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
ni
ee
ee
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)
il
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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ill
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
a
Page
4la
53a
59a
vil
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
motacerd at a ame <oendiewere © dows tet ange Ae ins te
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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pertage ane cemung!» ee ee
Rate (Olam 2) tet shee of Bate |!
) Paragraph | of te Benen we Deanwee
Paragragh | of te Wiomeom ee Cherm meaner
1 One Damaary 4 08) Piaenie ¢ tected Ete ©
Reconne, Glkend & cocummepiianene con eer Seetheedll Ter cilteageed Geer
agers rveseng Seonee Aeefioneedianne © efepee ae oonbltowe eremeeee
amc fews own by phan e® and ter hunted emgueetiong
Greve prcageerey ow caneed on Cierrmiie, Pamere Bee
>» * *
Wh Veerert wor Seed
Q Referring co te peng ome lef fie Wien
Chcrmneene) wlhvcl F thee ced te Meme were queen ailthageeiliy
me a
R | Gem) aedierenend peer queen
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
ference w te Set the wheter @ we fe tee eee cme
we rt Cheaper |
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.