Record and brief — Baxter v. Mouzavires

one

81 ~ 8 8 ‘ Office-Surreme Court. U.S

NO. FILED g

Noy 3 198)

IN THE ALEXANOC? L STEVAS,

Supreme Court of the United States

OCTOBER TERM, 1981

HARVEY BAXTER, et al.,

~ Petitioners,

VERSUS

WILLIAM E. MOUZAVIRES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

RICHARD W. BOONE

Wilkes & Artis

Suite 600

1666 K Street, N.W.

Washington, D.C. 20006

(202) 457 - 7800

ATTORNEY FOR PETITIONERS

QUESTION PRESENTED

Whether a District of Columbia court may, consistent with

the due process clause of the Constitution, collect fees for

legal services from Petitioners A Florida law firm. under the

“transacting any business” provision of the District long-arm

statute where defendants only contact with the District was to

retain the plaintiff, a District of Columbia attorney. to assist

them in Florida with the defense of litigation pending in a

Florida court. /

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TABLE OF AUTHORITIES

Page

Cases:

Basil, Inc. v. Guardino, 424 AZd 70 (D. C. App. 1980) ...... 8

Environmental Research International, Inc. v. Lock -

wood Greene Engineers, Inc., 355 A. 2d 808 (D. C.

e ghee. swe bso cr. 3,6, 7

Hanson v. Deckla, 357 v. s. 235 (1958) 0k9h 7, 8

International Shoe Co. v. Washington, 326 U.S. 310 (1945) 5

Willis v. Willis, U.S. App. D. C. i

ZZ 8

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

D ei ete Ul. „ 7

Statutes:

D. C. Code 1973 § 13-423

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

HARVEY BAXTER, et. al.,

Petitioners,

versus

WILLIAM E. MOUZAVIRES,

' Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

PRELIMINARY STATEMENT

Petitioners, Harvey Baxter, et. al., pray that a Writ of Certio-

rari issue to review the judgment and opinion of the District

of Columbia Court of Appeals entered on August 5, 1981.

OPINION BELOW

The opinion of the District of Columbia Court of Appeals,

is not yet reported and is attached as Appendix A.

JURISDICTION

The judgment of the District of Columbia Court of Appeals

was entered on August 5, 1981. Jurisdiction of this Court is

invoked pursuant to 28 U.S.C.§ 1257.

STATUTE INVOLVED

The statute involved, D. C. Code 1973, §13-423, is attached

hereto as Appendix B.

STATEMENT OF THE CASE

In the instant action Respondent, a Washington attorney,

sought recovery in the Superior Court of the District of Colum-

bia of money alleged to be due to him as fees for legal services

rendered to Petitioners, a North Miami Beach, Florida, law

firm and its individual partners.

Sometime during the month of April, 1974, a client of the

Petitioners’ law firm became involved in a lawsuit filed in a

federal district court in Florida. The Florida action involved

claims that Petitioners’ client was guilty of trademark infringe-

meat, unfair competition and false designation of foreign

goods in interestate commerce. The claims against Petitioners’

client a Florida resident, all arose out of transactions in Florida.

Because Petitioners’ firm lacked technical expertise in patent

and trademark law, their client was advised to retain Respon-

dent, a patent and trademark attorney with offices in the

District of Columbia, to assist in the defense of the Florida

litigation. The client retained Respondent who thereafter set

about defending him, together with Petitioners, against the

claim being asserted in the Florida court.

It was not disputed that Respondent was retained to assist

in defending the Florida litigation and that, because he was not

required to use Patent Office facilities extensively, where he

worked was immaterial. In fact, Respondent subsequently did

do work in both the District of Columbia (presumably since

his offices were here and it was convenient for him to do so)

and in Florida.

When Respondent concluded that he had not been compen-

2

sated adequately for his services in the Florida litigation, this

action ensued.

Respondent's Complaint alleged, inter alia, that he performed

legal services for Petitioners in the District of Columbia“. . .

including review of files in the U.S. Patent Office, legal research,

review of documents and assistance to plaintiffs [sic] in the

defense of Civil Action No. 74-431 in the U.S. District Court

for the Southern District of Florida

Respondent's complaint failed to allege that Petitioners (1)

were organized under the law of the District of Columbia;

(2) were authorized to do business in the District of Columbia;

(3) maintain any office, agent, or employees in the District of

Columbia; or (4) that the Petitioners themselves performed any

aspect of their work either as attorneys in general or in con-

nection with the Florida civil action within the District of

Columbia. Further, the Record in this matter showed that,

in fact, Petitioners had no such contracts with the District.

Petitioners were all served by certified mail at their place

of business in North Miami Beach, Florida.

Petitioners timely moved to quash service of process upon

them and to dismiss the action on the grounds that the District

of Columbia court could not permissibly exercise personal

jurisdiction over them under the provisions of D. C. Code

§ 13-423(a). Petitioners asserted in their moving papers that

the case was directly in point with and controlled by the

en banc opinion of the District of Columbia Court of Appeals

in Environmental Research Internationai, Inc. v. Lockwood

Greene Engineers, Inc., 355 A2d 808 (D. C. App. 1976).

The Supreior Court agreed and granted the motion to quash

service but it declined, without explanation to dismiss the

action for lack of personal jurisdiction.

**

Respondent timely noted his appeal from the Order quash-

ing service and Petitioners noted a cross-appeal from the Su-

perior Court's refusal to dismiss the action. On August 5, 1981,

the District of Columbia Court of Appeals, en banc, reversed

the trial court as to granting the motion to quash service of

process and affirmed the denial of the motion to dismiss. See

Appendix A. Four judges dissented.

REASONS FOR GRANTING THE WRIT

THE DISTRICT OF COLUMBIA COURT OF APPEALS

RULING RESOLVES AN IMPORTANT ISSUE OF FEDERAL

LAW, THE PERMISSIBLE SCOPE OF PERSONAL JURIS-

DICTION UNDER THE DUE PROCESS CLAUSE, IN A WAY

WHICH CLEARLY CONFLICTS WITH THE APPLICABLE

DECISIONS OF THIS AND OTHER COURTS.

A. THIS CASE PRESENTS AN IMPORTANT FEDERAL

ISSUE WHOSE RESOLUTION WILL HAVE A PROFOUND

IMPACT ON INTERSTATE AND INTERNATIONAL COM-

MERCE.

Despite its pedestrian origins, a debt suit to collect a $4,000

legal fee, this Court’s resolution of this case will have a pro-

found effect on literally hundreds of thousands of interstate

and international business transactions each year. In plain

terms, the question posed by this case is beguilingly simple:

where can the out of town expert, who you brought in to help

you out when you needed special expertise, sue you if he or

she is unhappy with the way you pay your bill? If, as the

Court of Appeals has held, that dispute must, if the out-of

town expert desires it, be resolved in his or her home town,

not yours, then your ability successfully to contest non-meri-

torious claims, and obtain justice through due process of law,

is always curtailed and will frequently be totally frustrated by

the sheer economics of the interstate travel involved.

In a case such as this, with a mere $4,000 involved, the

expenses of transporting the Petitioners and their witnesses

to the District to establish why the money is not owed - ex-

penses not recoverable as costs should Petitioners prevail - will

most probably equal or even exceed the sum at issue.

It is respectfully submitted that the circumstances of this

case are not unique. They must surely occur hundreds or even

thousands of time daily. To require scores of defendants, such

as Petitioners here, to travel thousands of miles at prohibitive

expense, as the Court of Appeals decision would mandate,

is clearly not in accord with those fundamental notions of

fairness which this Court has found to be inherent in the

concept of due process in an unbroken line of decisions follow-

ing International Shoe Co. v. Washington, 326 U.S. 310 (1945).

B. THE DECISION BELOW IS CONTRARY BOTH TO

THE DECISIONS OF THIS COURT AND TO THE APPEALS

COURT'S OWN DECISION.

1. A plaintiff may not establish jurisdiction by his own

actions alone.

In the instant action Respondent sought to litigate, in the

District of Columbia, a debt alleged to be due and owing to

him by Petitioners, a Florida law firm. He sought to obtain

personal jurisdiction over Petitioners by invoking the provisions

of the District of Columbia long - arm“ status which provides,

in pertinent part, that 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

- - (i) transacting any business in the District of Colum-

.

D. C. Code §13-423(a) (1973 ed.). The trial court quashed

4

service of process on Petitioners, finding that the allegations in

the complaint were insufficient te invoke its in personam

jurisdiction, under the District of Columbia Court of Appeals

holding in Environmental Research International, Inc. v. Rock-

wood Greene Engineers, Inc., 355 A.2d 808 (D. C. App. 1976)

citing International Shoe Co., v. Washington, Supra.

As the trial court correctly held, the case of Environmental

Research International, Inc. v. Lockwood Greene Engineers,

Inc., supra (hereinafter simple Lockwood Greene”’), is direct-

ly in point with the instant action. There, %otiff, Environ-

mental Research International, Inc., was retained by Lockwood

Greene Engineers, Inc., a Massachusetts corporation with its

principal place of business in South Carolina, to provide certain

technical expertise and contacts with the federal government

in connection with an environmental problem in Pennsylvania.

There, as here, the

. . . Only contacts. . . [defendants] reasonably could

be said to have had within the District of Columbia are

those which they had. . . [with plaintiff] and with the

. . » (governmental agency.)

In Lockwood Greene, the thrust of plaintiff's argument

was presumably that

. . . Since it was performing services in the District of

Columbia for the benefit of . . . [defendants] , its own

activities here constituted a proper basis for the exercise

of personal jurisdiction over. . them].

355 A2d at 812 (emphasis in original). Thus, Court of Appeals

held that . . a plaintiff cannot rely on its own activities

rather than those of a defendant, to establish the requisite

minimal contacts for personal jurisdiction. . Id. The factual

situation and Respondent's argument in the Court of Appeals

in this case are virtually identical to that made in Lockwood

*

**

.

Greene.

In Lockwood Greene the Court of Appeals said the uni-

lateral activity of those who claim some relationship with a

non-resident defendant cannot satisfy the requirements of

contact with the forum state. Respondents’ performance of

legal services in the District of Columbia for Petitioners is his

sole basis for invoking jurisdiction over. This clearly is outside

the rule Court of Appeals own rule in Lockwood Greene

which stated

he mere fact that a non-resident has retained

the professional services of a District of Columbia firm,

thereby setting in motion the resident party's own

activities within this jurisdiction, does not constitute

an invocation by the non-resident of the benefits and

protections of the District's laws.

Id.

The Court of Appeals holding in Lockwood Greene is totally

consistent with the principles enunciated by this Court in Han-

son v. Denckla, 357 U.S. 235 (1958) and reaffirmed recently

in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286

(1980).

Ironically, the Court of Appeals has, itself, recently re-

iterated the continuing validity of Lockwood Greene and

Hanson v. Denckla. Basil, Inc. v. Guardino, 424 A. 2d 70 (D.C.

App. 1980).

S. Petitioner's “entry” into the District of Columbia

to retain respondent is not sufficient to confer jurisdiction.

In attempting to justify its extension of jurisdiction in

this case the Court of Appeals noted that the initial overtures

to respondent, from which the alleged employment agreement

Fe

arose, had come from Petitioners by phone and letters “into”

the District from Florida, Indeed, Petitioner's entire contact

with Respondent, other than during his frequent trips to

Florida for court appearances and depositions, was by mail and

telephone. From that activity the Court of Appeals concluded

that Petitioners

voluntarily initiated, and entered into, a contract with

one they knew to be located in the District and engaged

in an transaction which had a substantial connection

with the District and which they foresaw would have

consequences here. In so doing. . [Petitioners]

have invoked the benefits and protections of the Dis-

triet's laws. Hanson v. Denckla. . Within the meaning

of . . . [the long-arm statute Petitioners], by their

conduct, transacted business within the District of

Columbia.

Appendix A at pp. 21-22 (footnotes omitted), In so holding,

the Court of Appeals clearly ignored its own opinions. See,

e. g., Basil, Inc, v. Guardino, supra (telephone calls, letters and

a precontractual interview in the forum state by a non-resident

defendant fall short of meeting due process requirements. It

also ignored a recent opinion of the United States Court of

Appeals for the District of Columbia with a similar holding.

Willis v. Willis, U.S. App. D. C. 908 F. 2d

(Decided June 21, 1981) (making telephone calls to

the District provides insufficient affiliating circumstances to

empower a District of Columbia court to exercise jurisdiction

over a non-resident defendant). Finally, it has ignored recent

specific reaffirmations by this Court of the principles of Han-

son v. Denckla, World-Wide Volkswagen Corp. v. Woodson,

supra, 444 U.S. at 297.

CONCLUSION

For the reasons stated, the petition for « writ of certiorari

should be granted.

Respectfully submitted,

Richard W. Boone

1666 K Street, N. W.

Washington, D. C. 20006

Attorney for Petitioners

Of Counsel:

Wilkes & Artis, Chartered

1666 K Street, N.W.

Washington, D. C. 20006

CERTIFICATE OF SERVICE

Undersigned counsel for Petitioner certifies that service of

this Petition for Writ of Certiorari has been made upon counsel

for respondents this date, in accordance with law, by depositing

three copies thereof in the United States Mail postage prepaid,

to counsel for Respondent.

Richard W. Boone

Dated November 3, 1981

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 11696

WILLIAM E. MOUZAVIRES, APPELLANT,

v.

HARVEY BAXTER, Er AL., APPELLEES.

No. 11697

HARVEY BAXTER, ET AL., APPELLANTS,

v.

WILLIAM E. MOUZAVIRES, APPELLEE.

8

Appeals from the Superior Court of the a 8 .

Distriet of Columbia N 3

1 5 * f —

(Hon. Joyce Hens Green, Trial Judge) N

(Argued en banc April 28, 1980 Decided August 5, 1881)

William R. Voltz for appellant in No. 11696 and ap-

pellee in No. 11697.

Richard W. Boone for appellees in No. 11696 and ap-

pellants in No. 11697.

Before NEWMAN, Chief Judge, and KELLY, KERN,

GALLAGHER,” NEBEKER, HARRIS, MACK, FERREN, and

Pryor, Associate Judges.

* Judge Gallagher was an Associate Judge of the court at

the time of argument. His status changed to Associate Judge,

Retired, on February 27, 1981.

[1583]

Opinion Per Curiam.

Concurring opinion by Chief Judge NEWMAN, with

whom Associate Judges MACK and FERREN join, at p. 22.

Opinion by Associate Judge HARRIS, in which Associate

Judges KERN and NEBEKER concur, dissenting from the

result, at p. 23.

Statement by Associate Judge GALLAGHER, Retired,

dissenting from the result, at p. 35.

PER CURIAM: This is an appeal from an order

entered by the trial court granting the motion of ap-

pellees Baxter, et al. (hereinafter appellees) to quash

service of process on the ground that the court could

not permissibly exercise personal jurisdiction over ap-

pellees.' Appellant contends that the trial court erred in

granting appellees’ motion to quash service since appel-

lees had sufficient contacts with the District of Columbia

as to fall within D.C. Code 1973, § 13-423, the District

of Columbia long-arm statute.

In Part I of this opinion we set forth the pertinent

facts. In Part II we address the issue of whether the

“transacting any business” provision, § 13-423(a) (1),

of the District’s long-arm statute is coextensive with the

due process clause of the United States Constitution.

Concluding that it is, we then, in Part III, analyze

whether appellant has alleged sufficient facts to support

jurisdiction over appellees. We conclude that he has and,

accordingly, reverse and remand.”

The original panel opinion in this case, Mouzavires v.

Bazter, D.C.App. (Nos. 11696 & 11697, Dec. 21, 1979), was

vacated by our en banc order of Feb. 4, 1980.

2 Appellants Baxter, et al., in No. 11697 cross-appeal from

the trial court’s denial of their motion to dismiss. Since we

hold that the trial court erred in granting appellees’ motion

to quash in No. 11696, we affirm the trial ourt's denial of

appellants’ motion to dismiss in No. 11697.

11584]

3

I

Appellant is a District of Columbia attorney who

specializes in the practice of trademark and patent law.

Appellees are a North Miami Beach, Florida, law firm

and its individual partners. Sometime in May 1974,

appellee Lawrence B. Friedman telephoned appellant in

the District of Columbia, requesting him to assist Mr.

Friedman and his law firm with a lawsuit that had been

filed against a client of Mr. Friedman’s law firm in the

federal district court in Florida. The Florida suit in-

volved claims that appellees’ client was guilty of, inter

alia, trademark infringements and unfair competition.

In this telephone conversation, Mr. Friedman stated that

his law firm lacked technical expertise in patent and

trademark law, and that they needed appellant’s assist-

ance. Mr. Friedman indicated, however, that his law

firm would remain active in the case with appellant as-

sisting them.

During this telephone call, appellant agreed to work

with appellees and the parties confirmed that agreement

in subsequent discussions and correspondence which gen-

erally set forth appellant’s duties and compensation.“ Ac-

* This was not the only occasion in which appellees con-

tacted appellant in the District of Columbia. By letter dated

May 24, 1974, appellee Lawrence B. Friedman stated:

Dear Bill:

Confirming our telephone conversation this date enclosed

herewith please find the following items with regard to

the above captioned matter:

1. Our client’s check in the sum of $500.00, said sum

representing partial retainer as outlined in your previous

Our client will periodically make addi-

tional payments from time to time in order to meet the

2500.00 retainer which you require.

[Continued]

[1585]

4

cording to the agreement, appellant was to work pri-

marily in the District of Columbia with some consulta-

tion and possibly some court appearances in Florida.

Pursuant to that agreement appellant performed con-

siderable work for appellees, most of the work being

performed in the District of Columbia and, to a lesser

extent, at the United States Patent Office facilities in

Virginia. Appellant’s services included the preparation

of interrogatories, legal memoranda, and other matters

in connection with discovery in the pending litigation.

A dispute arose as to the amount of compensation ap-

pellant was to receive for his services. Thereafter ap-

pellant brought suit in the Superior Court of the Dis-

trict of Columbia seeking recovery of fees for the legal

services rendered. Appellees were served by certified mail

* [Continued]

2. Photostatic copy of Amended Complaint. Our pre-

vious agreement with Plaintiff’s counsel requires the

filing of an answer on or before June 1, 1974.

3. We trust that you will, immediately upon receipt of

these items forward to us the answer, Affirmative De-

fenses and/or Counterclaim that we have been discussing,

— with the Interrogatories that you have spoken

* need any further information, or if the questions

in your 9 1974 need to be answered be-

ro tg filing of responsive pleadings, please call the

undersigned immediately.

Moreover, on August 30, 1974, appellant wrote a letter to

appellee Lawrence Friedman which stated in pertinent part:

Dear Larry:

This will acknowledge receipt of your letter dated

August 15, 1974 and the accompanying material identi-

fied in your letter. The copy of Plaintiff’s interroga-

tories to Defendants enclosed with your letter does not

indicate the date of service upon Defendants, therefore,

please advise me in this regard.

11586

5

ut their place of business in North Miami Beach, Florida.

Appellees moved to quash service of process, contending

that the Superior Court could not permissibly exercise

personal jurisdiction over them. The trial court granted

the motion to quash service without opinion, and this ap-

peal followed.

II

A court may assert personal jurisdiction over a non-

resident defendant where service of process is authorized

by statute and where the service of process so authorized

is consistent with due process. International Shoe Co. v.

Washington, 326 U.S. 310 (1945). The District of Co-

lumbia “long-arm statute” enumerates the various acts

of a nonresident defendant which support the assertion

of personal jurisdiction.‘ We have held that this statute

D. C. Code 1973, § 13-423 provides:

(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

Columbia ;

(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

Columbia;

(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,

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 ;

[Continued]

115871

6

permits the exercise of personal jurisdiction to the fullest

extent permissible under the due process clause. See

Berwyn Fuel, Inc. v. Hogan, D.C. App., 399 A.2d 79, 80

(1979) ; Rose v. Silver, D.C. App., 394 A.2d 1368, 1369

(1978) ; Cohane v. Arpeja-California, Inc., D.C.App., 385

A.2d 153, 158, cert. denied, 439 U.S. 980 (1978); En-

vironmental Research International, Inc. v. Lockwood

Greene Engineers, Inc., D.C.App., 355 A.2d 808, 810-11

(1976) (en banc). We based this conclusion on the legis-

lative history of the District’s long-arm statute which indi-

cated that Congress intended to vest courts of the Dis-

trict with jurisdictional reach identical to that in effect

in Maryland and substantially the same as that in effect

in Virginia. See S. Rep. No. 405, 91st Cong., Ist Sess.

35 (1969); H.R. Rep. No. 907, 91st Cong., 2d Sess. 61

(1970). Since the courts of Maryland and Virginia have

interpreted their statutes as being coextensive with the

due process clause, we concluded that our statute simi-

larly contemplates the exercise of personal jurisdiction

to the fullest extent permissible under the due process

clause. However, the Maryland courts have observed that,

while their long-arm statute supports an exercise of per-

sonal jurisdiction over all nonresident individuals and

* [Continued]

(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 with-

in the District of Columbia at the time of contract-

ing, unless the parties otherwise provide in writing.

(b) When jurisdiction over a person is based solely

upon this section, only a claim relief arising from

for

a a oe

1588]

7

corporations that can constitutionally be reached, that

proposition does not hold for each of the separate pro-

visions of the long-arm statute. As the United States

District Court for the District of Maryland stated in

Piracci v. New York City Retirement System, 321 F.

Supp. 1067, 1070 n.3 (D. Md. 1971) :

If we consider the outer limits of jurisdiction

permitted by the Due Process Clause as the

circumference of a circle or the outer edge of

a pie, and the six “enumerated acts” in § 96(a)

(1)-(6) [Maryland’s long-arm statute] as six

slices of the pie it appears that some slices go

all the way to the outer limit of the circle, while

others stop short of the outer limit.

To be sure, Maryland courts have interpreted the

“transacting any business” provision of their long-arm

statute as being coextensive with the due process clause,

while they have interpreted several other provisions as

having a much narrower scope. Compare Groom v. Mar-

gulies, 257 Md. 691, 265 A.2d 249 (1970) (construing

“transacting any business” provision) with Beaty v. M.S.

Steel Co., 401 F.2d 157, 161 (4th Cir. 1968), cert. denied,

898 U.S. 1049 (1969) (construing the Maryland equiva-

lent of our § 13-423(a) (4), the “causing tortious injury”

provision) ; Vitro Electronics v. Milgray Electronics, Inc.,

255 Md. 498, 258 A.2d 749 (1969) (same). See Margoles

v. Johns, 157 U.S. App. D.C. 209, 218, 483 F.2d 1212,

1221 (1978) ; Piracei v. New York City Retirement Sys-

tem, supra at 1070.

Our concern in this case (as was true in Berwyn Fuel,

Rose, Cohane, and Lockwood Greene) is not with the

limits of other sections of the District’s long-arm statute,

but solely with the scope of the “transacting any busi-

ness” provision. Again, the legislative history of the stat-

[1589]

ute is illuminating. The relevant portion of the Senate

Report accompanying the District of Columbia Court Re-

form and Criminal Procedure Act of 1970 states as fol-

lows:

A new chapter (4) is added, incorporating a

modified version of the first two articles of the

Uniform Interstate and Internationa. Procedure

Act. The uniform provisions codify recent case

law with respect to extraterritorial jurisdiction

over and service upon persons in civil litigation,

and supply the reorganized trial bench of gen-

eral jurisdiction with a necessary procedural

adjunct. Chapter 4 more specifically grants ex-

panded bases of jurisdiction and modes of serv-

ice identical to or reciprocal with those provided

under the laws of the nearby State of Maryland

for the courts of that State, and substantially

the same as those provided in the adjacent State

of Virginia and approximately 10 other States.

[S. Rep. No. 405, 91st Cong., Ist Sess. 35

(1969) .]

Moreover, the House Report accompanying the Court

Reform Act states that our statute “is modeled on the

Uniform Interstate and International Procedure Act

....” See H.R. Rep. No. 907, 91st Cong., 2d Sess. 61

(1970).* The Commissioner’s Comment, filed with the

Uniform Act, states that the words “transacting any

business” should be given an expansive interpretation.

The Uniform Interstate and International Procedure Act

was promulgated by the National Conference of Commis-

sioners on Uniform State Laws in August, 1962. The House

See Commissioner's Comment, § 1.08 (a) (1) of the Uni-

form Act, 18 UnirorRM Laws ANN. 467 (1980). Thus,

the legislative history of our long-arm statute, as well as

decisions by the courts of Maryland and Virginia con-

struing their comparable statutory provisions, compels

the conclusion that the “transacting any business” provi-

sion is coextensive with the due process clause. See Mar-

goles v. Johns, supra at 215, 483 F.2d at 1218; Meyers v.

Smith, 460 F. Supp. 621, 622 (D.D.C. 1978); John G.

Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736, 180

S.E.2d 664 (1971).

Normally, our analysis would require a two-step proc-

ess. First we would address the question of whether ap-

pellant had alleged sufficient facts to reach appellees un-

der the terms of the applicable District statute. Only

then, if the answer to our first inquiry was in the affirm-

|

x F

8

i

stitutional and statutory provisions are coextensive . . . .”

Textile Museum v. F. Eberstadt & Co., 440 F. Supp. 30,

31 (D.D.C. 1977); see World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 290 (1980) (“Although the [Su-

was

and constitutional standards, its analysis did not distin-

guish these questions, probably because [the statute] has

been interpreted as conferring jurisdiction to the limits

permitted by the United States Constitution.” (em-

phasis added) (footnote omitted)); Piracci v. New

Retirement System, supra at 1070 (“So, in

the two questions specified by the Fourth Cir-

H the controlling statute permits

F br I

under

f

f

10

Decisions in this jurisdiction interpreting the “trans-

acting any business” provision are but applications of this

principle. It is now well-settled that the “transacting any

business” provision embraces those contractual activities

of a nonresident defendant which cause a consequence

here. See, e.g., Rose v. Silver, supra; Cohane v. Arpeja-

California, Inc., supra.* Moreover, to fall within the pur-

view of 18-428 (a (1), a nonresident defendant need

not have been physically present in the District. See, e. g.,

Dorothy K. Winston & Co. v. Town Heights

ment, Inc., 376 F. Supp. 1214, 1216 (D.D.C. 1974). In-

deed, we have acknowledged that, under certain circum-

stances, a single act may be sufficient to constitute

transacting business. Bueno v. La Compania Peruana,

D.C.App., 375 A.2d 6, 9 (1977); accord John G. Kolbe,

Inc. v. Chromodern Chair Co., supra. In sum, the sweep

of the “transacting any business” provision of D.C. Code

1978, § 13-423 (a) (1), covers any transaction of business

in the District of Columbia that can be reached jurisdic-

tionally without offending the due process clause. See

Margoles v. Johns, supra at 218, 483 F.2d at 1221; Mey-

ers v. Smith, supra at 622; Piracci v. New York City

Retirement System, supra at 1070; Groom v. Margulies,

supra. See also John G. Kolbe, Inc. v. Chromodern Chair

Co., supra. Thus, to determine whether the statute can

reach the conduct at issue, we must consider whether

appellees had sufficient contacts with the District such

* Indeed, Maryland’s long-arm statute, which is substan-

tially identical to that in effect in the District of Columbia,

has been interpreted as embracing those purposeful acts “in

relation to [a] contract, albeit preliminary or subsequent to

its execution.” Novak v. National Hot Rod Ass'n, 247 Md.

350, 357, 231 A.2d 22, 26 (1967) (quoting Longines-Wittnauer

Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 448, 457, 261

N. V. S. 2d 8, 18, 209 N.E.2d 68, 75 (1965)); see Du-al Corp. v.

Rudolph Beaver, Inc., 640 F.2d 1280, 1282 (4th Cir. 1976).

11692]

11

that the assertion of personal jurisdiction comports with

due process. International Shoe Co. v. Washington,

supra. Stated another way, we must determine whether

there exists “a sufficient connection between the defend-

ant and the forum State as to make it fair to require

defense cf the action in the forum.” Kulko v. Superior

Court, 486 U.S. 84, 91 (1978).

III

Supreme Court decisions subsequent to International

Shoe have defined due process limits of in personam juris-

diction over a nonresident defendant. See Hanson v.

Denckla, 357 U.S. 235 (1958); McGee v. International

Life Insurance Co., 355 U.S. 220 (1957). These de-

cisions, therefore, provide the necessary guidance for an

inquiry into the due process limitations of the assertion

of personal jurisdiction.

In McGee, the plaintiff sued a Texas life insurance

company in California. The Texas company’s contacts

with California were slight. The policyholder bought his

policy from an Arizona company whose obligations were

assumed by the Texas company. The company mailed a

reinsurance certificate to the policyholder in California

and the policyholder accepted the offer to reinsure him

on the same terms as his old policy, and until his death

he continued to mail premiums from California. Other-

wise, the Texas company had never solicited or done any

business in California. A unanimous Court ruled that

it was “sufficient for purposes of due process that the

suit was based on a contract which had substantial con-

nection with that State.” 355 U.S. at 223." The Supreme

Court refined the holding of McGee in Hanson. In Han-

The provisions of D.C. Code 1973, f 18-428 (a) (6) appear

to be in essence a codification of this holding.

11598]

to execute a power of appointment as to

remainder of the trust. After the settlor’s death,

several of the residuary legatees brought suit in Florida

challenging the validity of the power of appointment.

Long-arm service was made on the Delaware trustee in

The Court held that the settlor’s performance

small amounts of trust administration and the receipt

trust income in Florida did not give Florida a sub-

tial connection with the trust agreement which was

suit. Moreover, the Court pointed out

that at the time of the execution of the agreement, the

defendant trustee had no contacts with Florida, and the

contacts of the trustee-defendant which arose subse-

quently were in no sense voluntary but the result of the

settlor’s unilateral acts years after the execution of the

agreement. The Court concluded that “it is essential in

each case that there be some act by which the defendant

purposefully avails itself of the privilege of conducting

activities within the forum State, thus invoking the bene-

fits and protections of its laws.” Hanson v. Denckla,

supra at 253.

Similarly, where in World-Wide Volkswagen v. Wood-

son, supra, “the defendants’ only connection with Okla-

homa [was] the fact that an automobile sold in New

York to New York residents became involved in an acci-

dent in Oklahoma,” 444 U.S. at 287, in personam juris-

diction could not be acquired constitutionally by means of

the Oklahoma long-arm statute. The defendant automo-

bile distributor dealt with retailers located exclusively in

the tri-state area of New York, New Jersey, and Connec-

tieut. The retail dealer who sold the vehicle in question

to plaintiffs operated solely in New York. “(T]he fortui-

(1694)

18

tous circumstances that a single Audi automobile, sold in

New York to New York residents, happened to suffer an

accident while passing through Oklahoma,” id. at 296,

was foreseeable; however, what is critical to due process

is “not the mere likelihood that a product will find its

way into a forum State. Rather, it is that the de-

fendant’s conduct and connection with the forum State

are such that he should reasonably anticipate being haled

into court there.” Id. at 297.

It is important to note that in McGee, unlike in either

Haneon or World-Wide Volkswagen, defendant had so-

licited business in the forum state. As the court stated

in Vencedor Manufacturing Co. v. Gougler Industries,

Inc., 557 F.2d 886, 891 (ist Cir. 1977); “The second fact

distinguishing Hanson from McGee was the McGee de-

fendant’s solicitation of business in the forum state.

After McGee it seems fair to say that one who solicits in

a state may be sued there if the transaction he has sought

goes sour.” Again, the court in Vencedor noted: “Han-

kets, Inc., 567 F.2d 988 (10th Cir. 1977). Pedi Bares, a

Kansas footwear manufacturer, brought suit in Kansas

against P & C, a New York wholesale grocer serving

independently-owned stores in New York and Pennayl-

vania, for the balance claimed due on goods sold. P & C

an order with plaintiff's New York agent,

14

it by plaintiff at its warehouse and sent partial payment

to plaintiff in Kansas. In addressing P & C’s conten-

tion that it could not be reached by means of the Kansas

long-arm statute without offending due process, the court

stated:

P & C contends that application of a long-

arm statute cannot be based on the unilateral

acts of the seller in the forum state. The argu-

ment is not pertinent here. P & C acted affirm-

atively. It wrote the letter which initiated the

transactions. Stores serviced by P & C ordered

the goods which were manufactured in and

shipped from Kansas. P & C sent to Pedi Bares

in Kansas payments for part of the goods. Due

process does not require the presence in the

forum state of the defendant or one of its agents.

IId. at 937.]

In the present case it is clear that, like P & C, appellees

initiated the transaction; ordered the services which

were performed in, and the results of which were in

part dispatched from, the District; and sent payments

in part for the services performed to appellant in the

District. We do not, therefore, have a case where appel-

lant relies on his own unilateral activities in asserting

jurisdiction under the long-arm statute. See also O’Brien

v. Lanpar Co., 399 S.W.2d 340, 343 (Tex. 1966) (“Plain-

tiff O’Brien did not depend upon his own unilateral ac-

tivity with respect to one who was outside and remained

outside of Illinois, but upon the fact that Lanpar’s agent

contacted him in IIlinois.“) *

The Court in Hanson also distinguished McGee on the

ground that in McGee, California had enacted special regu-

latory insurance legislation, indicating that the state had a

manifest interest in providing a forum for its citizens in suits

based on such insurance claims. Some courts have interpreted

[1596]

15

Both Hanson and McGee reaffirmed the International

Shoe principle that notions of fundamental fairness re-

quire that the defendant’s contacts with the forum be

evaluated qualitatively rather than quantitatively. More

importantly, both decisions demonstrate that proper ap-

plication of the minimum contacts formula requires a con-

sideration not only of whether a nonresident defendant

has sufficient contacts with the forum, but also of whether

those contacts are voluntary and deliberate, rather than

fortuitous. See Developments in the Law—State-Court

Jurisdiction, 73 Harv. L. REv. 909, 928 (1960). See

also World-Wide Volkswagen, supra at 287, 295. As the

Supreme Court has stated, “the relationship among the

defendant, the forum, and the litigation . . . [is] the

central concern of the inquiry into personal jurisdiction.”

Shaffer v. Heitner, 483 U.S. 186, 204 (1977) (footnote

omitted).

Hanson as limiting the application of McGee to the insurance

field. See Trippe Mfg. Co. v. Spencer Gifts, Inc., 270 F.2d 821

(7th Cir. 1959). However, most courts have interpreted Han-

son as merely another application of the minimum contacts

formula of International Shoe to a different set of facts. See

Aftanase v. Economy Baler Co., 348 F.2d 187, 196 (8th Cir.

1965); Roumel v. Drill Well Oil Co., 270 F.2d 550, 557 (5th

Cir. 1959); Wisconsin Metal & Chemical Corp. v. DeZurik

Corp., F. Supp. 119 (E.D. Wis. 1963). We have rejected

implicitly, if not explicitly, the notion that McGee has only

an application to the insurance field. See Cohane v. Arpeja-

California, Inc., supra at 158-59; Meyers v. Smith, supra at

624. Indeed, it is axiomatic that a state cannot, by statute,

expand the jurisdictional scope of the due process clause.

By comparison, the Supreme Court recently said in World-

Wide Volkswagen:

The concept of minimum contacts . can be seen to

perform two related, but distinguishable, functions. It

protects the defendant against the burdens of litigating

in a distant or inconvenient forum. And it acts to ensure

[1597]

16

These considerations assume greater significance when

the defendant’s contacts with the forum arise out of a

contractual arrangement with a forum plaintiff. Modern

systems of communication have revolutionized commercial

transactions to such an extent that parties may negotiate

by telephone certain contractual arrangements which only

a generation ago would have necessitated the physical

presence of both parties in the same forum. Courts have

recognized that, even though a nonresident defendant has

never physically been present in the forum, his contacts

with the forum when viewed itatively may be quite

substantial. Thus, the exercise of personal jurisdiction

has been sustained where the nonresident defendant’s

only contact with the forum has been by mail or tele-

phone. See, e.g., Cook Associates, Inc. v. Colonial Broach

& Machine Co., 14 III. App. 3d 965, 304 N.E.2d 27

(1973) ; G & W Body Works, Inc. v. Estate of Eschberger,

557 S.W.2d 835 (Tex. Civ. App. 1977). See also Morton

v. Environmental Land Systems, Ltd., 55 Ill. App. 3d 369,

that the States, through their courts, do not reach out

beyond the limits imposed on them by their status as

coequal sovereigns in a federal system.

The protection against inconvenient litigation is typi-

cally described in terms of “reasonableness” or “fair-

ness.” . . . Implicit in this emphasis on reasonableness

is the understanding that the burden on the defendant,

while always a primary concern, will in an appropriate

case be considered in light of other relevant factors, in-

cluding the forum State’s interest in adjudicating the

dispute; the plaintiff’s interest in obtaining convenient

and effective relief, at least when that interest is not

adequately protected by the plaintiff’s power to choose

the forum; the interstate judicial system’s interest in

obtaining the most efficient resolution of controversies;

and the shared interest of the several States in further-

ing fundamental substantive social policies. [444 U.S. at

291-92 (citations omitted) .]

[1598]

17

370 N.E.2d 1106 (1977); Cohn-Daniel Corp. v. Cor-

poration De la Fonda, Inc., 514 S.W.2d 338 (Tex. Civ.

App. 1974). Clearly, the most critical inquiry is not

whether the nonresident defendant is physically present

in the forum but whether the defendant’s contacts with

the forum are of such à quality and nature that they

manifest a deliberate and voluntary association with the

forum. As one court has stated, It he operative con-

sideration is that the defendant’s contacts with the

forum were deliberate, rather than fortuitous, so that the

possible need to invoke the benefits and protections of the

forum’s laws was reasonably foreseeable, if not foreseen,

rather than a surprise.” Product Promotions, Inc. v.

Cousteau, 495 F.2d 483, 496 (5th Cir. 1974) (footnote

omitted).

Courts of other jurisdictions have had occasion to

consider facts analogous to those presented in this case

under similar statutes. See, e. g., Cook Associates, Inc.

v. Colonial Broach & Machine Co., supra (jurisdiction

upheld in suit between resident employment agency and

nonresident defendant); O’Brien v. Lanpar Co., 399

S.W.2d 340 (Tex. 1966) (Illinois judgment secured by

Illinois attorney through long-arm jurisdiction over Texas

client held enforceable in Texas); Toulouse v. Swanson,

73 Wash. 2d 331, 334, 488 P.2d 578, 580 (1968) (jurisdic-

tion proper in suit by resident attorney to collect fees)

(“It is beyond dispute that defendant consummated a

transaction in this state when he employed plaintiff as his

lawyer; and that the present action arises from that

transaction.”) ; cf. Willis v. Semmes, Bowen & Semmes,

441 F. Supp. 1235 (E.D. Va. 1977) (jurisdiction over

10 But see Safari Outfitters, Inc. v. Superior Court, 167

Colo. 456, 448 P.2d 783 (1969) (en banc) (contract negoti-

ated over telephone and through the mails provided insufficient

contacts with forum).

11599]

18

Maryland attorney sustained in breach of contract suit

brought by Virginia resident). But see Winick v. Jack-

son, 49 Misc. 2d 1009, 268 N.Y.S. 2d 768 (1966) (ju-

risdiction improper in suit between resident attorney and

nonresident client in suit to collect attorneys fees).

We find the analysis of those courts that have upheld

jurisdiction in these circumstances to be persuasive.

O’Brien v. Lanpar Co., supra, and Cook Associates,

Inc. v. Colonial Broach & Machine Co., supra, are il-

lustrative of these cases. In Lanpar, a Texas company

retained an Illinois attorney to prosecute an action on

its behalf in the federal district court in Illinois. Later,

the attorney brought suit in Illinois, alleging that he

was not compensated fully under the terms of the con-

t. <A default judgment was secured and plaintiff

bi: -ht suit in Texas to enforce judgment. The Supreme

Cou: . of Texas held that jurisdiction over the defendants

in Illinois was proper and that the Illinois judgment thus

was entitled to full faith and credit in Texas."

In Cook Associates, a Michigan company contacted an

Illinois employment agency by telephone. The agency

recommended a prospective employee to the firm; the

employee was later hired but the agency’s fee was never

paid. As the court stated:

Once defendant informed plaintiff that it was

interested in a certain person to fill a position

and agreed to pay plaintiff’s referral fee if it

eventually hired that person, defendant knew,

or should have known, that it had entered into a

contract with an Illinois agency, that the agency

would perform its services from its office in

Illinois, that the fee, if due, would be paid to

11 The Illinois statutory provision under which service of

process was made is the same as our § 13-423 (a) (1).

11600]

19

plaintiff in Illinois, and that if the fee were not

paid as promised, defendant might be liable to

suit in the Illinois courts. [Id. at 970, 304 N. E.

2d at 31.)

In applying these principles to the present case, we

are persuaded that appellant has alleged sufficient facts

to support jurisdiction under § 13-423 (a) (1). Appellees

solicited appellant in the District of Columbia to perform

work in major part in the District of Columbia.” More-

over, the contract at issue was executed and performed

in significant part in the District.“ We hold that ap-

12 See Morton v. Environmental Land Systems, Ltd., supra

at 872, 370 N. E. ad at 1110 (“[A)ctivities such as the solicita-

tion of a contract is the transaction of business within the

statutory definition even where the actual acceptance of the

contract occurred outside of the forum and where it was to be

governed by non-forum law.. .) (citation omitted) (statu-

tory provision coextensive with due process clause; accord-

ingly, analysis required only one step).

contract in question, providing fer payment by de-

fendant in exchange for services rendered by plaintiff.

116011

the assertion of personal jurisdiction over appellees does

fied that appellees’ contacts are of such a quality that

the meaning of § 18-423 (a) (1).

F 14% z aga

Hu 35 Hy ut Hh atte Ht

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h ap belsee i tt

2121 1 ip ATH 111 ae

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HEL | al | Bi

21

tary as evidenced by the communications between appel-

lees

tarily initiated, and entered into, a contract with one

they knew to be located in the District and engaged in a

which had a substantial connection with the

District and which they foresaw would have consequences

here.“ In so doing, appellees have invoked the benefits

and protections of the District’s laws. Hanson v. Denckla,

supra. Within the meaning of 13-428 (a) (1), appel-

See Vencedor Mfg. Co. v. Gougler Indus., Inc.. supra

at 891 (“After McGee it seems fair to say one who solicits in

a state may be sued there if the transactions he has sought

goes sour.”) ; Cohn-Daniel Corp. v. Corporation De la Fonda,

Inc., supra at 342 (“[Defendant] made a purposeful choice

to do business with this Texas corporation. Its contacts were

not ‘fortuitous or accidental.’") (Plaintiff, as a result of a

negotiated by telephone and mail, performed a great

deal of its obligations in Texas and received some of its pay-

ments there).

See Cook Assoc’s, Inc. v. Colonial Broach & Mach. Co.,

9°

--

lees, by their conduct,“ transacted business within the

District of Columbia.

Having concluded that the assertion of personal juris-

diction would not offend due process, we hold that the

trial court erred in granting appellees’ motion to quash

service. Accordingly, we reverse and remand with in-

structions to deny the motion to quash service.

So ordered.

Associate Judge KELLY concurs in the result.

NEWMAN, Chief Judge, with whom Associate Judges

MACK and FERREN join, concurring: I concur in the per

curiam opinion, but would go one step further. The per

curiam opinion does not resolve whether jurisdiction

might be sustained under similar operative facts but

where plaintiff, as opposed to the defendant, had initiated

the contacts. I would note that the assertion of jurisdic-

tion has withstood a due process challenge even where

the initial solicitation to enter a contract was made by

plaintiff rather than the defendant. See, e. g., Vencedor

N Co. v. Gougler Industries, Inc., 557 F. 2d

886 (Ist Cir. 1977) ; Shealy v. Challenger Manufacturing

Co., 304 F.2d 102, 104 (4th Cir. 1962); J. Henrijean &

Sons v. M.V. Bulk Enterprise, 311 F. Supp. 417, 421

(W.D. Mich. 1970) ; Dornbos v. Kroger Co., 9 Mich. App.

515, 157 N.W.2¢ 498 (1968).

The United States Court of Appeals for the First Cir-

cuit observed in Gougler Industries that “(t]he intrica-

cies of offer, counteroffer, and invitation to make an offer

are irrelevant to the central concern for fairness that

should illuminate this area of the law.” 557 F.2d at 890.

And, as the court stated in Pedi Bares, Inc. v. P & C

Food Markets, Inc., 567 F.2d 933 (10th Cir. 1977):

The principal distinction between the present

and McGee is that there the defendant

the initial solicitation while here that was

by the plaintiff. Initial contact is not

ve. The subsequent conduct of P & C

shows that it purposely availed itself of the

privilege of carrying on activities to secure

goods from a Kansas manufacturer and seller.

(Id. at 987.)

So, too, here, where a Florida defendant purposely

availed itself of the privilege of carrying on activities

to secure services from a District of Columbia attorney,

it should not matter whether the plaintiff or defendant

made the initial contact.

It is that result from which I respectfully dissent. In

doing so, substantial reference is made to the lead

opinion which four of my colleagues endorse. It should

be noted that never before have we failed to have a ma-

and

from, other opinions which deal with significantly differ-

ent statutes and/or substantially different factual situ-

(1958), and our en bane decision in Environmental Re-

search International, Inc. v. Lockwood Greene Engineers,

Ine., D.C. App., 355 A.2d 808 (1976) (en banc). I firmly

For the opinion purports to find support in

Pedi Bares, Inc. v. 4 C Food Markets, Inc., 567 F.2d 933

(10th Cir. 1977). Ante, at 13-14. However, even a fleeting

e eee, Oe ee ee Se

statute with that court dealt is quite different from

the “transacting any business” statute which is before us

(the Kansas statute has a single-act provision, permitting

ee oe 2 ee

6

i

li

if

2

ö

15

, and false

designation of foreign goods. As is often true, the firm

was treated simply

court. A Florida law firm

in the defense of a suit claiming

infringement, unfair competition

was representing a client

1135 23714 {i 37 7447

11 fall; i

HRA,

:

:

tt a i!

it

eee i

it engaged William Mouzavires to assist it in the Florida

. litigation. He, like many other patent attorneys, has his

had little or no expertise in those areas of the law, and

office in the District of Columbia.

fil

judge, undoubtedly satisfied that the issue was controlled

by Environmental Research, took little time in granting

the motion to quash.

These appeals initially were decided by a divided

division of the court. Chief Judge Newman and Judge

Mack apparently viewed what I perceived to be control-

ling precedents differently than I, and voted to reverse

the trial court’s action. I dissented.’ Defendants’ petition

for rehearing en banc was granted, and the division's

opinions were vacated. Hence, they were not published

in Atlantic 2d.

Today, while only four members of the court concur

in the lead opinion, a fifth concurs in the result

of reversal. Thus, once again, as I see it, we are faced

with a misapplication of established law. It should be

noted that this is not the first case in which Environ-

mental Research has been avoided. In Rose v. Silver,

C. App., 394 A.2d 1868 (1978), another division of

court—which included Judges NEWMAN and Mack—

t to distinguish the indistinguishable and resolved

case favorably to a plaintiff in a manner

inconsistent with Environmental Research.“

dwell here upon what I consider to be the

so

i

FE

Zé

1

i

II

If the en banc court had not vacated the earlier divi-

sion majority opinion, it would have had a precedentia!

life of its own. That life would have been a troubled one,

for it was obvious to any objective observer that the

division opinion and Environmental Research were in

irreconcilable conflict. Now, while the result of rever-

sal is obtained, no precedent emerges from this case.

Nonetheless, I deem it necessary to address what strike

me as the fatal flaws in the per curiam opinion.'

To set the proper background, I quote the sole provi-

sion of our long-arm statute upon which jurisdiction is

claimed to be based. Section 18-428 of the Code provides

in pertinent part:

(a) A District of Columbia court may exer-

cise 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 Dis-

trict of Columbia.

I turn now to the faulty premise—or, perhaps more

accurately, to the two interrelated faulty premises of the

[T]he legislative history of our long-arm stat-

ute, as well as decisions by the courts of Mary-

land and Virginia construing their comparable

statutory provisions, compels the conclusion that

the “transacting any business” provision is co-

extensive with the due process clause.

Decisions in this jurisdiction interpreting the

“transacting any business” provision are but

applications of this principle. It is now well-

settled that the “transacting any business” pro-

vision embraces those contractual activities of a

nonresident defendant which cause a consequence

here. (Ante, at 9-10; citations and footnote

omitted.

Viewed from an overall perspective, the four- judge

opinion would blur the controlling statute into obscurity

and predicate resolution of the case on an abstruse due

process theory. However, that may not properly be done.

The first sentence quoted above is essentially an over-

simplification. The correct standard, as expressed in En-

vironmental Research, is that long-arm statutes such as

that before us “permit the exercise of personal jurisdic-

tion over nonresident defendants to the extent permitted

by the due process clause of the United States Constitu-

tion.” The four-judge opinion seeks to convey the im-

pression that to the extent that a long-arm statute and

the due process clause may be deemed to be coextensive,

the former is subsumed by the latter, which is not true.

If it were, of course, there would be no need for the long-

arm statute; actions against nonresident defendants

could be predicated jurisdictionally solely on the due pro-

cess clause. However, as has been stated by the Fourth

Circuit:

11610]

— — ee ee

SE

Generally, the application of long arm statutes

involves two steps. It is necessary to determine

first whether the statute permits service of pro-

cess on the nonresident defendant, and second,

whether service under the statute violates the

Due Process Clause of the federal constitution.

[Haynes v. James H. Carr, Inc., 427 F.2d 700,

703 (4th Cir.), cert. denied, 400 U.S. 942

(1970). 0%

Thus, any analysis of whether the defendants properly

may be subjected to the Superior Court’s jurisdiction not

only must begin with, but moreover must turn upon,

whether they transacted business within the District of

Columbia. The last sentence quoted above from the four-

judge opinion—“that the ‘transacting any business’ pro-

vision embraces those contractual activities of a non-

resident defendant which cause a consequence here”—is

both conceptually wrong and unsupported by any sound

authority.

Having thus established a flawed analytical framework,

the four-judge opinion proceeds to state the issue as fol-

lows:

* This principle is well established. Illustratively, the four-

judge opinion quotes the Supreme Court’s recent recognition

that “the proper approach [is] to test jurisdiction against

both statutory and constitutional standards.” Ante, at 9,

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

286, 290 (1980). See also, e. g., AMAF International Corp

Ralston Purina Co., D.C.App., 428 A.2d 849, 851 (1981) *

step analysis required) ; Stabilisierungsfonds Fur Wein v.

Kaiser Stuhl Wine Distributors Pty. Ltd., —— U.S. App.

D.C. ——, 647 F.2d 209 (1981) (separate and distinct

analyses made of due process and “transacting any business“

issues); Gatewood v. Fiat, S.p.A., 199 U.S. App. D. ). 238,

241, 617 F.2d 820, 823 (1980) (two-step analysis necessary).

116111

Thus, to determine whether the statute can

reach the conduct at issue, we must consider

whether appellees had sufficient contacts with the

District such that the assertion of personal juris-

diction comports with due process. [Ante, at

10-11].

That statement evades the underlying question of whether

the defendants met the initial jurisdictional prerequisite

of having transacted any business here. As one second-

ary authority has noted, “no abstract test for deter-

mining whether or not a person transacts any business

within [a] state has been articulated, and accordingly

each case must be decided on its particular facts.” Annot.,

27 A.L.R.3d 397, 429 (1969). This court has no authority

to act in a fashion which serves to amend the statute.

As the Fourth Circuit correctly has observed: “[I]t is

clear that at least where the legislature has acted, even

though the [long-arm] statute may not go to the limits

of due process, the courts of a state may not go further

and assert jurisdiction over persons not embraced within

that legislation.” Beaty v. M. S. Steel Co., 401 F.2d 157,

161 (4th Cir. 1968), cert. denied, 393 U.S. 1049 (1969).

Yet that is precisely what the resolution of these appeals

by the majority does, as reflected by the four-judge opin-

ion’s ultimate conclusion:

In sum, appellees voluntarily initiated, and en-

tered into, a contract with one they knew to be

located in the District and engaged in a trans-

action which had a substantial connection with

the District and which they foresaw would have

consequences here. In so doing, appellees have

invoked the benefits and protections of the Dis-

trict’s laws. [Ante, at 21; footnote and cita-

tion omitted.

[1612]

31

That summation is fallacious for two reasons. First,

the defendant Florida lawyers did not invoke “the bene-

fits and protections of the District’s laws”; the plaintiff

did. Second, even had they done so, that would be but

one factor to consider in deciding the underlying jurisdic-

tional question under the statute, namely, whether they

transacted business here. The resolution of that question

should be controlled by Environmental Research and by

other relevant authorities.

III

As has been noted, the Florida defendants did engage

the District of Columbia plaintiff to assist them in a

Florida lawsuit. Plaintiff performed some of his serv-

ices in Florida, some in Virginia, and some in the Dis-

trict. Defendants have had no contacts with the Dis-

trict of Columbia other than their utilization of plain-

tiff’s services in connection with the Florida suit. There

is no claim that any of the defendants entered the Dis-

trict of Columbia to negotiate with plaintiff or to work

with him.“ Apparently the few communications from

defendants to plaintiff were by telephone or mail (the

four-judge opinion cites one telephone call and one let-

In a recent relevant case, our circuit court stated:

Absent some indication that the agreement was signed

or negotiated in the District of Columbia, the fact that

one party is a resident of the forum state is an insuffi-

cient basis for asserting jurisdiction over the other.

[Willis v. Willis, —— F.2d —— (D.C. Cir., No. 80-2200,

June 21, 1981, slip op. at 11).]

The four-judge opinion states: “According to the agree-

ment, appellant was to work primarily in the District of Co-

lumbia with some consultation and possibly some court ap-

pearances in Florida.” Ante, at 3-4. There was no such

agreement“; plaintiff's decision to perform much of his work

in the District of Columbia was entirely his own.

[1613]

type which we held in Environmental Research

confer jurisdiction over nonresident defendants

§ 13-423 (a) (1) of the

|

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779

gaged in between it and the appellees satisfy

constitutional requirement for in personam j

risdiction. Rather, the thrust of appellant’

argument is that since it was performing serv

ices in the District of Columbia for the benefit

a F

argues has been rejected by the Supreme Court:

The unilateral activity of those who claim

some relationship with a nonresident defend-

:

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phen

— — —

115 147711

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424 A2d 70, 77 (1980) (Kir, J.), we

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§ 13-423. Personal jurisdiction based upon conduct

(a) A District of Columbia court may exercise personal

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

(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 of the District of Columbia if

he

(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. (July 29, 1970, Pub.

L. 91-358, § 132 (a), title I. 84 Stat. 549.)

A-36

--youisoddg

ED

u STEVAS.

Supreme Court of the United States

OCTOBER TERM, 1981

— — — — — — —

HARVEY BAXTER, et al

Petitioners,

V.

WILLIAM E. MOUZAVIRES,

STONER, TREESE, VOLTZ A HOILES

James R. Treese

(Counsel of Record)

1000 Connecticut Avenue

Suite 1009

Of Counsel Washington, D.C. 20036

THE CASALAS PRESS. IC - 1717 K Sweet NW - Washington. OC - 223-1220

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases: Page

Basil, Inc. v. Guardino,

424 A.2d 70(D.C. App. 19BO) hi1

Dorothy K. Winston & Co. v. Town Heights Development, Inc.

376 F.Supp. 1214, 1216(L.D.C. 1974) ũ il[⁰ cnn

Environmental Research Iniernational, Inc. v. Lock wood

Greene Engineers, Inc., 355 A.2d 808 (D.C. App. 1976) ........

International Shoe Co. \. State of Washington,

VW 5 ee

Margolis v. Johns,

157 U.S. App. D.C. 209, 483 F.2d, 1212(1973) at 1218 .........

Moers v Smith,

460 F. Supp. 621 (D.D.C. 1978) ............ ae ee ee

Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-899

HARVEY BAXTER, et al

Petitioners,

V.

WILLIAM E. MOUZAVIRES,

Respondeni.

OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

PRELIMINARY STATEMENT

Petitioners’ prayer for a Writ of Certiorari presents no

new matter to be decided by the Court.

STATEMENT OF THE CASE

Respondent is a lawyer specializing in Trademark and

Patent law. In May of 1974 the Petitioners contacted

Respondent in the District of Columbia where he had his

law offices and requested him to assist them with a law

suit that had been filed against one of Petitioners’ clients.

Petitioners, also lawyers, did not specialize in the Patent

and Trademark field, but desired to remain active in the

case and to be paid for their activity. The law suit involved

was in the State of Florida. The majority of Respondent's

work was performed in the District of Columbia. Respon-

dent was not authorized or licensed to practice law in the

State of Florida. Respondent did perform as was re-

quested and consulted regularly with the Petitioners by

telephone and with occasional trips to Florida and in addi-

tion made substantial cash disbursements at their request in

connection with those services rendered.

REASONS FOR NOT GRANTING THE WRIT

There is nothing new presented by this case. Interna-

tional Shoe Co. v. Washington, 326 U.S. 310 (1945) as

well as other cases have well established for many years

that a Court may assert personal jurisdiction over a non-

resident defendant for service of process as authorized by

statute and where the service of process so authorized is

consistent with due process. The main question in this case

is whether or not the Petitioners were “transacting any

business” in the District of Columbia. The “transacting

any business” provision of the statute has long been held

to be co-extensive with due process laws. Margolis v.

Johns, 483 F.2d. at 1218; Myers v. Smith, 460 F.Supp. 621

(D.D.C. 1978). As was stated in the District of Columbia

Court of Appeals opinion, it is now well settled that the

“transacting any business” provision embraces those con-

tractual activities of a non-resident defendant which cause

a consequence here. And to fall within the purview of that

provision a non-resident defendant need not have been

physically present in the District. Dororhy K. Winston &

Co. v. Town Heights Development, inc., 376 F.Supp.

1214, 1216 (D. D.C. 1974).

if a person in Florida desires to do business with a

lawyer in the District of Columbia as opposed to getting a

lawyer specializing in a particular field in Florida it is his

choice and it is certainly more fair to say that by his choos-

ing to do business with a resident of the District of Colum-

bia he should submit himself to the jurisdiction of the

District of Columbia than it would be to say that by his

choosing to do business with a lawyer in the District of

Columbia that lawyer in the District of Columbia should

have to travel to Florida to enforce payment of his agreed

fee.

It is well established also that the contacts between

plaintiff and defendant need be but slight for the due pro-

cess clause to be satisfied and to establish a sufficient con-

nection between the Defendant and the forum state as to

make it fair to require defense of the action in the forum.

See McGee v. International Life Insurance Co., 355 U.S.

220 (1957); Kulko v. Superior Court, 436 U.S. 84 (1978).

The cases that have held that jurisdiction did not adhere

to the acts sued upon have been occasions where the defend-

ant had no real contact with the forum state. In World-

Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)

the Court stated that in-personum jurisdiction could not

be acquired constitutionally by means of the Oklahoma

long arm statute with the defendant, an automobile

distributor who dealt with retailors located exclusively in

the tri-state area of New York, New Jersey and Connec-

ticut and the only connection with Oklahoma was that an

automobile he had sold was involved in an accident there.

The cases that have been distinguished from those denying

jurisdiction have pointed to the fact that the defendants

have solicited business in the forum state or in some other

way made a voluntary contact with the forum. Another

example is Frank E. Basil, Inc. v. Guardino, 424 A. 2d 70

(D.C. App. 1980). In that case, again, where suit was

4

brought against an employer by an employee to enforce a

California breach of contract it was found that the long

arm statute would not apply since the employer neither

derived any income from the contract with the employee

nor did he expect to and also since the employer’s sending

of his agent to California to interview the California state

resident for employment was for employment to be per-

formed elsewhere under a contract which expressly stated

that it was to be governed by the law of Saudi Arabia.

The case of Environmental Research International, Inc.

v. Lockwood Greene Engineers, Inc., 355 A.2d 808 (D.C.

App. 1976) differs greatly from the case at issue. In

Lockwood Greene the Court was especially concerned

with freedom of access of all citizens to government agen-

cies uniquely situated in the District of Columbia. In that

case also, the person trying to get jurisdiction in the

District of Columbia had not been solicited but had been

the person who went outside of the forum to solicit

business to be done by himself before government agen-

cies.

CONCLUSION

For the reasons stated, the Petition for Writ of Cer-

tiorari should be denied.

Respectfully submitted,

STONER, TREESE, VOLTZ & HOILES

James R. Treese

(Counsel of Record)

1000 Connecticut Avenue

Suite 1009

Of Counsel Washington, D.C. 20036

William R. Voltz Attorneys for Respondent