Petition for Writ of Certiorari — Shoppers Food Warehouse Corp. v. Moreno (No. 99-1733)

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Supreme Court, U.S.

rin & D

991 733 APR 2 8 2000

No. 99- Uru ts Us tuas

IN THE

Supreme Court of the Gmted States

SHOPPERS FOOD WAREHOUSE MD CoRrpP.,

Petitioner,

VS.

ASUNCION MORENO,

Respondent.

On Petition for a Writ of Certiorari to the

District of Columbia Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

JEFFREY S. SUTTON

Counsel of Record

CHAD A. READLER

JONES, DAY, REAVIS & POGUE

1900 Huntington Center

41 South High Street

Columbus, Ohio 43215

(614) 469-3855

Counsel for Petitioner

venom

QUESTION PRESENTED

May a long-arm statute constitutionally reach a

nonresident defendant when the defendant’s only activities in

the forum consist of advertising and when the out-of-state

accident did not arise from that advertising?

PARTIES TO THE PROCEEDING BELOW

The parties in the District of Columbia Court of Appeals

were plaintiff Asuncion Moreno and defendant Shoppers Food

Warehouse MD Corp. Shoppers Food Warehouse MD Corp.

is currently owned by Rich Food Holdings, Inc., which in turn

is owned by SuperValu Inc.

TABLE OF CONTENTS

Page

oF ns 8 he 8 0G |) a ira era i

PARTIES TO THE PROCEEDING BELOW ......... ii

pp Ree Roly 8 ey: Sa Vv

a a ear a eee aa mee ]

ee sag af ge Sek Fe aoe a 1

CONSTITUTIONAL AND

ep rile 2 tg 6. . xe l

Seen GO EUG... 2. ee ce 2

REASONS FOR GRANTING THE WRIT ........... 7

I. The Court Should Resolve A Lower-Court Split

Over When A Cause Of Action Arises Out Of

Activities In The Forum State For Purposes Of

Asserting Specific Personal Jurisdiction Over A

Nonresident Defendant ...................... 8

A. Due Process Requires Minimum

Contacts With A State Before It May

Assert Long-Arm Jurisdiction Over A

Nonconsenting Defendant ............... 8

B. A Deep Division Of Authority Exists

Among The Lower Courts Regarding

The Type Of Relationship That Must

Exist Between The Litigation And

The Defendant’s Forum Activities To

Establish Specific Jurisdiction............ 1]

II. This Recurring Federal Question Is Exceedingly

GS We Putin kd kaw a eae. Se Rees 18

| |

III. This Case Presents An Appropriate Vehicle For

Resolving A Pressing Jurisdictional Issue ._.. . 21

IE. oe eee dy fy eet eee 23

TABLE OF AUTHORITIES

Page

Cases

Akro Corp. v. Luker, 45 F.3d 1541 (Fed. Cir. 1995) ... 15

Arguello v. Industrial Woodworking Mach. Co.,

S38 P.26 1120 (Utah 1992).................. 15

Ballard v. Savage, 65 F.3d 1495 (9th Cir. 1995) ...... 13

Bayles v. K-Mart Corp., 636 F. Supp. 852

eee BOE on eho ane eae eo 17, 20

Bolling v. Sharpe, 347 U.S. 497 (1954) ............. 22

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) .. 9

Calder v. Jones, 465 U.S. 783 (1984) ............... 9

Camelback Ski Corp. v. Behning,

539 A.2d 1107 (Md. 1988) ................ 17,18

Carnival Cruise Lines, Inc. v. Shute,

We EI Br Ne ok nee inne be eee dae 2, 8, 10

City of Virginia Beach v. Roanoke River Basin Ass'n,

776 F.2d 484 (4th Cir. 1985) ...0..0000000... 15

Clark v. City of St. Augustine, Fla., :

977 F. Supp. 541 (D. Mass. 1997) .......... 12, 17

Cornelison v. Chaney, 545 P.2d 264 (Cal. 1976) ...... 15

Creech v. Roberts, 908 F.2d 75 (6th Cir. 1990) ....... 16

Deluxe Ice Cream Co. v. R.C.H. Tool Corp.,

726 F.2d 1209 (7th Cir. 1984) ............... 14

Dirks v. Carnival Cruise Lines,

642 F Supp. 971 (D. Kan. 1986) .............. 13

Doe v. National Med. Servs.,

974 F.2d 143 (10th Cir. 1992) ............... 19

Domtar, Inc. v. Niagara Fire Ins. Co.,

533 N.W.2d 25 (Minn. 1995)) ............. 6, 15

Duffy v. Shoppers Food Warehouse MD Corp.,

No. 93-2372 (D.D.C. July 31, 1995) ......... 4, 20

Fidelity and Cas. Co. of New York v. Philadelphia

Resins Corp., 766 F.2d 440 (10th Cir. 1985); . .. 16

Gelfand v. Tanner Motor Tours, Lid. , 339 F.2d 317

COGN. FO a kno re eae eee 12, 16

Gildewell Motors, Inc. v. Pate,

577 P26 1290 Cee. ISTE) 2. wn. 5 ia cans 17

Gray v. Lewis & Clark Expeditions, Inc.,

12 F. Supp. 2d 993 (D. Neb. 1998) ............ 12

Hanson v. Denckla, 357 U.S. 235 (1958) ........... 20

Harriman v. Demoulas Supermarkets, Inc.,

518 A246 1035 Gide. 1906) ... 2. ceca 16

Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 406 C19G4E) . 2... ccc eaes passim

International Shoe Co. v. Washington,

SOO 3).D. FIO CISEe os on ese eee 8,9

Keeton v. Hustler Magazine, Inc., 465 U.S. 770

(Fr er rons ee) ee? 9,10

Munley v. Second Judicial Dist. Court of Nevada,

761 P.2d 414 (Nev. 1988) ................... 17

Nowak v. Tak How Invs., Ltd., 94 F.3d 708

Cigt Cae TR on ek ccG cae eee ee eee 11,12

Pearrow v. National Life & Accident Ins. Co.,

703 F.2d 1067 (8th Cir. 1983) ............. 12, 16

Perkins v. Benguet Consol. Mining Co.,

PAS U.S. SF CIPD cs os vice teesey esau 9

Prejean v. Sonatrach, Inc., 652 F.2d 1260

| ee err 13

Scheidt v. Young, 389 F.2d 58 (3d Cir. 1968) ........ 16

Shaffer v. Heitner, 433 U.S. 186 (1977) ............. 9

Shute v. Carnival Cruise Lines, 897 F.2d 377

(9th Cir. 1990), rev’d on other grounds

GPUS. SES CI 6 iin ee ee passim

vil

Siskind v. Villa Found. for Educ., Inc..,

642 S.W.2d 434 (Tex. 1982)................. 16

Southwire Co. v. Trans-World Metals & Co.,

735 F.2d 440 (11th Cir. 1984) ............... 15

State of Iowa ex rel. Miller v. Baxter Chrysler

Plymouth, Inc., 456 N.W.2d 371 (lowa 1990) ... 12

Tatro v. Manor Care, Inc., 625 N.E.2d 549

Se SE, 3b nk eee ae bee ee 13

Third Nat’! Bank in Nashville v. WEDGE Group Inc.,

882 F.2d 1087 (6th Cir. 1989) ............. 14,19

Thomason v. Chemical Bank, -

661 A.2d 595 (Conn. 1995) ............. 6, 15, 19

Vons Companies, Inc. v. Seabest Foods, Inc.,

926 P.2d 1085 (Cal. 1996))........... 6, 15, 18, 19

Wims v. Beach Terrace Motor Inn, Inc.,

759 F Supp. 264 (E.D. Pa. 1991) ............. 13

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ......0 2. 10, 20

Constitutional Provisions and Statutes

ae A SE oy was os cba ecard 2

Sn EE oo Sore a cae oak ee ee ]

Erm GE EOE. oe ek ees b acd nwawact 2,4

Miscellaneous Authorities

Brilmayer, How Contacts Count: Due Process Limitations

On State Court Jurisdiction 1980 Sup. Ct. Rev. 77 18

Brilmayer, Related Contacts and Personal Jurisdiction,

101 Harv. L. Rev. 1444 (1988) ............... 17

Vill

Maloney, Specific Personal Jurisdiction and

the “Arise From or Relate To” Requirement. . .

What Does It Mean? 50 Wash. & Lee

Ap MEO oe yo os a eke 17, 19

Richman, A Sliding Scale to Supplement the Distinction

Between General and Specific Jurisdiction (Part II),

72 Calf. L. Rev. 1328 (1984) .............. 17, 18

Twitchell, A Rejoinder to Professor Brilmayer,

101 Harv. L. Rev. 1465 (1988) ............... 17

Twitchell, Zhe Myth of General Jurisdiction,

1O1 Faery. L. Rev. GIO (7988)... 2. we. 17

AE Ob Rattont is Ce BA AAI ete ltt abe 8 A Soe en HR Arar ae Ie

PETITION FOR A WRIT OF CERTIORARI

Shoppers Food Warehouse respectfully petitions for a

writ of certiorari to review the 4-3 en banc decision of the

District of Columbia Court of Appeals, holding that personal

jurisdiction exists over petitioner in this case. In reaching this

conclusion, the lower court rejected petitioner’s contention that

due process precludes personal jurisdiction over a nonresident

defendant regarding a slip-and-fall accident that occurred in

Maryland when the defendant’s only forum contact consists of

advertising in a metropolitan newspaper based in the District of

Columbia and when the accident did not stem from that

advertising.

OPINIONS BELOW

The en banc decision of the District of Columbia Court

of Appeals (Pet. App. 1a-41a) is published at 746 A.2d 320

(2000); the original panel decision (Pet. App. 44a-63a) is

published at 715 A.2d 107 (D.C. 1998); and the decision of the

Superior Court of the District of Columbia (Pet. App. 69a-73a)

is unpublished.

JURISDICTION

The District of Columbia Court of Appeals entered its en

banc decision on February 17, 2000. Jurisdiction in this Court

exists under 28 U.S.C. § 1257. The notifications required by

Rule 29.4 and 28 U.S.C. §§ 2403(a) & 2403(b), which may be

applicable in this case, are being made with the service of this

petition.

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The District of Columbia’s long-arm statute provides in

relevant part:

(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 cf Columbia;

* * * *

(4) causing any tortious injury in the District of Columbia

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;

* * * *

(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.

D.C. Code § 13-423.

The Due Process Clause of the Fifth Amendment

provides:

No person shall . . . be deprived of life, sida or

property without due process of law .

U.S. Const., amend. V.

STATEMENT OF THE CASE

This case presents a recurring federal question, one that

has deeply divided the lower courts, one that the court below

acknowledged has prompted conflicting rulings, one that this

Court has previously acknowledged but declined to address,

see Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

US. 408, 415 n.10 (1984), and one that this Court previously

decided to review, Carnival Cruise Lines, Inc. v. Shute, 498

U.S. 807-08 (1990), but ultimately did not reach, 499 US.

585, 589 (1991). The issue is this: Does the Due Process

Clause permit the District of Columbia or any State

(collectively “State”) to compel a nonresident to defend a

personal-injury action in its jurisdiction when the accident

Sn ON Me sh! DS AORN

occurred outside of the forum, when the defendant’s only

forum contacts consist of advertising in a metropolitan

newspaper, and when the tort was not caused by the

defendant’s advertising? Because the Court has not yet

explained the requisite connection between a plaintiff's injury

and a defendant’s forum contacts before specific personal

jurisdiction may be asserted over a nonresident and because the

issue has generated a serious division of authority in the lower

courts, petitioner respectfully submits that the question is ripe

for review in this case.

1. On November 20, 1993, Asuncion Moreno slipped

and fell on a piece of okra while shopping in Takoma Park,

Maryland at a grocery store owned by Shoppers Food

Warehouse MD Corp. (“Shoppers”). Ms. Moreno is a resident

of the District of Columbia. Shoppers is a Maryland

corporation with its principal place of business in Lanham,

Maryland. Shoppers has stores in Maryland and Virginia, but

does not maintain any stores or offices in the District. Nor

does it have an interest in any property in the District or sell

any goods or supply any services there. While the grocery

store places advertisements in The Washington Post, whose

primary circulation includes the District, Maryland and

Northern Virginia, “Ms. Moreno never claimed to have seen”

the advertisements before going to the Shoppers store. Pet.

App. 18a.

2. On April 5, 1994, Ms. Moreno filed a negligence

complaint against Shoppers in the Superior Court of the

District of Columbia, alleging that Shoppers failed to keep its

premises in a reasonably safe condition. Ms. Moreno

attcinpted to obtain personal jurisdiction over Shoppers under

the long-arm statute of the District of Columbia. That statute

is designed to be “coextensive in reach with .. . the due process

clause,” Pet. App. 8a, and permits jurisdiction (1) in cases

“arising from the person’s . . . causing tortious injury in the

District of Columbia by an act or omission outside the District

—

of Columbia if he regularly does or solicits business . . . in the

District of Columbia,” D.C. Code § 13-423(a)(4), or (2) in

cases “arising from the person’s . . . transacting any business in

the District of Columbia,” D.C. Code § 13-423(a)(1).

3. Shoppers promptly moved to dismiss for lack of

jurisdiction, arguing that the exercise of personal jurisdiction

over it would violate due process. On June 22, 1994, the trial

court denied Shoppers’ motion. It concluded that jurisdiction

did not lie under section 13-423(a)(4) because no injury had

been caused “in” the District of Columbia. Still, it found

jurisdiction constitutionally permissible under section 13-

423(a){1). In the court’s view, it was “reasonable” to require

Shoppers to defend the lawsuit in the District because it “owns

numerous stores in Maryland and Virginia, several of which are

located within a few miles of the District of Columbia border,”

and it “solicit[s] customers in the District” through

advertisements in The Washington Post. Pet. App. 4a.

4. On August 18, 1995, Shoppers moved for

reconsideration. In doing so, it pointed to a recent federal

court decision, Duffy v. Shoppers Food Warehouse MD Corp.,

No. 93-2372 (D.D.C. July 31, 1995), in which the court held

on virtually identical facts that due process precluded Shoppers

from being forced to defend a tort action in the District.

Nonetheless, the trial court denied the motion, after which the

case proceeded to a jury trial. On September 14, 1995, the jury

returned a verdict in favor of Ms. Moreno, awarding her

$197,307 in compensatory damages. Shoppers filed several

post-trial motions, and continued to challenge the

constitutionality of asserting personal jurisdiction over it. On

- December 15, 1995, the trial court issued a final order denying

each of these post-trial motions, after which Shoppers

appealed. Pet. App. 65a.

5. On July 16, 1998, a divided panel of the District of

Columbia Court of Appeals affirmed, rejecting Shoppers’ claim

that the District of Columbia lacked personal jurisdiction over

Cr ER EE SOE ase Ra rg eee

le EP te oe ee rol

it. Pet App. 44a. Shoppers sought en banc review of the

panel’s decision on the jurisdictional issue, which the Court of

Appeals granted on January 4, 1999. Pet. App. 42a.

6. On February 17, 2000, a 4-3 majority of the en

banc Court of Appeals affirmed. At the outset the majority

acknowledged that both the District of Columbia courts and the

Federal trial courts within the District had “disagreed” over this

“difficult matter” — specifically whether “advertising

constitutes a sufficient nexus for the District’s exercise of

personal jurisdiction over a nonresident defendant in a personal

injury lawsuit where the injury took place” in a different

jurisdiction. Pet. App. Sa. The court then found it

“unnecessary” to decide whether Shoppers’ “business contacts”

with the District “were sufficiently continuous and systematic’

to confer general jurisdiction in this Case,” id. at 19a, because

“if the claim either arises out of or relates to the nonresident

defendant’s business activity, specific jurisdiction may be

exercised,” id. at 22a.

In considering how to measure whether a cause of action

“arises from” or is “related to” a defendant’s contacts with a

State for specific-jurisdiction purposes, the court observed that

“[o]}ther jurisdictions have wrestled with” the question “and

have reached diverse conclusions as to the appropniate test for

determining the proper nexus between the nonresident

defendant’s business activity and the claim asserted by the

plaintiff” Jd. at 23a. The Ninth Circuit and the Supreme

Judicial Court of Massachusetts, the majority noted, have

adopted a “but for” test, simply asking whether “‘but for’ the

defendant’s forum-related activities, the injury would have

occurred.” Pet. App. 26a (citations omitted). Other courts,

the majority added, have rejected a “but for” test in favor of a

“proximate cause” test, which requires “the forum contacts [to]

be necessary to the proof of the cause of action.” Pet App. 23a

(quotation omitted). The majority opinion identified the First

Circuit as the main proponent of this test. Pet. App. 24a.

Still other courts, the majority noted, have focused less

on whether the forum contacts caused the claimant’s injuries

and more on whether they are “related to” or have a

“substantial connection” to the injury. Pet. App. 24a-28a. The

majority characterized the Supreme Courts of California,

Connecticut and Minnesota all as embracing this test: (1) “the

Supreme Court of California decided to retain its ‘substantial

connection’ test as a flexible standard which best interprets the

relatedness requirement” (citing Vons Companies, Inc. v.

Seabest Foods, Inc., 926 P.2d 1085, 1096 (Cal. 1996)); (2) the

Minnesota Supreme Court says that when a claim “‘has a

‘substantial connection’ with the forum state, specific

jurisdiction exists” (quoting Domtar, Inc. v. Niagara Fire Ins.

Co., 533 N.W.2d 25, 31 (Minn. 1995)); (3) the Connecticut

Supreme Court says that due process does “‘not [] require a

causal connection between the defendant’s solicitation here and

the plaintiffs’ lawsuit’” but only that “‘it was reasonably

foreseeable that, as a result of that solicitation, the defendant

could be sued in Connecticut by a solicited person on a cause

of action similar to that now being brought by the plaintiffs’”

(quoting Zhomason v. Chemical Bank, 661 A.2d 595, 603

(Conn. 1995)). Pet. App. 27a-28a.

Based upon its “review of nexus tests used in other

jurisdictions, [and] the criticisms leveled at some of them,” the

majority ultimately adopted a “substantial connection” or

“discernible relationship” test. Pet. App. 28a. That 1s to say:

To have specific jurisdiction over such claims, the injury need

not be caused by the forum contacts but must only “have some

‘discernible relationship’” to the defendant’s activity in the

forum. The court then found that Shoppers’ advertising

satisfied this test -- first, because the activity had “a discernible

relationship to a claim by a District resident who becomes a

customer in one of Shoppers’ stores and is injured”; and,

second, “because it is reasonably foreseeable that, as a result of

advertising extensively and over a substantial period of time in

the District’s major circulation newspaper, Shoppers could be

a “%

adel wh Perr

it Ne Tem ot

sued in the District on a claim similar to that filed by Ms.

Moreno.” Jd. The court rejected Shoppers’ argument that “the

nexus requirement is not satisfied because there is no inherent

relationship between the duty breached (to provide a safe store)

and the ‘transaction’ of advertising in the District of Columbia

media.” Pet. App. 29a. In the court’s view, this theory would

permit only a claim for “something akin to false advertising”

and would impose “too heavy a burden” on the plaintiff when

it comes to personal-injury actions like this one.

Chief Judge Wagner dissented on the ground that “[t]he

mere fact that a foreign corporation advertises for business

within the District of Columbia is insufficient” to exercise

personal jurisdiction over tort claims that-“arise wholly in the

foreign state.” Pet. App. 31a. Judge Schwelb, joined by

Judge Steadman, likewise dissented on the ground that Ms.

Moreno’s slip-and-fall claim could not arise from advertising

that she did not see. /d. at 41a.

REASONS FOR GRANTING THE WRIT

At stake in this case is the type of relationship between a

defendant’s forum activity and a cause of action that must exist

before the Due Process Clause permits specific jurisdiction to

be exercised over a nonresident defendant. Is the pertinent

connection between the forum activities and the injury a matter

of “proximate” causation? Is the connection a matter of “but

for” causation? Or is it one of a “substantial” or “discernible”

relationship? The lower courts are hopelessly conflicted over

the answer, and show no signs of reconciling these outcome-

dispositive ames in perspective any time soon.

Nor is this Court unfamiliar with the issue. The Court

explicitly identified, but declined to decide, the question in

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.

408, 415 n.10 (1984). Compare id. at 424-28 (Brennan, J.,

dissenting). And in Carnival Cruise Lines, Inc. v. Shute, 498

U.S. 807-08 (1990), the Court granted review of the question

but ultimately resolved the case on statutory grounds by

applying a forum-selection clause to the claimant, 499 U.S.

585, 589 (1991). Since Helicopteros and Carnival Cruise, this

lower-court split in authority has not abated. Not only has the

number of highest State courts and Federal courts of appeals

that have taken sides on the issue increased but the number of

jurisdictions with competing Federal and State court decisions

affecting the same State has grown as well. Residents of the

District of Columbia, Massachusetts and California, for

example, all face different jurisdictional tests in this area

depending solely on the happenstance of whether the claim is

brought in Federal or State court. The elimination of that

intolerable development — dueling legal tests applicable not

just to citizens in different jurisdictions, but to citizens of the

same State — by itself ought to justify review. For these

reasons and those elaborated below, the Court should grant the

writ.

I. The Court Should Resolve A Lower-Court Split Over

When A Cause Of Action Arises Out Of Activities In

The Forum State For Purposes Of Asserting Specific

Personal Jurisdiction Over A Nonresident Defendant.

A. Due Process Requires Minimum Contacts With

A State Before It May Assert Long-Arm

Jurisdiction Over A Nonconsenting Defendant.

The Due Process Clause limits the power of State courts

to issue a valid personal judgment against a nonresident

defendant. In /nternational Shoe Co. v. Washington, 326 U.S.

310 (1945), the Court held that the Clause imposes significant

limits on the ability of States to employ long-arm statutes to

compel nonconsenting parties to defend lawsuits in a foreign

jurisdiction. In the frequently-repeated words of /nternational

Shoe, the defendant must have “certain minimum contacts”

with the forum and those contacts must be such that “the

maintenance of the suit does not offend ‘traditional notions of

fair play and substantial justice.” Jd at 316 (citations

omitted).

In applying these requirements, the Court has

distinguished between efforts to assert jurisdiction over causes

of action that arise out of the defendant’s activities in the forum

State and those that do not. On one side of the ledger, when

: the cause of action does not stem from the defendant’s forum

activities, those activities must be sufficiently “continuous and

systematic” before the assertion of in personam jurisdiction will

] be permitted. Perkins v. Benguet Consol. Mining Co.,, 342

U.S. 437, 438 (1952). The Court has referred to this exercise

of power as one of “general” jurisdiction. Helicopteros, 466

U.S. at 414 n.9.

On the other side of the ledger, “specific” jurisdiction

requires fewer contacts with the forum State, but does require

a showing (1) that the defendant “purposefully directed’ his

activities at residents of the forum,” and (2) that “the litigation

results from alleged injuries that ‘arise out of or relate to’ those

activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462,

472 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465

U.S. 770, 774 (1984), and Helicopteros, 466 U.S. at 414). In

specific jurisdiction cases, “the Court has said that a

‘relationship among the defendant, the forum, and the

litigation’ is the essential foundation of in personam

jurisdiction.” Helicopteros, 466 U.S. at 414 (quoting Shaffer

v. Heitner, 433 U.S. 186, 204 (1977)).

} The Court has considered several cases dealing with the

first aspect of the specific jurisdiction inquiry — whether the

defendant sufficiently directed its activities at the forum State

to subject it to jurisdiction. See, e.g., Burger King, supra

(upholding jurisdiction for suit involving contractual

relationship of nonresident franchisee); Calder v. Jones, 465

U.S. 783 (1984) (upholding jurisdiction for libel suit based

upon distribution of publication in plaintiffs home State);

Keeton v. Hustler Magazine, Inc., supra (upholding jurisdiction

Mp RN Maat Tah FIV EEL OD SS MART NES

ail,

for libel suit by nonresident based upon regular distribution of

publication in forum State); World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286 (1980) (denying jurisdiction where

automobile is sold to plaintiff who then drives to forum State).

What the Court has had less occasion to consider, and did not

need directly to address in each of these cases, was when

alleged contact with a forum State sufficiently “arises out of or

relates to” the subject matter of the litigation.

In Helicopteros, it is true, Justice Brennan raised the issue

and thoroughly explained how it should be analyzed in his

dissenting opinion. 466 US. at 424-28. But the opinion for

the Court declined to reach the question because the parties

had failed to raise it themselves. /d. at 415-16 & n.10. Six

years later in Carnival Cruise Lines, the Court granted review

of the question in a personal-injury action originating in the

Ninth Circuit. As in this case, the defendant’s only contacts

with the forum involved advertising. And, as in this case, the

court of appeals held that a personal injury occurring outside

of the forum still arose from that advertising for specific

jurisdiction purposes. 895 F.2d 377, 385. In the aftermath of

the lower court's decision, this Court granted review (498 U:S.

807-808 (1990)) of the following question: “Can a long-arm

statute constitutionally reach a defendant whose activities in the

forum state are insubstantial and bear only a tenuous

relationship to the cause of action?” While the parties briefed

and argued the “arising out of’ question under this Court’s

specific-jurisdiction case law, the Court decided the case on the

basis of a forum-selection clause signed by the parties. 499

U.S. 585, 589 (1991).

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Severe ee eee eee MINED eee

B. A Deep Division Of Authority Exists Among

The Lower Courts Regarding The Type Of

Relationship That Must Exist Between The

Litigation And The Defendant’s Forum

Activities To Establish Specific Jurisdiction.

Both before and after Helicopteros and Carnival Cruise

Lines, the highest courts of several States and most of the

Federal Circuits have struggled to determine when a cause of

action “arises from” a nonresident defendant’s forum contacts

and when accordingly specific jurisdiction may be asserted over

an unwilling defendant. The en banc opinion for the court of

appeals identified at least three different schools of thought on

point: (1) one focused on a “proximate cause” relationship

between the defendant’s forum activities and the cause of

action; (2) another focused on a “but for” relationship between

those contacts and the claim; and (3) still another focused not

on a cause-and-effect relationship between the two but more

loosely on a “substantial connection” or “discernible

relationship.” In analyzing these different views, the court

identified at least six highest courts (including its own) that had

taken conflicting stands on the question left open by

Helicopteros and Carnival Cruise Lines. While this lower-

court uncertainty by itself ought to justify review, the majority

opinion in truth understates this depth of division.

The most stringent of the three standards is the

“proximate cause” test. It requires the claimant to show that

jurisdiction “is premised on a contact that is a legal cause of the

injury underlying the controversy — i.e., that form[s] an

important, or [at least] material, element of proof in the

plaintiff's case.” Nowak v. Tak How Investments, Lid., 94 F.3d

708, 715 (quotation omitted). The First, Second and Eighth

Circuits all have approved variations of a “proximate cause”

standard as the primary benchmark for specific jurisdiction. In

considering the issue most recently, the First Circuit noted that

proximate cause “distinguishes between foreseeable and

unforeseeable risks of harm,” while a ““but for’” requirement

... has in itself no limiting principle; it literally embraces every

event that hindsight can logically identify in the causative

chain.” Jd. at 715. While continuing to “emphasize the

importance of proximate causation” -- that jurisdiction “is

premised on a contact” that is an “element of proof in the

plaintiff's case” -- the First Circuit has also permitted “‘a slight

loosening of that standard when circumstances dictate.” /d. at

715-716; see also Clark v. City of St. Augustine, Fla., 977 F.

Supp. 541, 544 (D. Mass. 1997) (“Although St. Augustine’s

solicitation of tourism within Massachusetts satisfies the “but

for’ causation standard required by the long-arm statute, it does

not satisfy the due process proximate cause standard because,

while in Massachusetts, the [plaintiffs] had no contact or

contract with the City”). The Eighth and Second Circuits also

seem to favor a proximate cause requirement. See Pearrow v.

National Life & Accident Ins. Co., 703 F.2d 1067, 1069 (8th

Cir. 1983) (Tennessee company’s solicitation of Arkansas

resident to visit Opryland was insufficient to show that a

subsequent negligence claim “arose out of the solicitation in

Arkansas’) (construing Arkansas long-arm statute, not due

process clause, though both turn on “arising out of”

requirement); Gray v. Lewis & Clark Expeditions, Inc., 12 F.

Supp. 2d 993, 998 (D. Neb. 1998) (“[C]auses of action

involving negligence at tourist sites do not arise out of enticing

advertisements directed at the forum state”); Gelfand v. Tanner

Motor Tours, Ltd., 339 F.2d 317, 321-22 (2d Cir. 1964) (bus

injury based on negligence in Nevada did not arise from

contractual sale of tickets by travel agency in New York). The

Supreme Court of Iowa also appears to apply a proximate

cause standard. See State of Iowa ex rel. Miller v. Baxter

Chrysler Plymouth, Inc., 456 N.W.2d 371, 377 (lowa 1990)

(upholding specific jurisdiction for “consequences that arise

proximately from” forum activities -- in that instance from

unlawful advertising that reached the forum State) (quotation

omitted). District courts from the Third and Tenth Circuits

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have reached similar results. See Wims v. Beach Terrace

Motor Inn, Inc., 759 F. Supp. 264, 267-68 (E.D. Pa. 1991)

(holding that “causal link” between New Jersey motor inn’s

advertising in Pennsylvania and plaintiff's injury in New Jersey

was “too attenuated” to say that injury “arose from”

advertising); Dirks v. Carnival Cruise Lines, 642 F. Supp.

971, 975 (D. Kan. 1986) (failing to find “causal connection”

between foreign cruise line’s advertising in forum and personal-

injury claim).

Instead of requiring the forum contact to be an element

of the cause of action as under the “proximate cause” test,

several other courts merely require a “but for” Causative

relationship between the forum contacts and the claim. The

Ninth Circuit continues to be the most ardent defender of this

test. In Shute v. Carnival Cruise Lines, 897 F.2d 377, 385 (9th

Cir. 1990), rev'd on other grounds 499 U.S. 585 (1991), the

court held that this test “preserves the essential distinction

between general and specific jurisdiction.” There, the court

held that “but for” the defendant’s advertising in the forum

State, the plaintiff would not have taken the cruise on which

she was injured and therefore the injury “arises out of’ the

promotional activities. See also Ballard v. Savage, 65 F.3d

1495, 1500 (9th Cir. 1995) (following “but for” test). The

Massachusetts Supreme Court also embraces this approach,

concluding in a recent case that a California hotel’s solicitation

of business from Massachusetts residents satisfied the “arising

out of” requirement where, but for the hotel’s solicitations and

acceptance of reservations, the plaintiff would not have

suffered a personal injury in California. Zatro v. Manor Care,

Inc., 625 N.E.2d 549, 551 (Mass. 1994).

Other courts, while less explicit, also favor a “but for”

approach to this inquiry. In Prejean v. Sonatrach, Inc., 652

F.2d 1260, 1270 n.21 (Sth Cir. 1981), the Fifth Circuit

analyzed the problem this way:

Logically, there is no reason why a tort cannot grow out

of a contractual contact. In a case like this, a contractual

contact is a “but for” causative factor for the tort since it

brought the parties within tortious “striking distance” of

each other. While the relationship between a tort suit and

a contractual contact is certainly more tenuous than when

a tort suit arises from a tort contact, that only goes to

whether the contact is by itself sufficient for due process,

not whether the suit arises from the contact.

The Seventh Circuit describes the necessary relationship

similarly as whether the claims “lie[] in the wake of [the]

commercial activities” of the defendant in the forum. Deluxe

Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209, 1215-16

(7th Cir. 1984).

The third lower-court test in this area is the least

stringent. Unlike the courts that require some sort of causative

relationship between the claim and forum contacts, these courts

merely require “the operative facts of the controversy” to be

“related to the defendant’s contact with the state.” Third Nat'l

Bank in Nashville v. WEDGE Group Inc., 882 F.2d 1087,

1091 (6th Cir. 1989). Adherents to this school of thought (id. )

point out that the Supreme Court has described the specific

jurisdiction inquiry both in terms of an “arising out of” and a

“related to” connection, Helicopteros, 466 U.S. at 415 n.10,

then look to Justice Brennan’s dissenting opinion in

Helicopteros to support this test, id. at 427 (“Limiting the

specific jurisdiction of a forum to cases in which the cause of

action formally arose out of the defendant’s contacts with the

State would subject constitutional safeguards . . . to the

vagaries of the substantive law or pleading requirements of

each State.’’). In addition to the District of Columbia Court of

Appeals here, the Sixth Circuit follows this approach, WEDGE

Group, 882 F.2d at 1091 & n.2 (finding jurisdiction because

the claim had “a substantial connection with” and is “related to”

defendant’s forum contacts), as do the Fourth, Eleventh and

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Federal Circuits. See Akro Corp. v. Luker, 45 F.3d 1541, 1547

(Fed. Cir. 1995) (adopting related to standard); City of

Virginia Beach v. Roanoke River Basin Ass'n, 776 F.2d 484,

487 (4th Cir. 1985) (“the activities that support the

jurisdictional claim must coincide with those that form the basis

of the plaintiff's substantive claim”); Southwire Co. v. Trans-

World Metals & Co., 735 F.2d 440, 442 (11th Cir. 1984).

Several State Supreme Courts have followed this

approach as well. See Vons Companies, Inc. v. Seabest Foods,

Inc., 926 P.2d 1085, 1096 (Cal. 1996) (“A claim need not arise

directly froin the defendant’s forum contacts in order to be

sufficiently related to the contact to warrant the exercise of

specific jurisdiction. Rather, as long as the claim bears a

substantial connection to the nonresident’s forum contacts, the

exercise of specific jurisdiction is appropriate”); Cornelison v.

Chaney, 545 P.2d 264 (Cal. 1976); Domtar, Inc. v. Niagara

Fire Ins. Co., 533 N.W.2d 25, 31 (Minn. 1995) (when a claim

“has a ‘substantial connection’ with the forum state, specific

jurisdiction exists”); 7homason v. Chemical Bank, 661 A.2d

595, 603 (Conn. 1995) (“arising out of’ test does “‘not []

require a causal connection between the defendant’s solicitation

here and the plaintiffs’ lawsuit” but only that “it was reasonably

foreseeable that, as a result of that solicitation, the defendant

could be sued in Connecticut . . . on a cause of action similar

to that now being brought by the plaintiffs’”) (purporting to

construe “arising out of’ language of long-arm statute, not due

process Clause). See also Arguello v. Industrial Woodworking

Mach. Co., 838 P.2d 1120, 1124 (Utah 1992) (declining to

find jurisdiction where “the contacts of the out-of-state

defendant are unrelated to plaintiff's claims”).

Besides reflecting vastly different ways of articulating this

test, the lower-court cases also reflect vastly different results.

Disparate verbal formulations of the appropriate relationship

between a cause of action and the defendant’s forum contacts,

it turns out, serve more than semantic ends; they have had

distinct jurisdictional consequences. And that is especially true

in the context of cases like this one and Carnival Cruise Lines,

where the sole contact with the forum consists of some form of

advertising and the claim stems from an out-of-state personal

injury. Some courts, like the District of Columbia Court of

Appeals in this instance, have found personal jurisdiction over

nonresident defendants under circumstances akin to those here.

See, e.g., Pet. App. 29a-3la (finding jurisdiction over a

personal-injury action based solely on advertising in a

metropolitan newspaper); Creech v. Roberts, 908 F.2d 75, 80

(6th Cir. 1990) (finding jurisdiction over out-of-state

malpractice action based exclusively on advertising and

solicitations in forum); Shulte v. Carnival Cruise Lines, 897

F.2d 377 (finding jurisdiction over a personal-injury action

based solely on solicitations in the forum); Harriman v.

Demoulas Supermarkets, Inc., 518 A.2d 1035, 1038-39 (Me.

1986) (finding jurisdiction over personal-injury action based on

advertising, soliciting, and establishing business relationships

with suppliers in forum). See also Siskind v. Villa Found. for

Educ., Inc., 642 S.W.2d 434, 436-37 (Tex. 1982) (finding

jurisdiction over breach of contract action involving foreign

corporation that advertises in Texas).

Other State and Federal courts have found that

advertising alone does not suffice to establish personal

junsdiction. See, e.g., Pearrow v. National Life and Accident

Ins. Co., 703 F.2d at 1069 (sending brochures into forum to

solicit customers does not authorize state courts to confer

personal jurisdiction over out-of-state defendant in slip-and-fall

action); Fidelity and Cas. Co. of New York v. Philadelphia

Resins Corp., 766 F.2d 440, 447 (10th Cir. 1985)

(advertisement in national trade publication insufficient to

subject party to personal jurisdiction in negligence action);

Scheidt v. Young, 389 F.2d 58 (3d Cir. 1968) (advertising and

telephone conversations do not support jurisdiction for

personal injury at out-of-state lodge); Gelfand v. Tanner Motor

Tours, Ltd., 339 F.2d at 321-22 (sale of tickets through travel

Se SENNA CEES ORT TEES it SO COPE REIS

agency does not support jurisdiction for personal injury on out-

of-state bus trip); Camelback Ski Corp. v. Behning, 539 A.2d

1107, 1111-12 (Md. 1988) (toll-free telephone number and

other solicitation activity in forum do not support jurisdiction

for personal injury at out-of-state ski resort); Munley v.

Second Judicial Dist. Court of Nevada, 761 P.2d 414, 415-16

(Nev. 1988) (advertising and promotional activities in forum

are not sufficient to subject ski resort in neighboring state to

jurisdiction in personal-injury action); Clark v. City of St.

Augustine, Fla., 977 F. Supp. at 545 (“advertis[ing]

extensively” in the forum did not subject Florida city to

personal jurisdiction in Massachusetts in slip-and-fall action);

Bayles v. K-Mart Corp., 636 F. Supp. 852 (D.D.C. 1986)

(advertising in forum did not subject Virginia retail store to

personal jurisdiction in the District of Columbia in slip-and-fall

action). See also Glidewell Motors, Inc. v. Pate, 577 P.2d

1290, 1292 (Okla. 1978) (advertising in newspaper circulated

in forum did not subject nonresident defendant to jurisdiction

in automobile-title dispute).

This division among the lower courts, together with this

Court’s near encounter with the issue in Helicopteros and

Carnival Cruise Lines, also has prompted a spirited debate

among legal commentators. Here, too, a wide range of views

has developed. See, e.g., Maloney, Note, Specific Personal

Jurisdiction and the “Arise From or Relate To” Requirement

. .. What Does It Mean?, 50 Wash. & Lee L. Rev. 1265, 1300

(1993) (“The modified ‘but for’ test will allow courts to

achieve flexibility without completely sacrificing structure”);

Twitchell, A Rejoinder to Professor Brilmayer, 101 Harv. L.

Rev. 1465, 1468 (1988) (preferring “the formality of the

substantive relevance test”); Brilmayer, Related Contacts and

Personal Jurisdiction, 101 Harv. L. Rev. 1444. 1458-64

(1988) (rejecting the “but for” test); Twitchell, The Myth of

General Jurisdiction, 101 Harv. L. Rev. 610, 656 (1988)

(criticizing the “substantive relevance approach”); Richman, A

Sliding Scale to Supplement the Distinction Between General

and Specific Jurisdiction (Part Il), 72 Calif. L. Rev. 1328,

1339 (1984) (“[Helicopteros]| serves only to enhance the

awareness of the issue”); Brilmayer, How Contacts Count: Due

Process Limitations On State Court Jurisdiction 1980 Sup. Ct.

Rev. 77.

As these numerous case citations and law review articles

suggest, the issue presented implicates a deep and abiding

division in the lower courts and among legal scholars. Ample

time has been given to allow enlightened perspectives on the

issue to develop, and if it was appropriate to grant review of

the issue in Carnival Cruise Lines in 1990, it seems doubly

appropriate to do so today in view of the large number of

federal circuits and state supreme courts that have issued

Opinions on the matter.- Even under the most forbearing

application of the lower-court conflict considerations of Rule

10, this federal issue is ripe for review.

Il. This Recurring Federal Question Is Exceedingly

Important.

In addition to the stark division of lower-court authority,

the essential nature of this federal question independently

justifies granting the writ. First, as the extensive case citations

in the petition illustrate, this issue arises frequently in litigation

and is of substantial importance to the day-to-day workings of

the Federal and State courts. The issue arises whenever a

nonresident company advertises in one forum and an injury

occurs in another. Not just the travel industry faces this issue,

as in Carnival Cruise Lines, but so also do ski resorts, as in

Camelback, supra, and all manner of retailers, as in this case.

The frequency with which the issue is litigated, together with

the large number of lower courts that have cried out for

guidance from this Court over its proper resolution, reinforces

the consequential nature of this federal question. See, e.g.,

Vons Cos. v. Seabest Foods, Inc., 926 P.2d at 1096 n.4 (“[t}he

high court has declined to clarify the relatedness element of

specific jurisdiction”); Doe v. National Med. Serv., 974 F.2d

143, 146 (10th Cir. 1992) (“{t]he Supreme Court has not

addressed whether there is a distinction between suits which

‘arise out of and those which ‘relate to’ the defendant’s

contacts”); Third Nat’l Bank in Nashville v. WEDGE Group

a Inc., 882 F.2d at 1091 n.2 (In Helicopteros “the Supreme

Court expressly declined to reach the questions (1) whether the

terms ‘arising out of and ‘related to’ describe different

connections between a cause of action and a defendant’s

contacts with a forum, and (2) what sort of tie between a cause

of action and a defendant’s contact with a forum is necessary

to a determination that either connection exists.”); Thomason

v. Chemical Bank, 661 A.2d at 599-600 (“In the context of

‘specific’ jurisdiction, although the United States Supreme

Court has required the plaintiff's cause of action to ‘arise out

of or relate to’ the defendant’s forum-directed activities, that

court has not articulated a standard for what constitutes

‘arising out of.””); see also Maloney, Specific Personal

Jurisdiction and the “Arise From or Relate To”’ Requirement

. . . What Does It Mean? 50 Wash. & Lee at 1265-66 (“A

particularly troublesome problem that courts face today is the

confusion and inconsistency of the requirement that a cause of

action ‘arise from or relate to’ the defendant’s contacts with

the forum state in order for a court to assert specific personal

jurisdiction. With the United States Supreme Court’s refusal

to consider the issue in Shute v. Carnival Cruise Lines, it

appears that the confusion will persist.”).

Second, the importance of the issue goes beyond whether

a nonresident defendant should be compelled to litigate an

action in a foreign jurisdiction based on the slimmest of forum-

related contacts. It also goes to a fundamental question of

federalism and interstate comity — the extent to which one

State may import a cause of action that another State ought by

custom and rights have power to resolve in its own courts. The

constitutional restrictions on personal jurisdiction thus are

“more than a guarantee of immunity from inconvenient or

distant litigation. They are a consequence of territorial

limitations on the power of the respective States.” Hanson v.

Denckla, 357 U.S. 235, 250-51 (1958). In this respect, due

process “act[s] as an instrument of interstate federalism,”

World-Wide Volkswagen, 444 U.S. at 294, permitting the

States to retain one of the “essential attributes of sovereignty,

including, in particular, the sovereign power to try causes in

their courts,” id. at 293. The minimum contacts inquiry

accordingly “acts to ensure 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.” /d. at

291-92. Preserving these foundational lines between the power

of one sovereign State over that of another is uniquely a

function of this Court, and an especially important function

when the lower courts are applying different tests and reaching

different results over the same question and virtually-identical

fact patterns.

Third, in addition to the customary requests for

uniformity that a deep conflict in the lower courts prompts, the

issue here has led to uncertainty even for residents in the same

State. The Ninth Circuit and the California Supreme Court

have long charted different paths in answering this specific-

jurisdiction question. See, supra. So too, more recently, have

the First Circuit and the Supreme Judicial Court of

Massachusetts. See, supra. Even Shoppers itself has faced

different resolutions of this issue. While the District of

Columbia Court of Appeals seized jurisdiction over this case,

the federal district court has declined jurisdiction on virtually

identical facts. See Duffy v. Shoppers Food Warehouse MD

Corp., No. 93-2372 (D.D.C.); see also Bayles v. K-Mart

Corp., 636 F.Supp. 852 (customer’s slip-and-fall claim did not

“aris[e] from” corporation’s advertising in District of Columbia

media and therefore specific jurisdiction could not

constitutionally be exercised over the corporation). No one

litigant and the residents of no one State should have to face

such unpredictable consequences stemming from precisely the

same conduct.

OI MIN at ZR I i RB eg cere pn cece

Fourth, by embracing a “discernible relationship” or

“related to” test that does not require a causative connection

between the defendant’s forum contacts and the plaintiff s

injury, the lower court threatens to diminish, if not entirely

collapse, the Court’s distinction between “specific” and

“general” jurisdiction. General jurisdiction, recall, deals with

situations in which the complaint does not arise from the

defendant’s forum contacts but the defendant’s contacts with

the forum are so “continuous and systematic” that due process

permits personal jurisdiction over any cause of action involving

the defendant. An interpretation of the Due Process Clause,

however, that allows specific jurisdiction whenever a court

finds some “discernible relationship” between the injury and the

defendant’s forum contacts will make resort to this Court’s

general jurisdictional inquiry utterly unnecessary and will

eventually make the doctrine a quaint artifact of constitutional

law. The failure of the lower court here, and in many other

courts, to preserve this vital distinction also merits review.

Ill. This Case Presents An Appropriate Vehicle For

- Resolving A Pressing Jurisdictional Issue.

This petition squarely presents an opportunity to resolve

a conspicuously open question in the Court’s personal

jurisdiction cases: Must there be a causal relationship between

the defendant’s forum contacts and the plaintiff's complaint to

assert specific jurisdiction over the defendant? Here, the

plaintiff did not see (and accordingly did not rely upon) the

defendant’s Washington Post advertisements in choosing to

visit the Shoppers’ store in Maryland. Pet. App. 4a, 18a. The

only way that specific jurisdiction could exist on this record, as

a result, was through some form of “related to” test that did

not have a cause-and-effect element. Ultimately, that is

precisely the test the lower court adopted; it is precisely the test

that Justice Brennan advocated in dissent in Helicopteros, and

it is precisely the test the majority acknowledged but did not

have occasion to address in Helicopteros.

The case also presents an opportunity to resolve the

question in a context in which it most frequently arises. As

shown above, all manner of retailers frequently advertise in

jurisdictions where they have no stores or any other meaningful

presence, and accordingly frequently face the question whether

a personal injury on their premises arises from these advertising

activities.

Lastly, it makes no difference that this petition involves

a federal question arising in the District of Columbia courts.

Although enacted by Congress, the District’s long-arm statute

is modeled after the Virginia and Maryland long-arm statutes,

and like most long-arm statutes, is designed to be co-extensive

with the reach of the Due Process Clause. Pet. App. 10a, 18a.

No doubt the validity of this interpretation of the District’s

long-arm statute is governed by the Due Process Clause of the

Fifth Amendment, not that of the Fourteenth Amendment. But

that difference has not precluded the Court from reviewing the

constitutionality of government conduct in the District in the

past. See Bolling v. Sharpe, 347 U.S. 497 (1954). Nor, at

any rate, has plaintiff argued in this case that the minimum

contacts inquiry in specific-jurisdiction cases differs depending

on whether the Fifth or Fourteenth Amendment is invoked by

the nonresident defendant.

CONCLUSION

The petition should be granted.

Respectfully submitted,

JEFFREY S. SUTTON

Counsel of Record

CHAD A. READLER

JONES, DAY, REAVIS & POGUE

1900 Huntington Center

41 South High Street

Columbus, Ohio 43215

(614) 469-3855

Counsel for Petitioner

April 2000

APPENDEX

DISTRICT OF COLUMBIA COURT OF APPEALS

SHOPPERS FOOD WAREHOUSE, Appellant,

Asuncion MORENO, Appellee.

No. 96-CV-21.

Decided Feb. 17, 2000.

Before WAGNER, Chief Judge, TERRY, STEADMAN,

SCHWELB, FARRELL, RUIZ and REID, Associate Judges.

ON REHEARING EN BANC

REID, Associate Judge:

The main issue presented by this case is whether the trial

court had personal jurisdiction over appellant, a Maryland

corporation which extensively advertised its grocery stores in

the District of Columbia’s major circulation newspaper and

other communications media, where appellee, a District

resident, alleged in a negligence “slip and fall” lawsuit that she

suffered personal injuries in one of appellant’s Maryland stores

located near the District’s borders. The trial court concluded

that it had personal jurisdiction over appellant, and a jury

awarded appellee damages for her injuries. A majority panel of

this court affirmed the trial court in an opinion issued on July

16, 1998, Shoppers Food Warehouse v. Moreno, 715 A.2d 107

(D.C.1998) (Moreno I). The panel’s opinion was vacated and

Shoppers’ petition for rehearing en banc was granted on

January 4, 1999. 722 A.2d 845 (D.C.1999). After rehearing

en banc, which we granted only to consider the jurisdictional

issue,’ we reaffirm the trial court’s judgment. We hold that the

trial court properly exercised personal jurisdiction because

appellant, through its extensive advertising activity in a major

District of Columbia newspaper, purposefully solicited District

residents as customers for its nearby Maryland and Virginia

stores and thus transacted business in the District; and further,

because Ms. Moreno’s claim had a discernible relationship to

its advertising, Shoppers could have reasonably anticipated

being haled into court to defend against a personal injury suit

brought by a District resident.

FACTUAL SUMMARY

A District of Columbia jury found that on November 20,

1993, appellee Asuncion Moreno slipped and fell on okra in a

grocery store owned by appellant Shoppers Food Warehouse,

a Maryland corporation (“Shoppers”), and as a result of

Shoppers’ negligence, sustained back and hand injuries. She

was awarded damages in the amount of $197,307 for past and

future medical expenses, mental anguish, and pain and

suffering. From the beginning of Ms. Moreno’s lawsuit,

Shoppers argued that, contrary to Ms. Moreno’s position, the

trial court lacked personal jurisdiction over it under D.C.Code

§ 13-423(a)(4) (1995) (causing tortuous injury in the District

of Columbia).? Later, Ms. Moreno claimed that even if

' We leave intact the division’s disposition of the remaining issues on

appeal. See Moreno J, 715 A.2d at 111-12.

? In relevant part, D.C.Code§ 13-423 states as follows:

(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;

* * *

jurisdiction were not based on subsection (a)(4), it rested on

§ 13-423(a)(1) (transacting any business in the District of

Columbia). She pointed out that Shoppers placed extensive

ads in The Washington Post, a major District of Columbia

newspaper, soliciting customers to its stores in Maryland and

Virginia. Indeed, the record on appeal is replete with pages of

weekly Shoppers’ advertisements in The Washington Post

between the period October 6, 1993 and December 1, 1993,

including November 20, the date on which Ms. Moreno alleged

that she fell. The ads for Shoppers’ Maryland and Virginia

stores contained pictures and prices of produce, meats, canned

goods, beverages, candies and other packaged goods.* The

Shoppers’ store where Ms. Moreno was injured is located in

Takoma Park, Maryland, within two miles of her home in the

District of Columbia.

Shoppers maintained that § 13-423(a)(4) did not apply

because no tortious injury took place in the District.

Furthermore, Shoppers argued that Ms. Moreno failed to show

the applicability of § 13-423(a)(1) which, it asserted, must be

read in conjunction with § 13-423(b). It also pointed out that

Shoppers is a Maryland Corporation having its principal place

of business in Maryland; the store in which Ms. Moreno

shopped is located in Maryland; and Ms. Moreno provided no

(4) causing tortious injury in the District of Columbia by an act or

omission outside the District of Columbia if he regularly does or

Solicits 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:

* * *

(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.

* Additional information regarding the ads appears in the analysis section

of this opinion.

affidavit showing that she actually saw the Washington Post

advertisements.

In its order of June 22, 1994, the motions court agreed

with Shoppers that subsection (a)(4) was inapplicable because

Ms. Moreno’s injury occurred in Maryland, not the District.

However, the court concluded that there was personal

jurisdiction under subsection (a)(1) for the following reasons:

First, it is reasonable to require the Defendant to

defend this suit in the District of Columbia... The

Defendant owns numerous stores in Maryland and

- Virginia, several of which are located within a few miles

of the District of Columbia border...._ The Defendant

contracts with and advertises in [T]he Washington Post,

thereby targeting and soliciting customers in the District

of Columbia area .... Furthermore, the Defendant has

failed to “show that it [is] at a ‘severe disadvantage’ in

being required to defend in [the District of Columbia];”

Tom Brown & Co. v. Francis, 608 A.2d 148, 152

(D.C.1992) (quoting Electronic Media Int'l v. Pioneer

Communications, Inc., 586 A.2d 1256, 1258

(Me.1991)[) }. Since the Plaintiff resides in the District,

she has a strong interest in litigating this suit here.

Second, the Defendant, by contracting with

Washington based businesses (i.e., The Washington Post,

the District of Columbia Yellow Pages) for adverti[s]ing

purposes, has transacted business in the District of

Columbia. Thus, the Defendant purposefully and

voluntarily availed itself of the privileges and protections

of the District of Columbia....

Finally, the Defendant’s contacts with the forum

state were of such quality and nature that it is reasonable

for the Defendant to reasonably anticipate being haled

into court in the District of Columbia. It is reasonable to

conclude that the Defendant derives a substantial portion

of its revenue from District of Columbia residents—it

specifically targets with advertisements that demonstrate

how the Defendant’s prices compare favorably with the

prices in supermarkets.

Although the motions court did not explicitly mention

§ 13-423(b) in its June order, it referenced a prior trial court

opinion, Daniels v. Kanof, 116 Daily Wash. L. Rptr. 2053,

2057 (Super.Ct.1988), involving an advertisement in the

District by a nonresident corporation. That opinion stressed

“the foreseeability of injury to District of Columbia plaintiffs as

a result of defendant’s actions and the consequences of its

actions by soliciting and advertising for business in the District

of Columbia.”* Accordingly, the trial court “conclude[d] that

there are enough contacts with the District of Columbia in this

case to satisfy the minimum contacts requirement.”

Il.

ANALYSIS

Personal Jurisdiction

This court has never determined whether newspaper and

other advertisements in the District by a nonresident

corporation owning a chain of stores, some of which are

located in very close proximity to the District’s borders, are

sufficient to meet the minimum contacts requirement of the

District’s long-arm statute, and whether the advertising

constitutes a sufficient nexus for the District’s exercise of

personal jurisdiction over a nonresident defendant in a personal

injury lawsuit where the injury took place in a store in a

neighboring jurisdiction. Trial courts in the District that have

* Daniels also concluded that “defendant’s activities, i.e., the advertising

and soliciting for business which presumably has attracted this plaintiff.

as well as many other District of Columbia residents to its stores, clearly

has caused a consequence in the District, i.e., plaintiff's injuries.” 116

Wash. L. Rptr. at 2057.

examined this issue have disagreed. Judges in both the

Superior Court of the District of Columbia and the United

States District Court for the District of Columbia have

expressed different views at different stages of cases involving

Shoppers as a defendant.°

Survey of Supreme Court Decisions

_ and Past Decisions of this Court

Our consideration of this difficult matter begins with a

review of past Supreme Court decisions and the past decisions

of this court which have interpreted § 13-423(a)(1) and (b).

The review will assist us in determining whether the trial

court’s exercise of personal jurisdiction in this case satisfies the

“minimum contacts” requirement of the due process clause,

and whether the requirement of § 13-423(b)— that a claim for

relief under § 13-423(a)(1) must aris[e] from acts enumerated

[in § 13-423(a)]—has been met.

In the early years after § 13-423 was enacted, decisions

in Our cases were guided both by Supreme Court precedent and

also by then existing Maryland and Virginia law. We look first

at early Supreme Court cases that shaped our initial decisions

under § 13-423(a)(1). /nternational Shoe Co. v. Washington,

326 U.S. 310, 66 S.Ct. 154, 90 L_Ed. 95 (1945), the seminal

decision, held that, in keeping with “ ‘traditional notions of fair

play and substantial justice,’ ” there must be “minimum

contacts” between the defendant and the forum state before

personal jurisdiction can be exercised consistently with due

> The differences in the views of the judges are reflected in the orders of

June 22, 1994, and December 15, 1995, in this case, in Duffy v. Shoppers

Food Warehouse, No. Civ. A. 93-2372, 1994 WL 151204, at *3 (D.D.C

Apr 14, 1994), and in the order of July 31, 1995, transferring the matter

to the United States District Court for the District of Maryland.

SEIN AES LP TEE ES SARS sen

process.° Jd. at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer,

311 US. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). At the

same time, /nternational Shoe emphasized that when a

defendant seeks and “enjoys the benefits and protection of the

laws” of the forum state, the defendant may face “obligations

[which] arise out of or are connected with the [defendant’s]

activities within the [forum] state.” /d. at 319, 66 S.Ct. 154

(citations omitted). Under these circumstances, requiring a

defendant “to respond to a suit ... [in the forum state] in most

instances, hardly [can] be said to be [an] undue [burden].” /d.

Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2

L_Ed.2d 1283 (1958), further refined the required nexus. A

plaintiff's unilateral activity in relation to a defendant cannot

alone sustain personal jurisdiction under the “minimum

contacts” theory. /d at 253, 78 S.Ct. 1228. Rather, the Court

held, “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...” /4. In Shaffer

v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683

(1977), a shareholder’s derivative action, and Kulko v.

Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56

L Ed 2d 132 (1978), a domestic relations matter, the Supreme

Court reiterated the “fairness” and “reasonableness” theme

sounded in /nternational Shoe. One of the indices of “fairness”

and “reasonableness” of the exercise of personal jurisdiction by

the forum state is whether the defendant “ ‘purposefully availed

[itself]’ of the ‘benefits and protections’ ” of the forum state’s

laws, Kulko, supra, 436 U.S. at 94, 98 S.Ct. 1690 (citing

Shaffer, supra, 433 U.S. at 216, 97 S.Ct. 2569 (footnote

* “[D]ue process requires ... that in order to subject a defendant to a

judgment in personam, if he be not present within the territory of the

forum, he have certain minimum contacts with it such that the

maintenance of the suit does not offend ‘traditional notions of fair play

and substantial justice.’ ” /nternational Shoe, supra, 326 U.S. at 316, 66

S.Ct. 154 (citations omitted).

omitted)), and thus, “could reasonably have anticipated being

‘haled before a ... court’ ” in that jurisdiction. /d. at 97-98, 98

S.Ct. 1690 (quoting Shaffer, supra, 433 U.S. at 216, 97 S.Ct.

2569 (footnote omitted)). Ku/ko also examined whether there

was a “sufficient connection” between the defendant and the

forum state by determining “whether the ‘quality and nature’

of the defendant’s activity is such that it is ‘reasonable’ and

‘fair’ to require him to conduct his defense in that State.” /d.

at 92, 98 S.Ct. 1690. Part of the answer depended on whether

the defendant “purposefully derive[d] benefit from any

activities relating to the [forum state].” /d at 96, 98 S.Ct.

1690.

The first of our significant cases decided under

§ 13-423(a)(1), Environmental Research Int'l, Inc. v.

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

(en banc), not only articulated the aforementioned principles

from Supreme Court cases, but also demonstrated that

Congress intended the District’s long-arm statute, like the

corresponding statutes in Maryland and Virginia, to be

coextensive in reach with the exercise of personal jurisdiction

permitted by the due process clause. Specifically, we stated

that:

[t]he legislative history of [the District’s long-arm

statute] makes it clear that it was Congress’ intent to

provide the District with a long-arm statute equivalent in

scope to those already in effect in Maryland and

Virginia.... In interpreting their statutes, the courts of

both Maryland and Virginia have concluded that they

permit the exercise of personal jurisdiction over

nonresident defendants to the extent permitted by the due

process clause of the United States Constitution.

Id. at 810-11 (footnotes omitted). We then stated: “We reach

a similar conclusion as to our statute.” Jd. at 811. We

“note[d] the trend toward liberalization of jurisdictional

limitations” and the fact that “[e]ven a small amount of

in-jurisdiction business activity is generally enough to permit

the conclusion that a nonresident defendant has transacted

business here.” /d.’

Although our earliest cases did not focus much on

§ 13-423(b), we had occasion to interpret that provision in

Cohane v. Arpeja-California, Inc., 385 A.2d 153 (D.C. 1978),

cert. denied, 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651

(1978), where we explained:

The limitation in § 13-423(b) that the claim for relief

must arise from the transaction of business in the District

of Columbia is meant to prevent “the assertion of claims

in the forum state that do not bear some relationship to

the acts in the forum state relied upon to confer

jurisdiction.” Malinow v. Eberly, 322 F Supp. 594, 599

(D.Md.1971). Once, however, the claim is related to

acts in the District, § 13-423 does not require that the

scope of the claim be limited to activity within this

jurisdiction.

” See also Bueno v. La Compania Peruana de Radiodifusion, S.A., 375

A.2d 6, 8 (D.C.1977) (focusing upon whether the defendant had engaged

in some “purposeful, affirmative activity within the District of Columbia”)

(citations omitted).

10a

Id. at 158-59* Thus, under Cohane, if a claim is “related to

[defendant’s} acts in the District,’ the requirement of

§ 13-423(b) is met. We applied the same “relate to” principle

in Berwyn Fuel, Inc. v. Hogan, 399 A.2d 79, 80 (D.C.1979),

where we also made explicit the principle recognized in

Lockwood Greene, supra, that § 13-423 “permits a

jurisdictional reach coextensive with that permitted by the due

process clause” /d. at 80 (citing /nternational Shoe, supra,

326 US at 310, 66 S$ Ct. 154, Cohane, supra, 385 A.2d at

158) Berwyn reiterated that “[t]he only nexus required by

[§ 13-423](a)(1) . between the District of Columbia and the

nonresident defendant is ‘some affirmative act by which the

defendant brings itself within the jurisdiction and establishes

minimum contacts.’ ” /d. (quoting Cohane, supra, 385 A.2d at

158)

Between 1981 and 1983, after the Supreme Court

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

286, 100 S Ct. 559, 62 L.Ed 2d 490 (1980), we determined

that personal jurisdiction over nonresident defendants existed

* In Malinow, supra, a decision of the United States District Court for the

District of Maryland, the court discussed the (b) subsection of the then

existing comparable Maryland long-arm statute which specified: “(b)

When jurisdiction over a person 1s based solely upon this section, only a

cause of action arising from acts enumerated in this section may be

asserted against him.” 322 F.Supp. at 597. The Maryland court stated:

The drafters of the forebear of the Maryland statute ... would

probably state that § 96(b) merely prevents the assertion of claims

in the forum state that do not bear some relationship to the acts in

the forum state relied upon to confer jurisdiction.... The Court in

McGee, [v. International Life Ins. Co.[,] 355 U.S. 220, 78 S.Ct.

199, 2 L.Ed 2d 223 (1957),] stated on page 223 of 355 U.S., [78

S.Ct. 199] that it was sufficient to confer jurisdiction

constitutionally that the “ * * * suit was based on a contract which

had substantial connection with that State.”

Id. at 599 (emphasis added in Malinow).

lla

under our long-arm statute in four out of five cases?

World-Wide Volkswagen reaffirmed that “[t]he limits imposed

on state jurisdiction by the Due Process Clause, in its role as a

guarantor against inconvenient litigation, have been

substantially relaxed over the years.” /d. at 292, 100 S.Ct. 559.

It referenced the “fundamental transformation in the American

economy” and “[t]he economic interdependence of the States,”

id. at 293, 100 S.Ct. 559, and highlighted two principles

governing a due process analysis in personal jurisdiction cases:

(1) “the foreseeability that is critical .... is that the defendant’s

conduct and connection with the forum State are such that he

should reasonably anticipate being haled into court there”, and

(2) “[w]hen a corporation ‘purposefully avails itself of the

privilege of conducting activities within the forum State,’ .. it

has clear notice that it is subject to suit there, and can act to

alleviate the risk of burdensome litigation by procuring

insurance, passing the expected costs on to customers, or, if

the nsks are too great, severing its connection with the State.”

Id. at 297, 100 S.Ct. 559 (quoting Hanson, supra, 357 U.S. at

253, 78 S.Ct. 1228).

* One of these cases, AMAF Int'l Corp. v. Ralston Purina Co., 428 A.2d

849 (D.C.1981), was decided under D.C.Code § 13-334 pertaining to

foreign corporations that “do” or transact business in the District. AMAF

International, a District corporation, sued Ralston, a Missouri corporation

for negligence and breach of contract relating to an order of 600 bags of

poultry feed to be shipped to Nigeria. Ralston engaged in another type of

business activity in the District—making sales of its products to local

supermarkets. In reversing the trial court’s dismissal of the complaint for

lack of personal jurisdiction, we stressed a principle re-articulated in

World-Wide Volkswagen, supra, “ ‘When a corporation purposefully

avails itself of the privilege of conducting activities within the forum

State, it has clear notice that it is subject to suit there.” ” AMAF

International, 428 A.2d at 851 (quoting World-Wide Volkswagen, supra,

444 US. at 297, 100 S.Ct. 559 (other citation and internal quotations

omitted)).

12a

World-Wide Volkswagen helped to guide our decisions in

the cases decided between 1981 and 1983, the most significant

of which were Mouzavires v. Baxter, 434 A.2d 988

(D.C.1981) (en banc); Smith v. Jenkins, 452 A.2d 333

(D.C.1982); and Hummel v. Koehler, 458 A.2d 1187

(D.C.1983). In addition to following previous announced

principles, these cases clarified that “the most critical inquiry 1s

not whether the nonresident defendant is physically present in

the forum but whether the defendant’s contacts with the forum

are of such a quality and nature that they manifest a deliberate

and voluntary association with the forum” and are not

“fortuitous or accidental.” Mouzavires, supra, 434 A.2d at

995, 997, Smith, supra, 452 A.2d at 337. Mouzavires also

declared that § 13-423(a)(1) “embraces those contractual

activities of a nonresident defendant which cause a

consequence [in this jurisdiction].” 434 A.2d at 992. And see

Cockrell v. Cumberland Corp., 458 A.2d 716 (D.C.1983)

(applying the “cause a consequence” principle).

Between 1984 and 1993, three important decisions were

handed down by the Supreme Court: Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790

(1984); Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); and

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct.

2174, 85 L.Ed.2d 528 (1985). Discussion in Keeton centered

on whether the minimum contacts requirement was met under

New Hampshire’s long-arm statute in a libel action brought by

a resident of New York who sued an Ohio corporation, Hustler

Magazine, Inc. in a federal court in New Hampshire. If those

contacts are “random, isolated, or fortuitous,” the Court stated,

due process requirements are not satisfied. 465 U.S. at 774,

104 S.Ct. 1473. The only connection the Ohio corporation had

with New Hampshire was the monthly sale of its magazine,

issues of which contained the alleged libel that was the focus of

the lawsuit. After reiterating the fairness and reasonableness

principles governing the minimum contacts doctrine, the

l3a

Supreme Court reversed the trial court’s dismissal of the

complaint, saying in part: “Where, as in this case, respondent

Hustler Magazine, Inc., has continuously and deliberately

exploited the New Hampshire market, it must reasonably

anticipate being haled into court there in a libel action based on

the contents of its magazine.” Jd. at 781, 104 S.Ct. 1473

(citing World-Wide Volkswagen, supra, 444 U.S. at 297-98,

100 S.Ct. 559).

Helicopteros, supra, elucidated the distinction between

general and specific jurisdiction in personal jurisdiction cases:

(1) “[W]hen a State exercises personal jurisdiction over a

defendant in a suit arising out of or related to the defendant’s

contacts with the forum, the State is exercising ‘specific

jurisdiction’ over the defendant,” 466 U.S. at 414 n. 8, 104

S.Ct. 1868 (citation omitted); and (2) “When a State exercises

personal jurisdiction over a defendant in a suit not arising out

of or related to the defendant’s contacts with the forum, the

State has been said to be exercising ‘general jurisdiction’ over

the defendant.” /d. at n. 9 (citations omitted). Burger King,

in turn, summarized the principles and policies relating to the

due process clause and personal jurisdiction. First, the court

rejected any “mechanical tests” or “talismanic formulas” for the

determination of personal jurisdiction, 471 U'S. at 478, 485,

105 S.Ct. 2174, and reaffirmed that “ ‘the facts of each case

must [always] be weighed’ in determining whether personal

jurisdiction would comport with ‘fair play and substantial

justice.” ” Jd. at 485-86, 105 S.Ct. 2174 (quoting Kulko,

supra, 436 U.S. at 92, 98 S.Ct. 1690). Second, “[w]here a

forum seeks to assert specific jurisdiction over an out-of-state

defendant who has not consented to suit there, [the] ‘fair

warning’ requirement is satisfied if the defendant has

‘purposefully directed’ his activities at residents of the forum,

Keeton, supra, 465 U.S. at 774, 104 S.Ct. 1473, and the

litigation results from alleged injuries that ‘arise out of or relate

to’ those activities, Helicopteros, supra, 466 U.S. at 414, 104

S.Ct. 1868.” Burger King, supra note 8, 471 U.S. at 472.

14a .

Third, “[jJurisdiction is proper ... where the contacts

proximately result from actions by the defendant himself that

create a ‘substantial connection’ with the forum State.” /d. at

475, 105 S.Ct. 2174 (quoting McGee, supra note 8, 355 U.S.

at 223, 78 S.Ct. 199 (other citation omitted)). Fourth, “where

a defendant who purposefully has directed his activities at

forum residents seeks to defeat jurisdiction, he must present a

compelling case that the presence of some other considerations

would render jurisdiction unreasonable.” Jd. at 477, 105 S.Ct.

2174. Finally, “[a] State generally has a ‘manifest interest’ in

providing its residents with a convenient forum for redressing

injuries inflicted by out-of-state actors.” /d. at 473, 105 S.Ct.

2174 (citing McGee, supra note 8, 355 U.S. at 223, 78 S.Ct.

199).

Our later decisions construing § 13-423 have been

consistent with the teaching of the Supreme Court in these due

process cases. See, e.g., Salins, Inc. v. Sure Way Refrigerated

Truck Transp. Brokers, Inc., 510 A.2d 1032 (D.C.1986);

Fisher v. Bander, 519 A.2d 162 (D.C.1986); Lex Tex Lid. v.

Skillman, 579 A.2d 244 (D.C.1990); Trerotola v. Cotter, 601

A.2d 60 (D.C.1991). In Fisher, for example, we stressed three

justifications for asserting jurisdiction. First, “[the District] has

an interest in providing its residents with the opportunity to

redress grievances inflicted by out-of-state defendants.” 519

A.2d at 164. Second, “when out-of-state actors avail

themselves of the benefits of contact within the forum

[asserting jurisdiction], fairness requires that they be held

accountable therein for the consequences of such activities.”

Id. Third, “the voluntary establishment of contacts within the

forum [asserting jurisdiction] helps to assure that litigating

within that [jurisdiction] would not impose an undue burden on

the out-of-state party.” Jd In Trerotola, supra, our focus was

on § 13- 423(b), and the question was “whether, in the words

of § 13-423(b), Cotter’s ‘claim for relief [arose] from acts

enumerated in’ any subsection of § 13-423—in this case in

§ 13-423(a)(1).” 601 A.2d at 63 (citing Cohane, supra, 385

SS a gc rn ec nr cece ee ee

15a

A.2d at 158). Pointing out that “§ 13-423(b) bars claims

‘unrelated to the acts forming the basis for personal jurisdiction

[,]’” id. (citing Willis v. Willis, 211 U.S.App.D.C. 103, 106,

655 F.2d 1333, 1336 (1981)), we continued:

For proper jurisdiction, therefore, the long-arm

Statute requires that the claim raised have a discernible

relationship to the “business” transacted in the District _.

The critical test is whether the nonresident’s “conduct

and connection with the forum state are such that he [or

she] should reasonably anticipate being haled into court

there.” World-Wide Volkswagen, supra, 444 US. at

297, 100 S.Ct. 559, quoted in Smith, supra, 452 A.2d at

336.

Id. at 64. See also Everett v. Nissan Motor Corp. in U.S.A.,

628 A.2d 106, 107 (D.C.1993), (emphasizing “the seminal

requirement that [the out-of- state defendant] must undertake

‘some affirmative act by which the defendant brings itself

within the jurisdiction and established minimum contact.’ -

(quoting Cohane, supra, 385 A.2d at 158) (citation omitted).

Applicable Legal Principles Distilled From Prior Cases

Even though our survey of past decisions yields no case

Squarely on point, there are pertinent legal principles which

may be distilled from these cases to guide our decision in the

case before us: (1) section 13-423(a)(1) is coextensive in reach

with the personal jurisdiction allowed by the due process clause

of the United States Constitution; (2) there are no “mechanical

tests” or “talismanic formulas” for the determination of

personal jurisdiction under § 13-423(a)(1) and (b), and the

facts of each case must be weighed against notions of fairness,

reasonableness and substantial justice; (3) under the due

Process clause, the minimum contacts principle requires us to

examine the quality and nature of the nonresident defendant’s

contacts with the District and whether those contacts are

voluntary and deliberate or only random, fortuitous, tenuous

l6a

and accidental; (4) where a nonresident defendant has

‘- purposefully availed itself of the benefits and protections of the

District in engaging in a business activity in the forum

jurisdiction, it is fair and reasonable to expect it to anticipate

being sued in that jurisdiction; (5) in examining the nonresident

defendant’s contacts with the District, the focus is placed on

the relationship among the defendant, the forum and the

litigation; (6) it is reasonable and fair for the District to

exercise specific jurisdiction where a nonresident defendant has

purposefully directed its activities at District residents, and

claims against it by a District resident “arise out of or relate

to,” Burger King, 471 U.S. at 472, 105 S.Ct. 2174 (emphasis

added), or have a “substantial connection” with, McGee, supra

note 8, 355 U.S. at 223, 78 S.Ct. 199, the business transacted

in the District; and (7) the District has a manifest interest in

providing a convenient forum in which its residents may seek

relief for injuries inflicted by the nonresident defendant,

especially where litigation within the District would not impose

an undue burden on the nonresident defendant.

We now turn to the application of these principles.

However, we begin with the factual context of the case before

us since “the facts of each case must [always] be weighed”

against notions of fairness, reasonableness and substantial

justice in ascertaining whether the court may exercise personal

jurisdiction over a nonresident defendant, Burger King, supra,

471 US. at 485-86, 105 S.Ct. 2174 (internal quotation marks

and citation omitted); and because “ ‘[the focus is placed] on

the relationship among the defendant, the forum and the

litigation.” ” Keeton, supra, 465 U.S. at 775, 104 S.Ct. 1473

(quoting Shaffer, supra, 433 U.S. at 204, 97 S.Ct. 2569)

(other citations omitted).

Factual Context

Shoppers regularly solicits customers for its Maryland

and Virginia stores by placing advertisements in the District of

Columbia market through The Washington Post, the major

— SS ennetenennenee

ON RR CONG OR CT I en

17a

newspaper headquartered in Washington, D.C., and other

communications media. The record shows extensive Shoppers’

weekly advertisements in The Washington Post from October

6 through December 1, 1993, including the November 1993

date on which Ms. Moreno slipped and fell in a Shoppers’

store. The weekly ads appeared with the bold caption

“SHOPPERS TOTAL WAREHOUSE PRICES

EVERYDAY! FEATURE PRICES IN EFFECT 7 FULL

DAYS!” The body of the ads contained a description of the

products for sale in bold letters with the price, and sometimes

with a picture of the sale item. At the top of the ad some

additional inducement to shop at Shoppers appeared. For

example, the October 13 and November 3, 1993 ads for the

periods October 13 through 19, and November 3 through 9,

1993, included an opportunity to win tickets to a Washington

Redskins football game with an inducement to “see store for

details.” The ad for November 10 through 16 also offered an

Opportunity to meet several football players from the Redskins’

team on November 23, 1993. In the middle of one of the pages

containing the October 1, 1993 ad, Shoppers stated in bold

letters: “No Matter Where You Live ... It’s Worth The

Drive!” The November 17 through November 25, i993 ad

pointed to the possibility that customers “could get a free

Thanksgiving turkey or ham” if they collected enough coupons;

in addition, the ad offered holiday postage stamps with a

savings of ten cents on each book of twenty stamps.

All of Shoppers’ advertisements in The Washington Post,

including those covering the relevant week listed the addresses

of its numerous stores located in Maryland and Virginia,

including those in Takoma Park, Maryland. The record before

us reveals that Shoppers also placed advertisements on

television networks in the District, as well as listed one of its

stores in the Yellow Pages of the C & P Telephone book in

1993-94. Together with her husband, sister and niece, Ms.

Moreno, a District of Columbia resident, was engaged in

18a

Thanksgiving shopping on Saturday, November 20, 1993, at

one of Shoppers’ Takoma Park stores within two miles of her

home when she slipped and fell on okra and sustained personal

injuries. '°

Application of Legal Principles To Ms. Moreno’s Case

Having set forth the factual context of Shoppers’

contacts with the District and Ms. Moreno’s presence in one of

Shoppers’ Maryland stores, we now analyze the due process

issue in two parts. As the guiding principle for both parts of

our analysis, we reiterate what we made plain in Berwyn,

supra. “{Section] 13-423 ... permits a jurisdictional reach

coextensive with that permitted by the due process clause.”

399 A.2d at 80 (citations omitted); see also Fisher, supra, 519

A.2d at 163 (“We have held that [§ 13- 423(a)(1) ] is co-

extensive with the due process clause of the fifth amendment,

and that its construction is subsumed by a due process

analysis.”) (citations omitted). Therefore, we examine, first,

whether the threshold due process requirements have been

satisfied in this matter. “[D]Jue process requires only that in

order to subject a defendant to a judgment in personam, if he

be not present within the territory of the forum, he have certain

minimum contacts with it such that the maintenance of the suit

does not offend ‘traditional notions of fair play and substantial

justice.” ” International Shoe, supra, 326 U.S. at 316, 66

S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61

S.Ct. 339, 85 L.Ed. 278 (1940)) (other citations omitted). If

the nonresident defendant’s business contacts are “sufficiently

continuous and systematic” within the forum jurisdiction, the

court may exercise general jurisdiction, 7homason v. Chemical

Bank, 234 Conn. 281, 661 A.2d 595, 599 (1995); see also

International Shoe, supra, 326 U.S. at 318, 66 S.Ct. 154. If

the business contacts within the forum jurisdiction are not

'° It is important to note that Ms. Moreno never claimed to have seen the

Thanksgiving ad.

19a

“sufficiently continuous and systematic,” the court may assert

specific jurisdiction “whenever the defendant ‘has purposefully

directed’ [its] activities at residents of the forum, Keeton,

supra, and the litigation [has] result{ed] from alleged injuries

that ‘arise out of or relate to’ those activities, Helicopteros,

[supra, 466 U.S. at 414, 104 S.Ct. 1868][;] (Emphasis added.)

Burger King, supra, 471 U.S. at 472-73, 105 S.Ct. 2174.”

Thomason, supra, 661 A.2d at 599.

The Minimum Contacts Requirement

“Even a small amount of in-jurisdiction business activity

is generally enough to permit the conclusion that a nonresident

defendant has transacted business here.” Lockwood Greene,

supra, 355 A.2d at 811. In this case, Shoppers placed

extensive and substantial advertisements in The Washington

Post over a continuous period of time, at least from October 1

through December 1. However, it is unnecessary to decide

whether these business contacts were “sufficiently continuous

and systematic” to confer general jurisdiction in this case,

because we are satisfied that the trial court -had specific

jurisdiction over Shoppers.

Shoppers conducted “purposeful, affirmative activity

within the District of Columbia,” Bueno, supra, note 7, 375

A.2d at 8, by purposefully directing advertisements for its

Maryland and Virginia stores at a potential customer base in

the District of Columbia, even declaring “No matter where you

live ... it’s worth the drive” to Shoppers. See Burger King,

supra, 471 U.S. at 472, 105 S.Ct. 2174. These advertisements

are not random, fortuitous, accidental or attenuated, see

Keeton, supra, 465 U.S. at 774, 104 S.Ct. 1473: nor are they

too trivial to cause a consequence in the District, see Cockrell,

supra, 458 A.2d at 717, or “too tenuous to satisfy” the

minimum contacts requirement of the due process clause.

Everett, supra, 628 A.2d at 108. Rather they are “of such a

quality and nature that they manifest a deliberate and voluntary

20a

association with [the District and its residents]." Mouzavires,

supra, 434 A.2d at 995

By placing pages of large, illustrated advertisements often

in bold letters, with shopping incentives, in the District's major

circulation newspaper, The Washington Post, Shoppers

obviously solicited customers from the District for their stores

in Maryland and Virginia, clearly “with the expectation” that

District residents would purchase products sold in those stores

See Burger King, 471 US. at 473, 105 SCt 2174

Consequently, Shoppers “ ‘purposefully avail[ed] itself of the

privilege of conducting activities within the [District],’ ”

World-Wide Volkswagen, supra, 444 U.S. at 297, 100 S.Ct.

559, and “should reasonably [have] anticipate[d] being haled

into court [in the District]” by a customer from the District

who received an injury in one of its Maryland stores. /d.; see

also Fisher, supra, 519 A.2d at 163

Fairness and Reasonableness of

Exercising Jurisdiction in the District of Columbia

Shoppers had “ ‘fair warning’ ” that it could be sued by

a District resident who slipped and fell in one of its stores.

Burger King, supra, 471 U.S. at 472, 105 S.Ct. 2174, Fisher,

supra, 519 A2d at 163. By engaging in advertising that

reached into the District and locating its stores with convenient

access to customers from the District, Shoppers reasonably

could have anticipated that these customers would shop at its

stores and, once there, be subject to the same hazards as other

customers, including a slip and fall like the one Ms. Moreno

suffered. Shoppers therefore had “fair warning” that it could

be sued in the home jurisdiction of the customers it courted.

Under the circumstances, the District would have a “ ‘manifest

interest’ in providing its residents with a convenient forum for

redressing injuries inflicted by out-of-[jurisdiction] actors.”

Burger King, supra, 47\ U.S. at 473, 105 S.Ct. 2174. Nothing

in the record before us indicates that defense of Ms. Moreno’s

action in the District constituted an undue burden on Shoppers.

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Indeed, “the voluntary establishment of contacts within the

forum [jurisdiction] helps to assure that litigating within that

[jurisdiction] would not impose an undue burden on the

out-of-state party.” fisher, supra, 519 A.2d at 164. The

Metropolitan Washington, D.C. area functions, in many

respects, aS a unified legal and commercial community.

Consequently, “when out-of-state actors avail themselves of

the benefits of contact within the forum [jurisdiction],” as did

Shoppers in soliciting customers from the District’s population,

“fairness requires that they be held accountable therein for the

consequences of such activities.” /d. We are satisfied, then,

that the minimum contacts requirement of the due process

clause has been met in this case. Shoppers transacted business

in the District of Columbia within the meaning of D.C.Code

§ 13-423(a)(1)."" Thus, jurisdiction in the Superior Court of

the District of Columbia was proper, provided that Ms.

Moreno established a nexus between her injury and Shoppers’

advertisements in the District sufficient to satisfy § 13-423(b).

We turn now to the second due process issue.

The Nexus Requirement

Section 423(b) states: “When jurisdiction over a person

is based solely upon [§ 13-423], only a claim for relief arising

from acts enumerated in this section may be asserted against

him.” The words “claim for relief arising from” also appear in

§ 13-423(a)(1): “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)

'' Shoppers argues that “there is simply no evidence in the record from

which any Conclusion could be reached that Shoppers Food Warehouse

MD Corp ; the defendant, contracted for any of this advertising, or that it

did so in the District of Columbia.” However, the trial court could

reasonably assume, in the absence of evidence to the contrary and

evidence relating to the corporate structure of Shoppers, that the

advertisernents in the District for Shoppers’ grocery stores in Maryland

were placed by Shoppers Food Warehouse MD Corp.

22a

transacting any business in the District of Columbia” (emphasis

added). Supreme Court precedent and our case law have

construed § 13-423(b)’s “arising from” requirement flexibly.

The requirement of a nexus between the plaintiff's claim

and the defendant’s business activities in the forum jurisdiction

has been stated in the disjunctive: the claim for relief must

“result[ ] from alleged injuries that ‘arise out of or relate to’

those activities.” Burger King, supra, 471 U.S. at 472, 105

S.Ct. 2174 (quoting Helicopteros, supra, 466 U.S. at 414, 104

S.Ct. 1868) (emphasis added). Thus, if the claim either arises

out of or relates to the nonresident defendant’s business

activity, specific jurisdiction may be exercised. Earlier, in

considering an insurance contract case, McGee, supra Note 8,

asserted: “It is sufficient for purposes of due process that the

suit was based on a contract which had substantial connection

with [the forum] State.” 355 U.S. at 223, 78 S.Ct. 199

(references omitted).

In Cohane and Berwyn we followed the “relate to”

language. Cohane, supra, 385 A.2d at 158-59 (under

§ 13-423(b), “the claim [must be] related to acts in the

District”); Berwyn, supra, 399 A.2d at 80 (“the claim must

relate to the particular act or transaction forming the basis for

personal jurisdiction”). In~Lex Tex, supra, we fleetingly

focused on the “arising out of’ nexus language, rather than the

words “relate to,” in concluding that “one can hardly demand

the right to come to the District of Columbia to pursue

activities exclusively on behalf of an out-of-state principal and

expect to be absolutely immune from suit here by that principal

for causes of action arising directly out of the performance of

such activities,” 579 A.2d at 250. Most recently, in 7rerotola,

supra, we interpreted the nexus requirement of § 13-423(b) to

mean only “that the claim raised [must] have a discernible

relationship to the ‘business’ transacted in the District.” 601

A.2d at 64 (citations omitted). We went on to explain that this

“discernible relationship” is shown if “‘certain minimum

23a

contacts’ between the nonresident and the forum” exist. /d.

(quoting World-Wide Volkswagen, supra, 444 U.S. at 291, 100

S.Ct. 559). These minimum contacts reflect “ ‘conduct and

connection with the forum state ... such that [the nonresident]

should reasonably anticipate being haled into court there.’ ”

Id. (quoting World-Wide Volkswagen, supra, 444 U.S. at 297,

100 S.Ct. 559). Stated differently, § 13-423(b) bars only

“claims ‘unrelated to the acts forming the basis for personal

jurisdiction.” Jd. at 63 (quoting Willis v. Willis, 211

U.S.App.D.C. 103, 106, 655 F.2d 1333, 1336 (1981) (other

citation omitted)). Section 13-423(b) thus operates as a due

process check on the reach or scope of the “transacting

business” provision of the long-arm statute.

Other jurisdictions have wrestled with the nexus

requirement of specific jurisdiction in a variety of factual

settings and have reached diverse conclusions as to the

appropniate test for determining the proper nexus between the

nonresident defendant’s business activity and the claim asserted

by the plaintiff. The tests adopted range from narrow or strict

causation-based tests to more flexible relatedness tests

requiring the showing of some connection or relationship

between the claim and the business activity.

Into the strict, causation-based category fall the

substantive relevance and proximate cause tests. These tests

have sometimes been described as one test: substantive

relevance/proximate cause. The substantive relevance test has

been explained as follows:

Under this test, for a cause of action to “arise from or

relate to” a defendant’s contacts with the forum state, the

contacts must have substantive relevance to the cause of

action. More plainly, the forum contacts must be

necessary to the proof of the cause of action.

Mark M. Maloney, NOTE, Specific Personal Jurisdiction and

the “Arise From Or Relate To” Requirement ... What Does It

24a

Mean?, 50 WASHINGTON AND LEE LAW REVIEW 1265, 1282

(1993); see also, Lea Brilmayer, How Contacts Count: Due

Process Limitations On State Court Jurisdiction, 1980

SUPREME CT. REV. 77. In Pizarro v. Hoteles Concorde Int'l,

C.A., 907 F.2d 1256, 1259 (1st Cir. 1990), the First Circuit

summarized and applied the proximate cause test to affirm a

federal trial court’s dismissal of a negligence action for lack of

personal jurisdiction: “Whether certain events ‘arise out of a

nonresident defendant’s actions within [the forum jurisdiction]

is comparable or analogous to whether certain actions can be

said to be the legal, or the proximate cause of injuries suffered

by a plaintiff.” See also Peckham v. Continental Casualty Ins.

Co., 895 F.2d 830, 836 (1st Cir 1990)

In a later case, Nowak v. Tak How Invs., Lid., 94 F.3d

708, 716 (ist Cir 1996), the First Circuit, desiring greater

flexibility, deviated from its reliance on the proximate causation

test, saying in part: “we intend to emphasize the importance of

proximate causation, but to allow a slight loosening of that

standard when circumstances dictate,” and concluding in the

wrongful death action that: “While the nexus between [the

nonresident defendant’s] solicitation of ... business [in the

forum jurisdiction] and ... [the] death [of the plaintiff's wife, a

Massachusetts’ resident] does not constitute a proximate cause

relationship, it does represent a meaningful link between [the

nonresident defendant's} contact [with the forum jurisdiction]

and the harm suffered.” The court also stated, in language

relevant to our case: “When a foreign corporation directly

targets residents in an ongoing effort to further a business

relationship, ... [t]he corporation’s own conduct increases the

likelihood that a specific resident will respond favorably.” /d.

at 715.

Other courts have rejected the substantive

relevance/proximate cause test altogether. For example, in

Vons Companies, Inc. v..Seabest Foods, Inc., 14 Cal.4th 434,

$8 Cal. Rptr.2d 899, 926 P.2d 1085 (1996), the court stated:

25a

“[A] proximate cause test ... is inconsistent with the fairness

rationale underlying the specific jurisdiction doctrine. A person

who purposefully avails himself or herself of the benefits of

doing business in the forum state must be prepared to answer

lawsuits that relate to his or her activity there.” /d. at 1104

(referencing Burger King, supra, 471 U.S. at 472, 105 S.Ct.

2174); see also Mary Twitchell, The Myth of General

Jurisdiction, 101 HARV. L. REV. 610, 653-54 (1988) (“[T]he

substantive relevance approach is not the best guide ‘to

dispute-specific jurisdiction” in part because “[t]he Supreme

Court did not limit the specific jurisdiction quid pro quo

rationale in /nternational Shoe to claims ‘directly arising out

of forum activities; it noted that due process would be

satisfied ‘in most instances’ if the obligations arise out of or are

connected with the activities within the state.”) (footnote

omitted).

The “but for” test has been adopted by other courts. In

contrast to the First Circuit, for example, the Supreme Judicial

Court of Massachusetts has rejected the substantive

relevance/proximate cause test in favor of a “but for” test. See

Tatro v. Manor Care, Inc., 416 Mass. 763, 625 N.E.2d 549,

553 (1994) ( “There is no readily apparent basis in the statutory

language (‘arising from’) for the restrictive proximate cause

approach adopted by the First Circuit.”) (Citation omitted).

The “but for” test has been described as follows:

[T]}he general theory [of the “but for” test] is that a cause

of action ‘arises from or relates to’ the defendant’s forum

state activities when “but for” those activities the cause

of action would not have arisen. Therefore, if a plaintiff

can trace the train of events leading up to the cause of

action and find that the defendant’s activities contribute

to this chain, the cause of action is said to arise from

those activities for the purposes of determining personal

jurisdiction.

26a

Maloney, supra, 50 WASHINGTON AND LEE LAW REVIEW

at 1277 (footnotes omitted). In Alexander v. Circus Circus

Enterprises, Inc., 939 F.2d 847 (9th Cir.1991), the Ninth

Circuit said: “[T]he critical focus in the ‘arising out of’ prong

is whether, ‘but for’ the defendant’s forum-related activities,

the injury would have occurred; that is, whether the ‘entire

course of events ... was an uninterrupted whole which began

with, and was uniquely made possible by, the [defendant’s]

contacts in the [forum state].’” /d. at 853 (quoting Shute v.

Carnival Cruise Lines, 897 F.2d 377, 384 (9th Cir.1990),

rev'd on other grounds, 499 U.S. 585, 111 S.Ct. 1522, 113

L.Ed.2d 622 (1991)). The Supreme Court of California has

rejected the “but for” test as probably “too lax” because

“theoretically [it] may include any historical cause of the

plaintiff's injuries,” Vons Companies, supra, 58 Cal.Rptr.2d

899, 926 P.2d at 1106, and because it “is overly mechanical

and fails to concentrate on the central issue presented by a

motion to quash for lack of specific jurisdiction— that is,

whether the defendant’s forum contacts and plaintiff's claim.

are related sufficiently so that it is fair to subject the defendant

to jurisdiction in the forum.” /d. at 1108 (emphasis supplied);

see also BRILMAYER, supra, 1980 Supreme Court Review at

84.

Two other nexus tests should be mentioned. As early as

1976, the Supreme Court of California applied the “substantial

connection” test to determine whether the nexus requirement

had been satisfied: “Our inquiry is directed to whether

plaintiff's cause of action, based on an accident which resulted

from defendant’s allegedly tortuous act in Nevada, arises out

of or has a substantial connection with a business relationship

defendant has purposefully established with California.”

Cornelison v. Chaney, 16 Cal.3d 143, 127 Cal.Rptr. 352, 545

P.2d 264, 267 (1976). In 1995, after revisiting the issue of the

proper nexus test and surveying other case law, the Supreme

Court of California decided to retain its “substantial

27a

connection” test as a flexible standard which best interprets the

relatedness requirement. The court stated:

A claim need not arise directly from the defendant’s

forum contacts in order to be sufficiently related to the

contact to warrant the exercise of specific jurisdiction.

Rather, as long as the claim bears a substantial

connection to the nonresident’s forum contacts, the

exercise of specific jurisdiction is appropriate. The due

process clause is concerned with protecting nonresident

defendants from being brought unfairly into court in the

forum, on the basis of random contacts. That

: constitutional provision, however, does not provide

defendants with a shield against jurisdiction when the

defendant purposefully has availed himself or herself of

benefits in the forum.

Vons Companies, supra, 926 P.2d at 1096. See also Domtiar, -

Inc. v. Niagara Fire Ins. Co., 533 N.W.2d 25, 31 (Minn. 1995)

(“When a claim arises out of a contract that has a ‘substantial

connection’ with the forum state, specific jurisdiction exists.”

(citing McGee, supra note 8, 355 U.S. at 223, 78 S.Ct. 199)).

The Supreme Court of Connecticut also articulated a

flexible or less restrictive reasonably foreseeable standard in

Thomason, supra, declaring:

i ik tlle sii al

eee

The words “arising out of” ... must be interpreted

in a manner that reconciles the legislative decision to

impose some limits on constitutionally permitted

jurisdiction with its decision not to require a causal

connection between the defendant’s solicitation here and

the plaintiffs’ lawsuit. Our interpretation is as follows.

For purposes of [the applicable Connecticut long-arm

statutory provision], a plaintiff's “cause of action aris[es]

... Out of ... business solicited in this state” if. at the time

the defendant engaged in solicitation in Connecticut, it

was reasonably foreseeable that, as a result of that

28a

solicitation, the defendant could be sued in Connecticut

by a solicited person on a cause of action similar to that

now being brought by the plaintiffs.

661 A.2d at 603.

Based upon our review of nexus tests used in other

jurisdictions, the criticisms leveled at some of them, and the

Supreme Court’s admonition that there are no “mechanical

tests” or “talismanic formulas” for the determination of

personal jurisdiction, we see no reason to deviate from—and

thus we reaffirm—our past decisions which have interpreted the

“arise from” language of § 13-423(b) flexibly and

synonymously with “relate to” or having a “substantial

connection with,” in the same way that the Supreme Court’s

due process analysis has used these terms interchangeably.

This means that, for the Superior Court to have jurisdiction

over Ms. Moreno’s claim, the claim had to be related to or

substantially connected with Shoppers’ advertising activity in

the District, Cohane, supra, 385 A.2d at 158; Berwyn, supra,

399 A.2d at 80; that is, as we said in 7rerotola, supra, 601

A.2d at 64, it had to have some “discernible relationship” to

Shoppers’ advertising activity. | Where Shoppers has

deliberately and directly solicited District residents to become

customers in its Maryland and Virginia stores, there can be no

doubt that its advertising relates to or has a discernible

relationship to a claim by a District resident who becomes a

customer in one of Shoppers’ stores and is injured. This is true

because it is reasonably foreseeable that, as a result of

advertising extensively and over a substantial period of time in

the District’s major circulation newspaper, Shoppers could be

sued in the District on a claim similar to that filed by Ms.

Moreno. See 7homason, supra, 661 A.2d at 603. The trial

court found that Shoppers “owns numerous stores in Maryland

and Virginia, several of which are located within a few miles of

the District of Columbia border.” The trial court also

determined that Shoppers “contracts with and advertises in

29a

[T]he Washington Post [and the Yellow Pages], thereby

targeting and soliciting customers in the District of Columbia

area.” In doing so, it “voluntarily availed itself of the privileges

and protections of the District of Columbia ...” Accordingly,

the trial court concluded, Shoppers’ ”contacts with the

[District] were of such quality and nature that it is reasonable

for [it] to reasonably anticipate being haled into court in the

District of Columbia.”

Shoppers contends that in this case the nexus requirement

is not satisfied because there is no inherent relationship

between the duty breached (to provide a safe store) and the

“transaction” of advertising in the District of Columbia media.

Under this reading of the nexus requirement, Ms. Moreno

would have to show something akin to false advertising by

Shoppers. But since we require only a showing of a

“discernible relationship” between the particular claim and the

business transacted, Shoppers imposes too heavy a burden.

Trerotola, 601 A.2d at 64. The record reveals extensive and

repeated advertising by Shoppers in The Washington Post. In

light of such advertising, Ms. Moreno’s case is dissimilar to

those in which plaintiffs based their jurisdictional claims on a

single advertisement, or sporadic advertising from a travel

agency located far from the forum state. See, e. g., Crocker v.

Hilton Int'l Barbados, Lid., 976 F.2d 797, 799 (1st Cir. 1992);

Witbeck v. Bill Cody's Ranch Inn, 147 Mich.App. 587, 383

N.W.2d 253, 256 (1985), rev'd, 428 Mich. 659, 411 N.W.2d

439, 445 (1987).

Consistent with the trial court’s conclusion, we hold that

the trial court properly exercised jurisdiction in this matter

because appellant, through its extensive advertising activity in

a major District of Columbia newspaper purposefully and

deliberately solicited District residents as customers for its

nearby Maryland and Virginia stores and_ thus transacted

business in the District; and further, because Ms. Moreno’s

claim was related to or had a discernible relationship to its

30a

advertising, Shoppers could have reasonably anticipated being

haled into court to defend against a personal injury suit brought

by a District resident. In short, Ms. Moreno met the

requirements of § 13-423(b).

Shoppers’ Fear of Virtually Unlimited Jurisdiction

In its final argument Shoppers’ raises the specter of

“virtually unlimited jurisdiction in the District over businesses

and claims with little or no relationship to the District.” This

is an argument without support in fact or law. World-Wide

Volkswagen, supra, made clear that “the foreseeability that is

critical ... is that the defendant’s conduct and connection with

the forum State are such that he should reasonably anticipate

being haled into court there.” 444 U.S. at 297, 100 S.Ct. 559.

Under our fact-driven analysis in this specific jurisdiction case,

while Shoppers’ advertising solicitation of customers from the

District will support a slip and fall injury claim, vendors who

sell their produce to Shoppers’ stores—or, for that matter, a

Shoppers’ employee who slips and falls in a company

warehouse in Maryland—are not within the class solicited by

Shoppers’ extensive advertising in The Washington Post.

Moreover, non-directed Internet advertising might present a

different factual situation from the one before us. See E-Data

Corp. v. Micropatent Corp., 989 F.Supp. 173, 177

(D.Conn. 1997) (defendant’s Internet advertising that had “the

potential to reach ... Connecticut consumers” was insufficient

as a basis for personal jurisdiction because “hundreds of

thousands of Web sites [existed] on the Internet”).

“[W)here a defendant who purposefully has directed [its]

activities at forum residents seeks to defeat jurisdiction, [it]

must present a compelling case that the presence of some other

considerations would render jurisdiction unreasonable.”

Burger King, supra, 471 U.S. at 477, 105 S.Ct. 2174.

Shoppers has not presented a compelling case that the District

now will exercise unlimited jurisdiction over businesses.

3la

Judge Schwelb’s dissent, for its part, appears to depend

entirely on the distinction between Ms. Moreno and a

hypothetical plaintiff who could testify, “Yes, I’ve seen

Shoppers’ ads, they’ve got great prices!” Such testimony

presumably would support the inference he believes necessary

that the plaintiff was actually induced to visit a Shoppers store

by the advertising. Insistence on whether the plaintiff saw the

ads in question shifts the focus of the due process inquiry away

from where the Supreme Court has placed it, on the

defendant’s actions. Furthermore, it minimizes the importance

and purpose of the long-arm statute, which we have always

understood to afford District residents broad access to our

courts limited only by due process considerations.

Accordingly, for the foregoing reasons, we affirm the

judgment of the trial court.

So ordered.

WAGNER, Chief Judge, dissenting:

The mere fact that a foreign corporation advertises for

business within the District Columbia is insufficient under our

long-arm statute for our local court to exercise personal

jurisdiction over that corporation for claims unrelated to that

advertising which arise wholly in the foreign state.’ Since the

majority appears to hold otherwise, I respectfully dissent. In

order for the District of Columbia Courts to properly assert

personal jurisdiction over a foreign corporation, “service of

process over the nonresident must be authorized by statute and

' There is no contention in this case that the court’s jurisdiction derives

from D.C.Code § 13-334 (1995) (authorizing service upon a foreign

corporation doing business in the District of Columbia or transacting

business in the District arising out “of contracts entered into or to be

performed, in whole or in part, in the District of Columbia or growing out

of any tort committed in the District”), or D.C.Code § 13-422 (pertaining

to jurisdiction over corporations organized under the laws of. or

maintaining a principal place of business in the District, as to any claim).

32a

be within the confines of the due process clause of the United

States Constitution.” Cohane v. Arpeja-California, Inc., 385

A.2d 153, 158 (D.C.), cert. denied, 439 U.S. 980, 99 S.Ct.

567, 58 L.Ed.2d 651 (1978) (citing /nternational Shoe Co. v.

Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

The statutory provisions at issue here are D.C.Code

§§ 13-423(a)(1) and -423(b) (long-arm statute).* There is no

real dispute in this case that Shoppers Food Warehouse’s

(Shoppers’) advertisements for customers within the District

were sufficient minimum activities to meet the “transacting

business” requirement of § 423(a)(1). See 7rerotola v. Cotter,

601 A.2d 60, 63 (D.C.1991) (citing Cohane, 385 A.2d at

158).> What divides the court is whether the further condition

imposed by § i13-423(b) is satisfied. I agree with my dissenting

colleagues that it is not. Section 423(b) bars the exercise of

jurisdiction over a foreign corporation where the claim is

unrelated to the business transacted in the District by the

corporation. See 7rerotola, 601 A.2d at 63. In other words,

under this section, “jurisdiction is limited to claims arising from

the particular transaction of business which provides the basis

for jurisdiction.” Cdhane, 385 A.2d at 158 (citing D.C.Code

§ 13- 423(b)). Ms. Moreno’s claim arose out of injuries she

? The long-arm statute, § 13-423 provides in pertinent part:

(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;

* * *

(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.

> “Under § 13-423(a)(1), less of a nexus between the defendant and the

District of Columbia is required for a finding of jurisdiction than would

be required under the ‘doing business’ test used to determine corporate

presence.” Cohane, supra, 385 A.2d at 158 (citation omitted).

33a

sustained in an accident which occurred in Shoppers’ Maryland

store as a result of Shoppers’ negligent act or omission in the

State of Maryland. There is simply no relationship here

between Shoppers’- advertisements in the District and

Shoppers’ alleged tortious conduct which caused Ms. Moreno

to slip and fall in Maryland as required by our statute. To

accept the contrary position would render the limitation

imposed by § 423(b) a nullity. That we have “interpreted this

Statute as permitting the exercise of personal jurisdiction over

nonresident defendants to the extent permitted by the due

process clause,”* does not eliminate the requirement that the

courts of this jurisdiction adhere to the process due under our

statute. That process, as set forth in our long-arm statute,

provides in § 423(a)(1) and (b) a specific basis for the court’s

-exercise of personal jurisdiction over a foreign corporation.

The exercise of that jurisdiction must conform to:the statute

and be consistent with due process. See Trerotola, 601 A.2d

at 64; Cohane, 385 A.2d at 158. Under § 13- 423(b), unless

the claim “has a discernible relationship to the ‘business’

transacted in the District[,] ... asserted jurisdiction exceeds the

limits of the due process clause of the Constitution.”

Trerotola, 601 A.2d at 64 (citing Cohane, 385 A.2d at 158).

Here, there was only the fortuity of Ms. Moreno having an

accident in a store in Maryland belonging to Shoppers, a

foreign corporation which happens to advertise for customers

in a daily newspaper which is distributed in the metropolitan

area. Her cause of action neither arises out of. nor is it related

to Shoppers’ advertising activities. For these reasons, and

essentially for those set forth in Judge Schwelb’s dissenting

opinion, I respectfully dissent from the opinion of the court.

SCHWELB, Associate Judge, with whom STEADMAN,

Associate Judge, joins, dissenting:

“ Cohane, supra, 385 A.2d at 158.

34a

When this case was before the division, I explained in

some detail why, in my view, Ms. Moreno has failed to

establish that her claim “ar[ose] from” Shoppers’ contacts with

the District of Columbia. See Shoppers Food Warehouse v.

Moreno, 715 A2d 107, 112-16 (DC.1998) (Moreno !)

(dissenting opinion) I pointed out that “[s]o far as we can

discern from the record, Ms. Moreno would have suffered the

injuries for which she seeks compensation in this action even if

Shoppers had not advertised in the District at all.” /d. at 113.

The suggestion that Ms. Moreno’s claim “arises from”

Shoppers’ advertising, when she would have sustained her

injuries even in the absence of a single ad, ascribes a distinctly

odd meaning to the rather straightforward statutory language.

I continue to adhere to the position I took in Moreno /, and

rather than burdening a second volume of the Atlantic 2d

Reporter with the same dissenting prose, I incorporate by

reference my separate opinion at the division level. Because

the en banc majority now invokes the legislative history of our

long-arm statute, D.C. Code § 13-423(b) (1995), as well as the

case law of certain other jurisdictions, I think it appropriate to

add the following observations to the views a in my

opinion in Moreno |

In its discussion of the issue presently before us, the court

surveys a plethora of federal and local decisions, and correctly

notes that there is no District of Columbia case “squarely on

point.” See maj. op. at 329. But as the majority points out,

“[t}he legislative history of the District’s long arm statute

makes it clear that it was Congress’ intent to provide the

_ District with a long-arm statute equivalent in scope to those

already in effect in Maryland and Virginia.” /d. at 326 (quoting

Environmental Research Int'l Inc. v. Lockwood Greene

Engineers, Inc., 355 A.2d 808, 810 (D.C.1976) (en banc)).

The legislature having focused on Maryland and Virginia, we

should surely explore the construction by courts in these

35a

neighboring jurisdictions of the statutes on which our own

legisiation was based.

Maryland’s specific jurisdiction long-arm statute is

identical to the District’s in all material respects. See Md.

Code Ann. Cts. & Jud. Proc. § 6-103 (1994). The Maryland

Court of Appeals has stated that in enacting the statute, the

legislature intended “to expand the exercise of personal

jurisdiction to the limits allowed by the Due Process Clause of

the Fourteenth Amendment to the United States Constitution.”

Camelback Ski Corp. v. Behning, 307 Md. 270, 513 A.2d 874,

876 (1986) (Camelback I), vacated and remanded on other

grounds, 480 U.S. 901, 107 S.Ct. 1341, 94 L.Ed2d 512

(1987). The exercise of specific jurisdiction is permissible in

Maryland if the suit arises out of, or is directly related to, the

defendant’s activities in the state. See Camelback Ski Corp. v.

Behning, 312 Md. 330, 539 A.2d 1107, 1111 (1988)

(Camelback II), accord, Presbyterian Univ. Hosp. v. Wilson,

337 Md. 541, 654 A.2d 1324, 1329-30 (1995); Talegen Corp.

v. Signet Leasing and Fin. Corp., 104 Md. App. 663, 657 A.2d

406, 410-11 (1995); Piracci v. New York City Employees’

Retirement Sys., 321 F.Supp. 1067, 1072 (D.Md. 1971).'

Although the Maryland cases do not specifically decide the

question presented to us here, I think it unlikely that, in the

absence even of a “but for” connection between Shoppers’

advertising and Ms. Moreno’s accident, the Maryland courts

would conclude either that the plaintiffs injury “arose from”

Shoppers’ activities in the District or that it was “directly

related” to them.

‘In Camelback I, 513 A.2d at 881 n. 7, the court left open the questions

whether the terms “arising out of’ and “related to” have different

meanings and, if they do, whether specific jurisdiction may be asserted

where the plaintiff's claim relates to, but does not arise out of, the

defendant’s activities in Maryland.

36a

Ms. Moreno’s prospects would be even less promising

under Virginia law. That state’s long-arm statute is also

identical to the corresponding District provision in all material

respects. See Virginia Code § 8.01- 328.1(A)-(B) (1992). In

construing the extent of in personam jurisdiction under

Virginia’s long-arm statute, the Supreme Court of Virginia,

much like its counterparts in the District and in Maryland, has

stated that the legislative purpose was “to assert jurisdiction

over nonresidents who engage in some purposeful activity in

this State to the extent permissible under the due process

clause.” Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736,

180 S.E.2d 664, 667 (1971).

When jurisdiction is based solely on an out-of-state

defendant’s transaction of business in Virginia, the plaintiff's

claim must arise from the business transacted in the state. See

Virginia Code § 8.01-328.1(A)-(B). The United States District

Court for the Eastern District of Virginia has ‘interpreted the

phrase “arising from” as follows:

Plain meaning is the starting point in the analysis, and

“caused by” is the phrase’s plain meaning. Thus, it is

evident that Virginia’s General Assembly used the phrase

“arising from” to require that there be a causal link

between the acts relied on for personal jurisdiction and

the cause of action asserted. Significantly, courts agree

that this causation element requires more than simple

“but-for” causation; it requires something akin to legal

or proximate causation.

Chedid v. Boardwalk Regency Corp., 756 F.Supp. 941, 943

(E.D.Va.1991) (emphasis added) (citing Pizarro v. Hoteles

Concorde Int'l, C.A., 907 F.2d 1256, 1259 (1st Cir.1990))’;

? In Pizarro, the court stated:

Whether certain events “arise out of’ a nonresident

defendant’s actions within Puerto Rico is comparable or analogous

37a

see also City of Virginia Beach v. Roanoke River Ass'n, 776

F.2d 484, 487 (4th Cir.1985) (“{iJn order for a cause of action

to arise from business transacted in Virginia, the activities that

support the jurisdictional claim must coincide with those that

form the basis of the plaintiff's substantive claim”), Verosol v.

Hunter Douglas, Inc., 806 F.Supp. 582, 589-90

(E.D.Va.1992).’

In Chedid, the plaintiff slipped and fell in an elevator at

a New Jersey casino. He brought a negligence action in a

United States District Court in Virginia against the corporate

owner of the establishment. The plaintiff argued that the court

had jurisdiction over the defendant under Virginia’s long-arm

statute because the casino had solicited customers and placed

ads in Virginia, and because his claim had arisen from these

activities in the forum. Although the plaintiff alleged that the

defendant’s telephonic solicitation, in which it had offered free

limousine travel to and from New Jersey, had induced him to

go to the casino,’ the court held that it did not have jurisdiction

over the corporation, reasoning that there was no causal

relationship between the plaintiffs accident and the

corporation’s transaction of business in Virginia. Chedid,

supra, 756 F.Supp. at 943. “[P]laintiff’s cause of action is one

‘arising from’ the defendant’s alleged negligence in leaving the

to whether certain actions can be said to be the legal, or proximate

Cause of injuries suffered by a plaintiff.

7 F.2d at 1259. It appears obvious to me that Ms. Moreno’s fall was not

proximately caused by Shoppers’ advertising.

* It appears that the Virginia state courts have not yet addressed this issue.

See Chedid, supra, 756 F.Supp. at 944.

“Unlike the plaintiff in Chedid, Ms. Moreno offered no evidence that she

was induced to go to Shoppers Food Warehouse by Shoppers’ advertising

in the District. The court in Chedid thus went further than I find it

necessary to go in order to conclude that jurisdiction was lacking in the

present case.

38a

elevator floor wet and slippery, not from defendant’s wholly

unrelated advertising and solicitation activities.” /d.

The phrase “arising from” in the Virginia statute has thus

been construed as requiring a strong causal link between the

defendant’s transaction of business in the state and the

plaintiff's claim. No such causal link is alleged here. The

common sense interpretatton of the statutory language by the

court in Chedid is fatal to Ms. Moreno’s position in this case.

Il.

In my opinion, the foregoing authorities render it most

improbable that Ms. Moreno could prevail if the controversy

were to be decided under the Maryland or Virginia statutes.

The majority, however, has chosen not to look to Maryland or

Virginia law, on which the District’s statute was based, but to

rely instead on precedents from Connecticut and California.

But the cases from these jurisdictions were decided under

statutes that differ significantly from the District’s, and they

therefore provide scant support for the majority’s position.

In Zhomason v. Chemical Bank, 234 Conn. 281, 661

A 2d 595, 601 (1995), the Supreme Court of Connecticut held

that the phrase “arising out of” in the Connecticut long-arm

statute “does not require a causal connection between the

defendant’s forum-directed activities and the plaintiffs’

lawsuit.” Connecticut’s long-arm statute, however, provides

that a suit must_arise out of the defendant’s contacts with the

state in order to permit Connecticut’s courts to exercise either

general or specific jurisdiction. The court recognized that if

the words “arising out of’ were construed as imposing a

causation requirement,’ “the statute would limit our courts to

* Significantly, the court explained:

Some [federal] courts have suggested, in dicta, that specific

jurisdiction may be exercised without proof of a causal connection

between the defendant's forum-directed activities and the lawsuit.

39a

the exercise of ‘specific’ jurisdiction and prohibit our courts

from exercising any ‘general’ jurisdiction.” /d. at 600-01. The

court sensibly reasoned that the legislature had not intended to

exclude general jurisdiction entirely, but had elected instead to

enact a more restrictive test for general jurisdiction than the

Constitution requires. Jd. at 602. In fact, Thomason was

brought and decided as a general jurisdiction case. Jd. at

603-05.

Unlike the Connecticut statute, the District’s general

jurisdiction long-arm statute permits the Superior Court to

exercise jurisdiction even if a plaintiffs claim does not arise out

of an out-of-state defendant’s activities in the forum. See D.C.

Code § 13-334(a). Thus, 7homason is unhelpful to

Ms. Moreno for two reasons: (1) unlike the Supreme Court of

Connecticut, this court need not accord an artificially broad

construction to the words “arising from” in the District’s

specific jurisdiction statute, for the Superior Court may

exercise general jurisdiction without a showing that the claim

arises from the defendant’s activities in the forum: and (2) in

Thomason, the court was construing the phrase “arising out of”

as it appears in Connecticut’s general jurisdiction long-arm

statute, while Ms. Moreno brought her case solely under the

District’s specific jurisdiction statute.

All of those courts, however, have based their conclusion on the

fact that the specific jurisdiction test merely requires that the cause

of action “arise out of or relate to” the defendant’s forum-directed

activities... Thus, even if the constitutional test for specific

jurisdiction does not require a causal connection between the

defendant’s contacts with the forum and the lawsuit, it is only

because that test contains not_only the “arising out of” language,

but also the “relating to” language. Jf the constitutional test

employed only the “arising out of” language, a causal connection

would be required.

Id. at 600 n. 4 (emphasis added). The District’s Statute, of course, does

not contain the words “relate to.”

40a

The majority also cites California’s “substantial

connection” test as support for the Superior Court’s exercise

of jurisdiction in this case. See maj. op. at 335. The Supreme

Court of California has stated:

A claim need not arise directly from the defendant’s

forum contacts in order to be sufficiently related to the

contact to warrant the exercise of specific jurisdiction.

Rather, as long as the claim bears a_ substantial

connection to the nonresident’s forum contacts, the

exercise of specific jurisdiction is appropriate. The due

process clause is concerned with protecting nonresident

defendants from being brought unfairly into court in the

forum, on the basis of random contacts. That

constitutional provision, however, does not provide

defendants with a shield against jurisdiction when the

defendant purposefully has availed himself or herself of

benefits in the forum —

Vons Cos. v. Seabest Foods, Inc., 14 Cal.4th 434, 58

Cal. Rptr.2d 899, 926 P.2d 1085, 1096 (Ca.1996).

Unlike its counterpart in the District, California’s

long-arm statute does not have an “arising from” requirement.

Rather, California’s long-arm statute states that “[a] court of

this state may exercise jurisdiction on any basis not inconsistent

with the Constitution of this state or of the United States.” Cal.

Code Civ. Proc. § 410.10 (1999). Thus, even if one were to

assume that Ms. Moreno’s claim has a “substantial connection”

with Shoppers’ activities in the District—a distinctly dubious

assumption—the analysis in Vons sheds little light on the proper

construction of the phrase “arising from” in § 13-423(b).

iil.

There is a widespread perception in the community at

large that lawyers and judges sometimes make things

unnecessarily complicated. I suggest that if one were to tell an

intelligent lay citizen that Shoppers advertised widely in the

AAO eR BAR a AEE NR RIC TaN eae ACE ON Hs or Ul ae ae SS

4la

District but that there was no evidence that Ms. Moreno ever

read Shoppers’ ads, and if one were then to ask that citizen

whether Ms. Moreno had proved that her “slip and fall”

accident “arose from” Shoppers’ advertising, the interrogated

individual would look at the questioner rather incredulously

and then answer “of course not,” or words to that effect. |

believe that the result would be the same if this issue were

posed to a professor of English. This is a case in which, in my

judgment, the legal profession could profitably look at the

problem as the average citizen would, and accord the words

used by the legislature their common sense meaning.

I respectfully dissent.

42a

DISTRICT OF COLUMBIA COURT OF APPEALS

SHOPPERS FOOD WAREHOUSE, Appellant,

Asuncion MORENO, Appellee.

No. 96-CV-21.

Jan. 4, 1999.

Before WAGNER, Chief Judge, TERRY, STEADMAN,

SCHWELB, FARRELL, RUIZ, and REID, Associate Judges.

ORDER

PER CURIAM.

On consideration of appellant’s petition for rehearing en

bane, and the answer thereto; and it appearing that the

majority of the judges of this court has voted to grant the

petition for rehearing en banc, it is

ORDERED that appellant’s petition for rehearing en bane

is granted and that the opinion and judgment of July 16, 1998,

are hereby vacated. It is

FURTHER ORDERED that the Clerk shall schedule this

matter for argument before the court sitting en bane as soon as

the calendar permits. It is

FURTHER ORDERED that no later than February 1,

1999, the parties shall file new briefs specifically designed for

consideration by and addressed to the en bane court. These

new briefs shall address the analysis contained in the respective

majority and dissenting opinions issued by the division. In

addition, the new briefs shall incorporate all arguments that the

parties wish to address to the en bane court and in that sense

aR eNOS 0s BED RRP Saat AW os Ne

“Bo Pa es At cerin

43a

shall be considered replacements for, not supplements to, the

briefs submitted to the division. Each party shall file ten copies

of its brief. The parties may subsequently file responsive

memoranda not later than February 15, 1999.

44a

DISTRICT OF COLUMBIA COURT OF APPEALS

SHOPPERS FOOD WAREHOUSE, Appellant,

Asuncion MORENO, Appellee.

No. 96-CV-21.

Decided July 16, 1998.

Before SCHWELB, FARRELL, and REID, Associate

Judges.

REID, Associate Judge:

The main issue presented by this case is whether the trial

court had personal jurisdiction over appellant, a nonresident

corporation which advertised its grocery stores in the District

of Columbia communications media, where appellee, a District

resident, alleged she suffered personal injuries in one of

appellant’s Maryland stores located near the District’s border.

The trial court concluded that it had personal jurisdiction over

appellant. We affirm. :

FACTUAL SUMMARY

A District of Columbia jury found that appellee Asuncion

Moreno slipped and fell in a grocery store owned by appellant

Shoppers Food Warehouse MD Corporation and, as a result of

Shoppers’ negligence, sustained back and hand injuries. She

was awarded damages in the amount of $197,307 for past and

future medical expenses, mental anguish, and pain and

SV aaa alee %

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suffering.’ From the beginning of Ms. Moreno’s lawsuit,

Shoppers argued that the trial court lacked personal jurisdiction

over it under D.C.Code § 13-423(a)(4) (1995) (causing

tortious injury in the District of Columbia)? Later,- Ms.

Moreno claimed that even if jurisdiction were not based on

subsection (a)(4), it rested on § 13-423(a)(1) (transacting any

business in the District of Columbia).

Shoppers maintained that § 13-423(a)(4) did not apply

because no tortious injury took place in the District.

Furthermore, Shoppers argued that Ms. Moreno failed to show

the applicability of § 13-423(a)(1) which, they asserted, must

be read in conjunction with § 13-423(b). In its order of June

22, 1994, the trial court agreed with Shoppers that subsection

(a)(4) was inapplicable because Ms. Moreno’s injury occurred

in Maryland, not the District. However, the trial court

' The breakdown of the jury award was: $6,307.00 for past medical

expenses, $44,000 for past pain and suffering; $75,000 for future pain

and suffering; $22,000 for past mental anguish; and $50,000 for future

mentaf' anguish.

* In relevant part, D.C.Code § 13-423 states as follows:

(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;

* * *

(4) causing tortious injury in the District of Columbia by an

act or omission Outside the District of Columbia if he regularly does

or solicits 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:

* * *

(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.

46a

concluded that there was personal jurisdiction under subsection

(a)(1) for the following reasons:

First, it is reasonable to require the Defendant to

defend this suit in the District of Columbia.... The

Defendant owns numerous stores in Maryland and

Virginia, several of which are located within a few miles

of the District of Columbia border.

... The Defendant contracts with and advertises in

[T]he Washington Post, thereby targeting and soliciting

customers in the District of Columbia area...

Furthermore, the Defendant has failed to “show that it

[is] at a ‘severe disadvantage’ in being required to defend

in [the District of Columbia]” ... (quoting Electronic

Media Int’l v. Pioneer Comm., Inc., 586 A.2d 1256,

1258 (Me.1991)[) ]. Since the Plaintiff resides in the

District, she has a strong interest in litigating this suit

here.

Second, the Defendant, by contracting with

Washington based businesses (i.e., The Washington Post,

the District of Columbia Yellow Pages) for adverti[s]ing

purposes, has transacted business in the District of

Columbia. Thus, the Defendant purposefully and

voluntarily availed itself of the privileges and protections

of the District of Columbia... .

Finally, the Defendant’s contacts with the forum

state were of such quality and nature that it is reasonable

for the Defendant to reasonably anticipate being haled

into court in the District of Columbia. It is reasonable to

conclude that the Defendant derives a substantial portion

of its revenue from District of Columbia residents it

specifically targets with advertisements that demonstrate

how the Defendant’s prices compare favorably with the

prices in supermarkets . . . .

47a

Although the trial court did not explicitly mention

§ 13-423(b) in its June order, it referenced a prior trial court

opinion, Daniels v. Knoff, 116 Daily Wash.L.Rptr. 2053, 2057

(Super.Ct.1988), involving an advertisement in the District by

a nonresident corporation. That opinion stressed “the

foreseeability of injury to District of Columbia plaintiffs as a

result of defendant’s actions and the consequences of its

actions by soliciting and advertising for business in the District

of Columbia.”* Accordingly, the trial court “conclude[d] that

there are enough contacts with the District of Columbia in this

case to satisfy the minimum contacts requirement.”

Shoppers appeals on the basis that the trial court’s order

of June 22, 1994, constituted error because: (1) personal

jurisdiction over it could not be based upon § 13-423(a)(1) and

(b); (2) the trial court erred in denying its motion for a

directed verdict, and (3) the trial court erred in permitting the

jury to award damages for a permanent injury. We find no

reason to disturb the trial court’s judgment.

Il.

ANALYSIS

A. \

Personal Jurisdiction

This court has never determined whether newspaper and

other advertisements in the District by a nonresident

corporation owning a chain of stores, some of which are

located in very close proximity to the District’s borders, are

sufficient to meet the minimum contacts requirement of the

* Daniels also concluded that “defendant's activities, i.e., the advertising

and soliciting for business which presumably has attracted this plaintiff,

as well as many other District of Columbia residents to its stores, clearly

has caused a consequence in the District, i.e., plaintiff's injuries.” 116

Wash.L.Rptr. at 2057.

48a

District’s long-arm -statute, and whether the advertising

constitutes a sufficient nexus for the District's exercise of

jurisdiction over a personal injury lawsuit where the injury took

place in a store in a neighboring jurisdiction. Trial courts in

the District that have examined this issue have disagreed.

Different judges in both the Superior Court of the District of

Columbia and the United States District Court for the District

of Columbia have expressed different views at different stages

of cases involving Shoppers as a defendant.‘

We begin with certain fundamental principles that shape

Our opinion in this matter. First, in 7rerotola v. Cotter, 601

A.2d 60 (D.C.1991), we said: “ ‘A court may properly assert

personal jurisdiction over a nonresident [1] where a statute

authorizes service of process and [2] where such service is

consistent with due process.” ” /d. at 63 (quoting Smith v.

Jenkins, 452 A2d 333, 336 (D.C.1982) (other citation

omitted)). Thus, in accordance with the intent of Congress in

enacting D.C Code § 13-423, we must interpret that statute to

“permit the exercise of personal jurisdiction over nonresident

defendants to the extent permitted by the due process clause”

of the Fifth and Fourteenth Amendments to the Constitution of

the United States. Environmental Research Int'l, Inc. v.

Lockwood Greene Eng'rs, Inc., 355 A2d 808, 810-11

(D.C.1976) (en banc), see also Hummel v. Koehler, 458 A.2d

1187, 1190 (D.C_1983), Rose v. Silver, 394 A.2d 1368, 1369

(D.C.1978).° Second, if“ ‘the defendant purposefully avails

“ The differences in the views of the judges are reflected in the orders of

June 22, 1994, and December 15, 1995, in this case, in Duffy v. Shoppers

Food Warehouse, CA No. 93-2372 (D_ D.C), 1994 WL 151204, at 3 and

in the order of July 31, 1995, transfernng the matter to the United States

District Court for the Distnct of Maryland

* We have held previously that “the ‘transacting any business’ provision

1S Coextensive with the due process clause " AMfowzavires v. Baxter, 434

A.2d 988, 992 (D.C 1981) (en banc) (citations omitted), cert denied, 455

US. 1006, 102 S.Ct 1643, 71 L Ed 2d 875 (1982), see also Hummel,

ee ee ee ae Oe

49a

itself of the privilege of conducting activities within the

[District], thus invoking the benefits and protections of its

laws,’ ” Smith, supra, 452 A.2d at 336-37 (quoting Hanson v.

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

(1958)),° and could “ ‘reasonably anticipate being haled into

court [in the District],’ ” /d. at 336 (quoting World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct.

559, 62 L.Ed2d 490 (1980)), it “would [not] offend

‘traditional notions of fair play and substantial justice’...” to

“{allow] ... suit to be brought in the District of Columbia.”

/nternational Union of Elec., Salaried, Mach., and Furniture

Workers v. Taylor, 669 A.2d 699, 700 (D.C.1995) (citation

omitted). Third, when jurisdiction is alleged based solely upon

§ 13-423, the nexus requirement set forth in § 13-423(b) must

be met, that is to say, the claim for relief must “aris[e] from”

one of the jurisdictional acts, such as “transacting business,”

enumerated in § 13-423.

We now turn to an application of the foregoing

principes. We conclude that Shoppers’ advertising in The

Washington Post and the Yellow Pages, designed to target and

attract District residents to its nearby Maryland and Virginia

stores, amounted to transacting business in the District of

Columbia under D.C.Code § 13-423(a)(1),’ and that

supra, 458 A.2d at 1190.

* “[Wy]here a defendant who purposefully has directed his activities at

forum residents seeks to defeat jurisdiction, he must present a compelling

case thal the presence of some other considerations would render

jurisdiction unreasonable.” Burger King Corp. v. Rudzewicz, 471 US

462, 477 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

' Shoppers argues that “there is simply no evidence in the record from

which any conclusion could be reached that Shoppers Food Warehouse

MD Corp, the defendant, contracted for any of this advertising, or that it

did so wt the Distnct of Columbia.” However. the tnal court could

reasonably assume, in the absence of evidence to the contrary and

evidence relating to the corporate structure of Shoppers, that the

50a

jurisdiction was proper provided Ms. Moreno established a

nexus between her injury and Shoppers’ advertisements in the

District sufficient to satisfy § 13-423(b).

Our case law has not construed § 13-423(b)’s “arising

from” requirement restrictively. Most recently, for example,

in 7rerotola, supra, we interpreted that nexus to mean only

“that the claim raised [must] have a discernible relationship to

the ‘business’ transacted in the District.” 601 A.2d at 64

(citations omitted). | We went on to explain that this

“discernible relationship” is shown if “ ‘certain minimum

contacts’ between the nonresident and the forum” exist. /d.

(quoting World-Wide Volkswagen Corp., supra, 444 U.S. at

291, 100 S.Ct. 559). These minimum contacts reflect

“ ‘conduct and connection with the forum state ... such that

[the nonresident] should reasonably anticipate being haled into

court there.’” /d. (quoting World-Wide Volkswagen, supra,

444 US. at 297, 100 S.Ct. 559). Stated differently,

§ 13-423(b) bars only “claims ‘unrelated to the acts forming

the basis for personal jurisdiction.’ ” /d. at 63 (quoting Willis

v. Willis, 211 U.S.App.D.C. 103, 655 F.2d 1333, 1336 (1981)

(other citation omitted)). Section 13-423(b) thus operates as

a due process check on the reach or scope of the “transacting

business” provision of the long-arm statute.

Here, the trial court found that Shoppers “owns

numerous stores in Maryland and Virginia, several of which are

located within a few miles of the District of Columbia border.”

The trial court also determined that Shoppers “contracts with

and advertises in [T]he Washington Post [and the Yellow

Pages], thereby targeting and soliciting customers in the

District of Columbia area.” In doing so, it “voluntarily availed

itself of the privileges and protections of the District of

Columbia....". Accordingly, the trial court concluded,

advertisements in the District for Shoppers’ grocery stores in Maryland

were placed by Shoppers Food Warehouse MD Corp.

Sla

Shoppers’ contacts with the [District] were of such quality

and nature that it is reasonable for [it] to reasunably anticipate

being haled into court in the District of Columbia.” Consistent

with this conclusion, we hold that there is no jurisdictional bar

to Ms. Moreno’s claim because it has a “discernible

relationship,” 7rerotola, supra, to Shoppers’ advertising and

soliciting of customers in the District of Columbia.* By

advertising and soliciting customers in the District, Shoppers

could reasonably anticipate being haled into court to defend

against a personal injury suit brought by a District resident. In

short, Ms. Moreno met the requirements of § 13-423(b).

Our dissenting colleague would require proof that

Shoppers’ extensive advertising in the District induced Ms.

Moreno personally to shop at its Maryland store. No matter

how much an advertiser saturates a locale, in the dissent’s

view, a jurisdictional link between advertising and predictable

consumer response is not enough to meet § 13-423(b)’s

requirement, plaintiff must show that this particular consumer

responded to the solicitations, by proof at least, one supposes,

that she was a regular reader of The Washington Post. Our

* Shoppers contends that in this case the nexus requirement is not satisfied

because there is no inherent relationship between the duty breached (to

provide a safe store) and the “transaction” of advertising in the District of

Columbia media. Under this reading of the nexus requirement, Ms.

Moreno would have to show something akin to false advertising by

Shoppers. Since 7rerotola requires only a showing of a “discernible

relationship” between the particular claim and the business transacted,

Shoppers appears to impose a heavier burden on Ms. Moreno than

Trerotola requires. Jd. at 63-65. The record reveals extensive and

repeated advertising by Shoppers in The Washington Post. In light of

such advertising, Ms. Moreno’s case is dissimilar to those in which

plaintiffs based their jurisdictional claims on a single advertisement, or

sporadic advertising from a travel agency located far from the forum state.

See, e.g., Crocker v. Hilton Int'l Barbados, Lid., 976 F.2d 797, 800 (Ist

Cir.1992), Witbeck v. Bill Cody's Ranch Inn, 147 Mich. App. 587, 383

N.W.2d 253 (1985), rev'd, 428 Mich. 659, 411 N.W.2d 439 (1987).

52a

decisions support no such restrictive gloss on § 13-423; as

cases like 7rerotola make clear, it requires only a practical link,

consistent with due process, between the activity conducted in

the jurisdiction (retail advertising) and the claim for relief

(injury while shopping). Our colleague banishes to distinctly

secondary status what for us are primary considerations

embodied in § 13-423(b): the predictability that persons (D.C.

residents) specifically solicited to shop in the advertiser’s stores

will do so, and the expectation reasonably imputed to the

advertiser that relief for shopping-related injuries will be sought

in the courts where those persons reside.

The Motion For A Directed Verdict

Shoppers challenges the trial court’s denial of its motion

for a directed verdict. At the conclusion of Ms. Moreno’s

case, Shoppers moved for a directed verdict, contending there

was “no evidence in the case that defendant created the

condition” leading to Ms. Moreno’s injury. However, Ms.

Moreno introduced testimony from Ms. Brenda McCray

showing that okra was on the floor of the produce section of

~ the store on the day Ms. Moreno’s injury occurred, and that

Ms. McCray had notified a man in an apron, whom she

regarded as a store employee, about the okra. He told her

“that wasn’t his department.” _In addition, Ms. McCray

testified that she heard other people talking about the okra on

the floor, and warned her mother, with whom she was

shopping, to be careful Ms. McCray saw Ms. Moreno fall

and helped her up.” Ms. Moreno was shaking and crying. Ms.

McCray observed “smashed okra” on the floor and on the back

of Ms. Moreno’s sweater. She testified it was the same okra

about which she had warned the store employee.

*Ms McCray did not know Ms. Moreno

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53a

In denying Shoppers’ motion for a directed verdict, the

trial court said, inter alia:

[T]he Court is satisfied that there’s enough evidence that

a jury could infer that the person with the white apron

putting apples on the cart, who said this is not my

department is enough for [the jury] to conclude that he

was an employee, so I’ll deny that motion.

The trial court also denied Shoppers’ renewed motion for a

directed verdict at the conclusion of the defense case.

We see no basis on which to disturb the trial court’s

ruling."° It is well-settled that the determination of negligence

is a factual issue. See Barrett v. Harris, 406 A.2d 1266, 1267

(D.C.1979); American Marietta Co. v. Griffin, 203 A.2d 710,

711 (D.C.1964). “When the case turns on disputed factual

issues and credibility determinations, the case is for the jury to

decide.” Durphy v. Kaiser Found. Health Plan of Mid-Atl.

States, Inc., 698 A.2d 459, 465 (D.C. 1997) (citations omitted).

Moreover, “[iJn assessing the legal sufficiency of the evidence,

neither the appellate court nor the trial court may act as the

trier of fact, and each must ‘take care to avoid weighing the

evidence, passing on the credibility of the witnesses, or

substituting [its] judgment for that of the jury.”” District of

Columbia v. Perez, 694 A.2d 882, 884 (D.C.1997) (quoting

- Alliegro v. ACandS, Inc., 691 A.2d 102, 105 (D.C.1997)).

The focus of Shoppers’ argument in the trial court as to the sufficiency

of the evidence centered on whether there was notice to a store employee

of the okra on the floor. On appeal, Shoppers argues: (1) “there was

simply no evidence that [it] or its employees had caused the vegetable

matter to be on the floor”; (2) the period of time between when Ms.

McCray saw the okra on the floor and Ms. Moreno fell (thirteen to fifteen

minutes) “is legally insufficient to establish “constructive notice’ on the

part of Shoppers”; and that there is “no evidentiary basis for finding that

[the man in the apron to whom Ms. McCray spoke,} was an employee of

Shoppers. ...”

54a

On the record before us, we conclude that reasonable

jurors could reasonably find, by a preponderance of the

evidence, that Shoppers received notice of the okra on the

floor, and that Shoppers had time to clean up the okra prior to

Ms. Moreno’s fall. Accordingly, we do not disturb the jury’s

conclusion as to Shoppers’ negligence.

Permanent Injury Damages

Finally, Shoppers challenges the award to Ms. Moreno of

damages for permanent injury. With respect to permanency,

the trial court instructed the jury:

In this case the plaintiff has offered evidence that as a

result of the incident the plaintiff suffered personal injury

with residual effects which [exist] to the present time.

Although no physician or expert was called to give an

opinion as to the expected duration of the injury, from

the facts and circumstances in the case and from the

nature and duration of the injury, you may, if you believe

the evidence, infer that the plaintiff has suffered a

permanent injury.

This charge was consistent with our case law. The trial court

informed Shoppers that Ms. Moreno was entitled to an

instruction on permanency, but Shoppers could “argue the

weight that the jury should attach to it.”

We have said that “when the bad effects of an injury have

continued for years, lay[persons} may reasonably infer

permanence, even though there is no expert prediction that

these injury residuals will continue. Evidence of pain and

suffering in existence at the time of the trial has been held

sufficient to take the question of permanence to the jury.”

American Marietta, supra, 203 A.2d at 712 (citations

omitted). Furthermore, where the issue of permanent damages

is properly before the jury, as we conclude it was in this case,

55a

“the jury ... [is given] broad discretion in awarding damages ...

[as long as] its award [is] supported by ‘substantial evidence.’ ”

Estate of Underwood v. National Credit. Union Admin. , 665

A.2d 621, 642 (D.C.1995).

Shoppers presented no testimony regarding the nature or

permanency of Ms. Moreno’s injuries. However, both Ms.

Moreno and her orthopedic specialist testified concerning the

nature of her injury and her continuing problems. Her

orthopedic specialist stated she will continue to experience

discomfort. Ms. Moreno testified that she still suffered from

the injury at the time of the trial, had to wear a back brace, and

had to limit or cease doing certain activities. This testimony

from the doctor and Ms. Moreno provided an adequate basis

to justify permitting the jury to consider and award future

damages for permanent injury.

Accordingly, for the foregoing reasons, we affirm the

judgment of the trial court.

So ordered.

SCHWELB, Associate Judge, dissenting:

The District’s long-arm statute provides that “[w]hen

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.” D.C.Code § 13-423(b) (1995).

Asuncion Moreno’s assertion of personal jurisdiction over

Shoppers Food Warehouse MD Corp. (Shoppers) was “based

solely” on § 13-423, but she failed to demonstrate that her

claims “ar[ose] from” Shoppers’ contacts with the District. I

would therefore hold that the motions judge should have

granted Shoppers’ motion to dismiss for lack of personal

junsdiction.

Shoppers is a Maryland corporation. It operates no

stores in the District, and it has no office here. ra opposing

56a

Shoppers’ motion to dismiss the complaint for lack of personal

jurisdiction, however, Ms. Moreno claimed that Shoppers

transacts business in the District, within the meaning of § 13-

423(a)(1), by advertising in The Washington Post and the

Yellow Pages, and that the Superior Court therefore had

jurisdiction over Shoppers.

The burden of proving the necessary jurisdictional facts,

as set forth in the long-arm statute, is on the plaintiff.

Trerotola v. Cotter, 601 A.2d 60, 64 n. 2 (D.C.1991), citing

McNutt v. General Motors Acceptance Corp., 298 U.S. 178,

182, 56 S.Ct. 780, 80 L.Ed. 1135 (1936).' Ms. Moreno has

not alleged, by affidavit or otherwise, that her presence in

Shoppers’ store was precipitated by those advertisements, nor

has she claimed that her injury was related in any way to

Shoppers’ jurisdictional contacts with the District. The

question before us is whether, under these circumstances, the

motions judge correctly held that the court had jurisdiction

over Shoppers.

Il.

In order to defeat Shoppers’ motion to dismiss the

complaint, Ms. Moreno was required first, to establish

jurisdictional facts sufficient to reach the defendant under the

District’s long-arm statute, and second, to show that it would

be consistent with due process to require Shoppers to defend

the suit in the District. See International Union of Electrical,

Salaried, Machine, and Furniture Workers v. Taylor, 669

A.2d 699, 699-700 (D.C.1995). Here, the first and dispositive

question is whether Ms. Moreno has alleged facts which bring

the case within the jurisdictional requirements of D.C.Code

§ 13- 423(b), or, more specifically, that the claim arises from

' The motions judge wrote in her order of June 22, 1994 that “the burden

of proving that jurisdiction is improper is on the moving party.”

57a

Shoppers’ activities in the District.2_ If Ms. Moreno has not

Satisfied this statutory requirement, then we have no occasion

to inquire as to whether the Constitution has been transgressed.

Id. at 700. Indeed, if the case can be decided on statutory

grounds, then any constitutional inquiry would contravene the

“deeply rooted doctrine that a constitutional issue is to be

avoided if possible.” /d. (citation omitted).

“Courts have uniformly held that a subsection (a)(1)

confers personal jurisdiction over a defendant only if the

plaintiff's claim arises from the defendant’s contact with the

District.” Everett v. Nissan Motor Corp., 628 A.2d 106, 107

(D.C.1993) (citation omitted). Accordingly, we have

repeatedly dismissed claims where the “arising from”

requirement of § 13-423(b) has not been satisfied. See; e.g.,

id. at 107-08 (products liability suit against Nissan following an

automobile collision in North Carolina did not arise out of

Nissan’s distribution of automobiles in the District); 7rerotola,

supra, 601 A.2d at 64-66 (employee’s claim for a retirement

gift based on implied contract did not arise out of employer’s

representation of unions in the District); Berwyn Fuel Inc. v.

Hogan, 399 A.2d 79, 80 (D.C.1979) (per curiam) (personal

injury suit against fuel company whose truck struck a Car in

Maryland did not arise out of fuel company’s occasional

deliveries to the District).

The present case falls neatly within these precedents.

Whatever the nature and extent of Shoppers’ activities within

the District, Ms. Moreno’s injury did not arise from those

activities. So far as we can discern from the record, Ms.

Moreno would have suffered the injuries for which she seeks

compensation in this action even if Shoppers had not advertised

in the District at all.

| agree with the majority that the “transacti

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