# Record and brief — Baxter v. Mouzavires > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0712%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 455 U.S. 1006 ## Text 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. / INDEX Page D ᷑ SES eee Pre ee i e ̃ ... ae abe hailed , ²⅛—[ꝛłr QQ ²• -- kt ' x r ˙²˙ »A „ , ̃ Ä “r ĩ˙ . i ee ee OSE TTT ⅛ ˙ʃĩ ö'X1½1 e . „ ee , ̃ ¼OU—v.. ] ↄð7§—ꝛi¹ð˙ĩ¹e 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.