silver Spring, Md. 20910

587-8500

3. —do—

21a

Date—Na.—Proceepinoes

1980

Apr 22— 1—Comrtaixt; Jury Demand; Appearance.

Apr 22— —Summons (4) ane copies (4) of complaint

issued. deft. #1 ser: 4-30-80 deft. #2 ser:

5-1-80.

May 22—2—Srirviation extending the time for deft.

Heishman to answer to and including 6-16-

80; (fiat) (N) Gnreex, J.

June 17— 3 —Answer of deft. #1 to complaint.

June 23—4—Morion of deft. #2 to dismiss for want of

jurisdiction or in the alternative for change

of venue; P&As; exhibit I.

June 25— 5—Morion of deft. #4 for enlargement of time

to 8-22-80 to move or answer; memo of

P&A’s; exhibits 1, 2. and 3.

Jun 26— 6 —Answer of deft. #4 to complaint. (fiat) Grerx,

Jun 27— 7 —- Moro of pltf. for an extension of time to

respond to motion of deft. #2 to dismiss;

P&A.

Jun 27— 8 —Response of deft. #4 to motion of deft. #2 to

dismiss.

Juz 30—9—Morion of deft. #3 to dismiss for want of

jurisdiction or in the alternative for change

of venue; Exhibit (unexecuted affidavit of

Jost J. Schmitt); P & A.

June 30—10—Onxper denying motion of deft. Lohr & Brom-

kamps for enlargement of time to respond

to the complaint. (N) Garren, J.

22a

Date—Na.—Procerpixcs

June 30—11—Orper granting to and including 7-14-80 mo-

tion of pltf. to respond to deft. BMW of

No. America Inc.’s to dismiss for want of

jurisdiction or in alternative for change

of venue. (N) Greex, J.

July 14—12—Reegvesr by pltf. for oral argument; P&As;

exhibits A-G.

Jul 24—13—Arrwwavir of Jost J. Schmitt in support of deft.

#3’s motion to dismiss forlack of juris-

diction over the person.

Jul 24—14—Onper filed 7-23-80, denying motion of Baye-

rische Motoren Werke Ag. to dismiss. (N)

(signed 7-22-80). Green, J.

July 24—15—Onpen filed 7-23-80, denying motion of BMW

of No. America to dismiss. (N) (signed 7-

22-80). Green, J.

Aug 04—16—Moriox of defts. for reconsideration of deft's

motion to dismiss for want of jurisdiction

or in the alternative for change of venue;

exhibit A; affidavit of Howard F. Brecken-

ridge; request for oral argument; P&As.

Aug 07—17—Opposirion by pltf 's. to motion for reconsider-

ation.

Aug ]5—J]8—Onprr filed 8-11-80, denying motion of defts.

BMW of North America, Inc. and Baye-

rische Motoren Werke AG. for reconsider-

ation of the motions to dismiss for want of

jurisdiction or in the alternative for a

change of venue.

23a

Piastivry—GROVE

Derexspant—HEISHMAN BMW, INC., et al.

Docker No. 80-1012

Date—Na.—Procerevines

Aug 22—19—Answer of defts. 2&3 to complaint.

Aug 22— —Carenpvanev. CD/N

Aug 22—20—I wrernocatonties by deft. #2 to pltf.

Aug 29—21—Moriox of deft #4 to dismiss; request for oral

argument; memorandum; exhibits A&B.

Sep 02—22—Moriow by pltf. for an extension of time within

which to respond to deft. #4’s motion to

dismiss.

Sept 056—23—Enrata of deft. re: table of authorities and

table of contents inadvertently omitted

from the memorandum in support of Mo-

tion to Dismiss of Lohr & Bromkamp

GmbH ; attachment.

Sept 8—24—Memoraxvum of points and authorities by pltf.

in opposition to deft’s motion to dismiss

or, in the alternative, to transfer to the

District of Maryland; attachment; exhibits

A-G.

Sept 11—25—Onrprr filed 9-9-80, denying motion of deft.

Lohr & Bromkarp GmgH to dismiss for

lack of personal jurisdiction and improper

venue or to transfer to Maryland. (N)

(signed 9-8-80) Gaeex, J.

Sept 11—26—Rerty of deft/ #4 to pltf’s opposition to

deft. Lohr & Bromkamp GmbH’s motion

to dismiss or, in the alternative, to transfer

to the District of Maryland.

24a

Date—Na.—Proceepixes

Sept 17—27—Morow of deft. #4 to amend the 9-8-80 order

to include certification Under 28 U.S.C.

1292( b) ; request for oral argument; memo;

table of authorities.

Sept 17—28—Mortox of defts. for leave to appeal inter-

locutory order; P& As.

Sept 17— —Sratvus CAL: Motion of defts. for reconsider-

ation of the denial of their motions to dis-

miss and for change of venue heard and

taken under advisement. Pitf. to address

both motions as soon as possible. Further

status call set for 11-13-80 at 10:00AM.

(Rep: Gloria Horning). Green, J.

Sept 22—29—Transcuirr of Proceedings taken on 9-17-80,

Court 's copy; Rep: Gloria Horning. Guxxx,

Sept 23—30—SurrtementaL Memonaxvum by deft. #4 in

support of motion to dismiss or to certify

under 28 U.S.C. 1292(b); attachment.

Sept 29—31—Memonanvvm of pltf. of points and authorities

in opposition to motion of defts. to certify

orders under 28 U.S.C. 1292(b).

Sept 30—32—Reprty of deft. to pltf’s opposition to certifi-

cation under 28 U.S.C. 1292(b).

Nov 3—33—Answens by Daniel G. Grove to Interroga-

tories; Exhibits 1 through 24

Nov 13— —Srartvs Cait. Motion of defts. for reconsider-

ation of denial of transfer, heard & taken

under advisement. (Rep. Gloria Horning)

Green, J.

1981

Feb 27—34—Memorwapum Orixiox. (N) Gurxx, J.

25a

Date—Nr.—Procerpines

Feb 27—35—Onper transferring this to the U. S. D. C. for

the District of Maryland (N) Gnreex, J

Mar 09—36—Morion of pitf. for reconsideration; P&As.

Mar 09—37—Reqvesr by pltf. oral argument. CD/N

Mar 20—28—Surriementat Memonnavum by pltf. in sup-

port of pltf’s motion for reconsideration;

affidavit of Kevin T. Baine; exhibits 1&2.

Mar 25—29—Opposition by defts. #2&3 to pltf’s motion for

reconsideration

Mar 27—36—Rerty Memonanvum by pltf. in support of

pltf’s motion for reconsideration.

Mar 30—31—Letter dated 2-26-81 to Judge Green in re:

transferring this action to Maryland; Let

this be filed“. (N) Greex, J.

Apr 8—32-—Orprx filed 4-6-81 denying motion of pltf. for

reconsideration ; directing the Clerk of this

Court to transfer this record to the US.

D.C. for the District of Maryland. (N)

Guaeen, J.

Apr 14—33—Morion of pltf. for certification under 28

U.S.C. § 1292(b); P&As; request for oral

argument.

Apr 27—34—Oprpositiox by defts. 2&3 to pltf’s motion for

certification under 28 U.S.C. §1292 (b);

P&As.

May 1—35—Onper filed 4/28/81 denying motion of pltf. for

certification under 28 U.S.C. Section 1292

(b) (N) June Gaeex, J.

July 2—36—Cory of ( wen filed 7-2-81, in USCA issuing the

writ of mandamus; vacating the Order of

26a

Date—Nar.—Proceevines

USDC transferring case to District of

Maryland and for remanding case for fur-

ther proceedings.

Oct 05—37—Requrat by Defts. BMW of North America for

entry upon land for inspection and other

purposes.

Oct 05—38—Rerqurstr by defts. BMW of North America for

production of documents and things.

Oct 05—39—Regquesr (first) by Plitf. for Production of

documents by Deft. Bayerisch Motoren

Werke, AG.

Oct 05—40—Requesr (first) by Pitf. for production of

documents by deft. BMW of North Ameri-

ea, Ine.

Oct 05—41—Regquesr (first) by Pitf. for production of

documents by Deft. Heishman BMW, Inc.

Oct 05—42—Intennocatonies (first) by Pltf. to Deft. Heish-

man BMW, Inc.

Oct 05—43—Inrennocatonies (first) by Pitf. to deft. BMW

of North America, Inc

Oct 05—44—Inrennocatonies (first) by Pltf. to deft. Baye-

rische Motoren Werke AG.

Oct 05—45—Joint Morion by defts. #2, #3 and #4 for

reconsideration of the in personam juris-

dictional finding of this Court; Memo of

P&A’s.

Oct 13—46—Memonanvvum of points and authorities by pltf.

in opposition to defts’ joint motion for re-

consideration.

27a

APPENDIX M

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-1012

(June L. Green, J.)

Daniex G. Grove,

Executor of the Estate of Stuart Stiller

2033 M Street, N.W.

Washington, D.C. 20036,

Plaintiff,

Heisuman BMW, Ixc.

3154 Jefferson Davis Highway

Arlington, Virginia 22202,

Serve pursuant to D.C. Code § 13-431 (a) (3)

BMW ov Nortnu Anmenica, Ixc.

BMW Plaza

Montvale, New Jersey 07645,

Serve pursuant to D.C. Code § 13-431(a) (3)

Baveriscne Motroren Wenke AG.

BMW Haus

Petuelring 130

Postfach 40 02 40

D-8000 Munchen 40

Federal Republic of Germany,

Serve pursuant to 20 U. S. T. 361

Long & Bromxamrp GmblI.

Muehlheimer Strasse 163

Offenbach am Main

Federal Republic of Germany,

Serve pursuant to 20 U.S. T. 361

Defendants.

28a

COMPLAINT

Jurisdiction

1. This is a survival and wrongful death action arising

out of the death of Stuart Stiller on August 4, 1979, from

injuries sustained in an automobile accident on that date.

2. This Court has jurisdiction over this action pursuant

to 28 U.S.C. § 1332, in that the manner in controversy ex-

ceeds the sum of $10,000, exclusive of interest and cost,

and is between citizens of different states in which citizens

or subjects of a foreign state are additional parties.

Parties

3. Plaintiff, Daniel G. Grove, is a citizen of the State

of Maryland, with his business address at 2033 M Street,

N. W., Washington, D.C. He is the duly qualified Executor

of the Estate of Stuart Stiller, Case No. 1716-79 of the

Probate Division of the Superior Court of the District of

Columbia.

4. The deceased, Stuart Stiller, was a citizen of the Dis-

trict of Columbia at the time of his death, maintaining

his residence at 4701 Connecticut Avenue, N.W., #506,

Washington, D.C. He was an attorney with the law firm

Stiller, Adler, Schwartz & Kaswell, P.C., a professional

corporation organized under the laws of the District of

Columbia, with its principal place of business at Suite

720, 1825 K Street, N.W., Washington, D.C. 20006.

5. Defendant Heishman BMW, Inc. (‘‘Heishman’’) is a

corporation organized under the laws of Virginia, with its

principal place of business at 3154 Jefferson Davis High-

way, Arlington, Virginia 22202. Heishman sold the BMW

automobile driven by the deceased at the time of the fatal

accident to the Maryland National Bank for lease to Stiller,

Adler, Schwartz 4 Kaswell, P.C. (then Stiller, Adler &

Schwartz, P. C.), and it serviced that automobile on a

continuing basis from the date of sale through the time

of the accident. It transacted business and contracted to

supply services in the District of Columbia in connection

with the sale, lease and servicing of the aforementioned

BMW automobile; and it regularly does and solicits busi-

ness in the District of Columbia, engages in other persis-

tent conduct in the District of Columbia, and derives sub-

stantial revenue from goods used and services rendered

in the District of Columbia.

6. Defendant BMW of North America, Inc. (“BMW

North America’’) is a corporation organized under the

laws of Delaware, with its principal place of business at

BMW Plaza, Montvale, New Jersey 07645. BMW North

America is a subsidiary of, and North American distri-

butor for, defendant Bayerische Motoren Werke AG. It

sold the BMW automobile driven by the deceased at the

time of the fatal accident to defendant Heishman, and it

has sold numerous other BMW automobiles to defendant

Heishman with the knowledge and expectation that many

of these cars would be sold or leased to District of Colum-

bia residents and others for use in the District of Columbia.

Both directly and through its agent, defendant Heishman,

defendant BMW North America transacted business in the

District of Columbia in connection with the sale and lease

of the BMW automobile driven by the deceased at the

time of the fatal accident; and it regularly does and soli-

cits business in the District of Columbia, engages in other

persistent conduct in the District of Columbia, and derives

substantial revenue from goods used and services rend-

ered in the District of Columbia.

7. Defendant Bayerische Motoren Werke AG. (“BMW

Germany’’) is a corporation organized under the laws of

the Federal Republic of Germany, with its principal place

of business in Munich, Federal Republic of Germany. De-

fendant BMW Germany designed, manufactured and as-

sembled the BMW automobile (and component parts)

30a

driven by the deceased at the time of the fatal accident

and sold that automobile to defendant BMW North Amer-

ica, as it has numerous other BMW automobiles, with the

knowledge and expectation that many of these automobiles

would be sold or leased to District of Columbia residents

and others for use in the District of Columbia. Both di-

rectly and through its agents, defendants BMW North

America and Heishman, defendant BMW Germany trans-

acted business in the District of Columbia in connection

with the sale and lease of the BMW automobile driven

by the deceased at the time of the fatal accident; and it

regularly does and solicits business in the District of

Columbia, engages in other persistent conduct in the Dis-

trict of Columbia, and derives substantial revenue from

goods used and services rendered in the District of -

Columbia.

8. Defendant Lohr & Bromkamp GmbH. is a corpora-

tion organized under the laws of the Federal Republic of

Germany, with its pricipal place of business in Offenbach

am Main, Federal Republic of Germany. Defendant Lohr

& Bromkamp designed, manufactured and assembled the

constant velocity joints installed in the BMW automobile

driven by the deceased at the time of the fatal accident.

It supplied such constant velocity joints to BMW Germany

with the knowledge and expectation that a substantial

number of automobiles in which they were to be installed

would be sold or leased to District of Columbia residents

and others for use in the District of Columbia. Both di-

rectly and through its agents, defendants BMW Germany,

BMW North America and Heishman, it transacted busi-

ness in the District of Columbia in connection with the

sale and lease of the BMW automobile driven by the

deceased at the time of the fatal accident; and it regularly

does and solicits business in the District of Columbia, en-

gages in other persistent conduct in the District of Colum-

bia, and derives substantial revenue from goods used and

services rendered in the District of Columbia.

3la

Common Allegation of Fact

9. At approximately 9:10 a.m. on August 4, 1979, the

deceased, Stuart Stiller, was driving a 1978 BMW 530i

automobile in a northerly direction on Wisconsin Avenue

in Bethesda, Maryland, less than one mile north of the

District of Columbia line. Stiller was driving in a safe

and prudent manner, in accordance with the traffic rules

then and there in force, when his automobile became un-

controllable, swerved suddenly to the right, and collided

with a tree along the right side of the road. Stiller died

several hours later from injuries sustained in the accident.

Count I—Survival Action for Negligence

10. Plaintiff ineorporates by reference the allegations

contained in Paragraph 3 through 9.

11. Defendants Heishman, BMW North America, BMW

Germany, and Lohr & Bromkamp were negligent in the

design, manufacture, inspecting, testing, assembling and/

or sale and lease of the BMW automobile driven by the

deceased at the time of the fatal accident, and its com-

ponent parts, in that they knew or with the exercise of

reasonable care should have known that the right rear

constant velocity joint and its related parts were dan-

gerous under circumstances of ordinary, normal and fore-

seeable use.

12. As a proximate result of the defendants’ negligence,

the deceased suffered severe injuries, resulting in death,

and his estate was deprived of his probable future earnings

in an amount not yet fully determined.

Wuexerone, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands judgment against de-

fendants in the sum of $3,000,000, plus interest from the

date of judgment and the taxable costs of this action.

32a

Count []—Survival Action for Breach of Warranty

13. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 9.

14. Defendants Heishman, BMW North America, BMW

Germany, and Lohr & Bromkamp warranted that the 1978

BMW automobile driven by the deceased, and its com-

ponent parts, would be fit for their ordinary, normal and

foreseeable use, and not defective or unreasonably danger-

ous, when they placed and moved the automobile and its

component parts in the stream of commerce for sale and

use.

15. Defendants breached their implied warranties in that

the BMW automobile and, in particular, the right rear con-

stant velocity joint and its related parts were defective

when sold, unreasonably dangerous, and unfit for their ordi-

nary, normal and foreseeable use.

16. As a proximate result of the defendants’ breaches of

warranties, the deceased suffered severe injuries, resulting

in death, and his estate was deprived of his probable future

earnings in an amount not yet fully determined.

Wurnxronx, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands judgment against de-

fendants in the sum of $3,000,000, plus interest from the

date of judgment and the taxable costs of this action.

Count [1l—Survival Action for Strict Liability

17. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 9.

18. Defendants Heishman, BMW North America, BMW

Germany, and Lohr & Bromkamp are made strictly liable

to plaintiff by their placing and moving in the stream of

commerce the aforementioned BMW automobile, constant

velocity joint and related parts with defects in their design

and/or manufacture.

33a

19. As a proximate result of defendants’ placing and

moving in the stream of commerce the aforementioned

BMW automobile, constant velocity joint and related parts,

the deceased suffered severe injuries, resulting in death,

and his estate was deprived of his probable future earnings

in an amount not yet fully determined.

Wurnrronx, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands judgment against de-

fendants in the sum of $3,000,000, plus interest from the

date of judgment and the taxable costs of this action.

Count I1V—Survival Action for Negligence

20. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 9.

21. Defendant Heishman was negligent in the servicing

and repair of the aforementioned BMW automobile, in that

it failed to detect and repair the unreasonably dangerous

condition of the right rear constant velocity joint and its

related parts, when through the exercise of reasonable care

it should have detected and repaired that condition.

22. As a proximate result of defendant's negligence, the

deceased suffered severe injuries, resulting in death, and

his estate was deprived of his probable future earnings in

an amount not yet fully determined.

Wurnzronx, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands judgment against

defendant Heishman in the sum of $3,000,000, plus interest

from the date of judgment and the taxable costs of this

action.

Count V—Wrongful Death Action

23. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 22.

24. As a proximate result of the aforementioned conduct

of defendant Heishman, resulting in the injury and death

34a

of the deceased, deceased’s next of kin suffered the loss

of future financial comributions that the deceased would

have made for their care and maintenance, the loss of the

services of care, maintenance and attention which they

would have received from the deceased, as well as the

expenses of the deceased’s last illness and burial.

Wuezerone, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands judgment against

defendant Heishman in the sum of $3,000,000, plus interest

from the date of judgment and the taxable costs of this

action.

Count VI—Wrongtul Death Action

25. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 19.

26. As a proximate result of the aforementioned conduct

of defendant BMW North America, resulting in the injury

and death of the deceased, deceased’s next of kin suffered

the loss of future financial contributions that the deceased

would have made for their care and maintenance, the loss of

the services of care, maintenance and attention which they

would have received from the deceased, as well as the

expenses of the deceased’s last illness and burial.

Wuereronr, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands judgment against

defendant BMW of North America in the sum of $3,000,000,

plus interest from the date of judgment and the taxable

costs of this action.

Count Vil—Wrongtful Death Action

27. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 19.

28. As a proximate result of the aforementioned conduct

of defendant BMW Germany, resulting in the injury and

35a

death of the deceased, deceased’s next of kin suffered the

loss of future financial contributions that the deceased would

have made for their care and maintenance, the loss of the

services of care, maintenance and attention which they

would have received from the deceased, as well as the

expenses of the deceased’s last illness and burial.

Wurnzronx, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands judgment against

defendant BMW Germany in the sum of $3,000,000, plus

interest from the date of judgment and the taxable costs

of this action.

Count Vill—Wrongtul Death Action

29. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 19.

30. As a proximate result of the aforementioned conduct

of defendant Lohr & Bromkamp, resulting in the injury and

death of the deceased, deceased's next of kin suffered the

loss of future financial contributions that the deceased would

have made for their care and maintenance, the loss of the

services of care, maintenance and atiention which they

would have received from the deceased, as well as the

expenses of the deceased’s last illness and burial.

Wuenrerore, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands judgment against

defendant Lohr & Bromkamp in the sum of $3,000,000, plus

interest from the date of judgment and the taxable costs

of this action.

Count IX—Punitive Damages

31. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 24.

32. Defendant Heishman acted with reckless disregard

of the rights and safety of the deceased and other users

36a

of BMW automobiles and their component parts, and with

gross and wanton negligence with respect thereto.

Wueseronre, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands punitive damages

against defendant Heishman in the sum of $5,000,000, plus

interest from the date of judgment.

Count X—Punitive Damages

33. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 19 and 26.

34. Defendant BMW North America acted with reckless

disregard of the rights and safety of the deceased and

other users of BMW automobiles and their component

parts, and with gross and wanton negligence with respect

thereto.

Wurnzronx, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands punitive damages

against defendant BMW North America in the sum of

$5,000,000, plus interest from the date of judgment.

Count Xl—Punitive Damages

35. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 19 and 28.

36. Defendant BMW Germany acted with reckless dis-

regard of the rights and safety of the deceased and other

users of BMW automobiles and their component parts, and

with gross and wanton negligence with respect thereto.

Wurnxronx, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands punitive damages

against defendant BMW Germany in the sum of $5,000,000,

plus terest from the date of judgment.

37a

Count XIl—Punitive Damages

37. Plaintiff incorporates by reference the allegations

contained in Paragraphs 3 through 19 and 30.

38. Defendant Lohr & Bromkamp acted with reckless dis-

regard of the rights and safety of the deceased and other

users of BMW automobiles and their component parts, and

with gross and wanton negligence with respect thereto.

Wurnzronz, plaintiff Grove, as Executor of the Estate

of Stuart Stiller, Deceased, demands punitive damages

against defendant Lohr & Bromkamp in the sum of $5,000,-

000, plus interest from the date of judgment.

Respectfully submitted,

Dated: April —, 1980

Wiss & Cox xo

By /s/ Paul. Mun Worrr

Paul Martin Wolff

By /s/ Daum N. Wessrer

David N. Webster

By /s/ Kevis T. Batxe

Kevin T. Baine

Hill Building

Washington, D.C. 20006

202-331-5000

Attorneys for Plaintiff

JURY DEMAND

Plaintiff demands a trial by jury as to all issues herein.

Wulnus & Cox xo

By /s/ Paul, Manrix Wolrr

Paul Martin Wolff

By /s/ Davin N. Wesster

David N. Webster

By /s/ Kevix T. Batxe

Kevin T. Baine

Dated: April 22, 1980.

39a

APPENDIX N

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80 1012

Dax. G. Grove

Executor of the Estate of Stuart Stiller

2033 M Street, N. W.

Washington, D.C. 20036,

Hewuman BMW, Inc.

3154 Jefferson Davis Highway

Arlington, Virginia 22202,

BMW or Nortrn Amenica, Inc.

BMW Plaza

Montvale, New Jersey 07645,

Bayrriscue Moronzx Werke AG.

BMW Haus

Petuelring 130

Postfach 40 02 40

D-8000 Munchen 40

Federal Republic of Germany,

Lone & Bromxamrp GmbH.

Muehlheimer Strasse 163

Offenbach am Main

Federal Republic of Germany,

Plaintiff,

Defendants

MOTION TC DISMISS FOR WANT OF JURISDICTION

IN THE ALTERNATIVE FOR CHANGE OF VENUE

Comes now the defendant BMW of North America, Inc.,

(hereinafter referred to as BMWNA) by and though Lip-

40a

shultz and Hone, Chartered, Leonard L. Lipshultz and

John Llewellyn Hone and moves this Honorable Court for

an order dismissing the complaint against this defendant,

for want of in personam jurisdiction or, in the alternative,

to change the venue for this litigation, and for reasons

therefor states as follows:

1) The plaintiff, who is a resident of the state of Mary-

land, has brought suit against the defendant, BMWNA, for

injuries resulting in death sustained in an automobile acci-

dent which occurred in the state of Maryland. The plain-

tiff alleges, inter alia, that said death was caused by a

defect in a 1978 BMW 530i manufactured by the defendant

Bayerische Motoren Werke AG and sold by it and this

defendant.

2 The defendant Bayerische Motoren Werke AG, (here-

inafter referred to as BMWAG) is a business affiliation

similar in nature to a corporation and is organized under

the laws of the Federal Republic of Germany, and as of

the date of the filing of this motion had not as yet been

served with service of process.

3) Defendant BMWNA is a corporation established un-

der the laws of the State of Delaware, with its principal

place of business in the State of New Jersey.

4) The plaintiff has not alleged, and this defendant de-

nies that any acts of the defendant relevant to this litiga-

tion occurred within the District of Columbia, nor are the

defendants, BMWNA or BMWAG, engaged in business in

the District. Neither defendant is engaged in activities

which establish sufficient contacts with the District of Co-

lumbia to warrant the assertion of jurisdiction thereover.

5) The cause of action complained of arose in the State

of Maryland, and therefore, Maryland substantive law ap-

plies. Further, there is no proper allegation that venue lies

in the District of Columbia.

4la

6) Upon the face of the pleadings, it appears that the

BMW automobile involved herein was sold by * Virginia

corporation, Heischman’s BMW Inc., to a Maryland Cor-

poration, Maryland National Bank, which leased said auto-

mobile to the law firm of Stiller, Adler, Schwartz, and

Kaswell, P.C. Upon information and belief, each such trans-

action occurred in the State of Maryland or the Common-

wealth of Virginia but not in the District of Columbia.

7) Such other and further grounds as may be advanced

upon a hearing of this motion.

Wurnzronx, the defendant requests that this Court enter

an Order granting the defendant’s Motion To Dismiss For

Want of Jurisdiction or in the Alternative for Change of

Venue.

Lirsnulrz anv Hone, CHarterep

/s/ Leonarp L. Lipsuvuttz

Leonard L. Lipshultz

/s/ Joux Liewettys Hone

John Llewellyn Hone

Suite 108 Montgomery Center

8630 Fenton Street

Silver Spring, Maryland 20910

587-8500

42a

I Heresy Certiry that a copy of the foregoing Motion

To Dismiss For Want of Jurisdiction Or In The Alterna-

tive For Change of Venue, Memorandum of Points and

Authorities In Support of Defendant’s Motion To Dismiss

For Want of Jurisdiction and the unexecuted Affidavit of

Howard Breckenridge was mailed, postage prepaid this 17th

day of June, 1980 to Paul Martin Wolfe, Esq., Hill Build-

ing, Washington, D.C. 20006, attorney for Plaintiff Grove,

John Jude O'Donnell, Eeq., 810 American Security Building

730 15th Street, N.W., Washington, D.C. 20005, attorney

for Defendant Heishman, BMW, Inc., and to Daniel Buko-

vac, Esq., 1850 K. Street, N.W., Washington, D.C. 20006,

attorney for Defendant Lohr & Bromkamp GmbH.

/s/ Joux Liewettyvs Hone

John Llewellyn Hone

43a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80 1012

Dax I. G. Grove

Executor of the Estate of Stuart Stiller

2033 M Street, N. W.

Washington, D. C. 20036,

Heisuman BMW, Inc.

3154 Jefferson Davis Highway

Arlington, Virginia 22202,

BMW or Nortn Amenica, Inc.

BMW Plaza

Montvale, New Jersey 07645,

Bayeriscue Moronzx Werke AG.

BMW Haus

Petuelring 130

Postfach 40 02 40

D-8000 Munchen 40

Federal Republic of Germany,

Lone & Bromxamrp GmbH.

Muehlheimer Strasse 163

Offenbach am Main

Federal Republic of Germany,

Plaintiff,

Defendants

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF DEFENDANT'S MOTION TO DISMISS FOR WANT OF

JURISDICTION OR IN THE ALTERNATIVE FOR

CHANGE OF VENUE

IL. Lack of Jurisdiction Over The Person:

The defendant, BMWAG, neither directly nor through

an agent, conducted business at any time relevant to this

44a

litigation within the District of Columbia. All BMW auto-

mobiles imported into the United States were purchased in

Germany by the importer, BMWNA; title thereto passes

in Germany. The defendant, BMWNA, did not cause the

vehicle in question to enter into an unbroken stream of

commerce with the ultimate destination being the District

of Columbia, and none of this defendant’s nor the defend-

ant BMWAG’s manufacturing and selling activities are

conducted within the United States.

The defendant, BMWNA, neither directly nor through

an agent, conducted business in the District of Columbia.

BMWNA denies that Heishman’s is its agent in the District

of Columbia as alleged in the complaint.

The defendants, BMWAG, and BMWNA, are not quali-

fied to do business in the District of Columbia, do not own

stock, merchandise or inventory in the District, have no

bank account, place of business, office, warehouse or dis-

tribution center in the District and take no orders from

agents therein. (See Exhibit I, affidavit of BAWNA—Exe-

cuted copy to be filed separately.) Neither of said defend-

ants make deliveries of automobiles in the District, either

directly or through a distributor or dealer.

The plaintiff seeks to assert in personam jurisdiction

over this defendant under the District of Columbia Wrong-

ful Death and Survival Statutes, § 16-2701 et. seq., and

12-101 of the District of Columbia Code, and Title 28 USC

§ 1332, conferring diversity jurisdiction on District Courts

and, presumably, the District of Columbia Long Arm

Statute, § 13-423. This motion respectfully asserts that

neither the defendant, BMWAG, nor this defendant,

BMWNA, come within the in personam iurisdiction of

the court by reason of the District of Columbia’s ‘‘long

arm’’ statute or otherwise.

The District of Columbia ‘‘long-arm”’ statute, D.C. Code

§ 13-423, provides:

45a

(a) A District of Columbia Court may exercise per-

sonal jurisdiction over a person, who acts directly or

by an agent, as to a claim for relief arising from the

person’s:

(1) transacting any business in the District of

Columbia ;

(2) contracting to supply services in the District

of Columbia;

(3) causing tortious injury in the District of

Columbia by an act or omission in the District of

Columbia;

(4) causing tortious injury in the District of

Columbia by an act or omission outside the District

of Columbia if he regularly does or solicits busi-

ness, engages in any other persistent course of

conduct, or derives substantial revenue from goods

used or consumed, or services rendered, in the

District of Columbia;

(5) having an interest in, using, or possessing real

property in the District of Columbia; or

(6) contracting to insure or act as surety for or

on behalf of any person, property, or risk, con-

tract, obligation, or agreement located, executed,

or to be performed within the District of Columbia

at the time of contracting, unless the parties

otherwise provide in writing.

(b) When jurisdiction over a person is based solely

upon this section, only a claim for relief arising from

acts enumerated in this section may be asserted against

him.

Jurisdiction does not lie with this court under either

paragraph (3) or (4) of subsection (a), as the plaintiff has

alleged that the accident which underlies their claims oc-

46a

curred in the State of Maryland and the afore-noted para-

graphs require that there be ‘‘tortious — within the

District of Columbia.

Paragraphs (5) and (6) are also clearly inapplicable

since those relate only to actions involving real property

and insurance. Similarly, paragraph (2) does not apply,

since there is no allegation that BMWAG and BMWNA

contracted to supply services in the District of Columbia.

As to paragraph (1), with respect to ‘‘transacting any

business in the District of Columbia, there is no sufficient

allegation that the claims in any way ‘‘arose’’ from any

business conducted by these Defendants within the District

of Columbia. Paragraph (b) of the ‘‘long-arm”’ statute

specifically requires that the asserted claim which is the

subject matter of the litigation must arise from the same

acts alleged to have been performed in the District and

upon which jurisdiction is based. Thus, no personal juris-

diction lies where the only connection between the defend-

ants and the District of Columbia is that they allegedly

do business“. Furthermore, as alleged previously, the

defendants conducted all business transactions, with respect

to the BMW automobile involved herein, outside of the

District of Columbia. Finally, the sale by Heischman BMW

Ine. to Maryland National Bank, which in turn leased said

vehicle to the aforenoted law firm, interrupted the stream

of commerce.

As stated in Meyers v. Smith, 460 F.Supp. 621 (DDC

1978), the minimum contacts requirement of International

Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154,

90 L.Ed 95 (1945), is premised upon ‘‘some act by which

the defendant purposely avails himself of the privilege of

conducting activities in the forum state invoking the benefits

and protections of its laws,’’ Id at 622, quoting Hanson v.

22 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L. Ed. 2d 1283

(1958).

47a

The District of Columbia Court of Appeals emphasized

the limitation on § 13-423(a)(1) as fc'lows:

However, under § 13-423(a)(1) a: 4 the doctrine of

International Shoe, a finding that the defendant has

‘transacted business in the District of Columbia does

not result in unlimited jurisdiction. Instead, jurisdie-

tion is limited to claims arising from the particular

transaction of business which provides the basis for

jurisdiction. D.C. Code 1973, §13-423(b). In other

words, the statute would not grant the Superior Court

jurisdiction over a nonresident defendant with respect

to a claim arising from a shipment of goods to a pur-

chaser in Pennsylvania, solely on the ground that the

defendant had also shipped goods to purchasers in the

District. Cohane v. Arpejo-Calif, Inc., 385 A.2d 153,

158 (DC. App. 1978) cert. den. 439 US. 980.

The court in Bueno v. La Compania Peruana de Radiodi-

fusion, 375 A.2d 6 (DC App 1977), similarly stressed the

due process considerations which require that the claim

involved be premised upon the same activities on which

jurisdiction is based. Factors emphasized by the Court in

affirming a dismissal for lack of in personam jurisdiction

included: 1) the defendant did not pursue or initiate con-

tract negotiations in the District; 2) no services were to

be provided in the forum state; 3) The only contact within

the District was the delivery, by courier, of the contract

involved, and later acceptance of payment.

A dismissal resulted in Berwyn Fuel, Inc. v. Hogan, 399

A.2d 79 (D.C. App. 1979), due to a lack of personal juris-

diction for the aforementioned reason. Although the de-

fendant in Berwyn ‘‘transacted business in the District

of Columbia, by making fuel deliveries thereto, the accident

on which the plaintiff’s claim was based arose from an

activity which occurred completely within Maryland( de-

livery of fuel by a truck which struck the plaintiff’s auto-

mobile).

48a

Similarly, in Mosley v. Nationwide Purchasing, Inc., 488

F.2d 418 (D.C. Cir. 1973), the court affirmed the dismissal

of an action against an Oregon corporation, Kuni Cadillac,

because it was not transacting business within the District.

The plaintiff/appellant, Mosley, a District of Columbia

resident, delivered a purchase order for a Cadillac to the

defendant Nationwide. Nationwide in turn ordered the

Cadillae from Kuni, who delivered the vehicle to Nation-

wide in Detroit. Appellant Mosley traveled to Detroit and

accepted delivery there. In affirming the dismissal, the court

stated that Kuni was not solicited or paid by the appellant,

it did not maintain an office or agent in the District, it

exercised no control over the automobile after said vehicle

was sold to Nationwide and that Nationwide did not become

the agent of Kuni for purposes of jurisdiction.

Nor may jurisdiction be premised upon the plaintiff's

own activities within the forum. The plaintiff/appellant in

Environmental Research Int I v. Lockwood Greene Engi-

neers, Inc., 355 A.2d 808 (DC. App. 1976), argued that its

activities in representing the defendant, a foreign corpora-

tion, before the Environmental Protection Agency (EPA)

were a sufficient basis on which to exercise personal juris-

diction over the appellee. The Court quoted Hanson supra

at 253, ‘‘The unilateral activity of those who claim some

relationship with a non-resident defendant cannot satisfy

the requirement of a contact with the forum state.“ En-

vironmental Research, supra at 812. In affirming the dis-

missal for lack of personal jurisdiction, the court stated:

Thus, a plaintiff cannot rely on its own activities,

rather than those of a defendant, to establish the

requisite minimal contacts for personal jurisdiction.

The mere fact that a nonresident has retained the pro-

fessional services of a District of Columbia firm, there-

by setting into motion the resident party’s own activi-

ties within this jurisdiction, does not constitute an in-

vocation by the nonresident of the benefits and pro-

tections of the District’s laws. Id at 812

49a

The defendant /appellees in that case were incorporated

under the laws of other states, were not authorized to do

business in the District of Columbia, maintained no office,

agent or employees in the District of Columbia, and did not

perform or solicit their work therein. The appellant initi-

ated the contact between it and the appellees (as in the

ease in the instant action), no negotiations were conducted

in the District of Columbia, and no personnel were ever

present in the area.

Similarly, this defendant and the defendant, BMWAG,

did not solicit or initiate the leasing arrangement by the

law firm of the deceased, did not assist in the conduct of

negotiations nor in the later servicing of the vehicle in

question, and maintained no offices, agents or employees

here. Assuming arguendo, that this defendant and the de-

fendant BMWAG, maintain sufficient contacts with the

District of Columbia., the defendants neverthelese had no

part in the sale or subsequent leasing of the vehicle in-

volved herein. The defendant, BMWAG., exercised no con-

trol or ownership of any BMW once said automobiles left

the Federal Republie of Germany, and this defendant did

not solicit or transact any business in the District of Co-

lumbia, nor is Heischman or the Maryland National Pank,

or any other dealer, or distributor, the agent of BMWAG

or this defendant.

The Illinois state courts have developed a similar re-

quirement, providing that sales within the state by inde-

pendent businesses of products manufactured by a non-

resident outside the state, are not a sufficient contact with

Illinois to render the non-resident amenable to the court’s

jurisdiction under the transaction of business provision.

Wing v. Challenge Machinery Co., 23 FRD 669 (DC. TIL

1959).

In the case at bar, assertion of jurisdiction over

BMWNA, would be a denial of a due process and the tradi-

tional notions of fair play, the principles emphasized in

50a

International Shoe, supra and Hanson, supra. As ean be

seen from the allegations of the complaint itself, neither

BMWAG nor BMWNA actually sold, delivered or serviced

the vehicle in question; neither corporation is qualified to

do business in the District of Columbia, neither corporation

has sufficient contacts in the District of Columbia to enable

a court to assert jurisdiction over them, and there are no

agents, distributors or dealers who act in such a capacity

as to enable the assertion of such jurisdiction.

Accordingly, neither of the defendants BMWAG or

BMWNA, are subject to the in personam jurisdiction of

this Court.

I. Venue

The instant case is an action based on injuries resulting

in death from an automobile collision which occurred in

the State of Maryland. The plaintiff administrator is a

resident of Maryland, with offices in the District of Colum-

bia; all defendants are foreign corporations. Upon informa-

tion and belief, the sale and subsequent leasing of the

vehicle in question occurred in either the State of Maryland

or the Commonwealth of Virginia but not in the District of

Columbia. The decedent resided and worked within the

District of Columbia.

The federal venue statute in question is embodied in

§ 1404(a) of Title 28 of the U.S. Code. In relevant part

this statute provides:

For the convenience of the parties and witnesses. in

the interest of justice, a District Court may transfer

any civil action to any other district or division in

which it might have been brought.

Title 28 U.S.C. §1391(b) provides that in diversity

actions, venue lies only in the judicial district where all

plaintiffs or all defendants reside, or in which the claim

arose. Neither the plaintiff nor the defendants reside in

5la

the District of Columbia, and the cause of action upon

which the claim herein is based arose in the State of Mary-

land and not the District of Columbia.

Although the origin of § 1404(a) of Title 28 of the US

Code is in the doctrine of forum non conveniens, Congress

intended by the enactment of this section, to allow an

exercise of broader discretion of the Courts than would

have been appropriate under the Common Law doctrine.

Norwood v. Kirkpatrick, 394 US 29, 75 B.Ct 544, 99 L.Ed

789 (1955).

Motions to transfer venue are addressed to the sound

discretion of the Court, Nowell v. Dick, 413 F.2d 1204 (5th

Cir. 1969), guided by criteria delineated in Gulf Oil Cor-

poration v. Gilbert, 330 US 501, 67 S.Ct. 839 91 L.Ed. 1044

(1947). The court in Gulf, described both public and private

interests which must be considered. The private interest

involved considerations of ease of access to proof, avail-

ability of compulsory process, the cost of attendance of

witnesses, possibility of a view of the site in question, en-

foreeability of a judgement, and all other problems that

make trial of a ease easy, expeditious and inexpensive.”

Id at 508.

Factors of public interest include congested court dock-

ets, the burden of jury duty on a community with no rela-

tion to the claim and finally, the appropriateness in hav-

ing the trial of a diversity case in a forum that is at home

with the state law that must govern the case, rather than

having a Court in some other forum untangle problems in

conflict of laws and in law foreign to itself.“ Id at 508-509.

The latter factor, that of the application of foreign law,

is an important consideration in the case at bar. As stated

in Pitts v. Woodward and Lothrop, 327 A.2d 816, 817 (DC.

App.1974), cert. den, 420 U.S. 911(1975).

We cited with approval the concurring opinion of

former Chief Judge Hood in Shaw v. May Department

52a

Stores Co., D.C.App., 268 A. 2d 607, 610-611 (1970);

also Walsh v. Crescent Hill Co., D.C.Mun.App., 134

A.2d 653 (1957), and Nee v. Dillon, 99 U.S. App. D. C.

332, 239 F.2d 953 (1956), in which the point was

stressed that if the plaintiffs are residents of Maryland

and their cause of action arose there and is governed

by the law of that state, trial judges were fully war-

ranted in dismissing such actions filed in a District of

Columbia court.

The District of Columbia Courts follow the conflicts of

law rule that prescribes that, in a wrongful death and

survival action, the substantive law where the fatal injury

occurred applies. Lewis v. Reconstruction Finance Corpo-

ration, 85 U.S. App. D. C. 339 (1949). Bremier v. VWOA,

340 F Supp 949 (D. D.C. 1972); Niosi v. Aiello, 69 A. 2d 57

(D. C Mun. App. 1949).

In Lewis, supra, the court held that the Nebraska statute

of limitations applied to a District of Columbia action.

We conclude that the limitation laid down by the law of

the state where the fatal injuries occurred should govern,

unless the public policy of the forum is clearly opposed.’’

Id at 341.

Similarly, Maryland law determined who the beneficiaries

of a wrongful death action could be on a claim premised

upon an injury in Maryland, and brought in the District of

Columbia. Niosi, supra.

Maryland products liability law was applied in Bremier,

supra. The District of Columbia Court applied Maryland

law to a case brought by residents of the District concern-

ing an accident which occurred in Maryland. The court

stated:

However, where, as in the instant case, suit is brought

in the District of Columbia for wrongful death, the

local law is that the court will not look to plaintiffs’

53a

theory of liability to resolve the conflict of laws ques-

tion, but will apply the iaw of the forum wherein the

death or deaths occurred. Id at 951.

The complexities of interpreting Maryland law in the

ease at bar would be avoided by transferring this action

to a Maryland District Court. This defendant respectfully

submits that the difficulty encountered in VWOA v. Young,

272 Md. 201, 321 A.2d 737(1974), in which a District of

Columbia Court was required to certify a question of law

to the Maryland Court of Appeals, may be readily avoided

by such a transfer.

A change of venue would contribute to the ease and

reduction of expense in the conduct of the trial. Further,

by a transfer of the instant action, needless congestion of

the District of Columbia Court dockets could be avoided.

As stated by the Supreme Court in Gulf Oil, supra at

508, (a) dministrative difficulties follow for courts when

litigation is piled up in congested centers instead of being

handled at its origin.

Similarly, the Court in Nee v. Dillon, 99 US. App. D. C.

332, 334, 239 F. 2d 953 (1956), stated:

In matters of this kind, plaintiffs from other jurisdie-

tions should normally resort to their »wn courts. The

courts of the District of Columbia, burdened as they

are, should not without good reason be asked to make

inquiry concerning events happening outside their

jurisdiction.

The concern with clearing the District of Columbia Court

dockets of foreign actions was elaborated in Dorati v.

Dorati, 342 A.2d 18 (DC. App. 1975) :

This court has emphasized in a recent series of cases

that when plaintiffs are residents of a neighboring

jurisdiction in which defendants are amenable to

54a

service, and the claim arose in and is governed by the

law of that jurisdiction, the courts of the District of

Columbia will generally decline to hear the case. Id.

at 23.

The Supreme Court has stated that the plaintiff’s choice

of forum, may be questioned if it is not the most appro-

priate choice. As stated in Gulf Oil, supra at p. 506, (Tyhe

general venue statute . . . do(es) not add up to a deciara-

tion that the court must respect the choice of the plaintiff.’’

The 9th Circuit has said:

If the operative facts have not occurred within the

forum of original selection and that forum has no

particular interest in the parties or the subject matter,

the plaintiff’s choice is entitled only to minimal con-

sideration. Pitts, supra at 817, quoting Pacific Car and

Foundry Co. v. Pence, 403 F.2d 949, 954 (1968)

Furthermore, in an action in which the claim was dis-

missed on the ground of forum non conveniens, the court

emphasized the importance of substantial contacts with the

forum:

(W)hen a suit has contacts with another jurisdiction

far more substantial than those with the forum, and

that jurisdiction is equally convenient to both parties,

the suit should be heard there. When a plaintiff ignores

a jurisdiction having substantial contacts with his case

and which ‘* not inconvenient for him, his choice of a

forum elsewhere is outweighed by the forum court’s

interest in clearing its calendar of foreign actions.

(Citations omitted.) Carr v. Bio-Medical Applications

of Washington, Inc., 366 A.2d 1089 1092 (DC.App.

1976), quoting Dorati supra at 23.

The court in Carr also de-emphasized the importance of

travel in the courts surrounding the District of Columbia

area:

55a

(T)he inconvenience to the parties and witnesses of

long distance travel—the factor regarded as of major

importance by federal circuits in other jurisdictions,

is not the only ground for dismissing an action in the

Superior Court. As the county seats in such adjacent

areas as Arlington and Fairfax, Virginia, or Mont-

gomery and Prince George’s, Maryland, are all within

a 20-mile radius of the District, travel problems pale

into insignificance as compared to such factors as the

public interest in reducing the volume of difficult cases

on court calendars already overcrowded Id. at 1092,

quoting, Frost v. Peoples Drug Store, Inc., 327 A.2d

810, 814 (DC. App. 1974).

Despite the fact that the plaintiff in Carr resided in the

District of Columbia, the court held that the public interest

would best be served by a dismissal. The tortious conduct

resulting in death occurred in Maryland (although the

plaintiff actually died at his home in the District of Colum-

bia after the failure of his kidney dialysis machine), the

defendant physicians were licensed to practice in Maryland,

and the owner of the treatment center was a Delaware

Corporation qualified to do business in Maryland.

From the face of the pleadings, the only contact which

the plaintiff administrator has with the District of Columbia

is that he maintains an office here. Yet, in Haynes v. Carr,

379 A.2d 1178 (DC.App. 1977), the court stated that the

fact that the appellee is employed in D.C. is not of ‘‘over-

riding significance. Id. at 1180. The action in Haynes was

transferred to Maryland because the only contact with the

District was the defendant’s place of employment. Fur-

thermore, the residence of an executor for the purposes of

venue is his personal residence, not that of the deceased.

Leonard v. Wharton, 268 F.Supp. 715 (Md. 1967), appeal

dismissed, 396 F. 2d 452 (1968), cert den, 393 U.S. 1028,

reh. den. 393 U.S. 1112. In the case at bar, it is the resi-

dence of the plaintiff in Maryland which would determine

56a

the location of sufficient contacts with the forum, not the

fact that he is employed in the District of Columbia.

Thus where the plaintiff does not reside in the selected

forum, nor dees the matter in controversy arise in the

selected forum, little weight must be given to the plaintiff's

choice. Delay and Daniels Inc. v. Allen M. Campbell Co,,

71 FRD 308 (D.D.C. 1976). The burden of the moving party

is less in a transfer action based on such facts. General

Instrument Corp. v. Mosleck Corp., 417 F Supp. 821, 823,

(D.Del. 1976).

A further factor which has prevented a transfer of venue

in District of Columbia Courts is the time delay in bringing

a motion to dismiss on the grounds of forum non conveniens.

In Deupree v. T. Le, 402 A.2d 328 (DC.App.1979), the court

held that a claim premised upon an automobile collision

which occurred in Maryland could be heard in the District

of Columbia because of an unwarranted delay in filing the

motion to dismiss. Because a trial date had been set and

extensive interrogatories answered, the court felt the need

to maintain the action in D.C. outweighed the burden of

deciding foreign litigation. In contrast, granting the motion

in the case at bar will not cause needless delay or expense

or constitute a waste of judicial resources.

Applying the principles to the facts of the ig staut case,

it is readily seen that this is a case in which the court

should, in the exercise of its sound discretion, transfer to

the United States District Court for the District of Mary-

land. It is undisputed that the accident happened in Mary-

land, that the plaintiff administrator is a Maryland resi-

dent, and that none of the defendants herein are residents

of, or transact any business in the District of Columbia.

The documents and witnesses pertaining to the occurrence

of the accident and the sale and subsequent leasing of the

vehicle in question, are upon information and belief, located

in the state of Maryland or the Commonwealth of Virginia.

Evidence as to the roadway condition and surrounding

57a

areas are located in Maryland. The only connection that

the instant case appears to have with the District of Colum-

bia is the fact that the decedent resided and practiced law

in the District, and the plaintiff has an office there. This is

certainly insufficient reason to deny a transfer of the case

to a more proper forum.

Respectively Submitted,

Leonard L. Lipshultz

John Llewelyn Hone

Suite 108 Montgomery Ctr.

8630 Fenton Street

Silver Spring, Md. 20910

587-8500

58a

APPENDIX O

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80 1012

Dante G. Grove

Executor of the Estate

Of Stuart Stiller

Plaintiff

vs.

Heisumanw BMW, Is. et al.

Defendants.

AFFIDAVIT IN SUPPORT OF BMW OF NORTH AMERICA. INC.'S

MOTION TO DISMISS FOR LACK OF JURISDICTION

OVER THE PERSON

Howand F. Breckennivor, being duly sworn deposes and

says:

(1) I am the Secretary of the corporation BMW of North

America, Inc. (hereinafter referred to as BMWNA) with

offices in Montvale, New Jersey.

(2) BMWNA is a corporation organized and existing

under the laws of the State of Delaware, with its principal

place of business in New Jersey.

(3) BMWNA is the importer and distributor of BMW

automobiles, parts and accessories manufactured in the

Federal Republic of Germany by the defendant BMWAG.

(4) All manufacturing and distribution activities are

carried on ontside of the District of Columbia. Title to

automobiles manufactured in Germany passes to the de-

fendant BMWNA in the Federal Republic of Germany.

None of the automobiles shipped to the United States of

America are received in the District of Columbia but are

received in a nuinber of ports along the East, West and

Gulf Coasts of the United States of America. Thereafter,

said automobiles are distributed by BMWNA at the port

of entry to area dealers. Title thereto is transferred to

dealers when vehicles are delivered to the dealers’ common

carrier.

(5) Neither this defendant, nor the defendant Bayerische

Motoren Werke AG (hereinafter referred to as BMWAG),

does business in the District of Columbia, has never quali-

fied to do business there, and has no office or place of

business therein. Neither this defendant, nor the defendant

BMWAG, has appointed an agent to accept service of pro-

cess in the District of Columbia. Neither of said defendants

have any personnel in the District of Columbia, and do not

own or control any property, real or personal, tangible or

intangible in the District. Neither BMWNA nor BMWAG

maintain any inventory or telephone listing there, nor do

said defendants solicit business in the District of Columbia.

BMWAG does not maintain any bank account in the District

of Columbia. BMWNA maintains a bank account at the

Riggs National Bank in the District of Columbia entitled

Washington Regional BMW Dealer Advertising Association

BMW of North America, Inc., which contains funds sup-

pliea by the BMW Washington, D. C. area dealers for joint

advertising in the metropolitan area. This account is super-

vised by BMWNA, rather than by the dealers, to insure

that all participating area dealers receive equal treatment

with regards to such advertising.

(6) Although BMWNA and BMWAG’s products are

sold in Maryland and Virginia at retail, such sales are

made by retail dealers on their own behalf and for their

own benefit and not on behalf of this defendant or the

defendant BMWAG. Neither BMWNA or BMWAG have

any dealers or contract with any dealers in the District of

Columbia, All sales of BMW automobiles in Maryland or

Virginia are made by BMW dealers on their own behalf.

60a

Neither of said defendants derive revenue from the sale

of BMW automobiles in the District of Columbia.

(7) Neither this defendant nor the defendant BMWAG

perform any service or repair work in the District of Co-

lumbia, nor is any such work performed on behalf of either

of said defendants.

(8) BMWNA did not sell the automobile involved in this

litigation either to the plaintiff’s decedent, or to the Mary-

land National Bank, nor to any other person or organiza-

tion within the District of Columbia, but rather sold said

automobile and delivered it to the defendant Heishman’s

common carrier in either the State of Maryland, Virginia

or New York. The entire transaction in question took place

outside of the District of Columbia.

/s/ Howangp F. Baecxewxnincr

Howard F. Breckenridge

Secreta

Sussceisep anv Swon to before me this 24th day of July,

1980.

/8/ Sonvra Atias

Sondra Atlas

A Notary Publie of New Jersey

(Seal) My Commission Expires May 9, 1982

6la

APPENDIX P

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80 1012

Dax. G. Grove

Executor of the Estate of Stuart Stiller

2033 M Street, N.W.

Washington, D.C. 20036,

Plaintiff,

Heisuman BMW, Inc.

3154 Jefferson Davis Highway

Arlington, Virginia 22202,

BMW or Nonru Amenica, Inc.

BMW Plaz.

Montvale, New Jersey 07645,

Bavxniscnr Motoren Werke AG.

BMW Haus

Petuelring 130

Postfach 40 02 40

D-8000 Munchen 40

Federal Republic of Germany,

Lone & Bnoukaur GmbH.

Muehlheimer Strasse 163

Offenbach am Main

Federa! Republic of Germany,

Defendants

MOTION TO DISMISS FOR WANT OF JURISDICTION

IN THE ALTERNATIVE FOR CHANGE OF VENUE.

Comes now the defendant Bayerische Motoren Werke,

AG., (hereinafter referred to as BMWAG) by and through

62a

Lipshultz and Hone, Chartered, Leonard L. Lipshultz and

John Llewellyn Hone and moves this Honorable Court for

an order dismissing the complaint against this defendant,

for want of in personam jurisdiction or, in the alternative,

to change the venue for this litigation, and for reasons

therefor states as follows:

1) The plaintiff, who is a resident of the state of Mary-

land, has brought suit against the defendant, BMWAG, for

injuries resulting in death sustained in an automobile acci-

dent which occurred in the state of Maryland. The plain-

tiff alleges, inter alia, that said death was caused by a

defect in a 1978 BMW 530i manufactured by this de-

fendant and sold by it and defendant BMW of North

America, Inc., (hereinafter referred to as BMWNA).

2) This defendant is a business affiliation similar in

nature to a corporation and is organized under the laws

of the Federal Republic of Germany.

3) The Defendant BMWNA is a corporation established

under the laws of the State of Delaware, with its principal

place of business in the State of New Jersey.

4) The plaintiff has not alleged, and this defendant de-

nies that any acts of the defendant relevant to this litiga-

tion occurred within the District of Columbia, nor are the

defendants, BMWNA or BMWAG, engaged in business in

the District. Neither defendant is engaged in activities

which establish sufficient contacts with the District of Co-

lumbia to warrant the assertion of jurisdiction thereover.

5) The cause of action complained of arose in the State

of Maryland, and therefore, Maryland substantive law ap-

plies. Further, there is no proper allegation that venue lies

in the District of Columbia.

6) Upon the face of the pleadings, it appears that the

BMW automobile involved herein was sold by a Virginia

corporation, Heischman’s BMW Inc., to a Maryland Cor-

63a

poration, Maryland National Bank, which leased said auto-

mobile to the law firm of Stiller, Adler, Schwartz, and

Kaswell, P.C. Upon information and belief, each such trans-

action occurred in the State of Maryland or the Common-

wealth of Virginia, but not in the District of Columbia.

7) Such other and further grounds as may be advanced

upon a hearing of this motion.

Wuererore, the defendant requests that this Court enter

an Order granting the defendant’s Motion To Dismiss For

Want of Jurisdiction or in the Alternative for Change of

Venue.

LipsHULiz AND Hone, CHARTERED

Leonard L. Lipshultz

John Llewellyn Hone

Suite 108 Montgomery Center

8630 Fenton Street

Silver Spring, Maryland 20910

587-8500

CERTIFICATE OF SERVICE

I Heresy Certiry that a copy of the foregoing Motion

To Dismiss For Want of Jurisdiction Or In The Alterna-

tive For Change of Venue, Memorandum of Points and

Authorities In Support of Defendant’s Motion To Dismiss

For Want of Jurisdiction and the unexecuted Affidavit of

Jost J. Schmitt was mailed, postage prepaid this ——

day of , 1980 to Paul Martin Wolfe, Esq., Hill Build-

ing, Washington, D.C. 20006, attorney for Plaintiff Grove,

John Jude O’Donnell, Esq., 810 American Security Building

730 15th Street, N.W., Washington, D.C. 20005, attorney

for Defendant Heishman, BMW, Inc., and to Daniel Buko-

vac, Esq., 1850 K. Street, N.W., Washington, D.C. 20006,

attorney for Defendant Lohr & Bromkamp GmbH.

Leonard L. Lipshultz

64a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80 1012

Dax G. Grove

Executor of the Estate Of Stuart Stiller

Plaintiff

Vs.

HisN BMW, Isc., et.al.

Defendants

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF DEFENDANT'S

MOTION TO DISMISS FOR WANT OF JURISDICTION

OR IN THE ALTERNATIVE FOR CHANGE OF VENUE

This defendant adopts the Memorandum of Points and

Authorities In Support of Defendant’s Motion to Dismiss

For Want of Jurisdiction Or In The Alternative For Lack

of Venue in support of this Motion filed by Defendant

BMW of North America Inc.

LipsHULTz AND Hone, CHARTERED

Leonard L. Lipshultz

John Llewellyn Hone

Suite 108

Montgomery Center

8360 Fenton Street

Silver Spring, Maryland 20910

587-8500

65a

APPENDIX Q

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80 1012

Dax WL G. Grove

Executor of the Estate Of Stuart Stiller

Plaintiff

vs.

Heishman BMW, Inc., et.al

Defendants

AFFIDAVIT IN SUPPORT OF BAYERISCHE MOTOREN WERKE

AG’S MOTION TO DISMISS FOR LACK OF JURISDICTION

OVER THE PERSON

Jost J. Schmitt being duly sworn deposes and says:

(1) I am a citizen of the Federal Republic of Germany

and an attorney employed by Bayerische Motoren Werke,

AG, (hereinafter referred to as BMWAG) with offices in

Munchen, Federal Republic of Germany.

(2) BMWAG is a business affiliation similar to a cor-

poration organized under the laws of the Federal Re-

public of Germany, with its principal place of business in

Munchen, Federal Republic of Germany.

(3) BMWAG is the manufacturer of BMW automobiles

which are manufactured in the Federal Republie of Ger-

many.

(4) All manufacturing and distribution activities are

carried on outside of the United States. Title to auto-

mobiles manufactured in Germany passes to the defendant

BMWNA in Germany. None of the automobiles received

in the United States of America are shipped to the Dis-

trict of Columbia but are shipped to a number of ports

66a

along the east and west coasts of the United States of

America, thereafter, said automobiles are distributed by

defendant BMWNA at the port of entry to area dealers.

Title thereto is transferred to dealers at the point of entry.

(5) This defendant does not do any business in the

District of Columbia, has never qualified to do business

there, and has no office or place of business therein. This

defendant, has not appointed an agent to accept service

of process in the District of Columbia, or has any per-

sonnel in the District of Columbia. It does not own or

control any property, real or personal, tangible or in-

tangible in the District, nor does it maintain any bank

account, inventory, or telephone listing there, nor does it

solicit business in the District of Columbia.

(6) Although BMWAG’s products are sold in Maryland

and Virginia at retail, such sales are made by retail dealers

on their own behalf and for their own benefit and not on

behalf of this defendant. This defendant does not have any

dealers in the District of Columbia. All sales of BMW

automobiles in Maryland or Virginia are made by BMW

dealers on their own behalf. This defendant does not derive

revenue from the sale of BMW automobiles in the District

of Columbia.

(7) This defendant does not perform any services or

repair work in the District of Columbia, nor is any such

work performed on behalf of said defendant.

(S) BMWAG did not sell the automobile involved in

this litigation either to the plaintiff’s decedent, or to the

Maryland National Bank, nor to any other person or or-

ganization, but was sold to defendant, BMWNA in the

Federal Republic of Germany.

Jost J. Schmitt

Susscrisep AND Sworn to before me this —— day of

June 1980.

Notary Public

My Commission Expires:

67a

APPENDIX R

Exhibit A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-1012

Dax L G. Grove,

Executor of the Estate of Stuart Stiller,

Plaintiff,

Hxisnuax BMW. Inc.; BMW or

Nonru America, INC.; BayeriscHe

Moronkx Werke AG.; and Lonn &

Bnou kau GmbH.

Defendants.

AFFIDAVIT IN SUPPORT OF MOTION TO DISMISS

OF DEFENDANT LOHR & BROMKAMP GmbH.

Hermann Marten being duly sworn, deposes and says:

1. I am the Managing Director (‘‘Geschiiftsfiihrer’’) of

Lohr & Bromkamp GmbH (‘‘Lobro’’), a defendant in this

action, and make this affidavit in support of Lobro’s mo-

tion to dismiss for lack of jurisdiction over its person.

2. I have been Managing Director of Lobro since 1974,

and have held various other positions with the Company

since joining it in 1953. In my present position, I am

generally responsible for all Company affairs, including

the sales and distribution of all Lobro’s products. | make

this affidavit based on personal knowledge gained during

my tenure at Lobro.

3. Lobro is a corporation organized under the laws of the

Federal Republic of Germany, with its sole place of busi-

ness in Offenbacn am Main, Federal Republic of Germany.

68a

4. Lobro does not have and has never had an office or

other place of business anywhere in the United States of

America.

5. Lobro does not have and has never had any employees

in the United States,

6. Lobro does not and has never owned, possessed, used

or had an interest in any real property in the United

States, nor does it have any other assets of any kind there.

7. Lobro does not and has never transacted any business,

nor contracted to supply or perform any character of

work or services, anywhere in the United States.

8. Lobro has never contracted to insure or act as surety

for or on any person, property, or risk, contract, obligation,

or agreement located, executed, or to be performed within

the United States.

9. Lobro is completely independent from and has abso-

lutely no control over any of the activities of Bayerische

Motoren Werke AG (BMW“) or any of the other de-

fendants in this action; neither BMW nor any of the other

defendants perform any activities on behalf of Lobro or

act as agents for Lobro.

10. Lobro manufactures all of its products at its plants

located at Offenbach am Main, Federal Republic of Ger-

many. Lobro’s principal products are constant velocity

joints for use in automobiles with independant suspension.

11. Lobro sells virtually all of its products directly to

automobile manufacturers located in the Federal Republic

of Germany or elsewhere in Europe, including BMW. Lobro

does not and has never sold its products to any automobile

manufacturers located in the United States.

12. All of Lobro’s sales to BMW take place in the Federal

Republic of Germany and are final. Lobro relinquishes title

and all control of its products when it delivers those prod-

69a

ucts to BMW. Such sales are governed by the laws of

Germany.

13. Lobro has no control over the method of installation

of its products into automobiles by BMW or any other

manufacturers or over the selection of those types or

models of automobiles into which its products are installed.

Lobro has no control over the sales, distribution or expor-

tation from the Federal Republic of Germany of automo-

biles into which its products are installed, nor over the

subsequent servicing of such automobiles.

14. Lobro’s constant velocity joints are sold to BMW and

other European automobile manufacturers at prices rang-

ing from approximately DM 56 to DM 72 (roughly $33-

$12.50 at an exchange rate of 1.7 DM per Dollar) and thus

represent a minor fraction (well under 1%) of the selling

price of a BMW automobile.

15. Iam unable to quantify exactly the amount of revenue

Lobro derives from sales of its products to BMW and

other European manufacturers which are incorporated in

automobiles which such manufacturers eventually might

export to the United States. However, based on informa-

tion obtained from automobile manufacturers as to the

approximate percentage of their production which each

exports to the United States, I would estimate that Lobro’s

total annual revenue from such sales would not exceed

DM 24 million (roughly $14 million). That would represent

less than 10% of Lobro’s annual sales of approximately

DM 300 million. I am unable to estimate the amount of

revenue which Lobro possibly could be considered to derive

indirectly as the result of the eventual use in either Mary-

land or the District of Columbia of BMW or other auto-

mobiles containing its products, but it surely would be a

small amount.

16. Lobro employs no salesmen or sales agents anywhere

in the United States and does not actively solicit any busi-

70a

ness there. It does receive orders on an irregular basis from

certain independent distributors of automobile parts lo-

cated in the United States. All sales made in response to

such orders, are made FOB German ports, with title pass-

ing to the purchaser in Germany. To the best of my knowl-

edge, no such shipments are made to purchasers located

in either Maryland or the District of Columbia. Lobro has

no information as to the subsequent distribution of its

products by such purchasers, and I do not know whether

any of these products eventually find their way into either

Maryland or the District of Columbia. The total volume of

Lobro’s export sales to the United States purchasers in

any year would not exceed DM 5 million, or less than 2%

of Lobro’s total sales.

17. Lobro has never been a party in any administrative

or judicial proceeding in the United States. While I am

aware that a limited percentage of our products eventually

may find their way to the United States, as indicated above,

Lobro carries on no activity whatsoever there and, to the

best of my knowledge, it does not avail itself of any of

the privileges or benefits of United States law. I quite

frankly had never expected that Lobro, which conducts all

of its business and makes all of its sales in Germany, could

be called into court in the United States.

/s/ Hermann Marten

Hermann Marten

Sworn to before me this 28th day of July, 1980

/8/ Barsana T. Witson

Notary Public

71a

APPENDIX S

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-1012

(Green, J.)

Dante G. Grove,

Executor of the Estate of Stuart Stiller

Plaintiff,

HetsumMan BMW, Inc.

BMW or Nortu America, Inc.

BayeriscHe Motoren Werke AG.

Lone & BromKamp GmbH.

Defendants.

AFFIDAVIT OF ROBERT M. ADLER

Rosert M. Apuer, being duly sworn, deposes and says:

1. I am an attorney with the law firm Stiller, Adler,

Schwartz & Kaswell, P.C., Suite 720, 1825 K Street, N. W.,

Washington, D.C. 20006. This law firm was started in

June, 1974, by Stuart Stiller, Lawrence H. Schwartz and

myself and I worked with Stuart Stiller from that time

until his death on August 4, 1979.

2. In the summer of 1978, our law firm, then Stiller,

Adler & Schwartz, P.C., leased three bMW automobiles

for my use and the use of my partners, Stuart Siller and

Larry Schwartz. I am familiar with the circumstances

surrounding the sale and lease of those automoblies.

3. Each of the three automobiles leased by the firm was

supplied by Heishman BMW, Inc., and all of our negotia-

tions were conducted with Truman Morrison, III, who was

employed as a part-time retail car salesman with Heish-

72a

man. Morrison was then employed on a full-time basis as

an attorney with the Public Defender Service, and he is

now a Judge of the Superior Court of the District of

Columbia.

4. In July 1978, I suggested to Stuart Stiller that the

firm buy or lease BMWs for our use. Stiller agreed and

we promptly telephoned Truman Morrison at the Public

Defender Service in the District to indicate our interest.

This was our first conversation with Morrison or anyone

connected with Heishman about our firm’s buying or leas-

ing BMWs. Stuart Stiller and I were on the speaker phone

in his office. We told Morrison that we wanted to buy or

lease 2 or 3 BMWs, and asked him what kind of a deal

he could put together on such a volume transaction. We

discussed the possible deal in general terms that day, and

Morrison gave us some rough figures either that afternoon

or the next day by a telephone call to our office.

5. On the basis of the rough figures Morrison provided,

Stuart Stiller, Larry Schwartz and I decided that the firm

would proceed to lease three cars. We then met with Morri-

son in Stuart Stiller’s office at the firm to discuss models,

options and prices in more detail. Stuart Stiller, Larry

Schwartz, Truman Morrison and I were all present at the

meeting, which lasted approximately one hour. Morrison

had brought catalogs showing the various models, options

and color samples. We discussed how various options (such

as magnesium wheels) would possibly affect the resale

price of the car. In diseussing the stereo system options,

Morrison stated at this meeting that he would supply,

without charge, the cassette tape decks. At the conclusion

of this meeting, we had made a firm decision to lease three

cars, and we so informed Morrison.

6. Immediately after this meeting, Truman Morrison

drove Larry Schwartz out to Heishman to enable Larry

to test drive a car and review options. I test drove a BMW

73a

that evening at VOB Datsun in Maryland. I do not know

whether Stuart Stiller ever test drove a car.

7. After the meeting in Stuart Stiller’s office, we had

several additional telephone conversations with Truman

Morrison to finalize the terms of the leases. On each occa-

sion the call was between our offices in the District and his

office at the Public Defender Service in the District. We

never called Morrison at Heishman.

8. In sum, all of our negotiations over the terms of the

sale and lease of the cars took place in the District of

Columbia. None of our negotiations occurred in Virginia

or Maryland.

9. All three cars were financed by the Maryland National

Bank. We did not negotiate the terms of the lease with

the Bank, however. The entire financing package was put

together by Heishman, and our negotiations were with

Heishman.

10. Truman Morrison notified us by telephone calls to

our offices in the District when the three cars were ready

for delivery. Larry Schwartz and I picked our cars up at

Heishman, and signed the necessary papers connected with

the lease of the cars at that time. I do not know whether

Stuart Stiller picked his car up at Heishman, or whether

it was delivered to him in the District.

11. The invoices for each of the three cars leased by the

firm indicate that a District of Columbia sales tax was

charged. Each of the three cars was registered in the Dis-

trict of Columbia, and Heishman did all the work necessary

to secure District of Columbia tags for the cars.

12. Stuart Stiller lived and worked in the District of

Columbia, and he used his car principally in the District

of Columbia.

13. I understand that this Affidavit will be submitted by

Daniel G. Grove, Executor of the Estate of Stuart Stiller,

74a

in support of his opposition to a motion by two of the

defendants to dismiss the case for lack of jurisdietion or

transfer it to the Distriet of Maryland.

Robert M. Adler

Subscribed and sworn to before me this — day of

July, 1980.

Notary Public

My Commission Expires:

My Commission Expires April 30, 1985

75a

APPENDIX T

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-1012

(Green, J.)

Daniet G. Grove,

Executor of the Estate of Stuart Stiller

Plaintiff,

HetsumMan BMW, Inc.

BMW or Nonrn America, Inc.

BayeriscHe Motoren Werke AG.

Lour & BromKamp GmbH.

Defendants.

ANSWERS TO INTERROGATORIES

1. State the name, address, date of birth, occupation of

the person answering these interrogatories.

ANSWER:

Daniel G. Grove, 2033 M Street N.W., Washington D.C.,

20036 ; born April 24, 1940; attorney-at-law.

7. Identify and describe in detail the roadway where the

occurrence took place, and include:

a) the exact location where the occurrence took place

by reference to road names, intersections, curbs,

and other landmarks;

b) the number of lanes of travel;

e) the roadway and shoulder surface;

d) the speed limit;

76a

e) all relevant traffic control devices;

f) the condition of the road with respect to whether

it is straight, curved, winding, uphill, ete.;

g) the width of the road at the scene of the occurrence,

ANSWER:

a) The accident occurred on Wisconsin Avenue in

Bethesda, MD, near the intersection of Wisconsin Avenue

and DeRussey Parkway. The car began to swerve just south

of the intersection, and collided with a tree on the right

side of Wisconsin Avenue at a point opposite where De-

Russey Parkway intersects with Wisconsin Avenue.

b) There were three lanes of travel in the north-bound

direction of Wisconsin Avenue at the location of the

accident.

e) The surface of the roadway was asphalt, and the

surface to the right of the roadway was dirt and grass.

d) The speed limit was 35 mph.

e) None.

f) Straight and grade.

g) The road was three lanes wide.

11. State with respect to the occurrence in question, the

speed at which the deceased was traveling before impact,

and at the moment of impact, and how said knowledge was

obtained. If through a witness, state the full name and

present address of said individual.

ANSWER:

The deceased was travelling at approximately 25 to 30

m.p.h. when the car began to swerve. His speed at the

moment of impact was approximately the same. This knowl-

77a

edge was obtained from an eyewitness, Parbara Butler,

whose present address is 4205 South Atlantic Avenue,

Daytona Beach, Florida 32019.

19. With respect to the ownership of the subject vehicle,

state:

a) the name and address of the owner and of any prior

owners;

b) the present owners relationship to the deceased;

e) from whom the vehicle was purchased or leased;

d) the salesman with whom all purchase arrangements

were made;

e) the purchase or leasing price;

f) the means and source of payment for said vehicle;

g) how many miles the vehicle had been driven when

such owner acquired title and at the time of the

occurrence at issue.

ANSWER:

a) At the time of the accident, the automobile was

owned by Maryland National Bank, 6192 Oxon Hill Road,

Oxon Hill, MD 20021, and leased to Stiller, Adler and

Schwartz, P.C. As executor of Stuart Stiller’s estate, I am

the present owner of the vehicle.

b) I am the executor of Stuart Stiller’s estate.

c) The vehicle was purchased from defendant Heish-

man.

d) All purchase and lease arrangements were made

with a Heishman salesman, Truman Morrison III.

e) The purchase price was $16,539.

78a

f) Stiller, Adler and Schwartz, P.C. made the lease

payments on the vehicle.

g) The vehicle was new when it was purchased by the

Maryland National Bank and leased to Stiller, Adler and

Schwartz. It had approximately 11,400 miles on it at the

time of the accident.

* * *

26. State the name and address of all persons who were

at the scene or arrived there within one hour following

the occurrence, including all eyewitnesses to the occurrence.

ANSWER:

1. Barbara Butler, address stated above.

2. Dr. Osoth Lekagul, 7425 Arlington Road, Bethesda

Maryland.

3. Sgt. Vayer, Bethesda-Chevy Chase Rescue Squad.

4. Sgt. Cole, Bethesda-Chevy Chase Rescue Squad.

5. Officer Michael Trautner, Montgomery County Police

Department.

27. State the name and address of all persons who in-

vestigated the occurrence on your behalf.

ANSWER:

1. Robert Brenner, 6400 Goldsboro Road, Washington,

D.C. 20034

2. Robert V. Pautsch, P.O.Box 66, Grosse Ile., Michigan

48138.

3. Karl Dehn, 15835 Fields Road, Rockville, MD.

40. State the names, addresses and telephone numbers of

each and every person who inspected said vehicle at the

79a

scene of the occurrence or afterwards at any place of

storage.

ANSWER:

The examination of the automobile on December 3, 1979,

was conducted by Dr. Brenner, Mr. Pautsch and Mr. Dehn.

On August 7, 1979, the automobile was examined by Officer

Michael W. Troutner, Montgomery County Police, Sgt. L.

Wilt of the Maryland State Police, and another Maryland

State Police Officer whose name is unknown. Dr. Brenner

was present during that examination.

41. If the automobile involved in the occurrence was

towed from the scene, state the following:

a) where said vehicle was taken;

b) the name, address or other identity of each tow

truck operator and tow truck owner in any way

involved in the retrieval, hooking up and towing of

said vehicle.

ANSWER:

The automobile was towed from the scene by James Fried

of Dale’s Sunoco. It was towed to Dale’s Sunoco, 7824

Wisconsin Avenue, Bethesda, MD, where it remained until

August 6, 1979.

42. State the name, address and telephone number of

each and every person who took, has taken, or who has

ever had possession of any part whatsoever from sais

vehicle, whether to do repair work, make alterations, con-

duct tests, or in the wrecking or junking of the vehicle, or

a resale of the vehicle, or for the purpose of this litigation,

and identify precisely the particular parts,

ANSWER:

From the time of its purchase until the date of the

accident, the automobile was in the posession of Stuart

80a

Stiller. It was in the possession of defendant Heishman

for repairs on numberous occasions, as described above.

After the accident, it has been in the possession of Dale’s

Sunoco, the Montgomery County Police, and Dehn’s Auto

Repair. Parts are now in the possession of my attorney.

/s/ Dax G. Grove

Daniel G. Grove

Subscribed and sworn to before me this 3rd day of

November, 1980.

/s/ Racuet L. Stevart

Notary Publie

My Commission expires: 8/14/83

8la

APPENDIX U

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action Number: 80-1012

Danie. G. Grove

Executor of the Estate of

Stuart Stiller

Plaintiff

vs.

HeisHmMan BMW, Inc.

BMW or Nortu America, Inc.

BayeriscHe Motroren Werke AG,

Loner & Bnoukaur GmbH

Defendants

OPPOSITION OF THE DEFENDANTS, BMW OF NORTH

AMERICA. INC., AND BAYERISCHE MOTOREN WERKE AG,

TO PLAINTIFF'S MOTION FOR RECONSIDERATION

Comes now the defendants, BMW of North America, Inc.

and Bayerische Motoren Werke AG (hereinafter referred

to respectfully as BMWNA and BMWAG) by their counsel,

Leonard L. Lipshultz, John Llewellyn Hone and Lipshultz

and Hone, Chartered, and opposes the Plaintiff's Motion

for Reconsideration, and as reasons therefore states:

1. That this action initially should have been brought in

Maryland as shown by the pleadings presently filed with

this Court.

2. That the Memorandum Opinion of this Court, dated

February 27, 1981, was the result of the Motion of the

defendants, BMWNA and BMWAG and Lohr and Brom-

kamp GmbH (Lohr), for reconsideration of the Order of

the Court denying the Motions to Dismiss, or in the Alter-

native, to Transfer the action to the District of Maryland.

82a

Said Motions were properly before the Court as discussed

during the status calls on September 17, 1980, and Novem-

ber 13, 1980.

3. That the February 27, 1981, Memorandum Opinion

recognized the propriety of transfer and the obvious need

to advance this litigation beyond jurisdictional issues.

4. That substitution of an executor residing in the Dis-

trict of Columbia at this stage of the proceedings is in-

appropriate.

5. That this Court should not reconsider its decision of

February 27, 1981, based on actions which the plaintiff has

failed to perform.

6. That it is unnecessary to delete any portions of the

February 27, 1981, Memorandum Order.

Wurnxronx, defendants, BMWNA and BMWAG respect-

fully request this Honorable Court to deny the plaintiff’s

Motion for Reconsideration.

Respectfully submitted

Leonard L. Lipshultz

John Llewellyn Hone

Suite 108-Montgomery Center

8630 Fenton Street

Silver Spring, Mary!and 20910

587-8500

Attorneys for BMW of North America, Inc.

and Bayerische Motoren Werke AG

83a

CERTIFICATE OF SERVICE

I Heresy Certiry that a copy of the foregoing Opposi-

tion of the Defendants, BMW of North America, Inc. and

Bayerische Motoren Werke AG, to Plaintiff’s Motion for

Reconsideration along with Points and Authorities in Sup-

port thereof, were mailed, postage prepaid, this 20th day

of March, 1981 to Paul Martin Wolfe, Esquire, Hill Build-

ing, Washington, D. C. 20006, Attorney for Plaintiff; John

Jude O’Donnell, Esquire, 810 American Security Building,

730 15th Street, N. W., Washington, D. C. 20005, Attorney

for Defendant Heishman BMW and to Daniel Bukovac,

Esquire, 1850 K Street, N. W., Washington, D. C. 20006,

Attorney for Defendant Lohr & Bromkamp GmbH.

John Llewellyn Hone

84a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action Number: 80-1012

Danie. G. Grove

Executor of the Estate of

Stuart Stiller

Plaintiff

vs.

Hetsuman BMW, Inc.

BMW or Nortu Amenica, Ixc.,

BayeriscHe Mororen Werke AG,

Lonn & Bromkamp GmbH

Defendants

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF THE DEFENDANTS’ BMW OF NORTH AMERICA AND

BAYERISCHE MOTOREN WERKE AG OPPOSITION TO

PLAINTIFF'S MOTION FOR RECONSIDERATION

The United States District Court for the

District of Maryland Is the Proper Forum

of the Instant Action.

Section 1391 of Title 28 of the United States Code de-

fines the appropriate forum for this case. That statute

provides in pertinent part:

(a) a civil action wherein jurisdiction is founded only

on diversity of citizenship may . . . be brought only

in the judicial district where all the plaintiffs or

all the defendants reside or in which the claim

arose. 28 U.S.C. 1391 (a).

Here the plaintiff is a resident of Maryland as an execu-

tor’s domicile is his residence for purposes of venue.

Leonard v. Wharton, 268 F.Supp 715 (D.Md.1968), appeal

dismissed, 396 F. 2d 452, cert. den., 393 U.S. 1028 (1969).

- 85a

Also, Bayerische Motoren Werke AG and BMW of North

America, Inc. (hereinafter referred to respectfully as

BMWAG and BMWNA) are not residents of the District

of Columbia because neither of the BMW defendants is

incorporated, licensed to do business or actually is doing

business within the District of Columbia, See, 28 U.S.C.

1391 (e). Affidavit of Howard Breckenridge in Support of

BMWNA’s Motion to Dismiss for Lack of Jurisdiction

Over the Person, and Affidavit of Jost J. Schmitt in Sup-

port of BMWAG’s Motion to Dismiss for Lack of Juris-

diction Over the Person.

Defendants Lohr and Bromkamp GmbH (hereinafter

Lohr) and Heishman BMW, Inc. (hereinafter Heishman)

are likewise not incorporated or licensed to do business

within the District of Columbia. See Affidavit of Hermann

Marten in Support of Motion to Dismiss of Defendant

Lohr and Bromkamp GmbH. Heishman’s contact with the

District was, in this case, fortuitous since Heishman actu-

ally sold the car which is the subject of this lawsuit to a

Maryland corporation, and in any event, Heishman has

expressed no objection to the transfer of this action.

Thus, since plaintiff is a resident of the State of Mary-

land and none of the defendants are residents of the Dis-

trict of Columbia, venue is improper under 28 U.S.C. § 1391

(a). The only proper forum remaining under § 1391 is the

forum“. .. in which the claim arose.’’ 28 U.S.C. 1391 (e).

Since Maryland is the place of the alleged wrong, that is,

the place of the injury and subsequent death, Maryland

is the appropriate forum. Lamont v. Haig, 590 F.2d 1124

(D.C. Cir. 1978).

The Court is also referred to this defendant’s previous

Memorandum of Law in support of their Motions contest-

ing the Court’s jurisdiction which are incorporated by

reference.

86a

The Motion of the Defendants Was Properly Before

This Court When the Court Issued Its February 27,

1981, Memorandum Opinion.

The defendants, BMWAG and BMWNA first moved this

Court to dismiss for want of jurisdiction, or alternatively,

for a change of venue, on June 17, 1980. The Court denied

those Motions on July 23, 1980, and on August 1, 1980,

both BMW defendants moved for a reconsideration of that

Order. After a reconsideration was denied, defendant Lohr

and Bromkamp GmbH (Lohr) on September 2, 1980, moved

to dismiss for lack of personal jurisdiction. Af

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