Petition for Writ of Certiorari — Irons v. Asociacion de Propietarios de la Urbanizacion Dorado Reef, Inc.

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Supreme Court, U.S.

O02 385 Au 28 2002

ee Te Te

IN THE

Supreme Court of the Anited States

MARY L. IRONS,

Petitioner,

.

ASOCIACION DE PROPIETARIOS DE LA

URBANIZACION DORADO REEF, INC.,

Respondent.

Petition for a Writ of Certiorari to the

District of Columbia Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

EDWARD S. IRONS

3945 52nd Street, N.W.

Washington, D.C. 20016

(202) 362-5332

ee LL

WILSON-EPES PRINTING CO., INC. -— (202) 789-0096 - WASHINGTON, D. C. 20001

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QUESTIONS PRESENTED

1. Are the District of Columbia Courts required to

preserve and maintain the integrity of the judicial system by

full and reasoned adjudication on the merits based on all of

the record evidence of a claim that judgment was unethically

procured by counsel?!

2. Whether the Court of Appeals, by affirming the grant of

a corporate defendant's falsely verified pro se motion ghost-

written by counsel to dismiss for lack of personal jurisdiction,

so far departed from the accepted and usual course of judicial

proceedings and sanctioned such a departure by the trial court

as to call for the exercise of this Court’s supervisory powers?

3. Whether an unrepresented non-lawyer corporate presi-

dent who signs and concurrently verifies and files a know-

ingly false motion to dismiss for lack of personal jurisdiction

is liable for sanctions under Rule 11(c) of the Rules of the

District of Columbia Superior Court, wherein said rule is

identical to Rule 11(c) of the Federal Rules of Civil

Procedure?

4. Whether Rules 11(b)(1) and (2) are violated by the

filing, in violation of Superior Court Rules 101(a)(1) and (2),

of a motion to dismiss for lack of personal jurisdiction on

behalf of a corporation wrongfully appearing pro se signed by

the defendant corporation’s president who is not a lawyer?

5. Whether prima facie personal jurisdiction of the forum

court over a non-resident corporate defendant is established

by facts that the suit is based on a contract between plaintiff,

a forum resident, and the non-resident corporate defendant,

who was proactive to procure an amendment to the contract,

' This Question | is substantially the same as Question 4 on Petition

No. 02-26 filed July 3, 2002 which refers specifically to the “Federal

Courts”. In these cases, the respondent is the same and the same counsel

for respondent is implicated.

(i)

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wherefore, due process precludes the grant, without any

evidentiary hearing, of the non-resident defendant

corporation’s motion to dismiss for lack of personal

jurisdiction?

ot aed

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PARTIES

Petitioner, Mary L. Irons, is an individual.

Respondent, Asociacion de Propietarios de la Urbanizacion

Dorado Reef, Inc. (APUDRI), is a corporation of the Com-

monwealth of Puerto Rico. The APUDRI corporation’s sole

function is to administer the business affairs of Dorado Reef,

a Puerto Rico housing development. Prior to October 2001,

petitioner and her husband, Edward S. Irons (petitioner in No.

02-26), owned a housing unit in the Dorado Reef housing

development. Neither petitioner nor her husband is now or

has ever been a member of the respondent Asociacion.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. .......--sessssesessserensessesensnsenenns i

PARTIES ....ccccccscosscsssccssscccsssccrensseccsosscsenssvscsonsoenssonsoooes ill

TABLE OF AUTHORITIES ........c:ssseesesesesseseseeeetnneneess Vil

OPINIONS BELOW.........c:csccsssessessseeseennenenennesnnennnsnnenes l

JURISDICTION ..........ccsssessessesessssesenensensensvensensensennrens 2

CONSTITUTIONAL PROVISION INVOLVED......... 2

STATUTES INVOLVED.......:cscessesrsesreesesersensennenneenees 2

STATEMENT OF THE CASE........:sessesseseessesesnennsenenes 3

TRIAL COURT PROCEEDINGS .......:scsseseesesessssesensenes 5

PROCEEDINGS IN THE DISTRICT OF

COLUMBIA COURT OF APPEALS ........:::stsrseeees 15

REASONS WHY WRIT SHOULD BE GRANTED... 17

APPENDICIES

Memorandum Opinion and Judgment of District of

Columbia Court of Appeals Dated April 10, 2002 .... la

Order of District of Columbia Court of Appeals dated

May 30, 2002 .....sesssscssssssssessessneensenscssnsnssrncenssensensssnees 8a

Order of Superior Court of the District of Columbia

dated March 28, 2001 ........cssssssersereeresnentesersenennenneses 9a

Order of Superior Court of the District of Columbia

dated March 19, 2001 ........sssssesreersersereneeseesenennennrees 10a

Order of Superior Court of the District of Columbia

dated September 22, 2000......--ss+sssessssssserserensensnsersnee 14a

Order of Superior Court of the District of Columbia

dated December 14, 1999 .......ccesseeeresernsrrrerersnnennncsses 28a

Appellant’s Petition for Rehearing filed in the District

of Columbia Court of Appeals on April 22, DOOD woes 32a

(v)

Vi

TABLE OF CONTENTS—Contiriued

Plaintiff's Motion for Sanctions filed in The Superior .

Court of the District of Columbia on March 10,

Plaintiff's Motion to Strike Verified “Motion to

Dismiss for Lack of Jurisdiction” filed in the

Superior Court of the District of Columbia on

RUUD TG, SPIE etevstictadanieaaineabbeniates eee

Defendant’s Motion for Leave of Court to Resubmit

Motion to Dismiss for Lack of Jurisdiction filed in

the Superior Court of the District of Columbia on

FURS SG, SHEO wsinricinsinvnstgammaicaicadiom nares

Defendant’s Motion to Dismiss for Lack of Juris-

diction filed in the Superior Court of the District of

Columbia on February 2, 1999 00.......ccssscsscceseeeeees

Pages | and 2 of Plaintiff's Complaint Filed in the

Superior Court of the District of Columbia on

TURNERS 4, THEW scinininsinniaea ee

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Page

4la

53a

59a

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TABLE OF AUTHORITIES

CASES Page

Chambers v. NASCO, Inc., 501 U.S. 31 (1991)..... 18

Durran v. Carris, 238 F.3d 1268 (10 Cir. 2001)... 18, 19

Maine v. Taylor, 471 U.S. 131 (1986) ....s-s--sesse000 17

Massengale v. Ray, 267 F.3d 1298 (Fed.Cir.

2001) .ecceccescescsscsscsscssccserensenssnsensensensecssssnsensensenes 20

McGee v. International Life Ins. Co., 355 USS.

220 (1957) ..cceccescecsesssseereesseessrensensenensssnsensenensones 21

Tiverton Board of License Commissioners V.

Pastore, 469 U.S. 238 (1965) ...cceeeeeeeeeeesreesees 18

United States v. Schaffer Equipment Co., 11 F.3d

450 (4 Cir. 1993).....ssccssesseeseeneereernennnnnennesnnsnnnnes 18

CONSTITUTION

Fifth Amendment ..........eseeseeseereseeeeenennennnsnnennenees 2, 21

STATUTES

QB U.S.C. 1254(1) ...cccessesreesrssceserseensensennsensennsennenees 2

D.C. Code 11-921 ......scecseessessenneersenssnennnsneennennnnneess 2

D.C. Code 13-423 .....csssssesseesseensersenennennnnnnensnnennnses 2

Federal Rules of Civil Procedure 11 .........s+s:+++++ i, 19, 20

Superior Court Civil Rules

1 1 ....cccccccocccsccsccsccecsssvcscenscesscessssoossosseesseensnossoresees i, 20

52( 8) ..ceccescccocrsocncceccccncencesseseosonsnvensvscosonsonsnsessonens 13

SOLE) ...ccerccrecsrrecserencccncencesensnsosoncenensssosensenensesesoees 13, 14

101(a)(1) and (2) .c.ecsesseererneereneennnenennennnnennes i, 3, 15, 20

Rules of Professional Conduct,

3.3.....cocococcccsceveccseosecssssoscnscssessscosssossonssoncssnsooosees 18

B A. .....cccoccocccccsscccsecseccccsccssscsseesccosscnonesnsonsscseoonees 19

IN THE

Supreme Court of the United States

No.

————

MARY L. IRONS,

Petitioner,

Ve

ASOCIACION DE PROPIETARIOS DE LA

URBANIZACION DORADO REEF, INC..,

Respondent.

Petition for a Writ of Certiorari to the

District of Columbia Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Petitioner, Mary L. Irons, respectfully petitions that a writ

of certiorari be granted to review the judgment of the District

of Columbia Court of Appeals.

OPINIONS BELOW

The opinion of the District of Columbia Court of appeals

was filed April 10, 2002 (1a-7a).

The opinion of the Superior Court of the District of

Columbia was filed September 22, 2000 (14a-27a).

JURISDICTION

The judgment of the District of Columbia Court of Appeals

was entered on April 10, 2002 (la-7a). A timely Petition for

Rehearing was denied on May 30, 2002 (8a). This petition

was timely filed on August 28, 2002.

This Court has jurisdiction under 28 U.S.C. §1254(1).

The jurisdiction of the Superior Court of the District of

Columbia was invoked under District of Columbia Code.

Title 11, § 921, as amended.

CONSTITUTIONAL PROVISION INVOLVED

This case involves the due process clause of the Fifth

Amendment to the United States Constitution which provides

that “[nJo person shall . . . be deprived of life, liberty or

property without due process of law”.

STATUTES INVOLVED

D.C. Code § 13-423

(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; ”

x* * * x

(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.

> “D.C. Code, Title 13, section 423(a\1) permits the exercise of

personal jurisdiction to the full extent permitted by Due Process” (19a).

Citations omitted.

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(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. Superior Court Civil Rule 101

(a) Who may practice. (1) An attorney who is a member

in good standing of the District of Columbia Bar may

enter an appearance, file pleadings and practice in this

Court.

(2) No person other than one authorized by this Rule

shall be permitted to appear in this Court in a

representative capacity for any purpose other than

securing a continuance. No corporation shall appear

in the Division except through a person authorized by

this Rule. ...

STATEMENT OF THE CASE

In the 1998-1999 time period, respondent Asociacion de

Propietarios de la Urbanizacion Dorado Reef, Inc.

(“APUDRI”) made a claim for maintenance fees premised on

petitioner’s co-ownership of a housing unit in the Dorado

Reef Puerto Rico housing development. APUDRI’s president

assured petitioner that such claim would not be pressed.

Thereafter, APUDRI cited an opinion of its counsel to

repudiate its president’s assurance and advised that suit for

collection of alleged maintenance fees would be filed in a

Puerto Rico State Court if the fees were not promptly paid.

The original complaint in this action was filed on

January 4, 1999 (65a-66a; §§ 1-4 only). It sought, among

other things, a declaratory judgment that petitioner did not

owe any maintenance fees to APUDRI.

This petition is from the judgment of the District of

Columbia Court of Appeals which affirmed the trial court’s

4

(District of Columbia Superior Court) order and judgment

(14a-27a) granting APUDRI’s Motion to Dismiss for Lack of

[Personal] Jurisdiction (6la-64a). According to the trial

court: “The exercise [of] personal jurisdiction over this

defendant would violate defendant’s right to Due Process and

run afoul of the Fifth Amendment” (27a). At the time the

Motion to Dismiss was granted on September 22, 2000, the

case was pending on the Second Amended Complaint, filed

as authorized by a December 14, 1999 trial court order (28a-

31a}. The Second Amended Complaint alleges, inter alia:

I. NATURE OF THE CASE

1. This is an action for declaratory and injunctive

relief and damages for tortious interference, breach of

contract and negligence. Defendant homeowners

association has subjected plaintiff, a Washington, D.C.

resident and owner of a second home in Puerto Rico, to a

long-running series of meritless claims for association

maintenance fees and assessments on the second home.

Declaratory relief is sought establishing that there is no

such liability. In addition, although defendant is well

aware of the personal nature of its maintenance fee

claims, defendant has directly, intentionally, wrongfully

and maliciously interfered with plaintiff's efforts to

market and sell her property by advising plaintiff's

realtor to tell prospective purchasers that the plaintiff's

asserted liability to defendant would become the

obligation of any purchaser, when an agreement binding

on defendant provides exactly the opposite. Plaintiff’s

ability to sell her property has been significantly

impaired by this wrongful and intentional conduct

and breach of contract by defendant, warranting

appropriate relief. Finally, plaintiff seeks damages for

defendant’s negligence in providing security to her

property. [pages 1-2]

5

*x* * * *

IV. FACTS COMMON TO ALL COUNTS

* * * *

14. . . . [P]laintiff entered into an agreement with

Dorado Reef, S.E., setting forth plaintiff's qualified

agreement to imposition of the Restrictive Covenants on

the Property (“1993 Agreement”). [page 4]

* * * *

25. The 1993 Agreement was amended by a writing

signed by Sanchez on behalf of Dorado [Reef], S.E. in

Puerto Rico on November 10, 1997 and signed by

plaintiff and Edward Irons, her husband, in Washington,

D.C. on November 26, 1997... . [page 7]

TRIAL COURT PROCEEDINGS

On or about February 2, 1999, after the original complaint

was filed in the District of Columbia Superior Court on

January 4, 1999 (65a-66a), APUDRI served and filed by

United States mail a verified pleading stating:

MOTION TO DISMISS FOR LACK OF

[PERSONAL] JURISIDICTION

kk * *

COMES NOW, Defendant party pro se.... [61a]

The defendant corporation’s pro se Motion to Dismiss was

signed and verified by Diego Chevere, not a lawyer, in his

capacity as “President of Dorado Reef Homeowners

Association” (64a). The trial court’s December 14, 1999

Order (28a-31a) ruled that:

e “the Second Amended Complaint is deemed filed”

(29a);

6

e “Defendant’s Motion for Leave of Court to Resubmit

[the original] Motion to Dismiss for Lack of

Jurisdiction, filed July 8, 1999, is GRANTED”

(30a); *

e each party “shall have until January 31, 2000 in

which to complete all discovery on jurisdiction”

(30a);

e “Defendant shall have until February 18, 2000 in

which to supplement its Motion to Dismiss” (30a); .

and

e “Plaintiff shall have until March 10, 2000 in which

to respond [to the supplement]” (30a).

Pursuant to the December 14, 1999 Order (28a), petitioner

filed interrogatories and a request for documents upon

respondent. These discovery requests were blocked and

evaded by respondent’s counsel. No “new” documents were

produced. Petitioner did, however, obtain deposition

testimony prior to January 31, 2000 of

(1) Diego Chevere, who verified the Motion to

Dismiss;

(2) Jose De La Cruz Skerrett, defendant’s counsel,

who was the ghostwriter of the Motion to Dismiss

for Chevere’s verification and signature; and

> The J uly 8, 1999 “Motion to Resubmit” (59a-60a) states: “Defendant

respectfully requests leave from the Court to resubmit its original Motion

to Dismiss for Lack of Jurisdiction” (60a; emphasis added). It is crucial

to understand that only the “original” Motion to Dismiss was resubmitted

without change. As such, none of the flaws in the ghostwritten, falsely

verified original Motion to Dismiss (other than the pro se filing) were

“cured” (12a, n. 2) by its resubmission as the trial court and the Court of

Appeals later held.

* No such “supplement” was filed.

7

(3) The notary Martinez Rodriguez, who administered

the oath to Chevere to verify the Motion to

Dismiss.

On March 10, 2000, pursuant to the December 14, 1999

Order (28a), petitioner filed:

(a) Plaintiff's Personal Jurisdiction Brief;

(b) Plaintiff's Motion for Sanctions (41a-52a) and

(c) Plaintiff's Motion to Strike “Motion to Dismiss for

Lack of Jurisdiction” (53a-57a).

The petitioner’s Personal Jurisdiction Brief explains that

the 1993 agreement which the trial court’s dismissal order

says “can form the crux of plaintiff's action” (25a) resulted

from negotiations initiated by APUDRI in June 1993,

including a meeting by APUDRI’s Chief Executive Officer

with Irons in Washington, D.C. and finally culminating in an

agreement executed in Puerto Rico on December 7, 1993. It

is undisputed as stated in the Personal Jurisdiction Brief:

[B]efore the December 7, 1993 Agreement was

executed, a plurality of telephone discussions relating to

“restrictive covenants” occurred for months between

Sanchez [then APUDRI CEO] in Puerto Rico and Irons

in Washington, D.C. Sanchez, who then owned an

apartment in Washington, ° D.C., also conferred

personally with Irons in Washington, D.C. on at least

one occasion during the June 1993 to December 1993

time period. [pp. 21-22; see 35a]

The petitioner’s Motion for Sanctions (41a), also filed

March 10, 2000, relies on deposition testimony which

demonstrates that Chevere, who verified the Motion to

Dismiss; Skerrett, who was its ghostwriter, and the notary

Martinez Rodriguez, who administered the oath verified to

Chevere, all knew at the time that the verified Motion to

Dismiss contained averments that were simply not true.

8

The Motion to Dismiss was ghostwritten in Chevere’s

absence by APUDRI’s legal advisor Skerrett who testified:

Q Was that document [Motion to Dismiss] prepared in

your Office?

A Yes, it was. |

Q By whom?

A By me. (Skerrett 1/20/00 Tr. 7, 1. 14 to Tr. 8, I. 2) :

The Motion for Sanctions (41a) emphasizes that Skerrett

had a duty to inquire before filing the Motion to Dismiss

per se. Skerrett knew when he drafted the APUDRI

corporation’s pro se Motion to Dismiss that Puerto Rico law

bars pro se appearances by corporations. Mr. Skerrett

testified:

Q. Mr. De La Cruz, are corporations permitted to appear

pro se in Puerto Rico?

* * * *

THE DEPONENT: No, they’re not. [Tr. 37; 44a]

Skerrett included as the last page of the Motion to Dismiss,

which he drafted for execution by Mr. Chevere, a “Sworn

Statement” verified by Affidavit No. 334 of Notary Martinez

Rodriguez which states:

a ee

SWORN STATEMENT

I, Diego Chevere, being duly sworn, declare that the

statements included in this document are true in every

respect.

/s/ -

DIEGO CHEVERE

Affidavit No. 334

Sworn and subscribed before me by Mr. Diego

Chevere, of legal age, married, President of Dorado Reef

9

Homeowners Association, and resident of Dorado,

Puerto Rico, whom I identify by his license number

522889 issued by the Commonwealth of Puerto Rico.

In San Juan, Puerto Rico, this 2nd day of February,

1999.

/s/

MARTHA LISSETTE

MARTINEZ RODRIGUEZ

Notary Public

(64a)

On January 21, 2000, Chevere testified regarding his

February 2, 1999 verification of the Motion to Dismiss as

follows:

Q All right. I want you to look at Exhibit Three again

and in particular the Motion to Dismiss for Lack of

Jurisdiction there is a part that says, “Affidavit Number

Three Three Four”.

Do you see that?

A Yes.

Q What oath was administered to you at the time you

verified this document?

A That oath is comments and points that are detailed in

this document are true and correct.

Q Did you—did the oath which you swore to specify

that you were telling the truth, the whole truth and

nothing but the truth?

A Yes. (Tr. 7; emphasis added; 48a).

In fact on that same day, February 2, 1999, Chevere came

to the Skerrett Law Office in San Juan, Puerto Rico. He met

there with Skerrett’s associate, attorney and Puerto Rico

notary, Martha Lissette Martinez Rodriguez (hereinafter

“notary Rodriguez’’).

10

When Chevere arrived on February 2, 1999, notary

Rodriguez caused the Motion to Dismiss to be printed by a

computer located in the Skerrett Law Office. After it was

printed, notary Rodriguez gave the Motion to Dismiss to

Chevere; whereupon, Chevere signed it, including the “Sworn

Statement” before Rodriguez, who verified it over her own

signature as notary by her Affidavit No. 334 and applied her

notarial seal.

Chevere testified on January 18, 2000:

Q Is it your practice to read documents or at least legal

documents carefully before you sign them?

A Yes. (Chevere Dep. 8, Il. 21-23; 48a).

The integrity of the verified Motion to Dismiss is

impugned because it includes averments which conflict not

only with later deposition testimony of Chevere, who verified

the Motion, but also with the deposition testimony of

Skerrett, who prepared it for verification by Chevere.

Verified averment paragraph | on page 1 of the Motion to

Dismiss states: :

1. On January 4, 1999, Plaintiff's husband, Edward S.

Irons, filed a complaint on her behalf, for alleged

damages arising from defendant’s efforts to collect

maintenance fees owed by plaintiff and her husband

regarding their property located in Dorado, Puerto

Rico. (61a)

Chevere testified:

Q Would you look at paragraph number one, page one

which says “one: on January four, 1999, the plaintiff’s

husband, Edward S. Irons, filed a complaint on her

behalf for alleged damages arising from defendant's

efforts to collect maintenance fees owed by plaintiff and

her husband regarding the property located in Dorado,

Puerto Rico”.

Do you see that, sir?

A Yes

Q Is that averment at all true?

A Yes.

*x* * * *

BY MR. IRONS:

Q Do you deny that paragraph one is not the whole truth

because it fails to set forth that portion of the truth which

is that there was a controversy as to whether or not

maintenance fees were quote “owed” unquote?

A What is stated on this paragraph is true and correct.

The details of other controversies, I do not have—

Q Will you please answer the question, sir?

A This is the truth. Yes, it’s true.

Q And it does not make any reference to the fact that a

controversy regarding the payment of maintenance’ fees

with the plaintiff was ongoing at the time you swore to

this document, does it?

A This document is the truth. This document on this

paragraph does not make any reference to any

discrepancy or controversies.

Q And so it is not the whole truth because it fails to

make reference to the controversy?

A We're talking about Article Number One on page one

of the Motion to Dismiss for lack of Jurisdiction. That is

true and correct.

Q But it is not the whole truth, is it?

A I will not answer. [Chevere deposition, 1/21/00 - Tr.

8, 1. 3 to Tr. 10, 1. 10; emphasis added; 49a]

APUDRI counsel Skerrett (who testified that he “prepared”

the verified Motion to Dismiss) testified on January 20, 2000:

Q All right. The document says—sorry—says, “main-

tenance fees owed” quote-unquote. Whether or not

those fees were owed was in dispute at that time?

12

A There was a dispute concerning those fees, yes.

Q At that time?

A Yes, at that time,

Q Do you deny that the statement in the Motion to

Dismiss For Lack of Jurisdiction paragraph number one

and so much thereof as reads; quote “collect

maintenance fees owed by plaintiff’ is misleading

because it does not make any reference to the fact that

whether or not the fees were owed was in dispute?

A Itis not misleading because there was a legal opinion

already rendered |i,e,, Skerrett's own September 4, 1998

opinion] and the maintenance fees were owed in

accordance to the association documents and legal

opinion, And an effort was made--were being made at

that time to collect the money from you and your wife

after attempts to settle this matter with your previous

counsel brought no results.

Q Now you referred to an opinion, is that the opinion

about which you have testified?

A Yes.

Q To wit, De La Cruz Exhibit Ond? |

A it was rendered (by Skerreu] on September four, |

1996, yes, (Tr, 2,1, 20 to Tr, 29,1, 21; emphasis added;

AlaAha|

The Motion to Strike Verified “Motion to Dismiss for Lack

Of Jurisdiction” (534) demonstrates, based on the deposition

testimony of the notary who administered the verified oath to

Chevere, that it is invalid under Puerto Rico law. The Motion

to Strike states:

(ili) Notary Martinez Rodriguez has functioned as

counsel for defendant in both the District of

Columbia and Puerto Rico counterpart cases;

13

(iv) Rule 5 of the Puerto Rico Notary Rules of 1995

provides:

A notary is not able to represent as counsel for a

client in contentious litigation and, at the same

time, serve as notary in the same case because it is 4

possible conflict of interest or the incompatibilities

that can result therefrom, [Informal translation,

subject to correction]

(v) Under Puerto Rico law, a document for use in a

ease which is notarized in violation of Puerto Rico

Notary Rule 5 may be stricken as null and void by

the court. See Bermudez & Longo v, Puerto Rico

Casting Steel Corp., 114 D.P.R, 808, 811 (1983),

striking an affidavit in which the notary was

attorney for the plaintiff. [54a]

The trial court dismissal order (14a) was filed on

September 22, 2000 and docketed October 5. 2000. it is

silent as to the Motion for Sanctions and as to the Motion to

Strike. Petitioner filed a timely Rule 59(¢) motion to vacate

or alter and amend the dismissal order. The Rule SXe)

motion was denied by Order dated March 19, 2001 (10a)

The gravaman of that denied Rule 5H) Motion was that the

court imposed On petitioner 4 preponderance of the eviderice

hurden to prove personal jurisdiction, whereas, because there

had been no evidentiary hearing, petitioner was actually

required to make orily a prima facie showing—just as the trial

court's dismissal order recognized (184).

The order denying the Rule 59(e) motion (10a) tries to

argue that a mere status conference with no notice that any

opportunity to supplement the record would he available was

an “evidentiary hearing” (14a). After petitioner demonstrated

that the court’s statement in that order (referring to the

misperceived “fact that the [status conference] hearing

provided the parties an opportunity to supplement the

14

record”; 11a) was clear error, the trial court resorted to a fall-

back position which deprived petitioner of any right to be

heard. According to the trial court's March 19, 2001 Order:

In fact, plaintiff does not . . . provide any new assertion

that she met her prima facie burden of personal

jurisdiction, As explained fully in the order granting

dismissal, plaintiff failed to demonstrate personal

jurisdiction under any standard of review, Thus, this

argument must be denied, [11a]

No such “expla(nation)” appears in the dismissal order

(14a), however, Shortly stated, because the trial court denied

petitioner any opportunity to be heard on the prima facie

personal jurisdiction issue, its dismissal order violates

petitioner's Due Process rights,

Surprisingly, the Court of Appeals quoted the erroneous

“as explained fully” statement from the Rule 59%e) denial

order and agreed with it (6a).

The Court of Appeals also denied petitioner’s request for a

rehearing which again called attention to the same error (33a)

and to the trip of APUDRI’S Chief Executive Officer to

Washington, D.C, to negotiate the 1993 agreement (35a),

The trial court trivialized and then denied the Motion to

Strike (53a) on the premise, contradicted by the record, that

the defects (which it denigrates as “alleged”) were “later

cured” when the motion was “refiled” (12a, ni, 2), According

(o the trial court: “The affidavit complained of was not part of

the subsequent motion to dismiss” (124, n, 2). This

statement, however, was “clearly erroneous” (Sup.Ct.Civ.R.

52a) because the original Motion to Dismiss (61a) was refiled

without change. See note 3, supra.”

’ Notwithstanding strong emphasis in the Brief for Appellant on this

clear error by the trial court, the Court of Appeals adopted it as well.

With regard to the Motion to Strike (53a), the trial court concluded that

15

The Court of Appeals also evaded any decision on the

merits of the Motion for Sanctions (33a) which it trivialized

and mischaracterized. According to the Court of Appeals,

“the trial court reasonably concluded that APUDRI had

remedied the alleged improprieties ° and that such

improprieties as may have occurred were not serious enough

to merit sanctions in the circumstances” (7a),

PROCEEDINGS IN THE DISTRICT OF COLUMBIA

COURT OF APPEALS

The Court of Appeals affirmed by an unsigned

Memorandum Opinion and Judgment (la-7a), It did so on

April 20, 2002-27 days after the case was submitted on

March 14, 2002. Its cavalier treatment of the case Is

demonstrated by the discussion supra of its affirmance,

notwithstanding the contradictory record before it, of the tral

court’s denials of the Motion to Strike (53a) and Motion for

Sanctions (33a). The Court of Appeals simply refused to rule

on dispositive issues squarely before it.

the prmedural deficreticies connphaiied of by the appellant were \ihewie

convected by APUDIL and that the motion to Tike wae fen wattartad

We have reviewed the record and agree with the trial court (/#), Again

the “deficiencies” (7a) were not corrected The original Motion

fismiss (61a) was resubmitted. This is an appellate ruling that ihe

verified Motion to Dismiss—unlawful and inadmissible in Puerto Rico

where it was swort—does not “warrant” (7a) 4 Motion to Strike

* Again, the “improprieties”, including false verification of the Motion

to Dismiss (61a), were not “cured” ab initio by “refilling}” (12a, n. 2) of

the original spurious Motion by a member of the District of Columbia bar

some four months after it was wrongfully filed pro se in violation of trial

court Rules 101(a)(1) and (2). The “improprieties” were actually proven

by sworn deposition testimony and later aggravated by the refiling of the

Motion without change.

16

The Brief for Appellant includes a Statement of Issues

Presented for Review, as required by the Rules of the Court

of Appeals. Issue 4 states:

4. Whether the September 22, 2000 (R334) and March

19, 2001 (R361) orders are void because the

verified Motion to Dismiss was known, at the time,

to be falsely sworn by the person who swore to it,

the person who caused the motion to be prepared,

and the notary who administered the oath. [page 2]

In its “Conclusion”, the Brief of Appellant states:

Appellant Irons seeks an order from this Court which:

[page 41]

* * *k *

(f) remands this case to the Superior Court for a ruling

on the issues of whether the filing by the defendant

corporation of the unworthy pro se Motion to

Dismiss as ghostwritten by the defendant

corporation’s Puerto Rico counsel, Jose De La Cruz

Skerrett, for verification by the defendant

corporation’s President, Diego Chevere, all without

notice to the Superior Court, violated Fed.R.Civ.P.

11 and Rules of Professional Conduct 3.3 and

8.4(d) and (d), and, if so, for the imposition of

sanctions including an award of attorneys’ fees and

expenses to Irons; [page 42]

However, the Court of Appeals Memorandum Opinion (1a)

is silent as to each of these two dispositive issues squarely

raised, in compliance with the Court’s own rules, for

disposition by it. Due process entitles petitioner to reasoned

rulings on each of these issues, and on the other issues raised

by the appeal which the Court of Appeals disregarded.

The Court of Appeals’ convenient rulings that these issues

involve merely “alleged improprieties” and “procedural

—_——— SSS — :

17

deficiencies” which are not “serious enough to merit

sanctions” (7a) are absurd. Mr. Chevere’s verification of the

ghostwritten Motion to Dismiss (61a) simply was not “the

whole truth” as he swore it to be, and then refused to reaffirm

on his deposition. Mr. Skerrett, to testify that the Motion to

Dismiss which he prepared for verification by Mr. Chevere,

tacitly admitted on his deposition that the motion was

misleading on its face, but tried to justify it nevertheless by

citing his own pre-litigation opinion in which he assumed the _

role of the Court and “ruled” in favor of his client APUDRI.

Finally, the Court of Appeals posited its affirmance of the

trial court’s dismissal order on an improper appellate fact

finding, see Maine v. Taylor, 471 U.S. 131, 145 (1986), that

The District has no ‘manifest interest’ in providing

appellant, a District resident, with a forum to litigate her

grievances against this foreign defendant concerning

property in a foreign jurisdiction. [citations omitted]

Indeed, the only reason that APUDRI communicated at

all with appellant in the District was because appellant

lived there at the time the dispute over maintenance fees

arose. [5a]

REASONS WHY WRIT SHOULD BE GRANTED

In this case, respondent through counsel procured dismissal

on “due process” grounds of a falsely verified Motion to

Dismiss (61a). The lower court refused even seriously to

consider this wrongdoing and condoned it. In No. 02-26, the

same defendant and the same counsel procured a remand~ _

order after a knowingly false representation of a material fact

to the trial court. Again, the trial court and the Court of

Appeals abstained from any serious consideration of the

wrongdoing, but instead rewarded the wrongdoing by entry of

a remand judgment to which neither respondent nor its

counsel were entitled. This evasion of judicial responsibility

should stop with this Court. Otherwise, court scandals may

18

get headline attention together with the ongoing church

scandals and corporate scandals.

1. Question 1 is substantially identical to Question 4 in the

pending Petition No. 02-26. These two petitions establish a

pattern pursuant to which the lower court’s have disdained

responsibility for enforcing the principles of professional

conduct promulgated to insure a zero tolerance for lack of

candor and counsel, in a parallel pattern, have violated the

duty of candor to the tribunal not only as set forth in Rule 3.3 -

of the Rules of Professional Conduct, but also required “as a

necessary protection of the decision-making process” and by

“the broader general duty of candor and good faith required to

protect the integrity of the entire judicial process”. United

States v. Schaffer Equipment Co., 11 F.3d 450, 458 (4 Cir.

1993), citing Chambers vy. NASCO, Inc., 501 U.S. 32 (1991)

and Tiverton Board of License Commissioners v. Pastore,

469 U.S. 238 (1965) (“[rJebuking counsel for failing to

comply with a duty of candor broader than Rule 3.3”),

11 F.3d at 458.

In this case, as in No. 02-26, “rulings” have been made sub

silentio or by a “denied” generality with no application of the

law to the record facts. These “rulings” violate due process

because they effectively deny petitioner any right to appeal or

to seek meaningful review by this Court. Other rulings are

purportedly justified by trial court “findings” contradicted by

the record. De novo appellate fact findings are improperly

asserted to support seemingly pre-determined dispositions of

important issues. Still other key issues, fairly and squarely

raised for determination on the record, are simply ignored.

For example, the Court of Appeals in this case stood silent

with respect to petitioner’s “Issue 4” on the appeal (quoted

supra, page 16). In addition, the Court of Appeals also

refused to consider petitioner’s affirmative request for a

ruling, consistent with Duran v. Carris, 238 F.3d 1268, 1271-

19

1272 (10 Cir. 2001)’ that the respondent’s reliance on the

motion to dismiss (61a), ghostwritten by counsel, violated at

least Rules 3.3 and 8.4 of the Rules of Professional Conduct.

The real world consequence is conflict between the Court of

Appeals for the District of Columbia and the Tenth Circuit.

2. Without more, the mere statement of Question 2 invites

an affirmative answer for all of the same reasons as those

stated regarding Question 1. The fact premise of Question 2,

i.e., that the Motion to Dismiss (61a) was falsely verified, is

proven by sworn deposition testimony of the person who

verified it and the counsel who was its ghostwriter.” The

condonation of the ghostwritten Motion to Dismiss (61a)

clashes with inter alia the decision of the Tenth Circuit in

Duran v. Carris, 238 F.3d 1268, 1271-1272 (10 Cir. 2001)

(the filing of ghostwritten pleadings signed by a non-lawyer

party may violated Fed.R.Civ.P. 11(a) and Rules of

Professional Conduct 3.3 and 8.4(c) and (d)).

7 According to Duran:

Fed.R.Civ.P. 11(a) requires that “[e]very pleading, written

motion, and other paper shall be signed by at least one attorney of

record in the attorney’s individual name, or if the party is not

represented by an attorney, shall be signed by the party.” Mr.

Snow’s actions in providing substantial legal assistance to Mr.

Duran without entering an appearance in this case not only affords

Mr. Duran the benefit of this court’s liberal construction of pro se

pleadings, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct.

594, 30 L.Ed.2d 652 (1972), but also inappropriately shields Mr.

Snow from responsibility and accountability for his actions as

counsel.

238 F.3d at 1271-1272.

8 As noted in No. 02-26, the issue of whether counsel’s opinion, upon

which Mr. Skerrett relied at his deposition to say that the averment in

paragraph 1 of the verified Motion to Dismiss (61a) (which Chevere

swore was “true in every respect” (64a)) was not “misleading” (see 48a) is

correct, has been sub judice since August 29, 2001 before the Puerto Rico

Court of Appeals.

20

3. Questions 3 and 4 raise important issues regarding the

interpretation and application of the local Rule 11 (which is

identical to Fed.R.Civ.P. 11). Because the ghostwritten

Motion to Dismiss (61a) was not signed by counsel, but

instead by the respondent corporation’s non-lawyer President,

who was induced by the ghostwriter counsel to sign it, the

question is how Rule 11(b), which applies only to persons

who sign the challenged pleading, is to be applied, and

whether the sanctions provided by Sup.Ct.Civ.Rule 11(c)

should nevertheless be imposed upon the counsel who

procured the non-lawyer signature to the offensive Motion to

Dismiss (61a).

4. As to questions 3 and 4, it has been clearly shown that

the denial of the Motion for Sanctions (41a) apparently was

based on a trial court finding, flatly contradicted by the record

but nevertheless adopted by the Court of Appeals, that the

falsely verified Motion to Dismiss was somehow “cured” and

“not a part of the subsequent Motion to Dismiss” (12a, n. 2)

as it was resubmitted.

Actually, the original, spurious Motion to Dismiss was

resubmitted without any change whatever. See 38a and n. 3,

supra, p. 6. This plain error is at the center of the absurd trial

and appellate rulings that the filing and reliance upon a

falsely sworn Motion to dismiss did not violate Rule 11(b).

These rulings clash with the object of Rule 11 which is the

deterrence of improper litigation conduct in pleadings. See

Massengale v. Ray, 267 F.3d 1298 (Fed.Cir. 2001).

5. Question 5 raises an important question as to what

quantum of evidence is necessary to establish a prima facie

case for personal jurisdiction under the Fifth Amendment,

and thus entitle a resident plaintiff to an evidentiary hearing.

In this case, there was no personal jurisdiction evidentiary

hearing on the merits because the lower courts held that to be

entitled to an evidentiary hearing, petitioner must first

ae eS . ae

21

demonstrate a prima facie case for personal jurisdiction. But

the lower courts also denied petitioner any right to be heard

regarding the prima facie issue.

The question is important because there apparently is no

relevant published precedent that defines any standard for

such a prima facie showing. The pleading record in this case

does show, however, as the trial court recognized, that the

“crux” (25a) of petitioner’s personal jurisdiction case is a

1993 contract between petitioner, a District of Columbia

resident, and a non-resident. corporation, as subsequently

amended in 1997 as to which the respondent was “proactive”

(26a) by a document signed by petitioner in Washington,

D.C.., all as alleged by the Second Amended Complaint.

Because “[i]t is sufficient for the purposes of due process

that the suit was based on a contract [here the 1993 agreement

and its amendment] which had a substantial connection with

that State [the District of Columbia]”, McGee v. International

Life Ins. Co., 355 U.S. 220, 224 (1957), that contract should

have been sufficient at least to entitle petitioner to an

evidentiary hearing. However, the courts below, without. any

explanation, rejected the 1993 contract as amended in 1997 as

insufficient to show even a prima facie case for personal

jurisdiction, and so denied petitioner any opportunity to

submit additional evidence.

The issue is important. The Petition should be granted to

permit clarification of this Court’s decisions that define the

due process prerequisites for personal jurisdiction over a non-

resident defendant corporation.

Respectfully submitted,

EDWARD S. IRONS

3945 - 52nd Street, N. W.

Washington, D. C. 20016

(202) 362-5332

APPENDIX

la

APPENDIX

DISTRICT OF COLUMBIA COURT OF APPEALS

[Filed Apr 10, 2002]

No. 01-CV-436

CA-24-99

Mary L. IRONS,

Appellant,

Vv.

ASOCIACION DE PROPRIETARIOS DE LA

URBANIZACION DORADO REEF, INC.,

Appellee.

Appeal from the Superior Court of the

District of Columbia, Civil Division

(Hon. Gregory E. Mize, Trial Judge)

(Submitted March 14, 2002 Decided April 10,2002)

Before: Ruiz and GLICKMAN Associate Judges, and

FERREN, Senior Judge.

MEMORANDUM OPINION AND JUDGMENT

Appellant Irons contends that the trial court erred in

dismissing her complaint for lack of personal jurisdiction

over defendant-appellee, in failing to enter a default judgment

against defendant appellee, and in denying appellant’s

motions to impose sanctions on defendant-appellee and to

strike defendant-appellée’s motion to dismiss. We affirm.

2a

I.

A resident of the District of Columbia, appellant is the

owner of real property in the Commonwealth of Puerto Rico.

Appellee Asociacién de Proprietarios de la Urbanizacién

Dorado Reef, Inc. (APUDRI) is a corporation formed under

Puerto Rican law; it operates as a homeowners’ association

for the Dorado Reef housing development. Appellant once

owned all the real estate on which the housing development

now sits, but eventually she sold all but one parcel of that

land to APUDRI’s predecessor, Dorado Reef, S.E., a

partnership. In 1993, appellant and APUDRI reached a

“qualified agreement” that imposed restrictive covenants on

APUDRI’s parcels and made appellant a member of the

homeowners’ association. In 1995, APUDRI submitted to

Irons an invoice for unpaid maintenance fees for her property,

and at that point there arose between APUDRI and Irons a

lengthy dispute over whether Irons was in fact obligated to

pay those fees to APUDRI.

In her Second Amended Complaint, appellant brought

claims against APUDRI in Superior Court alleging tortious

interference, breach of contract, and negligence—all relating

to the Puerto Rico property. Specifically, appellant alleged

that APUDRI had tortiously interfered with existing and

prospective contractual relationships between appellant and

her real estate broker and prospective purchasers of the

property by notifying the broker that the prospective

purchasers would be held liable for appellant's alleged debt in

the form of the unpaid maintenance fees. She further alleged

that APUDRI had violated the 1993 agreement by making

repeated claims for the unpaid maintenance fees where the

agreement specifically stipulated that appellant had the right

to renounce both membership in APUDRI and/or the

obligation to pay maintenance fees. In support of the

negligence count, appellant alleged that APUDRI breached its

duty to provide security for appellant's property by

3a

negligently permitting third parties to enter and use the

property without authorization, to cause damage to the

property, and to steal personal property of appellant from

the premises.

Il,

In the complaint, appellant contended that the Superior

Court had personal jurisdiction over APUDRI pursuant to the

District’s Long-Arm Statute, which states in relevant part that

“(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

_. . for] (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.”

D. C. Code §§ 13-423 (a)(1) & (a)(4) (1995 Repl. & 2001).

APUDRI responded that the long-arm statute did not

confer Superior Court jurisdiction over APUDRI, and that

any attempt to exercise personal jurisdiction over APUDRI

would violate due process. After lengthy and complicated

proceedings which included a motion by APUDRI to dismiss

the complaint for lack of personal jurisdiction and a response

by appellant,’ the trial court issued an order on September 22,

' Among the numerous other motions that were filed in this case were

motions for entry of default and judgment (filed on March 22, 1999,

April 6, 1999, and May 3, 1999), a motion by appellant for the imposition

of sanctions against APUDRI and its counsel (filed on March 10, 2000),

and a motion by appellant to strike APUDRI's motion to dismiss (filed on

March 10, 2000). While orders presenting rulings on the March 22, 1999

and April 6, 1999 motions for entry of default and judgment are not

4a

2000, dismissing appellant’s complaint for lack of personal

jurisdiction. Appellant then filed a Super. Ct. Civ. R. 59 (e)

motion to vacate, alter, or amend that order, which the trial

court denied on March 19, 2001. Appellant then filed a

motion for relief from the September 22 order pursuant to

Super. Ct. Civ. R. 60 (b)(3) and 60 (b)(6) and a motion for

recusal and motion to vacate. The trial court denied these

motions,

In determining whether there is personal jurisdiction over a

nonresident defendant, the court applies no “mechanical

tests” or “talismanic formulas.” Shoppers Food Warehouse v.

Moreno, 746 A.2d 320, 329 (D.C.) (en banc), cert. denied,

530 U.S. 1270 (2000). The court, rather, must focus on the

relationship among the defendant, the forum state, and the

litigation to discern how the facts underlying that relationship

would comport with due process notions of reasonableness,

fair play, and substantial justice if personal jurisdiction over

the defendant were permitted. Shaffer v. Heitner, 433 U.S.

186, 186, 204 (1977); International Shoe Co. v. Washington,

326 U.S. 310, 316 (1945); Mouzavires v. Baxter, 434 A.2d

988, 992-93 (D.C.1980) (en banc).

Here, the facts do not reveal transaction of any business in

the District of Columbia within the meaning of the first

subsection of the long-arm statute. D.C. Code § 13-423 (a)(1)

(1995 Repl. & 2001). The telephone calls, facsimile

transmissions, and mailings by APUDRI to appellant in the

themselves included in the record, the record reveals that appellant filed

a motion to reconsider denial of the April 6, 1999 motion and to grant

entry of default and judgment (the May 3, 1999 motion referenced above);

that the trial court apparently denied the April 6, 1999 motion (referred to

in the May, 3, 1999 motion); and that the trial court denied the May 3,

1999 motion. As to the motion for sanctions and the motion to strike, the

trial court ruled that these two motions “were ipso facto rendered moot”

by its order granting APUDRI’s motion to dismiss and hence denied

appellant’s emergency motion for disposition of those motions.

Sa

District concerning contracts formed in Puerto Rico covering

property in Puerto Rico comprised contacts with the District

of Columbia too tenuous to justify personal jurisdiction here

over APUDRI, a Puerto Rico corporation. COMSAT Corp. »

Finshipyards S.A.M., 900 F. Supp. 515, §20-22 (D.D.C.1995)

(holding that mail and wire communications occurring

between plaintiff in District of Columbia and foreign

defendant do not, standing alone, provide basis for personal

jurisdiction under District's long-arm statute), Bueno v. La

Compania Peruana de Radiodifusion, 375 A.2d 6, 8-9 (D.C

1977) (holding that where nonresident defendants were not

alleged to have conducted any business or to have made any

contracts for services in District of Columbia, requirements of

District’s long-arm statute for establishing personal

jurisdiction over nonresident defendants were not satisfied).

Shoppers Food Warehouse, 746 A.2d at 329, 331. Appellee

APUDRI has not “purposefully availfed]” itself of the

privilege of conducting business in the District, including

legal protections, such that it would be fair and reasonable to

anticipate suit against APUDRI here. World-Wide Votks

wagen Corp. v. Woodson, 444 U.S. 286, 297 (1980), AMAF

Int'l Corp. v. Ralston Purina Co., 428 A.2d 849, 85!

(D.C.1981). The District has no “manifest interest” in

providing appellant, a District resident, with a forum to

litigate her grievances against this foreign defendant

conceming property in a foreign juriédiction. Shoppers Food

Warehouse, 746 A.2d at 332 (citing Burger King Corp. ¥

Rudzewicz, 471 U.S. 462, 473 (1985)). Indeed, the only

reason that APUDRI communicated at all with appellant m

the District was because appellant lived there at the time the

dispute over maintenance fees arose.

Nor does the record demonstrate that APUDRI regularly

undertakes or solicits business in the District of Columina,

engages in a persistent course of conduct here, or derives

substantial revenue in the District sufficient to satisfy te

jurisdictional requirements for a tort action under subsection

6a

four of the long-arm statute. D.C. Code § 13-423 (a)(4) (1995

Repl. & 2001); see Parsons v. Mains, 580 A.2d 1329-30.

(D.C.1990) (discussing scope of § 13-423 (a)(4) (regularly

conducting business) as much narrower than jurisdictional

reach of § 13-423 (a)(1) (“transacting any business”) and

thus requiring more continuing minimum contacts than

§ 13-423 (a)(1)).

This conclusion is not affected by appellant’s contention

that the trial court employed the wrong standard of proof in

granting APUDRI’s motion to dismiss. The judge stated

expressly in the order granting APUDRI’s dismissal. motion

that the court lacked personal jurisdietion. Then, in his

March 19, 2001 order denying appellant’s Rule 59 (e) motion

to vacate, alter, or amend, the judge reiterated his ruling:

“[plaintiff] makes only the blanket assertion that she met her

prima facie burden of personal jurisdiction. As explained

fully in the order granting dismissal, plaintiff failed to

demonstrate personal jurisdiction under any standard of

review. Thus, this argument must be denied.” We agree.

Nor, given the lack of personal jurisdiction, did the trial

court have the authority (as appellant maintains) to enter a

default judgment for appellant for APUDRI’s alleged

procedural deficiencies. Default judgment against a party is

unavailable when the court lacks personal jurisdiction over

the party. See Cruz v. Sarmiento, 737 A.2d 1021, 1026 (D.C.

1999) (default judgment in absence of effective service of

process held void because court did not have personal

jurisdiction and “no amount of discretion can create

jurisdiction where there is none.”); accord McLaughlin v.

Fidelity Sec. Life Ins., 667 A.2d 105, 107 (D.C.1995).

Finally, appellant asserts that the trial court erred in

concluding that appellant's motions to impose sanctions and

to strike APUDRI’s motion to dismiss “were ipso facto

Ta

rendered moot by the September 22, 2000 order [granting the

motion to dismiss].” Assuming that the trial court had the

power to impose sanctions on APUDRI’s counsel and officers

(as appellant contends), despite lack of personal jurisdiction

over APUDRI, we.conclude that the trial court did not abuse

its discretion or otherwise err in ruling in its March 19, 2001

order, in the alternative, that the motions at issue for sanctions

and to strike APUDRI’s motion to dismiss “would have been

summarily denied [on the merits].” As to the arguments

raised by appellant in support of the motion for sanctions, the

trial court reasonably concluded that APUDRI had remedied

the alleged improprieties and that such improprieties as may

have occurred were not serious enough to merit sanctions in

the circumstances. With regard to the motion to strike, the

trial court concluded that the procedural deficiencies

complained of by appellant were likewise corrected by

APUDRI and that the motion to strike was not warranted. We

have reviewed the record and agree with the trial court.

Accordingly, it is

ORDERED and ADJUDGED that the judgment on appeal

is affirmed.

FOR THE COURT:

/s/ Garland Pinkston, Jr.

GARLAND PINKSTON, Jr.

Clerk of the Court

8a

DISTRICT OF COLUMBIA

COURT OF APPEALS

[Filed May 30, 2002]

No. 01-CV-436

CA24-99

MARY L. IRONS,

Appellant,

v.

ASOCIACION DE PROPIETARIOS DE LA

URBANIZACION DORADO REEF, INC.,

Appellee.

BEFORE: Ruiz and GLICKMAN, Associate Judges, FERREN,

Senior Judge.

ORDER

On consideration of appellant’s petition for rehearing, and

appellant’s motion for leave to submit the lodged supplement

to petition, it is

ORDERED that the motion is granted and the Clerk is

directed to file the lodged supplement to petition. It is

FURTHER ORDERED that the petition for rehearing is

denied.

PER CURIAM

Copies to:

Honorable Gregory E. Mize Michael E. Veve, Esquire

Clerk, Superior Court Lasa, Monroig & Veve

2121 K Street, NW, Suite 800

Edward S. Irons, Esquire Washington, DC 20037

3945 52nd Street, NW

Washington, DC 20016

9a

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

Case No. 99CA24

Judge Mize

Calendar No.: 10

MARY L. IRONS,

Plaintiff,

Me

ASOCIACION DE PROPRIETARIOS

DE LA URBANIZACION DORADO REEF, INC.,

Defendant.

ORDER

Upon consideration of plaintiff's (1) motion for relief from

the September 22, 2000 order (docketed October 5, 2000) and

(2) motion for recusal and to vacate the October 5, 2000

order, both of which were filed March 21, 2001, it is this 28th

day of March 2001,

ORDERED that plaintiffs motions are denied for the

reasons stated in this court’s March 19, 2001 order. :

/s/ Gregory Mize

GREGORY MIZE

Judge

SIGNED IN CHAMBERS

Copies mailed from chambers to:

Edward Irons, Esq.

3945 52nd Street, N.W.

Washington, D.C. 20016

Michael E. Veve Esq.

Lasa, Monroig & Veve

2121 K Street, N.W.

Suite 800

Washington, D.C. 20037

Iestotitnnassheninenissiontnsict

10a

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

Case No. 99CA24

Judge Mize

Calendar No.:10

Mary L. IRONS,

Plaintiff,

i

ASOCIATION DE PROPRIETARIOS,

_DELA URBANIZACION DORADO REEF, INC.,

Defendant.

ORDER

Before the court are (1) plaintiff's motion pursuant to

Super. Ct. Civ. R. 59 (e) to vacate or alter and amend order

docketed October 5, 2000 and defendant’s opposition; and (2)

plaintiff's emergency motion for disposition of motions,

defendant’s opposition and plaintiff’s reply.

The court notes preliminarily that plaintiff s motions refer

to the order of September 22, 2000 (docketed October 5,

2000) in which, after careful review of the record and the

parties’ pleadings and an extensive analysis of the applic-

able law, this court issued a thirteen-page order granting

defendant’s motion to dismiss for lack of personal

jurisdiction.

I. Motion to Vacate or Alter and Amend Order

Docketed October 5, 2000

Plaintiff bases her motion to vacate the order granting

dismissal on two grounds. First, plaintiff argues that the court

imposed a preponderance of the evidence standard, whereas

plaintiff should only have been required to demonstrate a

lla

prima facie case for personal jurisdiction. Plaintiff’s basis for

this assertion is that the June 30, 2000 hearing before the

court was merely a “status conference” and that the parties

were not provided with advance notice that they would have

the opportunity to supplement the record. See Pl.’s Mot.

Vacate at 3.

This argument is without merit. First, the fact that the

hearing was noticed as a “status conference” does not change

the fact that the hearing provided the parties with an

opportunity to supplement the record. Both parties at the

hearing specifically declined the invitation by the court to

submit new or additional material on the issue of personal

jurisdiction, and the record indicates that every opportunity to

substantiate their respective positions was afforded to these

parties throughout the lengthy discovery process. In fact,

plaintiff does not complain of insufficient discovery or

pleading opportunities and does not provide any new

‘evidence on this issue, but rather makes only the blanket

assertion that she met her prima facie burden of personal

jurisdiction. As explained fully in the order granting

dismissal, plaintiff failed to demonstrate personal jurisdiction

under any standard of review. Thus, this argument must

be denied.

Second, plaintiff contends that two motions filed

concurrently with plaintiff’s personal jurisdiction brief

required consideration before a judgment on the merits of the

motion to dismiss could properly be issued. The two motions

referred to are plaintiff s motion for sanctions, which was

filed March 10, 2000, and plaintiffs motion to strike defend-

ant’s verified “motion to dismiss for lack of jurisdiction,”

which was also filed March 10, 2000.

This argument must also be denied. In granting defendant’s

motion to dismiss, the court implicitly acknowledged that it

did not have jurisdiction to adjudicate any of plaintiff's

claims. Thus, any pending motions held in abeyance until the

12a

threshold issue of personal jurisdiction was ruled upon were

ipso facto rendered moot by the September 22, 2000 order.”

II. Emergency Motion for Disposition of Motions

Plaintiff requests disposition of the following motions:

(1) plaintiff's motion for sanctions, filed March 10, 2000;

(2) plaintiff’s motion to strike defendant’s verified “motion to

dismiss for lack of personal jurisdiction,” filed March 10,

2000; and (3) plaintiff s motion pursuant to Super. Ct. Civ. R.

59 (e), filed October 10, 2000.

In light of the fact that the first two motions are addressed

and deemed moot as per the discussion above and that the

third motion is denied in the instant order, this motion is

likewise denied.

? Even if the court had deemed it necessary to reach the merits of these

two motions, they would have been summarily denied. In the motion to

strike, plaintiff argues that defendant’s motion to dismiss was notarized in

violation of Puerto Rican law because the notary verified a document

allegedly known by her to be untrue and that the notary was an attorney

active in the case. As defendant points out in opposition, plaintiff is

basing this argument on the original motion to dismiss which was later

cured of alleged defects and refiled by defendant with the court’s

permission on May 13, 1999. The affidavit complained of was not part of

the subsequent motion to dismiss.

In the motion for sanctions, plaintiff contends that sanctions are proper

because (1) defendant corporation originally filed its motion to dismiss

proceeding pro se; (2) defendant averred in its motion to dismiss that

plaintiff filed a complaint for “alleged damages arising from defendant’s

efforts collect maintenance fees” but did not state that these fees were in

dispute; and (3) defendant contends in its motion to dismiss that it does

not “make business” in Washington, D.C., when plaintiff asserts that its

communications with her constitute transacting business. Again, with

regard to plaintiff’s first argument, defendant refiled its motion to dismiss

with the appearance of District of Columbia counsel, thus curing this

defect. Plaintiff s other contentions are nonsensical and without merit.

Me a EE OR Oe

Pe ee) eee ee ee ee Pe eee ee ee _ ‘tented

13a

Accordingly, it is this 19th day of March 2001,

ORDERED that plaintiff’s motion pursuant to Super. Ct.

Civ. R. 59(e) to vacate or alter and amend order docketed

October 5, 2000 is denied.

ORDERED that plaintiff's emergency motion for

disposition of motions is denied as moot.

/s/ Gregory Mize

GREGORY MIZE

Judge

SIGNED IN CHAMBERS

Copies mailed from chambers to:

Edward Irons, Esq.

3945 52nd Street, N.W.

Washington, D.C. 20016

Michael E. Veve, Esq.

Lasa, Monroig & Veve

2121 K Street, N.W.

Suite 800

Washington, D.C. 20037

14a

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION —

Case No. 99CA24

Judge Mize

. Calendar No.:10

Mary L. IRONS,

Plaintiff,

v.

ASSOCIATION DE PROPRIETARIOS,

DE LA.URBANIZACION DORADO REEF, INC.,

Defendant.

ORDER

Before the court are defendant Asociacion de Propietarios

de la Urbanizacion Dorado Reef, Inc.’s (“Dorado Reef’)

motion to dismiss for lack of personal jurisdiction and

plaintiff Mary Irons’ (“Irons”) opposition. After full and fair

consideration of these filings, the court hereby grants

defendant’s motion.

A. Background

Plaintiff Irons, a citizen of the District of Columbia, is an

owner and part-time resident of real property located in the

Commonwealth of Puerto Rico. See 2d Am. Compl. | 2. The

defendant is a corporation of Puerto Rico operating as a

homeowners association for the Dorado Reef housing

development. See Def.’s Mot. to Dismiss 3.

Plaintiff Irons seeks declaratory and injunctive relief and

damages for tortious interference, breach of contract and

negligence. See 2d Am. Compl. { 1. Plaintiff alleges that

defendant has subjected her to a continuous string of

15a

meritless claims for back association maintenance fees and

_ assessments on plaintiff's property located in Puerto Rico.

See id. She further asserts that defendant has “directly,

intentionally, wrongfully, and maliciously interfered” with

efforts to sell and market said property by notifying a local

realtor of Puerto Rico that prospective purchasers would be

held liable for plaintiff’s alleged debt. See id.

The sole issue before this court is whether the court has the

authority to adjudicate the instant case. Defendant argues that

the court (1) lacks personal jurisdiction over defendant under

the D.C. Long-Arm Statute 3 and (2) an exercise of

jurisdiction would not comport with Due Process. See Def’s

Mot. to Dismiss at 4.

The facts related to the issue of personal jurisdiction are,

for the most part, undisputed. Plaintiff originally owned the

real estate upon which the Dorado Reef housing development

now sits. See 2d Amend. Compl. § 6-7. She sold all but one

parcel of the land to defendant's predecessor, Dorado Reef,

S.E., in 1993. At the time, Dorado Reef, S.E. was a special

3 In relevant part, D.C. Code § 13-423 enumerates the following:

(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;

xk * *

(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.

16a

partnership controlled and operated by its managing partner

Federico Sanchez Febles (“Sanchez”). See id. In 1993, the

two parties reached a “qualified agreement” that imposed

restrictive covenants on the remaining parcel and made

plaintiff a member of the homeowners association. See id.

q4 14-15. Shortly thereafter, Sanchez incorporated Dorado

Reef, S.E., making it a successor in interest to the Dorado

Reef housing development.’ See id. § 11. In 1997, after a

series of negotiations conducted interstate by phone, mail and

facsimile, and subsequent communications in Puerto Rico,

the parties amended the 1993 agreement before a public

notary in Puerto Rico. See id. { 25.

Defendant Dorado Reef asserts that dismissal is proper

because the at issue contract, real property, unpaid

maintenance fees and alleged misconduct all arose or

occurred in the Commonwealth of Puerto Rico. See id. at 6;

Def.’s Reply Br, at 4. Defendant emphasizes further that the

only connection defendant corporation has had with the

District of Columbia is limited communications with plaintiff

at her District of Columbia address that merely refer to

matters which clearly arose in Puerto Rico and from

contractual transactions which occurred exclusively in Puerto

Rico. See id. Defendant argues that its alleged conduct in

Puerto Rico and in the District fails to amount to “transacting

business in the District of Columbia” pursuant to the Long-

Arm Statute, nor does plaintiff’s alleged tortious injury meet

the statutory elements for such a claim. See Def’s Reply

Br. at 4.

In opposition, plaintiff asserts that this court has personal

jurisdiction because defendant has engaged in a pattern of

contact that satisfies both the District’s Long-Arm Statute and

* For purposes of this order, the court treats defendant’s status as a

partnership and later as a corporation as functional equivalents. See also

infra note 5 for further discussion.

OO

17a

Constitutional Due Process. In particular, plaintiff relies on

sections 423(a)(1) and (a)(4) and section 13-423(b) of the

Long-Arm Statute. See 2d Amend. Compl. § 5; Pl.’s Personal

Jurisdiction Br. at 37. With regard to section 423(a)(1),

plaintiff argues that defendant has for several years,

“transacted business” in the District of Columbia by

renegotiating the 1993 agreement, and, beginning in 1995, by

attempting to enforce its claim for maintenance fees. See id.

q 5. In accordance with Due Process, plaintiff contends that

the renegotiation process, which was conducted through

communications between plaintiff's Washington, D.C. resi-

dence and defendant in Puerto Rico, and defendant’s per-

sistent attempt to collect maintenance fees, constitute a

“continuing presence” designed to advance defendant’s

corporate interest in the District. See Pl.’s Personal

Jurisdiction Br. at 36.

Plaintiff also attempts to establish personal jurisdiction

against defendant pursuant to sections 13-423(a)(4) and 13-

423(b) of the Long-Arm Statute. See 2d Am. Compl. § 5(b).

She alleges that defendant has committed several acts in

Puerto Rico which have damaged plaintiff in the District of

Columbia. Among other things, plaintiff alleges that

defendant has tortiously interfered with her effort to sell

property in Puerto Rico. See id. § 35. Plaintiff also asserts that

defendant has negligently failed to ‘provide security for her

property in Puerto Rico, resulting in theft, trespass, and other

damage to said property. See id. J§ 46-49. In her opposition

to the motion to dismiss, plaintiff prays for an order granting

general and specific personal jurisdiction in this matter based

on defendant’s contacts and conduct that she alleges

constitutes a. continued corporate presence and tortious injury

in the District of Columbia. See Pl.’s Personal Jurisdiction

Br. at 37.

18a

B. Standard of Review—Motion to Dismiss Under Rule

12(b)(2)

Under the D.C. Long-Arm Statute, a plaintiff has the

burden of demonstrating a factual basis for the exercise of

jurisdiction over a defendant. See Reuber v United States, 750

F.2d 1039, 1052 (D.C. Cir.1984). Facts asserted by the

plaintiff are presumed to be true unless directly contradicted

by affidavit. See Dooley v. United Technologies Corp., 786

F.Supp. 65, 70 (D.D.C 1992) (quoting Data Disc, Inc. v.

Systems Technology Associates, Inc., 557 F.2d 1280, 1285

(9th Cir.). Generally, in passing upon a defendant’s Rule

12(b)(2) motion to dismiss for lack of personal jurisdiction, a

court is granted more procedural leeway. See Data Disc, Inc.

v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285

(9th Cir.).° It may determine the motion on the basis of

affidavits alone, grant discovery, or conduct a preliminary

hearing on the merits. /d.

Where the parties are limited to written submissions, such

as affidavits, plaintiff need only make a prima facie showing

to prevail on a motion to dismiss for want of jurisdiction. See

Dooley, supra, 786 F. Supp. at 70 (citation omitted). If the

court allows for an evidentiary hearing, plaintiff must

demonstrate personal jurisdiction by a preponderance of

evidence standard. See CutCo Indus., v. Naughton, 806 F.2d

361 (2d Cir.1986), see also Marine Midland Bank, NA. v.

Miller, 664 F.2d 899, 904 (2d Cir.1981). In the instant case,

subsequent to limited jurisdictional discovery, a hearing was

held on June 30, 2000 to give the parties an opportunity to

> Superior Court Civil Rule 12(b) is identical to its federal counterpart,

Federal Rule of Civil Procedure 12(b). American Insurance Co. v. Smith,

472 A.2d 872, 873 n.3 (D.C.1984). As such, this court looks with favor on

the federal authorities where there exists no clear precedent in the

jurisdiction. Demus v. U.S., 714 A.2d 858, 859 (1998).

19a

supplement the record. At that time. cach wide decid Ge

invitation to bring forth new material, instead cach telend om

their respective briefs.

C. Personal Jurisdiction

1. General Principles of Due Process

Normally, this court's analysis requires 4 two-step prowess

in determining whether personal jurmdaction etnete ‘ew

Mouzavires v. Baxter, 434 Ald 988, W2 (DC. 1)

(en banc). First, the court must examine whether plasmerff has

alleged sufficient facts to reach deteriart oxker Oe

provisions of the applicable District of Cotumina Long: Are

Statute. jd. If the answer to the firs inqeery & @ Oe

affirmative, the court proceeds to the Due Process tet. /#

The inquiry need not be bifurcated, however, © satetory

provisions are coextensive with the Fifth Amendment Due

Process Clause. Id. (citing Textile Museum » F Ebermadt 4

Co.. 440 F. Supp. 30, 31 (D. D.C.IGTT)® we atte Morte

Wide Volkswagon Corp. v. Woodson, 444 U. 5. 236 7, 1

S.Ct. 559, 62 L.Ed. 2d 490 (1980)

D.C. Code. Tithe 13, section 42 May 1) permuts Ge exercee

of personal jurisdiction to the full extent permed by Due

Process. See Fisher v. Bander, $19 A.2d 162,16) (D.C. 1986»

see also COMSAT Corp. v. Fimshippards SAM. F

Supp. 515, 520 (citing First Chicago far! + Umened bse teaemye

Co. Lid.. 8% F.2d at 1377). As section 13-42.5ax!) eects

the breadth of Duc Process, analyzing wheter omer

provisions of the D.C. Long-Arm Statese ave satntand woute

be superfluous if defendant's contacts are muatlcant f

comport with Due Process. Accordungy, ae perme

jurisdiction inquiry need mot be befarcaned amd Gur comet othall

commence with a Due Process anal yore

In determining whether perwmal pertedactac evens. fect

are no “mechanscal tests” of “tahrermarex Sortmehae caer fe

facts of each cane must be wenghed agacnt Ge primcnpiire wt

20a

by /nternational Shoe Co. v. Washington and its progeny. See

Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 329

(D.C. 2000) (en banc). As the benchmark, /nternational Shoe

requires that in order to subject a non-resident defendant to a

judgment in personam, defendant must have certain minimum

contacts with the forum such that the maintenance of a suit

does not offend traditional notions of fair play and substantial

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

317, 66 S. Ct.154, 90 L. Ed. 95 (1945). The demands of Due

Process are met when contacts of a corporation with a forum

are of such a quality as make it reasonable to require the

corporation to defend the particular suit brought in that

forum. Id. A non-resident’s enjoyment of the privilege of

conducting business in the forum carries with it an obligation

to respond to suit there. /d. at 319; see also Hanson v.

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

(1958). Although in /nternational Shoe, the U.S. Supreme

Court treated the concepts of “minimum contacts” and “fair

play and substantial justice” as a singular standard governing

an assertion of personal jurisdiction, subsequent Supreme

Court cases have severed the standard into a two-pronged

test. See World-Wide Volkswagen, Corp., supra, 444 U.S. at

291-292,100 S. Ct. 559 (citations omitted). This court will

first look to whether defendant has sufficient contacts with

the forum such that an assertion of personal jurisdiction

- comports with Due Process, before considering, if necessary,

whether it is also fair to have defendant haled into court here.

Mouzavires, supra, 434 A.2d at 992. In this regard, a court is

divested of its power to render a valid judgment upon a

finding of no contacts. See World-Wide Volkswagen, supra,

444 US. at 294,100 S. Ct. 559. This is so even when a court

is faced with a defendant who would suffer no inconvenience

from defending a suit in the forum state, when that forum

state has a strong interest in hearing the case, or when that

forum state is actually the most convenient location for

ltigation. See id.

2la

Depending on the quality and nature of the contacts, the

court can exercise general and/or specific jurisdiction. In

Shoppers Food Warehouse, supra, the court distinguished

between the two types of judicial empowerment. General

jurisdiction occurs when the amount of activity within the

forum by the defendant reaches a level that may be described

as so substantial as to be “sufficiently systematic and con-

tinuous.” 746 A.2d at 331. When this is evident a defendant

may be sued for any claim, “even one completely unrelated to

its in-state activities.” /d. On the other hand, if the contacts

within the forum are not “sufficiently continuous and

systematic,” the court may assert specific jurisdiction when-

ever the defendant “has purposefully directed [its] activities at

residents of the forum and the alleged injuries arose out of or

relate to those activities.” /d.

In the area of interstate contracts, a non-resident has the

necessary contacts. with the forum state where it has a

contract with a substantial connection to the forum state. See

McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.

Ct.199, 2 L. Ed. 223 (1957). Put another way, where a party

has “reached out beyond its domiciliary state” and has created

continuing obligations and relationships with citizens of

another state, that party is subject to the regulations and

sanctions in the other state for consequences of its actions.

Burger King Corp. v. Rudzewicz, 471: U.S. 476, 477, 105 S.

Ct. 2174, 85 L. Ed. 2d 528 (1985). However, the nonresident

must have “purposefully availed” itself of the privilege of

conducting activities with the forum state such that it can be

said it should have reasonably anticipated being answerable

to claims in the court there. World-Wide Volkswagon Corp.,

supra, 444 U.S. at 290, 100 S. Ct. at 563; Smith v. Jenkins,

452 A2d 333, 336 (D.C.1982). 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. See Shoppers Food Warehouse, 746

22a

A.2d at 327 n.9 (citing AMAF Int’l Corp. v. Ralston Purina

Co., 428 A.2d 849, 851(D.C.1981)).

2. Application by Courts in the District of Columbia

Similarly, in the District of Columbia, the most critical

inquiry is not whether the nonresident defendant is physically

present in the forum but whether defendant’s contacts with

the forum are of such a “quality and nature” that they mani-

fest a “deliberate and voluntary” association with the forum

and are not a result of a random, fortuitous, or attenuated

contact or by the unilateral activity of another party or third

person. Id. (citing Mouzavires, supra, 434 A.2d at 995, 997).

As such, even a single act can be sufficient to support an

assertion of personal jurisdiction. See McGee, supra, 355

U.S. at 223, 78 S. Ct. 199 (citations omitted). It is the

relationship among the defendant, the forum and the litigation

that is central to an inquiry regarding personal jurisdiction.

Mouzavires, supra, 434 A.2d at 995 (citing Shaffer v. Heitner,

433 U.S. 186, 204, 97 S. Ct. 2569, 2580, 53 L. Ed. 2d

683 (1977)).

With International Shoe and its progeny as guidance,

courts here have found that fax and telephone commu-

nications with a plaintiff in the District of Columbia, even in

the aggregate, do not manifest the deliberate and voluntary

association with the District of Columbia that is necessary to

invoke jurisdiction. COMSAT, supra, 900 F. Supp. at 520

(construing D.C. Long-Arm Statute); Bank of Cape Verde v.

Bronson, 869 F. Supp. 21 (D.D.C.1994); Far West Capital,

Inc. v. Towne, 46 F.3d 1071, 1076-77 (10th Cir.1995)). In

‘COMSAT, the defendant, an accounting authority licensed in

Monaco, owed a sizable debt to the COMSAT Corporation

maintaining its principle place of business in the District of

Columbia. See id. at 518. Communications consisting of mail

correspondence, facsimiles, and telephone calls transpired

between plaintiff in the District of Columbia and defendant

abroad in regard to this debt. Jd. at 519. The court reasoned

23a

that these limited communications did not satisfy the D.C.

Long-Arm Statute because they did not evidence any desire

by defendant to do any business in the District of Columbia.

Id. at 522-523. In its findings, the court emphasized that “a

plaintiff may not depend on its own activities to establish the

existence of minimum contacts.” Jd. (citations omitted).

Although defendant initiated some of these communications,

a substantial connection was not established when surround-

ing circumstances required defendant to communicate to

plaintiff. Jd.

In regard to interstate contracts, courts here have held that

the mere existence of a contract between a non-resident and a

resident is not a sufficient basis on which to claim jurisdiction

over the non-resident in the District of Columbia. /d. (citing

Hanson, supra, 357 U.S. at 253, 78 S. Ct.1228; Willis v.

Willis, 655 F.2d 1333, 1338, 211 U.S. App. D.C. 103 (1981).

The court must consider the terms of the alleged contract and

whether the contract obligates the defendant to provide

services in the District of Columbia. See id.; see also Bueno

v. La Compania Peruana de Radiodifusion, 375 A.2d 6

(D.C.1977) (finding no minimum contacts when neither

performance nor services were to be provided in D.C.). Most

important in any personal jurisdiction inquiry is the

qualitative rather than the quantitative nature of defendant’s

contacts. See Schwartz v. CDI Japan, Lid., 938 F. Supp.1, 4

(D.D.C.1996) (citing Mouzavires 434 A.2d at 988). For the

Schwartz court, “prior negotiations and contemplated future

consequences ® along with the terms of the contract and the

parties actual course of dealing” were relevant to its deter-

mination that personal jurisdiction existed. Jd. at 6 (quot-

ing Burger King, supra, 471 U.S. at 477-81, 105 S. Ct. 2174).

“Contemplated future consequences” in Schwartz dealt with defend-

ant’s intent to pursue other future business projects with the same parties

in D.C. See Schwartz, supra, 938 F. Supp. at 6.

24a

D. Analysis

1. General Jurisdiction

In her brief, plaintiff cites D.C. Code section 13-334 and

asserts that defendant’s continuing presence in the District of

Columbia, designed to further its corporate interest, is suffi-

cient to establish general jurisdiction over Dorado Reef. See

Pl.’s Personal Jurisdiction Br. at 37. Besides the blanket use

of the statute’s language, plaintiff fails to proffer further —

evidence to support general jurisdiction. Rather, she relies

solely on the D.C. Long-Arm Statute throughout her Second

Amended Complaint and personal jurisdiction brief. See 2d

Am. Compl. § 4-5. The D.C. Long-Arm Statute, however,

confers specific jurisdiction, not general jurisdiction. See

Schwartz, supra, 938 F. Supp. at 4. Even so, this court

concludes that defendant’s activity fails to rise to the level

required for general jurisdiction in D.C. Code section 13-334.

See El Fadl v. Central Bank of Jordan, 75 F.3d 668 (D.C.

Cir.1996) (stating a court may exercise its discretional power

to consider personal jurisdiction even when not pleaded).

Plaintiff claims that interstate communications regarding

renegotiation of a subject contract provision, defendant’s

threat to sue for an unpaid debt, and the alleged financial

harm caused to Ms. Irons in the District of Columbia, in the

aggregate, rise to the level of “continuous and systematic”

contacts needed for general jurisdiction. Gleaning from

plaintiff s allegations and affidavits, the court interprets all of

these acts as occurring intermittently throughout the parties’

relationship, which began in 1989. Plaintiff has cited activity

that amounts to a handful of phone calls, facsimiles and mail

correspondence relating to either a debt collection or a

renegotiation. While it is uncontested that communications

occurred between plaintiff in the District of Columbia and

defendant in Puerto Rico, the level of activity related to D.C.

cannot be considered substantial enough to constitute a

25a

“continuous and systematic” presence placing defendant

under the general jurisdictional reach of this court for any and

all claims against it.

2. Specific Jurisdiction

With respect to whether these contacts meet the lower

standard necessary to satisfy specific jurisdiction, the court

finds that the nature of defendant’s activity fails to rise to

the level of a sporadic or single act having the quality or

significance to allow plaintiff to maintain this action in this

jurisdiction. The history of the contractual relationship

between these parties’ consists of three agreements. The

relationship commenced with the 1989 sale of land to the

defendant. In 1993 the parties agreed to place restrictive

covenants on plaintiff's remaining parcel; later they amended

the 1993 agreement. It is only the 1993 agreement that can

form the crux of plaintiff’s action. That agreement was nego-

tiated and acceded to in the Commonwealth of Puerto Rico in

front of a public notary. In short, the agreement served

defendant by granting it, among other things, the right of first

refusal and by placing qualified restrictive covenants upon the

land. The plaintiff benefited by becoming a member of the

homeowners association.

‘

7 Plaintiff in a footnoted section of her Personal Jurisdiction Brief

makes the distinction between defendant as a partnership and a cor-

poration arguing that they are not the same party. See Pl.’s Personal

Jurisdiction Br. at n.6. To hold such would lead to the elimination of a

contract that is central to plaintiff’s personal jurisdiction claim and further

dilute defendant’s already tenuous contacts. The court will not entertain

this argument because plaintiff does not contend that the restrictive

covenant agreement is unenforceable due to defendant not being a party to

the contract. In fact, plaintiff relies heavily on this agreement, bringing

suit on the grounds that Dorado Reef as a corporation breached its duty as

a homeowners association to supply services provided in this same

agreement. See 2d Am. Compl. { 4 1.

26a

In the eyes of this court, save the minimal interstate

communications, the original contract for the sale of land and

subsequent agreements have nothing to do with the District of

Columbia. Unlike Schwartz, supra, no services were to be

provided in the District nor is there any indication that future

consequences were contemplated relating to this forum, such

as a choice of law or venue provision. In the instant case,

defendant lacks any independent relationship with the

District. Defendant Dorado Reef is a business incorporated

solely in Puerto Rico. Defendant does not maintain any

offices in the District of Columbia, has no agents here, nor

did it solicit business in the District. The contractual rela-

tionship established between the parties exclusively com-

menced in Puerto Rico in 1989 with the sale of land to

defendant. All later agreements stemmed from this original

agreement.

The court cannot conclude that attempts to collect a debt

constitute “‘a substantial connection” with this forum. Accord-

ing to plaintiff, these communications began in 1995 shortly

after defendant’s incorporation and have continued since.

However, these contacts cannot be interpreted as a “deliberate

and voluntary” reaching out by defendant from its domiciliary

borders. At most, the alleged conduct represents a drawing

out of defendant from its borders, compelled by plaintiff's

own conduct. Similar to the defendant in COMSAT, supra,

Dorado Reef unwillingly reached into this forum as a result of

a unilateral act by plaintiff, mainly the nonpayment of main-

tenance fees. By pursuing plaintiff in the District through

various communicative efforts, defendant did not purpose-

fully avail itself of the privilege of conducting business in the

District such that they would expect to be sued in D. c.

Superior Court. To the contrary, these efforts were reasonably

designed to avoid litigation altogether.

Although the court pauses when considering the rene-

gotiation of a provision in the 1993 agreement, this proactive

Pegs ee ee Fe ie ee eee ee ‘

27a

move by defendant pertained to a contract already existing in

Puerto’ Rico, not some new commercial relationship the

defendant sought to establish. While negotiating an original

contract may meet the minimum contacts test, to hold that a

renegotiation of an entirely Puerto Rico-centered contract

justifies personal jurisdiction would likely create a chilling

effect. Persons similarly situated to the defendant might be

apprehensive about communicating with a foreign party in

regard to altering an already existing contract for fear of

triggering personal jurisdiction. Notwithstanding this policy

argument, the court finds the quality and nature of these

contacts fail to reach the level of minimum contacts required

by Due Process and are far too attenuated to support

jurisdiction over defendant in this court. The exercise

personal jurisdiction over this defendant would violate

defendant’s right to Due Process and run afoul of the Fifth

Amendment.

Accordingly, it is by the Court this day 22nd of

September, 2000.

ORDERED that defendant’s motion to dismiss is granted

and this action is dismissed with prejudice.

/s/ Gregory Mize

GREGORY MIZE

Judge

SIGNED IN CHAMBERS

Copies to:

Edward S. Irons, Esq.

3945 52nd Street, N. W.

Washington, D.C. 20016

Michael E. Veve, Esq.

Lasa, Monroig & Veve

2121 K Street, N.W.

Suite 800

Washington, D.C. 20037

28a

SUPERIOR COURT Of THE DISTRICT OF COLUMBIA

CIVIL DIVISION

C.A. No. 99-24

Calendar 10

Judge Mize

Mary L. IRONS,

Plaintiff,

Vv.

ASOCIACION DE PROPIETARIOS LA URBANIZACION

DORADO REEF, INC.,

Defendant.

ORDER

(December 14, 1999)

The Court has before it numerous motions filed by the

parties, particularly the Plaintiff. Putting aside the legal

sparring between the parties, the central issue is whether or

not this Court has jurisdiction over the Defendant.

The essence of Plaintiff s position is that she has juris-

diction over the Defendant in connection with the initial

complaint and through her intended amendments adding a

tortious interference count. From Plaintiff's perspective,

Defendant has yet to file a viable motion to dismiss, but she

asserts that she is, in any event, entitled to discovery on the

jurisdictional issue before the Court rules.

The Court agrees with Plaintiff that she is entitled to

discovery, albeit limited, on the jurisdictional issues and on

29a

jurisdictional issues only.' In this context, it makes no sense

to deny the. Plaintiff's request to amend the complaint.

Rather, the most pragmatic way to bring this lawsuit into

focus and back on track is to permit the filing of Defendants

Motion to Dismiss, by counsel, lest there be any question and

then permit discovery on jurisdictional issues with additional

briefing thereafter on these limited issues.

Thus, the Court will permit the filing of an amended

complaint and then permit discovery on jurisdictional issues

only. This does not mean discovery on the bases for any

purported defenses of the Defendant; the discovery is limited

to the issue of whether or not the Defendant is subject to suit

in the District of Columbia. Following the completion of such

discovery, Defendant may supplement its Motion.” Plaintiff

may file a new Opposition and Defendant may file a Reply.

Accordingly, it is this 14th day of December, 1999:

ORDERED that Plaintiff’s Motion for Leave to Amend

First Amended Complaint and for Denial without Prejudice of

all Pending Motions as Moot is GRANTED; and it is

FURTHER ORDERED that the Second Amended Com-

plaint is deemed filed; and it is

' In pursuing this course, the Court chooses not to treat Plaintiff's

Motion for Summary Judgment, inter alia, on jurisdictional grounds as a

de facto acknowledgment that no discovery is needed on the jurisdictional

issues. To do so, would interject an unnecessary issue into the dispute.

2 For purposes of discovery and to avoid the necessity of filing an

amended motion to dismiss dealing with the tortious interference claim at

this time, the supplemental motion contemplated by this Order may pre-

sent any jurisdictional arguments with respect to the tortious interference

claim and Plaintiff s Opposition may then deal with all of Defendant’s

arguments.

30a

FURTHER ORDERED that Defendant need not answer or

otherwise respond to the Second Amended Complaint

pending further Order of the Court *. and it is

FURTHER ORDERED that Defendant’s Motion for Leave

of Court to Resubmit Motion to Dismiss for Lack of

Jurisdiction. filed July 8, 1999, is GRANTED; and it is

FURTHER ORDERED that each party may have until

December 29, 1999 in which to serve any requests for dis-

covery on the issue of jurisdiction; and it is

FURTHER ORDERED that the parties shall have until

January 31, 2000 in which to complete all discovery on

jurisdiction; and it is

FURTHER ORDERED that Defendant shall have until

February 18, 2000 in which to supplement its Motion to

Dismiss; and it is

FURTHER ORDERED that Plaintiff shall have until

March 10, 2000 in which to respond; and it is

FURTHER ORDERED that Defendant shall have until

March 22, 2000 in which to file any reply; and it is

FURTHER ORDERED that Plaintiff's Motion to Recon-

sider Denial and to Grant Forthwith “Plaintiff's Motion for

Entry of Default and J udgment (First Amended Complaint)”,

filed May 3, 1999, is DENIED; and it is

FURTHER ORDERED that Plaintiff's Urgent Motion (1)

to Dismiss Defendant’s “Motion to Dismiss for Lack of

Jurisdiction” for Violation of Super. Ct. Civ. R. 101(a)(1) and

(2) and (2) to Vacate Each and Ever Order Predicated on the

Purported “Motion to Dismiss”, filed May 3, 1999, is

DENIED; and it is

3 If the Court denies Defendant’s arguments for dismissal on juris-

dictional grounds, the Court will set a specific time within which to

answer the Second Amended Complaint.

SSeS Ge tt MR tee? ea ~ Ace o

RP ee eT ae eee

Seino : See ee aes oe ee = ys sig a ici eae a i te eh fussed a ta ree RE eRe SSG Pee Di Sa ne Ene Se ESR E Pat es eae

3la

FURTHER ORDERED that Plaintiff’s Motion to Vacate

April 22, 1999 “Order”, filed May 7, 1999, is DENIED; and

it iS

FURTHER ORDERED that Plaintiff's Motion for Sanc-

tions under Super. Ct. Civ. R. 11, filed July 26, 1999, is

DENIED; and it is

FURTHER ORDERED that Plaintiff’s Request for Imme-

diate Grant of Unopposed Plaintiff's Urgent Motion, filed

July 27, 1999, is DENIED; and it is

FURTHER ORDERED that Plaintiff’s Motion to Resubmit

“Motion Pursuant to Rule 37(d)” and for Entry of Proposed

Order, filed July 27, 1999, is DENIED; and it is

FURTHER ORDERED that Plaintiff’s Motion for Leave to

File Second Amended Complaint is WITHDRAWN without

prejudice per praecipe, filed September 10, 1999; and it is

FURTHER ORDERED that Plaintiff's Motion for Sum-

mary judgment is DENIED WITHOUT PREJUDICE.

_/s/ Richard A. Levie

RICHARD A. LEVIE for Judge Mize

Associate Judge

- Signed in Chambers

Copies faxed and mailed to:

David W Brown. Esq.

Michael E. Veve. Esq.

32a

DISTRICT OF COLUMBIA COURT OF APPEALS

Appeal No. 01-CV-436

MARY L. IRONS,

Plaintiff-Appetlant,

v.

ASOCIACION DE PROPIETARIOS DE LA

URBANIZATION DORADO REEF, INC.

Defendant-Appellee.

APPEAL FROM THE

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

CIVIL ACTION NO. 0000024-9%( GEM)

APPELLANT'S PETITION FOR REHEARING

EDWARD S. IRONS

D.C. Bar No. 149898

3945 - 52nd Street, N. W.

Washington, D.C. 20016

(202) 362-5332 - phone

(202) 966-1338 - fax

Attorney for Appellant

ie

APPELLANT'S PETITION FOR REMEAREY

This Petition for Retunareng of er Aged 10 JIE: Cpnnen

and Judgment sets forth poums of lew or Seer agrarsnn

overtooked of mnappeetaemdied by Ge C curt Pree meomer wot:

that the said Opinion amd Judgment te wacuned Gut + ow

and corrected Opemon te filed. amd Gut ¢ sw Daedigrrreene Cat

deneses the Shotscn to Deemmees te emnered

1 The dismienal order (RI S4) vachenes Bee prowess el

Tine dresmeesal order cays | be Re etenane cane o tearing

was held on Jame 30. SEED co gree Gee partine ae eqpertanety

to wopplernent the eexcord (BM) ee

timely communicated to plamai ena fue a Wate TOs

motion (R346) domemmaned Ghat Ge ord ean ene Pr

fasture of the wreak court to cwrdiant am cvniemmary marwy

Neverthhes: the Mart 99 SHO | coder ow sen tomy carepertlieren -

contention “tat Ge bame . TED teertng Wetee Ge oe

wat murrely 2 skaters <conieneme © and Que @u partes wore Hr

provided with ahume mcr tat ty wnt how Oe

opportamty so vagphemens the cocwrG ENE) canes "Ti

ae permere «2 we thous mere ee

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the hearing provided Ge pete OOP GF EH ©

wepplement Ge econ’ (EMI 2 emytnm anit ‘*

Tike Ciignenneene agyennntty cnemtinendte te semen a fine oF

The ever a eegticaud as fhe Beet tee Syqetiion re a oe

comer at Ge Guemeeet aver « the Ge Yering ne ee ee

avnedereenar) terry oR wronitd preesdie) fe pete eth a er

num) te cagptement Ge ceed See My (ee agpenand sonny temne ~~

her 1S Oe cotter BE! eae tty agree

Ada

solely on the basis of that “fact™ that the March 19, 2001

order goes on to state that “plaintiff failed to demonstrate

personal juriediction under any standard of review” (R362).

Because the trial court refused to provide appellant any

opportunity to supplement the record and thus demonstrate

“personal jurtediction under any standard”, the April 10, 2002

Opmmion and Judgment and the dismissal order should

te vacated

ll. The Opinion “overlooks” the demonstration of clear

personal jurisdiction set forth in the unopposed Motion for

Summary Reversal (“Part I” of which “is incorporated

herein by reference and is relied upon in support of the

Appetiant + Brief” ; App Br. 39).

The wnopposed Motion for Summary Reversal demon-

wtrates that the dremiesal order's “due process” ruling clashes

with the decisions in Burger King v. Rudzewicz, 471 U.S. 462

(1985) and McGee wv. International Life Ins. Co., 355 US.

220, 223 (1957).

A. According w the Motion for Summary Reversal ai

pages 11-13:

(c) on July 19, 1993, Dorado Reef, S.E. and Sanchez’

(1) caweod the defendant to be incorporated; and

(4) concurrently mmposed restrictive covenants on

the entiwety of the Dorado Reef housing

development

However, Dorado Reef $_E. and Sanchez could not and did

nol emp any revtrictive Covenants upon the excluded Irons

parcel wtach romamed the private property of Irons.

"Gentes, a eelewart Geers, was Ge Chief Beocetive Officer and

Gen) managed Ge aflaer of Dorado Bert SF. and appellee APUDRI

35a

The Second Amended Complaint (Ex. 7) and Irons’ Per-

sonal Jurisdiction Brief (Ex. 6) also show that the exclu-

sion of only the Irons’ parcel from the restrictive covenants

created an important problem for Dorado Reef, S.E. and its

developer Sanchez... .

To address that problem, in June of 1993 Sanchez, for and

on behalf of Dorado Reef, S.E. and of defendant, reached out

of Puerto Rico to do business with Irons in Washington, D.C.

As stated in the “Personal Jurisdiction Brief”:

6. The December 7, 1993 Agreement’ (Chevere

Ex. 8), which is the sole basis for the defendant's

maintenance fee claim against plaintiff, was the result

of negotiations instituted in June of 1993 by Sanchez

(Dorado Reef) from Puerto Rico with Irons in the

District of Columbia . . . to induce plaintiff to agree to

the imposition of the said restrictive covenants on the

[excluded] Irons property... . (Ex. 6, p. 19; emphasis

added.)

As regards the “restrictive covenant” negotiations, the

“Personal Jurisdiction Brief” explains:

[Bjefore the December 7, 1993 Agreement was exe-

cuted, a plurality of telephone discussions relating to

“restrictive covenants” occurred for months between

Sanchez in Puerto Rico and Irons in Washington, D.C.

Sanchez, who then owned an apartment in Washington,

D.C., also conferred personally with Irons in Wash-

ington, D.C. on at least one occasion during the June

1993 to December 1993 time period. (Ex. 6, pp. 21-22;

footnote omitted; emphasis added.) *

” As stated in the dismissal order: “In 1993 the parties agreed. ... It is

only the 1993 agreement that can form the crux of plaintiff's action”

(R344).

* Shortly stated, each of the statements in Part Il of the Opinion that

“Whe facts do not reveal transaction of any business in the District of

36a

In summary, to procure the December 7, 1993 Agreement,

Sanchez, for and on behalf of Dorado Reef, S.E. and the

defendant corporation, purposefully reached out of Puerto

Rico and into Washington, D.C. to transact the restrictive

covenant negotiation business of Dorado Reef and the

defendant corporation with Irons in Washington, Ag

B. Under the law as set forth in Burger King v. Rudzewicz,

471 U.S. 462 (1985) and McGee v. International Life Ins.

Co., 355 U.S. 220 (1957), the 1993 agreement and related

communications establish at least a prima facie demon-

stration that the exercise of personal jurisdiction would not

violate due process.”

“It is sufficient for the purposes of due process that the suit

was based on a contract [the 1993 agreement] which had

substantial connection with that State [the District of Colum-

bia].... It cannot be denied that California has a manifest

interest in providing effective means of redress for its

residents.” ’ McGee, supra, 355 U.S. at 224; emphasis added.

Columbia” and that “Appellee APUDRI has not ‘purposefully avail{ed]’

itself of the privilege of conducting business in the District” (Op. 3)

is wrong.

5 As the Brief for Appellant explains at pp. 39, et seq., the Motion for

Summary Reversal at pages 10-11 (which it “incorporate[s] . . . by refer-

ence”) actually demonstrates “four” separate “purposefully reaching out”

episodes which are said certainly to establish prima facie personal

jurisdiction.

° “Prima facie case means not only that the evidence of a proponent

would reasonably allow the desired conclusion but also that it compels

such a conclusion [absent rebuttal].” Black’ s Law Dictionary p. 1071 (Sth

Ed. 1979).

7 All contrary to the statement in part II of the Opinion that “The

District has no ‘manifest interest’” (Op. 3).

The Opinion states—without any annotation to the record: “Indeed, the

only reason that APUDRI communicated at all with appellant in the

District was because appellant lived there at the time the dispute over

37a

Burger King states: “So long as it creates a ‘substantial

connection’ with the forum, even a single act [Sanchez’ trip

from San Juan, Puerto Rico for consultation with appellant in

the District of Columbia to negotiate the 1993 agreement] can

support jurisdiction.” 471 U.S. at 476, n. 18, citing McGee,

355 U.S. at 223.

“Jurisdiction is proper, however, where the contacts

proximately result from actions by the defendant himself

[Sanchez, APUDRI CEO] that create a ‘substantial con-

nection’ [the 1993 Agreement] with the forum State.” Burger

King, 471 U.S. at 476, citing McGee, 355 U.S. at 223.

And, with respect to contractual obligations, we have

emphasized that parties who “reach out beyond one state and

create continuing relationships and obligations with citizens

of another state” are subject to regulation and sanctions in the

other state for the consequences of their actions. Travelers

Health Assn. v. Virginia, 339 U.S. 643, 647 (1950). See also,

McGee, 355 US. at 223.

“We cannot conclude that Florida has no ‘legitimate inter-

est in holding [Rudzewicz] answerable on a claim related to’

the contacts he had established in that State. Keeton v.

Hustler Magazine, Inc., 465 U.S. at 776; see also McGee...

355 U.S. at 223 (noting that State frequently will have a

‘manifest interest in providing effective means of redress for

its residents’)... .”” Burger King, supra, 471 U.S. at 483-484.

maintenance fees arose” (Op. 3). It is requested that this statement, which

appellant disputes, be deleted from the Opinion. It does not appear that

the Superior Court made any such finding. Per contra, appellee APUDRI

reached out of Puerto Rico to make the 1993 agreement with appellant

Irons in Washington. APUDRI’s subsequent communications with appel-

lant in the District were a predictable consequence of that “reaching out”.

This Petition asks this Court to correct these errors of fact and to base a de

novo ruling on correct facts.

38a

Under McGee and Burger King, Sanchez’ trip to and

consultation with Irons in Washington, D. C. require reversal

of the dismissal order which holds that due process precludes

personal jurisdiction.

If the panel for any reason rejects the showing of personal

jurisdiction made in the Motion for Summary Reversal, then

due process requires remand with instructions to provide ap-

pellant with the heretofore denied opportunity to supplement

the record.

III. As regards appellant's Motion to Strike (R198), the

Opinion says that “the procedural deficiencies complained of

by appellant were likewise corrected by APUDRI and that the

motion to strike was not warranted” (Op. 4). The Opinion

apparently overlooks the undisputed facts set forth in note 20,

page 32 of Appellant's Brief. To put the matter in context, the

Superior Court’s March 19, 2001 order, note 1 (R362) states,

in part:

|. The affidavit complained of was not part of the

subsequent motion to dismiss.

2 The Court’s statement in note 1 of the March 19, 2001 Order

that “[t]he affidavit complained of was not part of the subsequent

motion to dismiss” is simply wrong... . There was and is no

“subsequent motion to dismiss”. The “original” motion to dismiss

was simply resubmitted without change. . . .

Because the Superior Court’s “not part of the subsequent

motion to dismiss” statement is clear error, the denial of the

Motion to Strike (R316) should be reversed.

IV. As regards the Motion for Sanctions (R326) (under

Rule 11 and the inherent power of the Court), the Superior

Court’s March 19, 2001 order notes “plaintiff contends that

sanctions are proper because . . . defendant corporation

originally filed [on January 8, 1999] its motion to dismiss

39a

proceeding pro se”, but that that defect was “cured” (R362)

by the filing of an appearance by a member of the D.C. bar

on May 6, 1999 (R147).

The Opinion overlooks the fact that the essence of the

sanctions motion is not merely the fact that the defendant

corporation’s motion to dismiss was improperly filed pro se,

but also the fact that there was an absence of any pre-filing

“reasonable inquiry” (Rule 11(b)) and that the filing was for

the “improper purpose” of avoiding the retention of a

member of the District of Columbia Bar as required by this

Court’s rules and for the improper purpose of “caus[ing]

unnecessary delay or needless expense in the cost of the

litigation” (Rule 11(b)(1)). See the Motion for Sanctions,

Part I, pp. 9-12 (R225-228) (counsel who ghostwrote and

filed (see App.Br. 8) the pro se Motion to Dismiss knew, at

the time, that in Puerto Rico, as elsewhere, pro se appear-

ances by a corporation are barred). The disappointing degree

to which these improper purposes of the pro se complaint

were achieved is demonstrated by “lengthy and compli

cated proceedings” mentioned at page 2 of the Opinion,

including note 1.

Rule 11(c) authorizes payment to movant of some or all of

the reasonable attorneys’ fees and other expenses incurred as

a direct result of the violation. The object of Rule 11 is the

deterrence of improper litigation conduct in pleadings and

motions. See Pickholtz v. Rainbow Technologies, Inc. (Fed.

Cir.), slip op. of 4/11/02 citing Massengale v. Ray, 267 F.3d

1298 (Fed. Cir. 2001). That object is defeated until and

unless appellant is awarded attorneys’ fees and expenses

incurred prior to the time—some four months after the

Complaint (R18) was filed—that APUDRI “corrected” the

pro se deficiency by the appearance of a member of the D. C.

Bar (R147).

40a

V. The Opinion “overlooks” (is silent with respect to)

“Conclusion” “(f)” of Appellant's Brief that requests an

order that

(f) remands this case to the Superior Court for a ruling

on the issues of whether the filing by the defendant

corporation of the unworthy pro se Motion to Dis-

miss as ghostwritten by the defendant corporation’s

Puerto Rico counsel, Jose De La Cruz Skerrett, for

verification by the defendant corporation’s President,

Diego Chevere, all without notice to the Superior

Court, violated Fed.R.Civ.P. 11 and Rules of Pro-

fessional Conduct 3.3 and 8.4(c) and (d), and, if so,

for the imposition of sanctions including an award of

attorneys’ fees and expenses to Irons; (p. 42)

A negative answer to this question would conflict with

Duran v. Carris, 238 F.3d 1268, 1271-1272 (10 Cir. 2001).

See App.Br. 34.

/s/ Edward S. Irons

EDWARD S. IRONS

D.C. Bar No. 149898

Attorney for Plaintiff-Appellant

3945 - 52nd Street, N. W.

Washington, D. C. 20016

(202) 362-5332—phone

(202) 966-1338—fax

Email: Tingent@aol.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was

mailed, postage prepaid, this 22nd day of April, 2002, to

Michael E. Veve, Esquire, Attorney for Defendant-Appellee,

2121 K Street, N.W., Suite 800, Washington, D. C. 20037.

/s/ Edward S. Irons

EDWARD S. IRONS

4la

IN THE SUPERIOR COURT

OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

Civil Action No. 0000024-99-GEM

MARY L. IRONS,

Plaintiff,

Vis

ASOCIACION DE PROPIETARIOS DE LA

‘ URBANIZACION DORADO REEF, INC.,

Defendant.

PLAINTIFF’S MOTION FOR SANCTIONS

Plaintiff invokes Super.Ct.Civ.R. 11, 28 U.S.C. § 1927,

and the inherent power of the Court to move for an order

d the inh f the C f d

which:

(i) imposes sanctions on the defendant, jointly and

severally, on each member of its Board of Directors,

each of its president Diego Chevere personally, and its

counsel Jose E. De La Cruz Skerrett personally, and

Martha Lissette Martinez Rodriguez personally; said

sanctions to include denial of defendant’s Motion to

Dismiss for Lack of Jurisdiction (submitted in February

1999, refiled in March 1999 and resubmitted pursuant to

the December 14, 1999 order); and

(ii) an award to plaintiff of attorneys’ fees and other

expenses incurred as a direct result of the Motion to

Dismiss for Lack of Jurisdiction signed and filed by

Diego Chevere.

The imposition of sanctions upon Chevere, De La Cruz

Skerrett and Martinez Rodriguez is necessary and appropriate

42a

because defendant is a not-for-profit corporation precluded

from borrowing any funds or mortgaging its properties whose

directors, officers, members and incorporators have no

liability for corporate debts.’

* * *

IDENTIFICATION OF PERSONS

Diego Chevere

Diego Chevere (Chevere), a certified public accountant, is

now and has been the sole president of the defendant

corporation. See Chevere | /18/00 Deposition Tr. 15, Il. 5-10;

Tr. 25, ll. 19-24.

Chevere Exhibit 5 (curriculum vitae), under the head-

ing “Experience Highlights” states: “Testifying at trial and

through deposition as an expert witness”.

Mr. Chevere was aware of his professional and ethical

responsibilities to tell the truth at the time he verified

defendant’s Motion to Dismiss on February 2, 1999 and at the

time he testified on January 18 and 21, 2000 in his deposition

taken in this case.

' The Articles of Incorporation (Appendix A to the Motion to Dismiss;

Chevere Ex. 3) state:

Article 2. Purposes and Powers. The Corporation does not

contemplate pecuniary gain or profit, direct or indirect, to its

members... . [p. 1] |

* * *

Article 11. Loans, Mortgages and Pledges. The Corporation

shall not have power to borrow funds or to mortgage or pledge its

properties. [p. 5]

* * *

Article 18. Personal Liability. The private property of the direc-

tors, officers, members and incorporators of the Corporation shall

not be subject to the payment of corporate debts or obligations to

any extent whatever.

43a

Jose E. De La Cruz Skerrett

Mr. Skerrett has been counsel for the defendant “certainly

for the last two or three years” (Chevere 1/21/00 Tr. 25, Il.

19-23). He is co-counsel (with Michael Veve) in this case.

Mr. Skerrett testified:

Please state your name?

Jose E. De La Cruz Skerrett.

You’re a lawyer, is that correct?

Yes.

Before what courts are you admitted to practice?

Puerto Rico and the United States District Court and

the Court of Appeals for the First Circuit.

Q How long have you been engaged in the practice of

law?

A Twenty-six years. [Tr. 6, Il. 8-19]

Mr. Skerrett prepared the Motion to Dismiss and submitted

it to Mr. Chevere, who swore to it without change.

>OPrD SP

Martha Lissette Martinez Rodriguez

Ms. Martinez Rodriguez is a notary and a lawyer employed

by the Skerrett Law Offices. She is admitted to practice

before the Puerto Rico Commonwealth Courts, the United

States District Court for the District of Puerto Rico and the

First Circuit Court of Appeals (Tr. 5,-1. 18 to Tr. 6, 1. 7).

Michael Veve (D.C. Bar No. 222679)

Pursuant to the April 22, 1999 Order, page 2, n. 4, Mr.

Veve filed a general appearance as “co-counsel” for the

defendant on May 6, 1999. In the July 8, 1999 “Motion for

Leave to Resubmit”, Mr. Veve states that he “hereby fully

ratifies, endorses and signs [the Motion to Dismiss] on behalf

of the Defendant”. :

44a

SANCTIONING AUTHORITY RELIED UPON

Defendant’s legal counsel Skerrett prepared the Motion to

Dismiss and submitted it to Chevere for his signature and

verification. Chevere swore to the Motion to Dismiss as

submitted and without change before Notary Public Martinez

Rodriguez, a lawyer who is an associate of Skerrett. On May

6, 1999, Veve filed a general appearance for defendant, and

then represented to the Court that he “signs” and “ratifies” the

Motion to Dismiss. He has never physically signed it.

* * *

SPECIFIC VIOLATIONS

1. Preamble of the Motion to Dismiss—

The preamble to the Motion to Dismiss states:

COMES NOW, Defendant party pro se, and without

submitting to the jurisdiction of this Honorable Court,

and very respectfully States and Prays: [p. 1, emphasis

in original]

Mr. Skerrett, who prepared the Motion to Dismiss, and

Notary Martinez Rodriguez, before whom it was sworn, both

knew at the time that Puerto Rico law precludes pro se

appearance by a corporation. Mr. Skerrett testified:

Q_ Mr. De La Cruz, are corporations permitted to appear

pro se ifi Puerto Rico?

x * *

THE DEPONENT: No, they’re not.

BY MR. IRONS:

Q_ And you have known that for some time then?

A Ihave known that for some time. I don’t know if the

law in Washington. I know the law in Puerto Rico.

Q_ So you know corporations may not appear pro se in

Puerto Rico?

45a

A In Puerto Rico, that’s the only way I can testify about.

I am not a practicing attorney in Washington and I don’t

know the rules of that—

QL asked only about Puerto Rico.

A There is an opinion by the Supreme Court of Puerto

Rico that the corporation should be represented by its

lawyers.

QI hand you a copy of a document which purportsto be

an opinion entitled, “Benito Munoz, Inc, the Productora

Puertorriquena De Alimentos, Inc.”. Is that the opinion to

which you refer?

MR. VEVE: What’s the citation?

MR. HILL: 109 BPR 825 of 1980.

THE DEPONENT:

This should be one of more than one opinion regarding the

same issue. ~—

BY MR. IRONS:

Q Would you please look at page number eighty-nine at

the top of the opinion which has been handed to me? And the

first complete paragraph there begins with the spanish words,

“B-n r-e-s-u-m-e-n”. Is that the law—a statement of the law

as you understand it?

A Excuse me. May you restate the question?

QI say, is that a correct statement of the law in Puerto

Rico as you understand it? :

A Yes, yes.

Q And that was true throughout 1999, mainly that you

knew that to be the law?

A To my knowledge, it has made no change. [Tr. 37,

1. 9 to Tr. 39, |. 7]

dha

Martinez-Rodriguez, the Notary and attomey who verified

the Motion to Dismiss, testified:

Q Do you know whether it is the method in Puerto Rico

for a corporation to appear pro se?

A In certain cases, yes. In certain procedures. yer

A That's the only one I know. (Tr. 27, 0. 2-17)

Mr, Skerrett testified that he has practiced law for 26 years

and that he practices before the courts of Puerto Rico.

the United States District Court for the Dustrict of

Puerto Rico and the First Circuit Court of Appeats [Tr 6

it. 10-18).

The improper purposes of the unlawful pro sr Hlang were

to avoid retaining « member of the D.C. bar and to “ome

delay or neediow: expeme in the cont of Oe

unnecessary

litigation” (Rule 1 1(bx 1).

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Chcrmneene) wlhvcl F thee ced te Meme were queen ailthageeiliy

me a

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Q Ab agin The Geen cee cere cee te

cue fee owed gums umgene = Cleier «@ we fae fer

wee owed wae on Ghogmee thee tere”

There wie 6 Ginpte score errneng feee ee oer

0 =éOGe one’

A To @ Oe Ore

Q Oe oe Gee Ge Ge Gee & fe eee ©

Chresmrasne Fror Lael of Rartandletio gmerngreegl snseiiee ce ert

ao much Geren! « wate gute -ailees ates ter

coward by phat so erciinmdiong teem + deme cet erate ory

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A & was sondered on September four, 1978, yes [Tr.

2. 1 17 we Te. 2.1 2) emptuanns added |

ae Charwore tented on Jammary 18. 2000

49a

Q at paragraph number one, page one

which says “one: January four, 1999, the plaintiff's

husband, Edward S. Irons, filed a complaint on her behalf for

alleged damages arising from defendant's efforts to collect

maintenance fees owed by plaintiff and her husband regarding

the property located in Dorado, Puerto Rico”.

A Ye

Q Is that averment at all truc?

A Ye.

BY MR. IRONS:

Q Do you deny that paragraph one is not the whole truth

because it fails to set forth that portion of the truth which is

that there was a controversy as to whether or not maintenance

fees were quote “owed™ unquote?

A What is stated on this paragraph is true and correct.

The details of other controversies, I do not have—

Q_ Will you please answer the question, sir?

A _ This is the uth. Yes, it’s truc.

mont, Gos it?

A This document is the truth. This document on this

paragraph dor not make any reference to any discrepancy or

comroverucs.

Q And so & is not the whole uth because it fails to

make reference to the controversy?

A We're talking about Article Number One on page one

of the Motion to Deemins for lack of Jurisdiction. That is truc

and correct.

Q Bat it is not the whole truth, is 7

A 1 will wot anewer. (Tr. 7,1. 11 Tr. 9, | 20, emphasis

50a

* + *

Q_ Referring again to paragraph one of the Motion to

Dismiss for Lack of Jurisdiction, the averment to the

collection of quote “maintenance fees owed” close quote, is

incorrect isn’t it?

A __ Itis correct that statement on Article Olne[sic].

Q But the whole truth is that you simply have an opinion

that those fees were owed, isn’t that right?

A Wehad a legal opinion and it was the interpretation of

the board of directors that those fees were owed.

Q And that is why you say paragraph one of the Motion

to Dismiss for Lack of Jurisdiction is the whole truth?

A Yes. [Tr. 18, Il. 4-18]

Ms. Martinez Rodriguez testified:

Q _. . And you knew at the time you administered the

oath to Mr. Chevere that there was a dispute about whether

maintenance fees were in fact, owed by the plaintiff, did you

not?

A Well, there was a dispute, yes.

Q And you knew at the time?

A Yes.

Q Do you deny that the statement in paragraph one of

the Motion to Dismiss for Lack of Jurisdiction is misleading

because it contains no reference to the dispute about the

of maintenance fees?

A I can’t tell you anything about the content of the

document because as I told you before, when I verified this

document | am not certifying the content of the document.

I'm certifying that the affiant, Mr. Diego Chevere, signed

before me.” [Tr. 20, |. 22 to Tr. 21,1. 13)

* But the Martinez Rodriguez certification is invalid under Puerto Rico

law and the “verified” Motion to Dismiss is null and void ab initio and

should be stricken for the reasons fully set forth in the concurrently-filed

Plasntiff s Motion to Stnke.

Sla

3. Paragraphs 2 and 7 of the Motion to Dismiss—

Paragraph 2 avers that the defendant “certainly does not

make any business in the State of Washington, D.C.”.

According to paragraph 7, it is “the fact that we made no

business in said state”. |

The concurrently-filed “Plaintiff's Personal Jurisdiction

Brief” and its exhibits demonstrate that, primarily through

Mr. Chevere, the defendant was in fact transacting its

business by communications exchanged with Irons in

Washington, D.C. Mr. Chevere so testified on his deposition

taken January 18, 1999. See Tr. 75, 1. 11 (Ex. 20); Tr. 77, |.

12-Tr. 78, 1. 9 (Ex. 21); Tr. 78, Il. 19-22 (Ex. 22); Tr. 79, Il.

9-16 (Ex. 23), and Tr. 80, 1. 5-Tr. 81, 1. 22 (Ex. 24). As to

these exhibits, Mr. Chevere testified that each was a commu-

nication sent or received by defendant in the conduct of its

business. It was then stipulated that the additional Chevere

Exs. 25-58 were of the same kind; whereupon, those Exhibits

25-58 were marked by the reporter and made part of the

record without further testimony. As to the stipulation, see

the following:

MR. VEVE:

Mr. Irons, we have reviewed all of the other unmarked

correspondence that you have shown us and with the

exception of three of them we can stipulate and Mr.

Diego Chevere who is here can confirm that they are

indeed faithful copies of various letters that have been

crossed between the named parties in that correspond-

ence or/or [sic] about the date of that correspondence.

And if they can be marked as exhibits consecutively

we can accept the legitimacy and the dates of these

documents, and I’m going to turn them back over to you.

..» (Tr. 88, Il. 5-21]

52a

MR. IRONS: So I will accept that stipulation and abstain

from asking questions establishing that these documents were

sent-and received in the normal course of business to and by

the parties indicated, etcetera. That will save time. [Tr. 92,

ll. 5-12]

* * *

/s/ Edward S. Irons

EDWARD S. IRONS

D.C. Bar No. 149898

3945 - 52nd Street, N.W.

Washington, D. C. 20016

(202) 362-5332—phone

(202) 966-1338—fax

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that a copy of the foregoing was

hand-delivered, this 10th day of March, 2000, to Michael

E. Veve, Esquire, attorney for defendant, Lasa, Monroig

& Veve, 2121 K Street, N.W., Suite 800, Washington,

D.C. 20037.

/s/ Edward S. Irons

EDWARD S. IRONS

53a

IN THE SUPERIOR COURT

OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

Civil Action No. 0000024-99-GEM

MARY L. IRONS,

Plaintiff,

, -

ASOCIACION DE PROPIETARIOS DE

LA URBANIZACION DORADO REEF, INC.

Defendant.

PLAINTIFF’S MOTION TO STRIKE VERIFIED

“MOTION TO DISMISS FOR LACK OF JURISDICTION”

Because it is null and void ab initio under the laws of

Puerto Rico, where it was inappropriately verified by notary

Martha Lissette Martinez Rodriguez (“Martinez Rodriguez”)

on February 2, 1999,' plaintiff moves to strike defendant’s

Motion to Dismiss for Lack of Jurisdiction (“Motion to

Dismiss”) and all orders which cite or rely upon it.

POINTS AND AUTHORITIES

This Motion must be granted because:

(i) The Motion to Dismiss was verified by Diego

Chevere before Martinez Rodriguez, an attorney and a

notary;

(ii) This litigation involves not only this District of

Columbia case filed January 4, 1999 but also the reactive

counterpart case (Civil Action DCD-99-0506(503)) filed

' This Motion relies upon the record in this case, including the depo-

sitions and exhibits submitted with plaintiff's Personal Jurisdiction Brief.

54a

in the Puerto Rico Superior Court on February 16, 1999

and now pending against plaintiff, which raises the same

issues between the same parties.

(iii) Notary Martinez Rodriguez has functioned as

counsel for defendant in both the District of Columbia

and Puerto Rico counterpart Cases.

(iv) Rule 5 of the Puerto Rico Notary Rules of 1995

provides:

A notary is not able to represent as counsel for a

client in contentious litigation and, at the same time,

serve as notary in the same case because it is a pos-

sible conflict of interest or the incompatibilities that

can result therefrom. [Informal translation; subject to

correction]

(v) Under Puerto Rico law, a document for use in a

case which is notarized in violation of Puerto Rico

Notary Rule 5 may be stricken as null and void by the

court. See Bermudez & Longo v. Puerto Rico Casting

Steel Corp., 114 D.P.R. 808, 811 (1983), striking an

affidavit in which the notary was attorney for the

plaintiff.

The reason an attorney is precluded from serving as a

notary for the party he represents is because:

There exists such a manifest identity between attorney

and client with respect to the version of the facts over

which a remedy is requestec in the civil action and the

attorney has so much liberty to choose the language to

narrate the facts to him infermed by the client, that in

any action—in the developnent of the controversy—a

discrepancy between the attorney and the client

55a

regarding the content of the sworn allegation can result

and cause harmful proceedings against the public faith of

which the notary is custodian.

Bermudez & Longo, supra, 114 D.P.R. at 81 ‘7

Torres Peralta, Sarah, El Derecho Notarial Puertorriqueno,

Edicion Especial 1995, Publicaciones STP, 1995 at 15.25

(Exhibit A in Spanish; Exhibit B in English) states, in part:

The following are the reasons for total nullification

per se, common to affidavits and testimonies:

* * *

8. The authorization of an affidavit or testimony

against the Supreme Court decision in Bermudez &

Longo v. Puerto Rico Casting Steel Corporation, 114

D.P.R. 808 (1983). [Footnote omitted. ]

Notary Martinez Rodriguez, who Notarized the

Motion to Dismiss, is Participating as

Defendant’s Counsel in this Litigation

Ms. Martinez Rodriguez testified that she is employed by

the law offices of De La Cruz Skerrett, defendant’s counsel

in the Puerto Rico case and co-counsel in Washington, D.C.

(Tr. 6, ll. 7-8); that she is the notary who executed the

verified Motion to Dismiss (Tr. 15, ll. 11-16); and that she is

admitted to practice before the Commonwealth Court of

Puerto Rico, the United States District Court for the District

of Puerto Rico, and the United States Court of Appeals for the

First Circuit (Tr. 3, ll. 18-25; Tr. 6, ll. 1-3). She has appeared

as counsel for the defendant in the Puerto Rico component of

2 Attomeys in a firm or partnership may serve as notaries for the party

being represented in a matter but only if “they do not intervene in the

litigation or the prosecution of the matter”. Bermudez & Longo, supra, at

813. See also In re Luis Colon Ramery, 95 J.T.S. 91, 95 CDT 96, 1995

WL 905989 (1995).

56a

this litigation, both before the Puerto Rico Superior Court

and, after removal, before the United States District Court for

the District of Puerto Rico (Tr. 18, 1. 20; Tr. 31, Il. 23-25;

Tr. 32, 1.1). She has also and concurrently participated as

counsel for the defendant in this Washington, D.C. case.

Notary Martinez Rodriguez timely knew of the jurisdic-

tional issue which is common to this case and to its Puerto

Rico counterpart, having reviewed the relevant files and

discussed the matter with the other attorneys of the Skerrett

firm (Tr. 12, Il. 3-5). In the removal case in Puerto Rico,

Martinez Rodriguez signed an “Opposition to Defendant's

Motion for Rule 11 Sanctions” having as an attachment

a copy of a Motion for Sanctions filed in this Washington,

D.C. case.

x * *

Section 15.30 of the text under the heading number 14 of

the Torres Peralta treatise marked as Exhibit 3 on the

deposition of Notary Martinez Rodriguez states:

The Notary does not assume any responsibility for the

content of the private document whose signature he wit-

nesses. Notwithstanding, it is essential to point out that

when his notarial function is limited to subscribe and

authenticate the signatures of the persons, this

includes the duty in terms of professional responsibility

and ethical dimension of examining in detail the docu-

ment. If he perceives that the same is written, in its con-

tent, in disagreement with the law, ethics, or public

welfare or public customs, it is his duty to refuse to

legitimize the signatures of the persons. It cannot be any

other way. (Emphasis added.) (T ranslation subject to

correction.)

Martinez Rodriguez’ timely knowledge that Mr. Chevere’s

“Swom Statement” verified on February 2, 1999 that the

statements in the Motion to Dismiss were not “true in every

57a

respect” is demonstrated by her then knowledge that the issue

of whether “maintenance fees” were in fact “owed” as stated

in paragraph 1 of the Motion to Dismiss was then in con-

troversy between the parties:

Q Would you read—I will read it. I want to read para-

graph one of the Motion to Dismiss for Lack of Jurisdiction.

It ways, quote “One; on January four, 1999, plaintiff's

husband Edward S. Irons filed a complaint on her behalf for

alleged damages arising from defendant’s efforts to collect

maintenance fees owed by plaintiff and her husband regard-

ing the property located in Dorado, Puerto Rico”.

Do you see that?

A Yes, that what—

Q_ And do you—I’m sorry.

A _ That’s what the first paragraph says, as it reads.

Q_ Yes. And you knew at the time you administered the

oath to Mr. Chevere that there was a dispute about whether

maintenance fees were in fact, owed by the plaintiff, did

you not?

A Well, there was a dispute, yes.

Q__ And you knew at the time?

A Yes.

Q Do you deny that the statement in paragraph one of

the Motion to Dismiss for Lack of Jurisdiction is misleading

because it contains no reference to the dispute about the

payment of maintenance fees?

A I can’t tell you anything about the content of the

document because as I told you before, when I verified this

document I am not certifying the content of the document.

I'm certifying that the affiant, Mr. Diego Chevere, signed

before me.

Q__ I am not asking you what you certified.

A You're asking me about the content of the document.

I can’t tell you about the content of the document anything.

58a

Q Well, you have already told me that at the time you

swore Mr. Chevere to the document you knew there was a ~

controversy about maintenance fees.

A I know there was a controversy, Yes. [Tr. 20, 1. 9 to

Tr. 21, 1. 21; emphasis added. ]}

By her own swom testimony, notary Martinez Rodriguez

has admitted that she failed to discharge her “duty in terms of

professional responsibility and ethical dimension of exam-

ining in detail” the Motion to Dismiss and refusing “to

legitimize” Mr. Chevere’s signature because the content of

the document was, in part, not (ruc. See Section 15.30 of

Torres Peralta treatise.

* * *

/s/ Edward S. Irons

EDWARD S. IRONS

D.C. Bar No. 149898

3945 - 52nd Street, N.W.

Washington, D. C. 20016

(202) 362-5332—phone

(202) 966-1338—fax

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that a copy of the foregoing was

hand-delivered, this 10th day of March, 2000, to Michael E.

Veve, Esquire, attorney for defendant, Lasa, Monroig

& Veve, 2121 K Street, N.W., Suite 800, Washington,

D.C. 20037.

/s/ Edward S. trons

EDWARD S. IRONS

59a

IN THE SUPERIOR COURT

FOR THE DISTRICT OF COLUMBIA

Civil Division

Civil No. 99-CA-0000024

Calendar 10 (Judge Mize)

MARY L. IRONS,

Plaintiff,

vs.

ASOCIACION DE PROPIETARIOS DE LA

URBANIZACION DORADO REEF, INC.,

Defendant.

MOTION FOR LEAVE OF COURT TO RESUBMIT -

MOTION TO DISMISS FOR LACK OF JURISDICTION

COMES NOW Defendant Asociacion de Propictarios de la

Urbanizacion Dorado Reef, Inc., through undersigned counsel

and without submitting to the jurisdiction of this Honorable

Court, respectfully states and prays as follows:

1. Defendant's original Motion to Dismiss for Lack

of Jurisdiction was filed pro se without counsel in

February, 1999, and re-filed in March, 1999.

2. In its Order dated April 22, 1999, in which the

Court requested briefs from the parties regarding the

pending jurisdictional question before the Court, the

Court provided Defendant an opportunity to re-submut

its Motion to Dismiss for Lack of Jurisdiction.

3. Defendant's undersigned counsel entered his for-

mal appearance on May 6th 1999, and filed Defendant's

jurisdictional brief on May 13th, 1999, without enclos-

ing a resubmitted Motion to Dismiss for Lack of

Jurisdiction duly endorsed by Defendant's counsel.

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62a

3. Defendant is a homeowners association, organized

under the laws of the Commonwealth of Puerto Rico for the

purpose of handling the affairs regarding the community of

Dorado Reef. Enclosed please find copy of the Articles of

Incorporation and the By-Laws for Dorado Reef.

4. Since 1993, plaintiff's husband Edward S. Irons, who

also happens to be the attorney of the case, entered into an

agreement with Dorado Reef, S.E., a special partnership and

developer, who later handle the administration of the

community to the homeowners. By this Agreement plaintiff,

her husband Mr. Irons, and their property were to benefit

from the covenant and restrictions of the private community

and in exchange they were to oblige to comply with payment

of maintenance arrears.

5. Due to plaintiff's failure to comply with the obli-

gation, defendants were forced to send bills and a collection

letter to Mr. Edward Irons to his address, which is in

Washington, D.C.’ This action cannot constitute “doing

business’ in Washington, D.C., when a resident of that state is

doing business in other place, and the only address he

provides is in a different state.

6. Since defendants place of business is in_ the

Commonwealth of Puerto Rico, and the real estate is located

Puerto Rico, the agreement was signed in Puerto Rico and the

same is governed by local law, this Honorable Court of

Washington, D.C cannot acquire jurisdiction over defendant

Asociacién de Propietarios de La Urbanizaciér Dorado Reef.

7. Defendant Asociacién de Propietarios de la Urban-

izacién Dorado Reef is represented by the President of the

Board of Directors of the Association, since it has no legal

' This fact is supported by Paragraph number two of the Complaint,

where it is stated that “plaintiff, Mary L. Irons and her husband, Edward

S. Irons, are citizens of the District of Columbia residing at 3945 52nd

Street, N.W., Washington, D.C. 20016.”

63a

counselor in the state of Washington D.C., due to the fact that

we made no business in said state.

FOR THE REASONS’ PREVIOUSLY STATED,

Defendant respectfully requests that the complaint filed on

January 4th, 1999 be dismissed for lack of jurisdiction.

RESPECTFULLY SUBMITTED,

In San Juan, Puerto Rico, this 2nd day of February 1999,

I certify that a true and exact copy of this document has

been sent to Edward S. Irons, 700 - 13th Street, N.W., Suite

950, Washington, D.C. 20005.

64a

SWORN STATEMENT

I, Diego Chévere, being duly sworn, declare that the state-

ments included in this document are true in every respect.

/s/ Diego Chevere

DIEGO CHEVERE

Affidavit No._334

Sworn and subscribed before me by Mr. Diego Chévere, of

legal age, married, President of Dorado Reef Homeowners

Association, and resident of Dorado, Puerto Rico, whom I

identify by his license number issued by the Commonwealth

of Puerto Rico.

[SEAL]

In San Juan, Puerto Rico, this 2nd day of February, 1999.

/s/ Martha Lissette Martinez Rodriguez

Notary Public

My Commission does not expire

65a

IN THE SUPERIOR COURT

OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

Civil Action No. 24-99

MARY L. IRONS

3945 - 52nd Street, N. W.

Washington, D. C. 20016

Plaintiff,

v.

ASOCIACION DE PROPIETARIOS DE LA

URBANIZACICN DORADO REEF, INC.

90 Boulevard Miramar

Dorado, Puerto Rico 00646

c/o Mr. Diego Chevere

President And Chairman

Diego Chevere & Co.

First Street, Suite 204

Metro Parque 7

Guaynabo, Puerto Rico 00968

Defendant.

COMPLAINT

I. JURISDICTION AND PARTIES

2 Jurisdiction is conferred by Title 11., D.C. Code,

Section 921, as amended.

2. Plaintiff, Mary L. Irons (“Irons”) and her husband,

Edward S. Irons, are citizens of the District of Columbia

residing at 3945 - 52nd Street, N. W.., Washington, D. C.

20016.

66a

3. Defendant Asociacion de Propietarios de la Urban-

izacion Dorado Reef, Inc. (“Association”), is a corporation of

the Commonwealth of Puerto Rico, having a place of busi-

ness at 90 Boulevard Miramar, Dorado , Puerto Rico 00646.

4. This Court has personal jurisdiction over defendant

pursuant to D.C. Code Section 13-423(a) (1) and (b) in that

defendant has transacted business in the District of Columbia

out of which the causes of action stated herein arose and by

which the interests of the District of Columbia have been and

are now being adversely affected and by which Irons and her

husband have been and are now being damaged.

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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