Petition for Writ of Certiorari — Radice v. Etchebarne-Bourdin
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Supreme Court, U.S.
FILED
No. TO0- 19 -f ? reek
> Se EE “8” 8
IN THEOFFICE OF THE CLERK
Supreme Court of the United States
Luis C. Rapicr, M.D., &pwarp E. GAnrREs, M.D., and
GAHRES AND Rapick, M.D.S., Ltp.,
Yetrtioners,
v,
Auicia M. ErcHEBARNE-BourDI, individually, as administrator
of the Esrare or Baspy GIRL ETCHEBARNE-BOURDIN, and on
behalf of the heirs of BABY GIRL ETCHEBARNE-BouRDIN; and
Mauricio Bourn, individually, as administrator of the Estarr
oF Bapy GIRL ETCHEBARNE-BourD.W, and on behalf of the heirs
of Bagy GIRL EeTCHEBARNE-BourRDIN,
Respondents.
On PETITION FOR A Writ OF CERTIORARI TO THE
District oF COLUMBIA Court OF APPEALS
PETITION FOR A WRIT OF CERTIORARI
Pau. T. WALKINSHAW
Counsel of Record
HEATHER E.. ZAUG
GARLAND B. Nacy
HANCOCK, DANIEL, JOHNSON
& NAGLE, PC.
o975 Fair Ridge Drive
Suite 475 South
Mairfax, Virginia 22033-2911
(703) 591-3440
pwalkinshaw@hdjn.com
Attorneys for Petitioners
QUESTIONS PRESENTED
1. Does the Due Process Clause allow a nonresident
defendant to be haled into court in a foreign jurisdiction
when the plaintiff’s cause of action bears no relation to
the defendant’s only purposeful contact with the forum?
2. Does ajurisdiction’s long-arm statute violate the
Due Process Clause when it is applied to a nonresident
defendant whose only purposeful contact with the forum
bears no relation to the plaintiff’s cause of action?
12
CORPORATE DISCLOSURE STATEMENT
Edward E. Gahres, M.D., Ltd., formerly known as
Gahres and Radice, M.D.S., Ltd. (G&R), is incorporated
in Virginia. It has no parent corporations and no publicly
held company owns 10 percent or more of its stock.
TABLE OF CONTENTS
Page
Questions Presented ........cccecccccccssves i
Corporate Disclosure Statement ............. li
ee ae SIO. i oc ves ie eos eee ees iii
pe Fo errr errr er er eer ee V
Table of Cited Authorities ................... vi
Citations of Official and Unofficial Reports of the
Opinions and Orders E:intered in the Case ... 1
Jurisdictional Statement ...........000 eee ees 2
Constitutional & Statutory Provisions Involved
Pea es ARR OR ORES EEE R ENTE Ae CLE Tan 3
LRG 0 SEIU SNe 6 x 3 Ke os So cee eee 4
A. Nature of the Case and Material
Pee ws vas vk ee eek aes 4
BFPO Pee a hicks ee ee ad's so 8
Reasons for Granting the Petition ............ 1]
l. Bourdin II's Assertion of Specific Personal
Jurisdiction Over the Defendants Was
Unconstitutional Because Plaintiffs’ Claims
Do Not Relate to the Defendants’
Purposeful Contacts with the District... 12
Contents
A. The Two “Contacts” Relied Upon by
Bourdin II Do Not Confer Personal
Jurisdiction over the Defendants .
B. Analyzing Whether Each Defendant
Is Subject to Personal Jurisdiction in
the District, as Required by the Due
Process Clause, Clearly Reveals
Personal Jurisdiction Cannot Be
Asserted over Any Defendant ......
1. The Doctors’ Contacts with the
Distriet Do Not Authorize the
Assertion of Personal Jurisdiction
oeeeoev wee eeeeeeee eee ee em em e em eh mhlUh heh
be
G&R’s Contacts with the District
Do Not Authorize the Assertion
of Personal Jurisdiction .. .....
Il. Bourdin II's Interpretation and
Application of the District’s Long-
Arm Statute to the Defendants Is
Unconstitutional Because It Permits the
Assertion of Specific Jurisdiction When
Plaintiff’s Claim Does Not Relate to the
Defendant’s Purposeful Contact with the
WEE soe ao ra oer ae ee eee en
NN 02 ra hs eect eR ie ee
Pag €
16
16
TABLE OF APPENDICES
Appendix A — Opinion Of The District Of
Columbia Court Of Appeals Decided October
Ns sae a haces s 64 RS RSE RS ERE Se
Appendix B — Order Of The Superior Court For
The District Of Columbia, Civil Division Dated
EE, 29'S 6 Gs aos ase eee ae OTS
Appendix C — Opinion Of The District Of
Columbia Court Of Appeals Decided June 1,
Ee aya arene preteen ser eran gegen a
Appendix D —- Amended Order Of The Superior
Court Of The District Of Columbia, Civil
Division Dated June 6,1996 ...............
Appendix E — Order Of The District Court Of
Columbia Court Of Appeals Denying Petition
For Rehearing Filed April 8, 2010 ..........
Page
la
VI
TABLE OF CITED AUTHORITIES
Page
Cases:
Adams v. Adams, 601 F.3d 1 (1st Cir. 2010) .... 15
Aviation Assocs. & Consultants, Inc. v. Jet Time,
Ine., 402 3.E..20 177 (S.C. 1981)... cece ees 15
Burger King Corp. v. Rudzewicz, 471 U.S. 462
| i er ee a ere ee ree 13, 16
Calder v. Jones, 465 U.S. 783 (1984) .......... 2, 16
Cohane v. Arpeia-California, Inc., 385 A.2d 153
yea es c's Pay C4 KUN UR uA ER OO 20
Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ... 2
Crane v. Carr, 814 F.2d 758 (D.C. Cir. 1987) .... 20
Etchebarne-Bourdin v. Radice, No. 938-12352
(D.C. Sup. Ct. June 6, 1996) ............... 1
Etchebarne-Bourdin v. Radice, 754 A.2d 322
ewe dee iwtenns 1, 6
Etchebarne-Bourdin v. Radice, No. 12352-93
(D.C. Sup. Ct. duly 29, 2005) .......ccccees. l
Etchebarne-Bourdin v. Radice, 982 A.2d 752
cL eee a eek ks <x ak aR SOM OR passim
Cited Authorities
Page
Etchebarne-Bourdin v. Radice, No. 05-CV-1059
Ce ee Oe Oia es Pua deep a 1
First American First, Inc. v. National Assoc.
of Bank Women, 802 F.2d 1511 (4th Cir. 1986)
eT Ce TES TEC TT CULE TT EL Tee ee ET eee Tee 21
Future Tech. Today, Inc. v. OSF Healthcare
Sys., 218 F.3d 1247 (11th Cir. 2000) ......... 15
Gonzalez v. Internacional de Elevadores, S.A..,
BO1l A.2d B27 (D.C. ZOOS) .. ccc ccccscaccess 12
Hanson v. Denkla, 357 U.S. 235 (1958) ........ 14
Helicopteros Nacionales de Colombia, S. A. v.
Hall, 466 U.S. 408 (1984) ............0000. 12, 13
Ins. Corp. of Ir v. Compagnie des Bauxites
de Guinee, 456 U.S. 694 (1982) ............. 18
Kulko v. Cal. Sup. Ct., 486 U.S. 84 (1978) ...... 2
Rush v. Savchuk, 444 U.S. 320 (1980) ......... 2
Shaffer v. Heitner, 433 U.S. 186 (1977) ........ 2
Shirlington Limousine & Transp., Inc. v. San
Diego Union-Tribune, 566 F. Supp. 2d 1
SE I on ne Gy cue e uw bas des denue en 13
Vill
Cited Authorities
Page
Sheppers Food Warehouse v. Moreno, 746 A.2d
$20 (D.C. 2000) (em Canc) ....cccrecceees 6, 19, 20
Ventura v. Bebo Foods, Inc., 595 F. Supp. 2d 77
ees ven ed sec cte ene hess e.anee 13
Wines v. Lake Havasu Boat Mfg., Inc., 846 F.2d
es os bree e eek eee ee ewes 15
World-Wide Volkswagen Corp. v. Woodson,
ee re Fax 2
United States Constitution:
ek et ea owees 3,4, 15,17
Statutes:
D.C. Code § 18-428(av(1) .....ccccccccccccces 5, 6, 7
Ass CAGE D LG-GEG) cn cccccccnccciovece: passim
l
CITATIONS OF OFFICIAL AND UNOFFICIAL
REPORTS OF THE OPINIONS AND ORDERS
ENTERED IN THE CASE
The pane} opinion of the District of Columbia Court
of Appeals, decided October 22, 2009, is officially
reported at 982 A.2d 752 (D.C. 2009) and is reproduced
at Appendix A, at App. la-24a. It is referred to as
Bourdin IJ in this petition.
The order of the Superior Court of the District of
Columbia, Civil Division, dated July 29, 2005, is not
officially reported. It is reproduced at Appendix B, at
App. 25a-95a.
The panel opinion of the District of Columbia Court
of Appeals, decided June 1, 2000, is officially reported
at 754 A.2d 322 (D.C. 2000) and is reproduced at
Appendix C, at App. 96a-llla. It is referred to as
Bourdin I in this petition.
The amended order of the Superior Court of the
District of Columbia, Civil Division, dated June 6, 1996,
is not officially reported. It is reproduced at Appendix
D, at App. 112a-177a.
The order of the District of Columbia Court of
Appeals denying a Petition for Rehearing 4’n Banc was
filed April 8, 2010 and is not officially reported. It is
reproduced at Appendix E, at App. 178a-179a.
2
JURISDICTIONAL STATEMENT
The judgment of the District of Columbia Court of
Appeals sought to be reviewed was entered on October
22, 2009. The order denying rehearing en banc was
entered on April 8, 2010.
This Court has jurisdiction to review the judgment
of the District of Columbia Court of Appeals pursuant
to 28 U.S.C. § 1257 because the federal issue present in
the case has been finally determined by the highest court
of the District of Columbia and is not subject to further
review there. Calder v. Jones, 465 U.S. 783, 788 n.8 (1984)
(“Although there has not yet been a trial on the merits
in this case, . . . aS in several past cases presenting
jurisdictional issues in this posture, we conclude that
the judgment below is final within the meaning of
(28 U.S. C.] § 1257.” (Citations and quotations omitted));
Shaffer v. Heitner, 433 U.S. 186, 195 n.12 (1977) (noting
that the Delaware Supreme Court’s judgment affirming
the trial court’s denial of the defendant’s motion to
quash service based on a lack of sufficient contacts with
Delaware was “plainly final on the federal issue and [was]
not subject to further review in the state courts.”);
Cox Broad. Corp. v. Cohn, 420 U.S. 469, 477 (1975);
see also World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286 (1980); Rush v. Savchuk, 444 U.S. 320 (1980);
Kulko v. Cal. Sup. Ct., 486 U.S. 84 (1978).
Additionally, because this petition draws into
question the constitutionality of the District’s long-arm
statute, 28 U.S.C. § 2403(b) may apply.
CONSTITUTIONAL & STATUTORY
PROVISIONS INVOLVED
The relevant constitutional provision involved is the
Fifth Amendment of the United States Constitution,
which states as follows:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a grand jury,
except in cases arising in the land or naval
forces, or in the militia, when In actual service
in time of war or public danger; nor shall any
person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a
witness against himself, nor be deprived of life,
liberty, or property, without due process of law;
nor shall private property be taken for public
use, without just compensation.
The relevant statutory provision involved is D.C.
Code § 13-423(a)(4), which states as follows:
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— .. . (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 conduet, or derives substantial
revenue from goods used or consumed, or
services rendered, in the District of Columbia.
STATEMENT OF THE CASE
A. Nature of the Case and Material Proceedings
The District of Columbia Court of Appeals decided
in Bourdin IT that personal jurisdiction exists over the
defendants based on: (1) a single telephone call placed
by Mrs. Bourdin in the District to the defendants’ office
in Virginia, and (2) the doctors’ occasional attendance
at medical education events in the District. As a result
of this decision, defendants must submit to a trial in the
District on a claim that bears no relationship to their
purposeful contacts with it. That result contravenes the
Due Process Clause of the Fifth Amendment and prior
decisions of this Court. It also conflicts with the
decisions of other federal Courts of Appeals and state
supreme courts. It snaould therefore be reviewed and
reversed.
The issue of whether personal jurisdiction exists
over the defendants is a question that has now been
pending for over sixteen years.
In an amended order entered June 6, 1996 that
dismissed the defendants for lack of personal
jurisdiction, the trial court succinetly explained the
nature of this case. It originated from a lawsuit brought
by a “Virginia resident seeking medical treatment in
connection with her pregnancy from Virginia doctors at
their offices in Virginia and asserting that their
negligent treatment, all of which occurred in Virginia
tg a resulted in her giving birth to a stillborn child
in a Virginia hospit i] and suffering other adverse
consequences.” App. at 112a. Plaintiffs filed an amended
D
complaint in the District in 1993 naming Dr. Gahres, Dr.
Radice, and Gahres and Radice, M.D.S., Ltd. (G@R) as
defendants.
Due to the attenuated connection of this case with
the District, defendants filed a motion to dismiss for lack
of personal jurisdiction in 1994. As pertinent to this
petition, Defendants argued that personal jurisdiction
could not be exercised pursuant to the District’s long-
arm statute, D.C. Code § 13-423, or the Due Process
Clause.' After allowing discovery on the personal
jurisdiction issues raised in defendants’ pleadings, the
trial court received evidence and briefs and convened
multiple hearings so the parties could argue the issues
orally. App. at 113a-i14a.
By opinion and order dated June 6, 1996, the trial
court found that the doctors engaged in a “persistent
course of conduct” in the District, as that term is used
in D.C. Code § 13-423{a)(4), because of their periodic
attendance at medical education events. App. at 160a.
But it declined to assert personal jurisdiction on the
basis of the “persistent course of conduct” because doing
so “might violate due process, especially where any
injury is unrelated to that conduct.” App. at 161a. Thus,
the trial court ultimately agreed with defendants that
personal jurisdiction did not exist and dismissed the
ease. App. at 177a. Plaintiffs appealed that decision to
the District of Columbia Court of Appeals, focusing only
on whether jurisdiction could be exercised pursuant to
D.C. Code § 13-423(a)(1) and (a)(4). App. at 97a.
1. These arguments were presented in Defendants’ Motion
to Dismiss filed January 18, 1994 and Defendants’ Memorandum
in Support of Their Rebuttal to Plaintiff’s Opposition to
Defendants’ Motion to Dismiss filed Apri! 15, 1994.
6
In Bourdin I, the District of Columbia Court of
Appeals remanded the case to the trial court for
reconsideration of the then recently-issued opinion in
Shoppers Food Warehouse v. Moreno, 746 A.2d 320 (D.C.
2000) (en banc). App. at 96a. Specifically, Bourdin /
directed the trial court on remand to analyze whether
the plaintiffs’ claims arose from the doctors’ “persistent
course of conduct”: “To assert personal jurisdiction
under these subsections, the claim asserted must ‘arise
from’... a ‘persistent course of conduct’ in the District
of Columbia.” App. at 97a, 107a-108a.
On remand, the trial court received supplemental
briefs from the parties. App. at 26a. Defendants
renewed their argument that personal jurisdiction could
not be asserted consistent with the Due Process Clause.”
By opinion and order dated July 29, 2005, the trial court
reevaluated the case in light of Shoppers. And following
Bourdin I’s specific mandate, the trial court analyzed
whether the persistent course of conduct related to
plaintiffs’ claims. App. at 66a-68a. After doing so, it once
more determined that personal jurisdiction did not exist
and dismissed the case. App. at 95a. Plaintiffs appealed.
During this second appeal, defendants argued again
that personal jurisdiction could not be exercised under
D.C. Code § 13-423 (a)(1) or (a)(4) and the Due Process
Clause. Defendants also argued that, to avoid
constitutional infirmity, D.C. Code § 13-423(a)(4) must
be interpreted to require that the “persistent course of
2. These constitutional concerns were raised again in,
among other places, Defendants’ Memorandum in Response to
the Court’s Order of June 30, 2003 filed September 5, 2008.
rT
d
conduct” factor relate to plaintiff’s claim. Defendants
further argued that the court should analyze each
defendant’s contacts individually and that, when such
an analysis is performed, it is clear no defendant had
sufficient minimum contacts to justify the assertion of
personal jurisdiction.*
On October 22, 2009, the District of Columbia Court
of Appeals in Bourd?in I] finally coneluded that personal
jurisdiction could not be exercised under D.C. Code
§ 13-423(a)(1) but that it could be exercised under D.C.
Code § 13-423(a)(4). App. at 16a, 24a. In an Orwellian
twist, Bourdin I] disagreed with the trial court’s
decision to analyze whether the “persistent course of
conduct” relates to plaintiffs’ claims, App. at 2a, despite
the fact that Bourdin J instructed the trial court that
the persistent course of conduct must relate to plaintiffs’
claims. App. at 97a. Bourdin 71 determined the trial
court had personal jurisdictional over the defendants
and remanded the case to it for further proceedings.
App. at 24a.
Defendants filed a Petition for Rehearing Hn Banc
with the District of Columbia Court of Appeals raising
the same constitutional concerns previously discussed,
but a divided court denied it by order dated April 8,
2010. App. at 178a; Petition for Rehearing F'n Bane filed
November 5, 2009.
All state court remedies having been exhausted to
decide the federal questions of whether (1) the trial court
3. These arguments were presented in Brief of Appellees
filed October 10, 2006.
8
may assert personal jurisdiction over these nonresident
defendants consistent with due process and (2) the
application of D.C. Code § 13-423(a)(4) to these
defendants violates their rights under the Due Process
Clause, defendants petition this Court for review.
B. Pertinent Facts
Due to the lengthy history of this case, findings of
fact that plaintiffs have never appealed or contested,
and the narrow grounds upon which the Bourdin I]
court found personal jurisdiction, the facts relevant to
this Petition are straightforward and cannot be
disputed.
In 1990, plaintiff Alicia Etchebarne-Bourdin resided
in Burke, Virginia with her husband Mauricio Bourdin.
They both worked at the International Monetary Fund
(IMI) in the District. App. at 116a.
Mrs. Bourdin became pregnant in 1990. She sought
care and treatment during her pregnancy from Dr.
Gahres and Dr. Radice at their office in Alexandria,
Virginia. Dr. Gahres and Dr. Radice practiced in Virginia
only, and all of Mrs. Bourdin’s visits to them occurred in
Virginia only. App. at 117a.
On October 29, 1990, Mrs. Bourdin was involved in
a car accident in the District as she left work at the IME
Another driver hit her car from behind. App. at 117a.
Immediately after the accident, Mrs. Bourdin went
back into the IMF and ealled the doctors’ office in
Virginia to report it. App. at 117a.
9
A receptionist, Delores Staursky, answered Mrs.
Bourdin’s October 29, 1990 telephone call. App. at 117a-
118a. The receptionist told Mrs. Bourdin to keep her
next appointment, which was scheduled to occur on
November 2, 1990. App. at 118a.
Dr. Gahres was not in the office at all on that day, so
he was not present when the receptionist answered Mrs.
Bourdin’s telephone call. App. at 118a. Though Dr.
Radice was in the office for part of the day, there is no
evidence he was present when the telephone call was
answered. App. at 118a. Indeed, neither Dr. Gahres nor
Dr. Radice dispensed any advice to Mrs. Bourdin during
the telephone call, and neither instructed the
receptionist what to say. App. at 118a.
Mrs. Bourdin visited the doctors at their office in
Virginia on November 2, 9, and 16, 1990. She gave birth
to a stillborn baby on November 17, 1990 at Alexandria
Hospital in Virginia. App. at 118a-119a.
In her lawsuit, Mrs. Bourdin claimed, among other
things, that the defendants negligently gave bad advice
on the October 29, 1990 telephone call. App. at 118a.
During discovery allowed on the personal
jurisdiction issue, plaintiffs learned Drs. Gahres and
Radice occasionally attended Grand Rounds at George
Washington Hospital in the District. Grand Rounds
“involved reviewing case histories of patients, as well as
topies related to the practice of gynecology and
obstetrics.” The doctors went to Grand Rounds “for the
sole purpose of continuing medical education.” App. at
29a. Dr. Gahres went to Grand Rounds approximately
10
2.4 times a month. Dr. Radice attended approximately
1.7 times a month. App. at 30a.
The doctors also occasionally attended meetings of
the Washington Gynecological Society (WGS) in the
District. These toc were for the doctors’ personal
educational benefit. App. at 29a. WGS held meetings
six to eight times a year (mostly in the District), and the
doctors usually tried to attend. Assuming they attended
seven meetings per year and that all those meetings
were in the District, the trial court estimated attendance
at WGS meetings brought the doctors into the District
0.6 times a month. App. at 29a.
Neither doctor attended WGS meetings or Grand
Rounds as agents of G&R. App. at 30a. Further, the trial
court specifically held that plaintiffs’ claim did not arise
from their attendance at these events. App. at 68a.
Bourdin II affirmed that holding: “appellants’
malpractice actions cannot be said to ‘arise from’ the
,
doctors’ attendance at these meetings.” App. at 13a-14a.
Apart from the telephone call and Grand Rounds
and WGS, Bourdin I] analyzed other “eontacts”
defendants had with the District, but it held that none
of them were sufficient to justify personal jurisdiction.
App. at 10a-16a.
Bourdin IT found personal jurisdiction to exist solely
under D.C. Code § 13-423(a)(4) on the basis of (1) Mrs.
Bourdin’s telephone call and (2) the doctors’ periodic
attendance at Grand Rounds and WGS meetings. App.
at 17a-20a, 18a n.8.
11
REASONS FOR GRANTING THE PETITION
Bourdin Il’s decision to assert personal jurisdiction
over the defendants contravenes the Due Process
Clause and undermines tliis Court’s well-established
precedent regarding what the Due Process Clause
requires for the assertion of specific personal
jurisdiction. This Court has held that the assertion of
specific jurisdiction requires a plaintiff’s claim to arise
from or relate to a defendant’s purposeful contacts with
the forum. But Bourdin //’s decision is directly opposed
to this principle because it asserts specific personal
jurisdiction over the defendants without requiring any
relation between their purposeful contacts and the
plaintiffs’ claims.
Also, in basing its assertion of specific personal
jurisdiction on a single telephone call initiated not by
the defendants but by the plaintiff, Bowrdin IJ conflicts
with the decisions of other federal circuit courts of appeal
and state supreme courts.
Finally, bourdin I] interpreted and applied the
District’s long-arm statute, which was derived from the
Uniform Interstate and International Procedure Act,
in an unconstitutional manner. Bourdin II's
interpretation of the District’s long-arm statute permits
the assertion of specific personal jurisdiction in cases
where the plaintiff’s claim does not arise from the
defendant’s only purposeful contact with the forum. This
interpretation as applied to these defendants does not
comport with due process.
12
Thus, the Court should grant the writ to correct an
unconstitutional interpretation of a model-long arm
statute, to resolve the conflict Bourdin II poses with
other federal and state courts, and to establish the
superiority and uniformity of this Court’s principles
regarding the assertion of specific personal jurisdiction.
The Court should also grant the writ to right a clear
violation of the defendants’ liberty interests under the
Due Process Clause.
I. Bourdin II’s Assertion of Specific Personal
Jurisdiction Over the Defendants Was
Unconstitutional Because Plaintiffs’ Claims Do
Not Relate to the Defendants’ Purposeful
Contacts with the District
A. The Two “Contacts” Relied Upon by Bourdin
II Do Not Confer Personal Jurisdiction over
the Defendants
Bourdin IT violated defendants’ due process rights
when it asserted specific personal jurisdiction’ over
them pursuant to D.C. Code § 13-423(a)(4)° despite the
4. As opposed to general personal jurisdiction. “When a
State exercises personal jurisdiction over a defendant in a suit
not arising out of or related to the defendant’s contacts with
the forum, the State has been said to be exercising ‘general
jurisdiction’ over the defendant.” Helicopteros Nacionales de
Colombia, S. A. v. Hall, 466 U.S. 408, 415 (1984).
5. D.C. Code § 13-423(a)(4) is a specifie personal
jurisdiction statute. Gonzalez v. Internacional de Elevadores,
S.A., 891 A.2d 227, 232 (D.C. 2006) (“When jurisdiction is based
(Cont’d)
13
fact that plaintiffs’ claims bear no relation to defendants’
purposeful contacts with the District. To exercise specific
personal jurisdiction consistent with due process, a
court must find that plaintiffs’ cause of action arises out
of or relates to the defendants’ purposeful contacts with
the forum.® Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472 (1985); Helicopteros Nacionales de Colombia,
S. A. v. Hall, 466 U.S. 408, 414 (1984). This cannot
be done using the two “contacts” relied upon in
Bourdin 11.
(Cont'd)
on this section, the claim for relief must ‘arise{] from’ the acts
conferring jurisdiction over the defendant. This is sometimes
referred to as specifie jurisdiction.” (Citations omitted)); see
also Ventura v. Bebo Foods, Inc., 595 F. Supp. 2d 77, 83 (D.D.C.
2009) (“Jurisdiction based solely on this provision [subsections
(a)(1) and (a)(4)] is specific in nature.”); Shirlington Limousine
& T'ransp., Inc. v. San Diego Union-Tribune, 566 F. Supp. 2d 1, 4
‘D.D.C. 2008) (same).
6. This constitutional due process requirement is
embedded in the District’s long-arm statute; its command that
the claim for relief must “arise from” the enumerated contacts
bookends the statute. At the front end, D.C. Code § 13-423(a)
provides: “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—....” At the back
end, D.C. Code § 13-423(b) reminds: “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.”
14
First, the doctors’ only purposeful contact with the
District—their periodic attendance at Grand Rounds
and WGS meetings—-cannot confer personal jurisdiction
because plaintiffs’ claims did not relate to or arise from
them. The doctors attended these events only for their
own personal educational benefit; they had no bearing
on or connection to plaintiffs’ claims. App. at 29a.
Indeed, Bourdin II, consistent with the trial court,
specifically held that “appellants’ malpractice actions
cannot be said to ‘arise from’ the doctors’ attendance
at these meetings.” App. at 14a.
Second, Mrs. Bourdin’s October 29, 1990 telephone
call cannot authorize the court’s exercise of personal
jurisdiction because it was not a purposeful contact the
defendants made with the District. In fact, it was quite
the opposite. Mrs. Bourdin acted unilaterally when, after
the pure happenstance of a car accident, she telephoned
Virginia from the District. But “(t]he unilateral activity
of those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact with
the forum State.” Hanson v. Denkla, 357 U.S. 235, 253
(1958).
Remarkably, Bourdin I] agreed with this principle
and held early in its opinion that Mrs. Bourdin’s
telephone call “cannot—consistent with the limits of due
process—serve as a basis for jurisdiction.” App. at lla.
But in a curious judicial pirouette, the court later relied
on the telephone call as the basis for jurisdiction under
D.C. Code § 13-423(a)(4). App. at 18a n.8, 18a-20a. It
should not have done so for the very reasons it
articulated—Mrs. Bourdin’s telephone call was her own
unilaterai act and was not a contact the defendants
purposefully made with the District.’ The telephone call
cannot, consistent with the Due Process Clause, serve
as a basis for specific personal jurisdiction.
Since the doctors’ only purposeful contact with the
District was their periodic attendance at Grand Rounds
and WGS meetings, and the plaintiffs’ claim did not arise
from or relate to these purposeful contacts, Bourdin I]
incorrectly concluded that the defendants were subject
to specific personal jurisdiction. That incorrect
conclusion violates the defendants’ rights under the Due
Process Clause of the Fifth Amendment not to be haled
7. This result conflicts with decisions from other federal
circuit courts of appeal and state high courts. See, e.g., Adams v.
Adams, 601 F.3d 1, 8 (Ast Cir. 2010) (“A phone call from Bernard
to Lee in Texas concerning a contract that Bernard demanded
that Lee execute is not sufficient evidence that Lee ‘reached
into Massachusetts.’”); Future Tech. Today, Inc. v. OSF
Healthcare Sys., 218 F.3d 1247, 1251-52 (11th Cir. 2000) (holding
that a “single telephone call, by the buyer of a service upon the
advice of another” may meet the “technical requirements” of
the Florida long-arm statute, but that the Due Process Clause’s
“considerations of minimum contacts and fair play prevent the
action from going forward in this court.”); Wines v. Lake Havasu
Boat Mfg., Inc., 846 F.2d 40, 42-43 (8th Cir. 1988) (“Appellants’
telephone calls to Lake Havasu are the very kind of ‘unilateral
activities’ this court has found insufficient to establish personal
jurisdiction.”); Aviation Assoc. & Consultants, Inc. v. Jet Time,
Inc., 402 S.E.2d 177, 180 (S.C. 1991) (“Every communication
between the parties was initiated by Aviation. Cobra merely
responded to Aviation’s unsolicited, unilateral contact by
talking on the telephone to Aviation when Aviation called... .
This type of attenuated, isolated contact should not subject
Cobra to suit in the initiator’s home forum.” (Quotations
omitted)).
16
into court on a claim that does not arise from their
purposeful contacts with the jurisdiction. Burger King,
471 U.S. at 472.
B. Analyzing Whether Each Defendant Is
Subject to Personal Jurisdiction in the
District, as Required by the Due Process
Clause, Clearly Reveals Personal Jurisdiction
Cannot Be Asserted over Any Defendant
The conclusion that Bourdin // violated defendants’
due process rights is bolstered when personal
jurisdiction is analyzed as to each defendant. The Due
Process Clause itself requires such an analysis.*
See Calder v. Jones, 465 U.S 783, 790 (1984) (“Each
defendant’s contacts with the forum State must be
assessed individually.”). When that required analysis is
performed, it is clear personal jurisdiction cannot be
exercised consistently with due process or D.C. Code
§ 13-423(a)(4) as to any defendant.
1. The Doctors’ Contacts with the District
Do Not Authorize the Assertion of
Personal Jurisdiction
Kirst, there is no evidence that either doctor
participated in Mrs. Bourdin’s telephone call—the very
“contact” relied upon by Bourdin I] to satisfy due
process. App. at 18a n.&, 18a-20a; see also infra Part I.
To the contrary, the evidence, which plaintiffs did not
8. Despite defendants’ specific request in their Brief of
Appellees, the Bourdin I] court failed to assess each defendants’
contacts individually.
17
dispute on appeal, established that neither Dr. Gahres nor
Dr. Radice dispensed advice, negligent or otherwise, to
plaintiffs on the October 29, 1990 telephone call. The
evidence established only that a G&R receptionist told Mrs.
Bourdin to keep her next appointment. Bourdin 11
recoynized this: “Ms. Etchebarne-Bourdin telephoned Dr.
Radice’s office in Virginia from her office at the IMF in
the District. She explained what had happened to the
receptionist who answered the telephone; the receptionist
advised her to keep her regular appointment on November
2nd, four days later.” App. at 5a (emphasis added). Dr.
Gahres was not present at all in the office on October 29,
1990. App. at 118a. And although Bourdin // went out of
its way to state that Dr. Radice was in the office for part of
that day, App. at 5a n.3, it did not conclude (as it could not)
that Dr. Radice was actually present when the telephone
call was received. Indeed, the trial court made a factual
finding (which should be binding on appeal) that “[n either
doctor spoke with Mrs. Bourdin by phone on the day of
the accident, and plaintiffs have provided the court with
no evidence that cither doctor’s instructions were
conveyed through the receptionist who did speak with Mrs.
Sourdin.” App. at 152a-1538a n.31, 118a (emphasis added).
Subjecting Dr. Gahres and Dr. Radice to a trial in
the District when there is no evidence either of them
participated in the “contact” with the District-——Mrs.
Bourdin’s telephone call—yviving rise to plaintiffs’ claims
would constitute a serious violation of their liberty
interests protected by the Due Process Clause.’ “The
9. Commission of a tortious act or omission outside the
District is also a threshold statutory requirement under D.C, Code
§ 13-422%(4)(4). It is difficult to imagine how personal jurisdiction
over the doctors could be exercised pursuant to this statute when
there is no evidence to trigger its required provisions.
18
personal jurisdiction requirement recognizes and protects
an individual liberty interest. It represents a restriction
on judicial power not as a matter of sovereignty, but as a
matter of individual liberty.” /ns. Corp. of Ir v. Compagnie
des Bausites de Guinee, 456 U.S. 694, 702-03 (1982). The
doctors’ enjoyment of this liberty interest would be lost
forever if this Court does not grant their petition and
reverse Bourdin 11's flagrant error.
2. G&R’s Contacts with the District Do Not
Authorize the Assertion of Personal
Jurisdiction
Second, G&R’s due process interests will also be
destroyed when it is subjected to a trial in the District
because it never purposefully initiated contact with the
District. Rather, it was Mrs. Bourdin who purposefully
initiated contact when she unilaterally telephoned G&R’s
office in Virginia from the District. The simple act of G& R's
receptionist in answering a telephone call from the District
cannot equate to purposeful availment or contact. G&R
quite simply did not purposefully contact the District. And
hecause it did not, it cannot be subject to personal
jurisdiction there."
10. The engagement in a “persistent course of conduct” is,
like the act or omission requirement, a condition precedent for
the exercise of personal jurisdiction pursuant to D.C. Code § 14
42(4)(4). The trial court specifically determined that “there is
no basis for a finding that G & R, Ltd. has engaged in a persistent
course of conduct” in the District. App. at 159a. The trial court also
determined that there was no evidence Dr. Gahres or Dr. Radice
attended Grand Rounds or WGS meetings as agents of G&R. App
at 30u. Neither of these determinations were challenged or
disturbed by Bowrdin 11. And because they were not, there is no
evidence to trigger subsection (a)(4)’s application to G&R
19
Il. Bourdin II’s Interpretation and Application of
the District’s Long-Arm Statute to the Defendants
Is Unconstitutional Because It Permits the
Assertion of Specific Jurisdiction When
Plaintiff’s Claim Does Not Relate to the
Defendant’s Purposeful Contact with the Forum
The application of D.C. Code § 13-423(a)(4) to the
defendants violates the Due Process Clause because it
permits the exercise of specific personal jurisdiction
over them despite the fact that their only purposeful
contact with the forum bears no relation to the plaintiffs’
cause of action.'’ As stated above, due process requires
that the assertion of specific jurisdiction be based on
the defendant’s purposeful contact with the forum from
which plaintiff’s claim arose.
Bourdin II held that, under D.C. Code § 13-
423(a)(4), the doctors’ only purposeful contact with the
District—their “persistent course of conduct” in
periodically attending Grand Rounds and WGS
meetings—need not relate to the plaintiffs’ claim. It
reached this holding because it reasoned the due
process requirement that the defendant’s act relate to
the plaintiff’s claim” “is subsumed in the requirement
11. D.C. Code § 13-423(a)(4) authorizes the assertion of
personal jurisdiction where the plaintiff’s claim arises from the
defendant’s “causing tortious injury in the District of Columbia
by an act or omission outside the District of Columbia if he...
engages in any other persistent course of conduct... in the District
of Columbia.”
12. The constitutional due process requirement is
embodied in D.C. Code § 13-423(b). See Shoppers Food
(Cont'd)
20
that the ‘claim for relief aris[e|’ from an act or omission
outside the forum that ‘caus[es] tortious injury in the
District of Columbia.” App. at 19a-20a (alterations in
original). Bourdin JJ determined that this due process
requirement was fulfilled here by what happened during
Mrs. Bourdin’s telephone eall: “There is no doubt that
appellants’ claims arose out of the doctors’ allegedly
tortious acts or omissions in Virginia... . [T]he first
time that the doctors were negligent arguably was when
they failed to advise her properly when she called them
from the District.” App. at 18a, 18a n.8 (internal
emphasis and quotations omitted). Thus, the court
concluded it would be “redundant” to require that the
persistent course of conduct relate to plaintiffs’ claims
“when a direct link is already established between the
tortious conduct outside the District and the resulting
injury within the jurisdiction on which the claim is
based.” App. at 20a.”
But beeause the court concluded that the doctors’
purposeful in-forum “persistent course of conduct” need
not relate to plaintiffs’ claims, it was forced to find such
(Cont’d)
Warehouse v. Moreno, 746 A.2d 320, 326 (D.C. 2000); Cohane v.
Arpeja-California, Inc., 385 A.2d 158, 158 (D.C. 1978). Since
Shoppers, the District of Columbia courts have used “nexus” to
refer to the relationship between the plaintiff’s claim and the
defendant’s contacts required by the long-arm statute and the
Due Process Clause.
13. Bourdin II adopted the analysis in Craze v. Carr, 814
F.2d 758, 763-64 (D.C. Cir. 1987). App. at 22a-23a. Crane held
that the persistent course of conduct requirement was a “plus
factor” that need not relate to plaintiff’s claim.
a due process “link” in Mrs. Bourdin’s telephone call.
In doing so, it effectively held that D.C. Code § 138-
423(a)(4) ean subject.a defendant to personal jurisdiction
on the basis of his non-purposeful contacts with the
District because such non-purposeful contacts relate to
plaintiff’s claim, and satisfy due process, when they cause
injury in the District. Such an application of D.C. Code
§ 13-423(a)(4) does not comport with due process because
it subjects defendants to specific personal jurisdiction
when plaintiffs’ claims bear no relationship to their
purposeful contacts.
To be fair, Bowrdin [1's interpretation of D.C. Code
§ 13-423(a)(4) may comport with due process where a
defendant’s purposeful contact with the forum
constitutes an affirmative tortious act’ causing injury
in the District.” But in this case, the alleged tortious
act did not originate from defendants’ purposeful
contact with the District. It originated from the in-forum
contact plaintiff initiated when she called defendants’
14. As opposed to a passive tortious omission or failure to
act arising from non-purposeful contact with the forum, which
is what happened in this case.
15. See ,e.g., First Am. First, Ine. v. Nat'l Assoc. of Bank
Women, 802 F.2d 1511, 1517 (4th Cir. 1986) (coneluding that
defendant's conduct in a defamation action was “purposefully
directed” at the forum state where the “allegedly defamatory
letters, though written in and mailed from Illinois and
distributed throughout the country, were nevertheless directed
in their intended effect at the activities in Virginia of Virginia
residents” and consequently the defendant “knew or should
have known [they] would inflict the greatest injury upon [the
plaintiff] in the state in which he resided and conducted his
business”).
22
Virginia office from the District. Under these
circumstances, which demonstrate a lack of purposeful
contacts giving rise to plaintiffs’ claims, the Due Process
Clause prohibits the exercise of specific personal
jurisdiction over the defendants.
Thus, D.C. Code § 18-423(a)(4), as interpreted by
Bourdin I] and applied to the defendants, contravenes
the Due Process Clause. Bourdin I] should therefore
be reversed, and the case dismissed for lack of personal
jurisdiction.
CONCLUSION
For the reasons set forth above, this Petition for a
Writ of Certiorari to the District of Columbia Court of
Appeals should be granted.
Respectfully submitted,
Pau. T. WALKINSHAW
Counsel of Record
HEATHER EK. ZAuUG
GARLAND B. Nacy
Hancock, DANIEL, JOHNSON
& Nace, PC.
3975 Fair Ridge Drive
Suite 475 South
Fairfax, Virginia 22033-2911
(703) 591-3440
pwalkinshaw@hdjn.com
Attorneys for Petitioners
APPENDIX
la
APPENDIX A — OPINION OF THE DISTRICT OF
COLUMBIA COURT OF APPEALS
DECIDED OCTOBER 22, 2009
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 05-CV-1059
ALICIA M. ETCHEBARNE-BOURDIN, ET AL.,
APPELLANTS,
v.
LUIS C. RADICE, ET AL.,
APPELLEES.
Appeal from the Superior Court of the
District of Columbia
(CA-12359-93)
(Hon. Noé] Anketell Kramer, Trial Judge)
(Argued April 4, 2007 Decided October 22, 2009)
Before RUIZ and BLACKBURNE-RIGSBY,
Associate Judges, and SCHWELB, Senior Judge.
RUIZ, Associate Judge: This case, now before us
for a second time, requires us to interpret the District
of Columbia’s “long-arm” statute, D.C. Code § 13-423
(2001). The issues before us concern two subsections of
the statute which authorize District of Columbia courts
2a
Appendix A
to exercise jurisdiction over non-resident defendants
who “transact[] any business” in the District of Columbia,
D.C. Code § 13-423(a)(1); or who “caus[e] tortious injury
in the District of Columbia by an act or omission outside
of the District of Columbia if [they] regularly do[] or
solicit[ ] business, engage[] in any other persistent course
of conduct, or derive[] substantial revenue from goods
used or consumed, or services rendered, in the District
of Columbia.” Jd. at § (a)(4). When the conduct of a
defendant satisfies either one of these sections, the court
may exercise personal jurisdiction only if “a claim for
relief aris[es] from acts enumerated in [the statute].”
Id. at § (b). Specifically, we address for the first time
whether all of the requirements set out in subsection
(a)(4) must be linked to the claim for relief in a particular
case, to permit the exercise of personal jurisdiction. We
hold that the nexus requirement under subsection (b),
as applied to the basis for jurisdiction set out in
subsection (a)(4), does not require that the claim arise
from what we consider to be independent “plus factors.”
These factors (e.g., a “persistent course of conduct” in
the District of Columbia), are required for the purpose
of ensuring that exercising jurisdiction over a defendant
where the claim for relief is based on conduct outside
the forum comports with due process. Because the trial
court thought otherwise, and on the basis that there
was no nexus between the defendant’s persistent course
of conduct in the District and the medical malpractice
action, dismissed the complaint for lack of jurisdiction
over appellees, we reverse the judgment and remand
the case for further proceedings.
3a
Appendix A
I. Factual Background
This action arises from a complaint for medical
malpractice filed by appellanis, Alicia Etechebarne-
Bourdin and, her husband, Mauricio Bourdin. They
claim that appellees, Drs. Luis Radice and Edward
Gahres, and their practice, Gahres and Radice, M.D.s,
Ltd., provided negligent medical care to Ms.
Etchebarne-Bourdin that resulted in the death en
ventre sa mere of her unborn child.
The facts of the case relevant to the question of
jurisdiction are, for the most part, undisputed. At the
time of the complaint, appellants were both domiciled
in Virginia, and worked at the International Monetary
Fund (“IMF”), located in the District. In 1990, Ms.
Etchebarne-Bourdin became Dr. Radice’s patient.
Although Dr. Radice was listed in a directory of local
physicians made available at the IMF Health Center,
Ms. Etchebarne-Bourdin did not consult the directory
in choosing Dr. Radice as her physician; rather, she was
referred to the doctor by her sister, who had been his
patient in the past.
Drs. Radice and Gahres specialized in obstetrics and
gynecology and their office was located in Virginia at
the time Ms. Etchebarne-Bourdin became their patient.
Their practice, Gahres and Radice M.D.s, Ltd., is a
Virginia professional corporation. The doctors had
maintained a practice in the District of Columbia, from
1970 until 1988, two years before Ms. Etchebarne-
Bourdin became their patient. In 1988, the doctors, at
4a
Appendix A
the urging of their medical malpractice insurance carrier,
closed their office in the District and relinquished their
admitting privileges at D.C. hospita!s.
Even after they moved their office to Virginia, the
doctors maintained ties to the District of Columbia. The
doctors are individually licensed in the District as well
as in Virginia. They maintained a listing for their office,
with their Virginia address, in the District of Columbia
Yellow Pages. The doctors regularly attended Grand
Rounds of George Washington University Hospital —
more than once a month — and were members and
attended meetings of the Washington Gynecological
Society, which met in the District of Columbia
approximately eight times a year.’ The trial court found
that 5.5% of the doctors’ patients were residents of the
District.*
1. The trial court found that the doctors attended the
meetings at Washington Gynecological Society and Grand
Rounds at George Washington University Medical Center to
continue their medical education. According to the trial court’s
order on remand, “it appears that Grand Rounds involved
reviewing case histories of patients, as well as topics related to
the practice of gynecology and obstetrics.”
2. In their brief on appeal, appellants offered additional
facts relating to the doctors’ contacts with the District that they
claim the trial court failed to consider. An appellate court will
not ordinarily consider facts outside the record. See Maldonado
v. Maldonado, 631 A.2d 40, 41 n.1 (D.C. 1993) (refusing to
consider facts contained in appellee’s brief that were not part
of the record).
Sa
Appendix A
On October 29, 1990, while driving in the IMF
parking lot in the District, appellants were “rear-ended”
in an automobile collision. Ms. Etchebarne-Bourdin was
then seven months pregnant. Later that day, Ms.
Etchebarne-Bourdin telephoned Dr. Radice’s office in
Virginia from her office at the IMF in the District. She
explained what had happened to the receptionist who
answered the telephone; the receptionist advised her
to keep her regular appointment on November 2nd, four
days later.*
According to appellants’ complaint, at her next two
appointments, on November 2nd and November 9th,
Ms. Etchebarne-Bourdin complained to Dr. Radice that
she continued to feel general discomfort and expressed
concern of “decreased intrauterine movement.” No tests
were conducted at either visit, but at both times she
was assured that nothing was wrong. On November 9th,
Dr. Gahres ascribed Ms. Etchebarne-Bourdin’s
complaints to the fact that “you women all get crazy
during your last weeks of pregnancy.”
On November 16, 1990, Ms. Etchebarne-Bourdin felt
pain and had an unusual vaginal discharge. She
immediately went to appellees’ office for an examination.
During the examination, Dr. Radice could not detect any
3. The doctors’ office records showed that Dr. Radice was
in the office for part of the day when Ms. Etchebarne-Bourdin
called. Although he did not remember directing the receptionist
to advise Ms. Etchebarne-Bourdin not to seek immediate
medical care, he did not deny that it was possible that he did.
6a
Appendix A
fetal movement. He rushed her to Alexandria Hospital,
where he delivered a still-born baby.
Appellants filed a complaint in D.C. Superior Court
for medical malpractice. They alleged that appellees
breached the standard of care by failing to advise Ms.
Etchebarne-Bourdin, after she notified them that she
had been in a ear accident, that she should be examined
immediately for signs of fetomaternal injury and that
they failed to do so during her office visits. As appointed
legal representatives of the child’s estate, appellants
brought a survival action under D.C. Code § 12-101
(1981), seeking damages in the amount of $ 12,003,500,
reflecting $ 12 million for the estate of the child had she
lived her expected life span, and $ 3,500 for medical and
funeral expense. Appellants also claimed on their own
behalf. In connection with that claim, appellants sought
combined damages of $ 6 million: $ 4 million for Ms.
EKtchebarne-Bourdin’s physical injury, emotional
distress, and loss of wages, and $ 2 million for her
husband’s loss of consortium. Appellees moved to
dismiss for lack of jurisdiction under Superior Court
Civil Rule 12(b)(2), or, in the alternative, on the grounds
of forum non conveniens. The trial court granted
appellees’ motion to dismiss for lack of personal
jurisdiction, and did not rule on the alternative motion.
The trial court concluded that it did not have
personal jurisdiction over appellees, and granted their
motion to dismiss. On appeal, we reversed and remanded
the case for renewed consideration in light of our then
recent decision in Shoppers Food Warehouse v. Moreno,
7a
Appendix A
746 A.2d 320 (D.C. 2000) (en bane), cert. denied, 530 U.S.
1270, 120 S. Ct. 2737, 147 L. Ed. 2d 997 (2000). See
KLtchebarne-Bourdin v. Radice, 754 A.2d 322 (D.C. 2000)
(“Htchebarne-Bourdin 1’).
On remand, the trial court again dismissed the suit
for lack of personal jurisdiction, determining that
appellees had neither transacted business in the District
of Columbia within the meaning of subsection (a)(1) of
the long-arm statute, nor did their “persistent course
of conduct” in the District sufficiently relate to
appellant’s claimed injury, as the trial court interpreted
subsection (a)(4) to require. We agree with the trial
court’s analysis that appellees did not “transact
business” under D.C. Code § 13-423(a)(1), but conclude
that the trial court erred in its analysis of the nexus
required by subsection (a)(4). We, therefore, reverse and
remand the case for further proceedings.
II. Analysis
When reviewing an order of dismissal for lack of
personal jurisdiction where there has not been an
evidentiary hearing, the court “must resolve in... favor
of [the party asserting jurisdiction] all disputes
concerning relevant facts presented in the record.”
Reuber v. United States, 242 U.S. App. D.C. 370, 383,
750 F.2d 1089, 1052 (1985) (quoting Nelson v. Park
Industries, Inc., T7117 F.2d 1120, 1128 (7th Cir. 1983)).
See Super Ct. Civ. R. 12 (¢) (providing that motion for
judgment on the pleadings is converted to motion for
summary judgment if “matters outside pleadings are
Sa
Appendix A
presented to and not excluded by” the trial court). We
review de novo the trial court’s dismissal of a complaint
for “lack of jurisdiction over the person” under Rule 12
(b)(2). See Holder v. Haarmann & Revmer Corp., 779
A.2d 264, 269 (D.C. 2001).
A. The Long Arm Statute’s Requirements
The District of Columbia’s long arm statute provides
as follows:
(a) A District of Columbia court may exercise
personal jurisdiction over a person, who acts
directly or by an agent, as to a claim for relief
arising from the person’s —
(1) transacting any business in the
District of Columbia;
(2) contracting to supply services in the
District of Columbia;
(3) causing tortious injury in the District
of Columbia by an act or omission in the
District of Columbia;
(4) causing tortious injury in the District
of Columbia by an act or omission outside 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
A
Appendix A
consumed, or services rendered, in the
District of Columbia;
(5) having an interest in, using, or
possessing real property in the District of
Columbia;
(6) contracting to insure or act as surety
for or on any person, property, or risk,
contract, obligation, or agreement located,
executed, or to be performed within the
District of Columbia at the time of contracting,
unless the parties otherwise provide in
writing; or
(7) marital or parent and child
relationship in the Distriet of Columbia . .
funder certain conditions; this subsection is
not relevant to this case |
(b) When jurisdiction over a person is based
solely upon this section, only a claim for relief
arising from acts enumerated in this section
may be asserted against him.
D.C. Code § 18-423 (2001).
‘To assert personal jurisdiction under § 13-4238, the
statute sets out two separate requirements: first, the
defendant must have engaged in one of seven
enumerated activities, id. at & (a), and, second, “[the|
claim for relief [must] arisle] from acts enumerated” in
10a
Appendix A
the statute. Jd. at § (b). In this case, two of the
enumerated acts are at issue: whether appellees
“transact[ed] any business in the District of Columbia,”
id. at § (a)(1), and whether they “caus[ed] tortious injury
in the District of Columbia by an act or omission outside
the District of Columbia if [they] . . . engage[] in any
other persistent course of conduct ...in the District of
Columbia.” /d. at § (a)(4).
In a long and detailed order, the trial court
considered four contacts by the doctors with the District
of Columbia: (1) Ms. Etchebarne-Bourdin’s telephone
call to appellees from the District on October 29, 1990;
(2) the District of Columbia medical licenses held by Drs.
Gahres and Radice; (3) the listing for the doctors’
Virginia practice in the District of Columbia Yellow
Pages, as well as Dr. Radice’s listing in a referral list at
the IMF Health Center (in the District); and (4) the
doctors’ periodic attendance at meetings of the
Washington Gynecological Society and Grand Rounds
at George Washington University Medical] Center, all of
which took place in the District of Columbia. The trial
court determined that, whether viewed individually or
in the aggregate, appellees’ contacts with the District
did not constitute “transacting any business” under the
statute, and that, even assuming they did, appellants’
claim did not “aris[e] from” those business transactions.
See D.C. Code § 13-428(b). Similarly, the trial court
determined that even though the doctors’ attendance
at Grand Rounds and Society meetings constituted a
“persistent course of conduct” under D.C. Code § 13-
423(a)(4), this conduct, also, failed to satisfy the “aris[e]
from” requirement of the statute. Jd. at § (b).
lla
Appendix A
B. “Transacting any business,” D.C. Code § 13-42:
(a)(1)
We have held that “the sweep of the ‘transacting
any business’ provision [of the District’s long-arm
statute] covers any transaction of business in the
District of Columbia that can be reached jurisdictionally
without offending the Due Process Clause.” Holder, 779
A.2d at 270 (quoting Mouzavires v. Baxter, 434 A.2d 988,
993 (D.C. 1981) (en banc) (per curiam)).
By equating the “transacting business” requirement
with what is permissible under the Due Process Clause,
we have required that plaintiff show only that the
defendant has had “minimum contacts” with the forum
— “purposeful, affirmative activities within the District
of Columbia,” — so that “the maintenance of the suit
does not offend ‘traditional notions of fair play and
substantial justice.’” Shoppers, 746 A.2d at 330-31
(citations omitted). Therefore, in order to demonstrate
that appellees “transacted business” within the meaning
of the statute, appellees must be “purposefully engaged
in some type of... activity directed at District
residents.” Holder, 779 A.2d at 270-71 (citing Shoppers,
746 A.2d at 330-31).
Applying this standard, we agree with the trial court
that the telephone call that Ms. Etchebarne-Bourdin
placed to appellees’ office on October 29, 1990, cannot
— consistent with the limits of due process — serve as
a basis for jurisdiction. See Hanson v. Denckla, 357 US.
235, 253, 78S. Ct. 1228, 2 L. Ed. 2d 1283 (1958) (holding
12a
Appen dix A
that “[t]he unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy
the requirement of contact with the forum State”).‘
Cf. D.C. Code § 13-423(a)(4), discussed infra, Part II A.
Likewise, that the doctors maintained medical
licenses to practice in the District cannot, without more,
serve as a basis for jurisdiction under the “transacting
any business” subsection of the statute. See Ghanem v.
Kay, 624 F. Supp. 23, 25 (D.D.C. 1984) (“[I]t is actual
practice of a profession ... and not the possession of
the right to practice that brings a person within the
jurisdiction of a... ecourt.”) (quoting Lebkuecher v.
Loquasto, 255 Pa. Super. 608, 389 A.2d 143, 145 (1978))).
Appellants’ reliance on Presbyterian Univ. Hosp. v.
Wilson, 337 Md. 541, 654 A.2d 1324 (Md. 1995), for the
proposition that by submitting themselves to the
licensing process, the doctors were manifesting a
deliberate and voluntary association with the forum is
misplaced. In Presbyterian, the Maryland Court of
Appeals exercised personal jurisdiction over a hospital
located in Pennsylvania because the hospital (1) had
4. Appellants argue on appeal that appellees should have
foreseen that some of their patients would call from the District,
pointing to Dr. Radice’s admission at his deposition that other
patients called to ask to have their prescriptions filled, and that
he had placed calls to pharmacies in the District. We need not
consider this argument as it is raised for the first time on appeal.
See, e.g., Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992)
(“[P]oints not asserted with sufficient precision [at the trial
court level] to indicate distinctly the party’s thesis will normally
be spurned on appeal.” (quoting Miller v. Avirom, 127 U.S. App.
D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967)).
l3a
Appendix A
purposefully availed itself of Maryland’s laws by actively
registering as a healthcare provider with a state-run
program that provided indigent healthcare; (2) was the
only approved adult liver transplant center for patients
of that Maryland program; and (3) solicited Maryland
residents to seek treatment at the hospital.’
See Presbyterian, 654 A.2d at 1331-32. Here, by
contrast, there is no allegation that the doctors
maintained their D.C. licenses in order to solicit patients
in the District.
Appellants claim that the doctors’ regular
attendance at periodic meetings of the Washington
Gynecological Society and Grand Rounds at George
Washington University Hospital constituted
“transacting business” in the District for purposes of
the long-arm statute. We agree with the trial court that
these activities, which were primarily for continuing
professional education, fall outside the meaning of
“transacting business.”® Even if we accept appellants’
assertion that the training and continuing medical
education that the doctors received served to some
extent to attract patients, including those residing in
the District of Columbia, appellants’ malpractice actions
5. In Presbyterian, the Pennsylvania hospital applied to
the Maryland Department of Health & Mental Hygiene to be
certified as a Medicaid provider to Maryland residents. 654 A.2d
at 13381.
6. These activities did serve, however, as the basis for the
trial court’s conclusion that appellees engaged in a “persistent
course of conduct.” See infra, Part IT C.
4a
Appendix A
eannot be said to “arise from” the doctor’s attendance
at these meetings.
Appellees’ listings in the District of Columbia Yellow
Pages and at the IMF Satellite Unit as a healthcare
provider present a closer issue. As an initial matter, we
do not agree with the trial court’s conclusion that “there
is no indication that [the Yellow Pages or IMF listings]
were designed to, or particularly likely to, attract
District of Columbia residents.” To the contrary, the
District of Columbia Yellow Pages, by their very design,
are intended to reach District residents. The listing of
Dr. Radice at the IMF as a healthcare provider, on the
other hand, was not specifically designed to reach
District residents as much as to be a resource to all
employees, wherever they live.
But unlike the “extensive” weekly full-page
newspaper advertisement in The Washington Post we
considered in Shoppers Food Warehouse, 746 A.2d at
330, appellees’ entry in the Yellow Pages is simply a
listing, with only the names of the doctors, their address
and phone number in Virginia, and their medical
specialty.’ Dr. Radice’s listing at the IMF contained
7. In contrast, in Shoppers Food Warehouse, we described
the advertisement as being targeted to District consumers:
The body of the ads contained a description of the
product for sale in bold letters with the price, and
sometimes with a picture of the sale item. At the top
of the ad some additional inducement to shop at
(Cont'd)
~
1Sa
Appendix A
similar biographical and contact information, and, even
though the directory was located at the IMF’s health
unit in the District, it did not reach out to solicit patients
who lived in the District of Columbia, rather than persons
who worked at the IMF. The scale and scope of the
doctors’ advertising, in other words, did not rise to the
level of active solicitation of patients in the District we
deemed significant in Shoppers; Ms. Etchebarne-
Bourdin herself did not select Dr. Radice from either of
these sources, but on her sister’s recommendation.
See Ghanem, 624 F. Supp. at 25 n.6 (“[WJhere the
physician has not aggressively sought patients in the
forum and the plaintiff did not consult defendant as a
result of forum activities by the defendant . .., possession
of a license (and a listing in the forum jurisdiction’s
phone book) without practicing in the forum is not
sufficient to meet the due process requirements that
limit jurisdiction under all long-arm statutes.”). The
limited reach of appellees’ “advertising” activities is
underscored by the fact that although they were located
within the Washington metropolitan area, only 5.5% of
appellees’ patients were District residents. Cf Shoppers
Food Warehouse, 746 A.2d at 332 (“The Metropolitan
(Cont'd)
Shoppers appeared. ... In the middle of one of the
pages... Shoppers stated in bold letters: “No Matter
Where You Live... It’s Worth The Drive!” ... The
record before us reveals that Shoppers also placed
advertisements on television networks in the
District, as well as listed one of its stores in the
Yellow Pages....
746 A.2d at 330.
16a
Appendix A
Washington, D.C. area functions, in many respects, as a
unified legal and commercial community. Consequently,
‘when out-of-state actors avail themselves of the benefits
of contact within the forum jurisdiction,’ .. . ‘fairness
requires that they be held accountable therein for the
consequences of such activities.””). Since appellees did
not actively solicit patients in the District, but rather
maintained passive listings of contact information, it
would be unfair to infer that Drs. Gahres and Radice
should have anticipated being subject to suit in the
District of Columbia as a result of having their contact
information in Virginia listed here.
We therefore agree with the trial court that
appellees did not “transact business” in the District of
Columbia for purposes of D.C. Code § 13-423(a)(1).
C. Causing tortious injury in D.C. and “Persistent
course of conduct,” D.C. Code §$ 13-423(a)(4)
When we remanded the case in Etchebarne-Bourdin
I, we directed the trial court that, in the event it did not
find jurisdiction under subsection (a)(1), it should
“reevaluate whether the defendants caused ‘tortious
injury in the District’ resulting from ‘an act or omission
outside the District,’ in the context of the ‘nexus’
requirement as articulated in Shoppers Food
Warehouse, which applies equally to all subsections of
section 13-423(a).” 754 A.2d at 327. In its first order
dismissing the case, the trial court had found that for
purposes of subsection (a)(4), appellees had engaged in
a “persistent course of conduct” in the District of
17a
Appendix A
Columbia based on their participation in Grand Rounds
at GWU Hospital and attendance at meetings of the
Washington Gynecological! Society. Htchebarne-Bourdin
I, 754 A.2d at 326. Appellees did not contest that
determination before the trial court on remand (nor do
they do so on appeal). The trial court maintained this
determination in its order on remand, but interpreted
the statute as requiring that there must be a sufficient
connection between the claim made by appellants in
their lawsuit and appellees’ persistent course of conduct
in the District. We disagree with the trial court and
conclude that where the tortious act is alleged to have
caused injury in the District of Columbia, and the claim
arises from such act and injury, no additional nexus need
be shown between the claim and the persistent course
of conduct.
The pertinent sections of the District of Columbia
long-arm statute, D.C. Code § 13-423, provide:
(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 .. .
(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;
18a
Appendix A
(b) When jurisdiction over a person is
based solely upon this section, only a claim
for relief arising from acts enumerated in this
section may be asserted against him.
D.C. Code § 13-423(a)(4), (b) (2001) (emphasis added).
By its plain language, subsection (a)(4) contemplates
that personal jurisdiction can be exercised for “a claim
for relief [that] aris[es] from the person’s . . . causing
tortious injury in the District of Columbia by an act or
omission outside the District of Columbia... .” Jd. at
§ (a)(4). Subsection (a)(4) further requires that
jurisdiction can be exercised over appellees only if they
also have an additional contact with the District, in this
case, if they “engage[] in any other persistent conduct
...in the District of Columbia.” Jd.
There is no doubt that appellants’ claims arose out
of the doctors’ allegedly tortious acts or omissions in
Virginia, which are alleged to have caused injury to Ms.
Etchebarne-Bourdin in the District.’ But subsection (b)
8. In Etchebarne-Bourdin I, we stated that “[t]o the extent
that the pregnancy began to be imperiled at the time as a result
of the unmonitored and untreated physical impact on October
29, 1990, Ms. Bourdin’s original injury occurred while she was
in the District of Columbia.” 754 A.2d at 327-28. We explained
this was because “the triggering event, the automobile collision,
occurred in the District of Columbia, and that the first time
that the doctors were negligent arguably was when they failed
to advise her properly when she called them from the District.”
(Cont’d)
19a
Appendix A
of the long-arm statute also appears to require an
independent “nexus requirement,” and provides that
“only a claim for relief arising from acts enumerated in
this section may be asserted against [defendant].” The
issue before us is whether, specifically in connection with
jurisdiction grounded on subsection (a)(4), the “acts
enumerated” that are referred to in subsection (b) for
which a nexus must be shown are the acts “causing
tortious injury in the District of Columbia,” or also
include the further limiting requirements, such as
“engag[ing] in any other persistent conduct .. . in the
District of Columbia.” Jd. at § (a)(4). As we explain below,
we conclude that, for purposes of subsection (a)(4),
subsection (b)’s nexus requirement is subsumed in the
requirement that the “claim for relief aris[e]” from an
(Cont’d)
Id. at 327 (emphasis added). We based this inference on the
guidelines that appellees’ medical practice had in place at the
time the seven-months-pregnant Ms. Etchebarne-Bourdin
called to say she had been in a car accident. The doctors’ office
guidelines for screening telephone calls provide that “liJf an
OB patient is involved in an accident or injured in any way, she
must be examined in an emergency room or our office
immediately.” These instructions suggest that if a patient is
not seen immediately after an accident, there is a possibility
that the fetus or the pregnant woman might suffer some injury.
The trial court accepted our analysis on remand, and
appellees did not contend otherwise on remand nor have they
done so on appeal. But even if they had, this would be a disputed
fact that would have to be resolved in favor of appellants.
See Reuber, 242 U.S. App. D.C. at 383, 750 F.2d at 1052.
20a
Appendix A
act or omission outside the forum that “caus| es] tortious
injury in the District of Columbia.” D.C. Code § 13-423
(a)(3).
Although the language of the statute could be read
literally to require a further nexus with the claim, we
think it would be redundant when a direct link is already
established between the tortious conduct outside the
District and the resulting injury within the jurisdiction
on which the claim is based. As we have observed
with respect to personal jurisdiction grounded on
“transacting business” under § 13-423(a)(1), “[t]he
limitation in § 13-423(b) that the claim for relief must
arise from the transaction of business in the District of
Columbia is meant to prevent the assertion of claims in
the forum state that do not bear some relationship to
the acts in the forum stated relied upon to confer
jurisdiction.” Cohane v. Arpeja-California, Inc., 385
A.2d 153, 158 (D.C. 1978) (citation omitted). This narrow
reading of subsection (b)’s nexus requirement as a due
process safeguard is consistent with “Congress’s intent
to provide the District of Columbia with a long arm
statute equivalent in scope to those already in effect in
Maryland and Virginia,” the courts of which had
interpreted their statutes to “permit the exercise of
personal jurisdiction over nonresident defendants to the
extent permitted by the due process clause of the United
States Constitution.” Hnvtl. Research Int’l, Inc. v.
Lockwood Greene Eng’r, Inc., 355 A.2d 808, 810-11 (D.C.
1976).
2la
Appendix A
The provenance of the District’s long-arm statute
also informs our understanding that the additional
activities listed in subsection (a)(4) are “plus factors”
intended to ensure that there are minimum contacts with
the forum sufficient to satisfy due process concerns. The
District of Columbia’s long-arm statute is modeled after
the Uniform Interstate and International Procedure
Act. See Cohane, 385 A.2d at 159 (citing Founding
Church of Scientology, Etc. v. Verlag, 175 U.S. App. D.C.
402, 405, 5386 F.2d 429, 432 (1976)). The Commissioners’
Note accompanying subsection (a)(4) of the uniform act
states that it “authorizes the exercise of jurisdiction
when the tortious act or omission takes place without
the state but the injury occurs within the state and there
is some other reasonable connection between the state
and the defendant.” 9B U.L.A. 310 (1966)
(Commissioners’ Note), quoted in Murgoles v. Johns,
157 U.S. App. D.C. 209, 213, 483 Fi2d 1212, 1216 (1973)
(emphasis added). In drafting the uniform act, it was
the Commissioners’ intent to “require[ ] something more
than the in-forum impact at issue in the litigation, to
exclude cases in which that impact is an isolated event
and the defendant otherwise has no, or scant, affiliations
with the forum.” Steinberg v. Int'l Criminal Police Org.,
217 U.S. App. D.C. 365, 369, 672 Kh2d 927, 931 (1981)
(citing 13 U.L.A. at 468-69 (1980) (Commissioners’
Comment)); see Founding Church of Scientology, 175
U.S. App. D.C. at 405, 5386 F.2d at 432.
22a
Appendi x A
In Crane v. Carr, 259 U.S. App. D.C. 229, 814 F.2d
75% (1987), a case in which a District resident brought
libel and “false light” actions against the New York
Zoological Society (“NY ZS”) for allegedly defaming him
in a letter, the court reversed the trial court’s dismissal
of a suit against NYZS for lack of personal jurisdiction.
Id. at 234-35, 814 K2d at 763-64. The court held that
the “persistent course of conduct” or “plus factor”
required by subsection (a) (4) of the D.C. long-arm
statute need not be related to the claim. /d. at 234, 814
I2d at 763. Noting that NYZS’ letter, sent to Belize,
was the allegedly tortious act outside the District that
caused injury to the plaintiff who resided in the District,’
the court remanded the case to allow discovery on the
extent of NYZS’ contacts with the District. See ad. at
235, 814 I.2d at 764. In doing so, then-Judge Ruth Bader
Ginsburg noted:
To recapitulate, under (a)(4), the act outside/
impact inside the forum is the basis for
drawing the case into the court, but because
the harm-generating act (or omission)
occurred outside, the statute calls for
something more. The “something more” or
“plus factor” does not itself supply the basis
for the assertion of jurisdiction, but it does
serve to filter out cases in which the inforum
9. In defamation actions, the injury is deemed to occur
where the defamed person is located. See, e.g., Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 780, 104 S, Ct. 1473, 79 L. Ed. 2d
790 (1984).
23a
Appendix A
impact is an isolated event and the defendant
otherwise has no, or scant, affiliations with the
forum.
Id. at 234, 814 F.2d at 763."
We agree with and adopt the court’s analysis in
Crane. The enumerated acts, from which the elaim must
“arise,” D.C. Code § 18-423(b), are the specific acts (e.g,
transacting business, contracting to supply services,
having an interest in real property) or impact in the
forum (causing tortious injury) that could result in an
individual being subject to personal jurisdiction in our
courts. The claim need not arise, however, from the
“plus factors” that are imposed by subsection (a)(4) on
those claim-related acts or omissions. They are an
additional due process safeguard, such as the
requirement of “persistent course of conduct,” to ensure
that the party being haled into this jurisdiction’s courts
has more than a “secant” connection to the forum. /d.
A useful comparison is provided by subsection (a)(3),
which establishes personal jurisdiction over a non
resident defendant if both the tortious act and the injury
10. See also Steinberg, 217 US. App. D.C, at 869, 672 Ted at
931 (interpreting D.C. Code §& 13-428, and reversing the trial
court’s order dismissing the case for lack of personal jurisdiction
where plaintiff alleying defamation resided in, and claimed
injury in, the District, reasoning that while Interpol’s reyular
transmissions from France to U.S. yovernment offices in the
District did “not add up to ‘doing business’ here, [they] suffiee|d]
to supply the ‘something more’ subsection (a)(4) requires”)
24a
Appendix A
oceur in the District. In such a situation, the statute
does not require additional “plus factors” to meet the
due process minimum contacts requirement.
Applying the correct interpretation of D.C. Code
§ 13-423(a)(4), that we now announce, the trial court had
personal jurisdiction over appellees to consider
appellants’ claims of medical malpractice for injury
suffered in the District of Columbia as a result of an
allegedly tortious act or omission outside this forum.
We reverse the judgment of the trial court
dismissing the action for lack of personal jurisdiction
over appellees and remand the case for further
proceedings consistent with this opinion.
So ordered.
25a
APPENDIX B — ORDER OF THE SUPERIOR
COURT FOR THE DISTRICT OF COLUMBIA,
CIVIL DIVISION DATED JULY 29, 2005
SUPERIOR COURT FOR THE
DISTRICT OF COLUMBIA
CIVIL DIVISION
C.A. No. 12352-93
Cal. 12
Judge Kramer
ALICIA M. ETCHEBARNE-BOURDIN AND
MAURICIO BOURDIN, ADMINISTRATORS OF
THE ESTATE OF BABY GIRL ETCHEBARNE-
BOURDINE, et al.,
Plaintiffs
V.
LUIS C. RADICE, M.D.., et al.,
Defendants
ORDER
This matter is before the court on remand from the
Court of Appeals for reconsideration of the court's
Amended Order of June 6, 1996 (hereafter “Amend.
Ord.”) granting the defendants’ motion to dismiss for
lack of personal jurisdiction (referred to hereafter as
26a
Appendix B
the “remand decision”).' See Etchebarne-Bourdin v.
Radice, 754 A.2d 322, 323 (D.C. 2000). In the remand
decision, the Court of Appeals directed this court to
reconsider whether the District of Columbia can exercise
personal jurisdiction over the defendants under the
provisions of the District’s long-arm statute which
permit foreign defendants to be sued if they “transact{ |
any business” in the District of Columbia, D.C. Code
Section 13-423(a)(1), or “causle] tortious injury in the
District of Columbia by an act or omission outside the
District of Columbia,” Section 13-423(a)(4). Htchebarne-
Bourdin, 754 A.2d at 327-28.
Both sides have had an opportunity to supplement
their previous filings to address the issues to be resolved
on remand. With the guidance provided by the remand
decision, the court has reconsidered its previous
conclusions. In doing so, the court has relied on the
factual findings set out in its original 62-page Amended
Order dismissing the complaint for lack of personal
jurisdiction (a copy of which is attached hereto). As the
Court of Appeals noted, “The facts of the underlying
case related to the question of personal jurisdiction are,
1. Unfortunately, this matter appears to have been lost in
the transition from the Court of Appeals, to the Civil Division,
to this court. At one point following the Cuurt of Appeals
decision, the court’s staff attempted to ascertain the status of
the case and was informed that the matter was no longer
pending. With that information, the court concluded that the
matter must have been resolved between the parties. Only when
counsel called chambers to determine the status of the case did
the court learn that the case was unresolved.
27a
Appendix B
for the most part, undisputed.” /d. at 324. Rather, it is
“the legal consequences of those facts with respect to
personal jurisdiction” with which the parties disagree.
Id.
FACTUAL BACKGROUND
The Defendants
As set forth in the court’s Amended Order, the
defendants in the current case are Dr. Luis Radice, Dr.
Edward Gahres and Gahres & Radice, M.D.’s, Ltd.
(G & R, Ltd.), a professional corporation organized
under the laws of Virginia with its principal place of
business in Virginia. The doctors specialize in obstetrics
and gynecology.
In 1990, at the time of the events at issue here, both
doctors were residents of Virginia. They treated
patients solely in Virginia, either at their medical office
in Alexandria, Virginia, or at the Alexandria Hospital
— the only hospital with which they had an active
affiliation. Amend. Ord. at 10. At the urging of their
malpractice insurer, the defendants had closed their
District of Columbia office two years before the events
at issue here and had given up their admitting privileges
at District hospitals. Amend. Ord. at 9-10.
2. There was evidence that the defendants have actually
sought to discourage the business of District residents insured
by Blue Cross/Blue Shield of the National Capitol Area
(BCBSNCA) by failing to disclose their D.C. medical
licenses on insurance forms they submitted to BCBSNCA.
See discussion, Amend. Order at 23-24.
28a
Appendix B
From January 1990 to January 1992, only 205, that
is, 5.5 % of their 3,742 patients were D.C. residents.
Amend. Ord. at 10. Most of the defendant’s patients who
were D.C. residents at that time were a part of the
group that formerly had gone to their office in the
District and had no objections to traveling to the
defendant’s Virginia office. Amend. Ord. at 20. Other
District of Columbia patients had sought them out for
treatment as a result of “word of mouth.” Amend. Ord.
at 20.
At the time of the events leading to this lawsuit, both
Dr. Gahres’ and Dr. Radice’s names were listed in the
Yellow Pages of the District of Columbia phone book.
Amend. Ord. at 21-22. Those listings provided their
names, the area of their medical specialty, and their
Virginia office address and phone number. /d. In
addition, Dr. Radice was listed at the satellite unit of
the International Monetary Fund’s (IMF’s) Health
Service. Amend. Ord. at 21. That IMF listing gave his
office address in Virginia and related that he had
graduated from medical school in 1957, that he was
fluent in Spanish, that he was in practice with Dr. Gahres,
that he was affiliated with the Alexandria Hospital, and
that he required payment at the time of the office visit.
Amend. Ord. at 21. There is no claim that any plaintiff
saw either the Yellow Pages or IMF listing. Amend. Ord.
at 21-22.
The record indicated that from September 1991 and
to February 1994, a total of thirty months, Dr. Gahres
attended Grand Rounds at George Washington Hospital
29a
Appendix B
in the District of Columbia fifty-four times (1.8 times a
month), and Dr. Radice attended Grand Rounds thirty-
two times (1.1 times a month). Amend. Ord. at 16.
Although never clearly described by the plaintiffs, it
appears that Grand Rounds involved reviewing case
histories of patients, as well as topics related to the
practice of gynecology and obstetrics. Amend. Ord. at
14-16. After considering the information about Grand
Rounds, the court concluded that Dr. Gahres and Dr.
Radice attended Grand Rounds for the sole purpose of
continuing medical education. There is no indication that
they received any remuneration from this activity, nor
that they taught students or evaluated patients at Grand
Rounds. Amend. Ord. at 14-15.
Both Dr. Gahres and Dr. Radice were long-time
members of the Washington Gynecological Society. The
group held about six to eight meetings a year, usually in
a location within the District of Columbia. Both Dr.
Gahres and Dr. Radice tried to attend regularly, which,
assuming they attended seven times a year and that all
of those meetings were in the District, would average
out to 0.6 times a month. As with Grand Rounds, they
attended these meetings for the purpose of continuing
medical education. The Society’s members came from
Virginia and Maryland, as well as from the District of
Columbia. Amend. Ord. at 20.
Combining the visits to the District of Columbia for
Grand Rounds and the Washington Gynecological
Society, and assuming that each doctor made seven of
the eight meetings, Dr. Gahres came into the District of
30a
Appendix B
Columbia for continuing medical education purposes 2.4
times a month and Dr. Radice 1.7 times a month. There
was no evidence provided to the court that either doctor
conducted these activities as an agent of G&R, Ltd.
The Plaintiffs
At all times here relevant, the plaintiffs have been
residents of Virginia. Amend. Ord. at 4. Upon referral
from her sister-in-law, Alicia Etchebarne-Bourdin
became a patient of Dr. Gahres and Dr. Radice in May
1990 when she was seven weeks pregnant. Amend. Ord.
at 5. On October 29, 1990, as Mr. and Mrs. Bourdin drove
from the parking lot of the International Monetary Fund
building in the District of Columbia, their place of
employment, they were rear-ended by another vehicle.
Amend. Ord. at 6.
After this accident, Mrs. Bourdin returned to her
office in the IMF and ealled the doctors’ office in
Virginia, speaking with a receptionist. Amend. Ord. at
6. In response to Mrs. Bourdin’s inquiry about whether
to come in immediately for a check-up, the receptionist,
after checking with someone else in the office,* informed
3. The staff members in the office that day were the
receptionist, an insurance secretary and a nurse. Dr. Radice
was only present for a portion of the day, and there was nothing
that established that he was there at the time of the phone call.
Dr. Gahres was not present in the office at all on that date. Thus,
while the Complaint alleged that “Defendants informed
plaintiff that she could ‘wait’ until her next pre-natal visit, then
(Cont'd)
3la
Appendix B
Mrs. Bourdin that she could wait until her next
scheduled office visit on November 2nd. Amend. Ord.
at 6. Mrs. Bourdin saw Dr. Gahres on November 2nd
and Dr. Radice on November 9th and 16th. Amend. Ord.
at 5-6. On November 16th, Mrs. Bourdin was
hospitalized and the next day gave birth to a stillborn
baby. Amend. Ord. at 6-7. Plaintiffs allege that, in
treating Mrs. Bourdin after the accident, the doctors
failed to meet the standard of care, and that the failure
led to the death of the baby and to injuries suffered by
Mr. and Mrs. Bourdin and the Estate.
Questions on Remand
In its Amended Order, the court examined four
statutory provisions which the plaintiffs asserted gave
the District of Columbia grounds for asserting
jurisdiction over the defendants for this lawsuit: D.C.
Code Section 13-334, the “doing business” provision,
that permits the exercise of jurisdiction over corporate
defendants for all purposes, sometimes referred to as
the “general jurisdiction” provision, and three
provisions of Section 13-423, the D.C. long-arm statute,
that the plaintiffs alleged provided a basis for “specific
jurisdiction:” (1) Section 13-423(a)(1) “transacting any
(Cont'd)
scheduled for November 2, 1990, to be examined by Defendants
Radice and Gahres,” the court found no evidence that either
doctor had so informed Mrs. Bourdin, nor that either had
directed the receptionist to so inform her. Amend. Order at 6.
Of course, the receptionist would have been an agent of
defendant G&R, Ltd.
32a
Appendix B
business in the District of Columbia;” (2) Section 18-
423(a)(3), “causing tortious injury in the District of
Columbia by an act or omission in the District of
Columbia,” and (3) Section 13-423(a)(4), “causing tortious
injury in the District of Columbia by an act or omission
outside the District of Columbia if [the defendant]
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.”
In its Amended Order, the court concluded that none
of those provisions provided a basis to assert jurisdiction
over the defendants, and therefore granted the
defendants’ motion to dismiss for lack of personal
jurisdiction. The plaintiffs appealed and the Court of
Appeals remanded the case to this court.
The remand decision raised no issue with respect
to the court’s conclusion that jurisdiction did not lie
under Section 13-334’s “doing business” provision, nor
under Section 13-423(a)(3)’s provision for “causing
tortious injury in the District of Columbia by an act or
omission in the District of Columbia.” Rather, in light of
the decision issued after the court’s Amended Order in
the case of Shoppers Food Warehouse v. Moreno, 746
A.2d 320 (D.C. 2000), discussing at length the principles
of personal jurisdiction in the District of Columbia, the
Court of Appeals remanded the matter for the court’s
reconsideration of (1) its conclusion that the defendants
were not “transacting business” in the District of
33a
Appendix B
Columbia, (2) its related conclusion that, in any event,
the claims for relief did not “arise out of” any business
that the defendants might be transacting here,
see Section 13-423(b); and (3) “whether the defendants
caused ‘tortious injury in the District resulting from ‘an
act or omission outside the District.” /d. at 326-327. The
court begins by re-evaluating whether the defendants,
on the factual record provided, were “transacting
business” here, and, if so, whether their claims can be
said to have “arisen out of” that business.
LEGAL CONCLUSIONS
Section 13-423(a)(1): Transacting Business
Subsection 13-423(a)(1) of the D.C. long-arm statute
reads:
(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.
D.C. Code § 13-423(a)(1)(2005). Thus, two issues are
presented by an assertion of jurisdiction under Section
13-423(a)(1): (1) whether a defendant is “transacting
business” in the District of Columbia, and (2) if so,
whether the claim asserted “arises from” the
34a
Appendix B
transaction of that business. The limiting “arising from”
language is found not only in the introductory phrase
of the Long-Arm Statute, but also in Section 13-423(b),
which reads: “When jurisdiction over a person is based
solely upon this section, only a claim for relief arising
from acts enumerated in this section may be asserted
against him.” D.C. Code § 13-423(b) (2005).
In analyzing whether the “transacting business”
provision provided a basis of jurisdiction in this instance,
the court, in its Amended Order, concluded that the
“only conceivably relevant contacts for purposes of
Section 13-423(a)(1) would be (1) the phone call from
Mrs. Bourdin to the defendants’ Virginia office on the
day of the accident, (2) the listing of the doctor’s name
in the Yellow Pages and at the IMF Health Center, and
(3) the D.C. medical licenses held by both Dr. Gahres
and Dr. Radice.” Amend. Ord. at 56.4 Having examined
each of those factors, and noting the weakness of each
as a basis to find that the defendants were “transacting
business” in the District of Columbia, the court did not
ultimately decide whether, singly or combined, they
would be sufficient to conclude that any of the
defendant’s were “transacting business” here. Rather,
the court turned to what it considered the easier issue
4. This conclusion was reached after the court had
examined extensive factual assertions made by the defendants
and found them to be without support in the record. As the
Court of Appeals noted, “The facts of the underlying case
related to the question of personal jurisdiction are, for the most
part, undisputed.” Hichebarne-Bourdin, 754 A.2d at 324.
3Sa
Appendix B
of whether, in any event, the claims asserted here could
be said to have “arisen from” those activities.°
In that regard, the court concluded that because
Mrs. Bourdin was referred to the doctors by her sister-
in-law, rather than as the result of any of the factors
enumerated as purporting to show that the doctors were
soliciting D.C. residents to be their patients, they could
not show the necessary “arising from” nexus. Amend.
Order at 60-61. It also found that even if the IMF listing
had been the impetus for Mrs. Bourdin seeking out the
doctors, “the court would find the connection between
the listing and Mrs. Bourdin’s claims too tenuous and
insignificant for a finding the sufficient nexus existed.”
Amend. Ord. at 56-61.
The court separately found pursuant to Section 13-
423(a)(4) that the defendants were “engagling]| in [a]
persistent course of conduct” in the District of Columbia
through their participation in Grand Rounds and the
meetings of the Washington Area Gynecological Society,
a finding that was not challenged on appeal.
See Etchebarne-Bourdin, 754 A.2d at 325. The court
went on to find, however, that the plaintiffs could not
make the showing required by that provision that
defendants had “caus[ed] tortious injury in the District
of Columbia.” In the remand decision, Judge Ruiz invites
5. The court notes that the remand decision reflects a
misunderstanding that “the trial court... concluded that ... the
individual doctors ‘transacted business’ in the District ... . =
Etchebarne-Bourdin, 754 A.2d at 323.
sha
Appendix B
the court to examine whether combining the “persistent
course of conduct” factors that the court found to exist
under Section 13-423(a)(4) with the “only conceivably
relevant contacts” bearing on “transacting business”
under Section 13-423(a)(1) would cause the court to
conclude that the defendants were “transacting busine:
in the District,” an examination the court now
undertakes. See id. at 326.
As an initial matter, the court notes that it does not
construe a “persistent course of conduct” as the
equivalent of “transacting business.” D.C, Code § 13
423(a)(4) provides for jurisdiction over a defendant that
caused injury in the District of Columbia if that
defendant has engaged in three possible types of
conduct here: (1) “regularly dofing| or solicitling|]
business, (2) obtaining “substantial revenue from poods
used or consumed, or services rendered” here, or
“engagling| in any other persistent course of conduct”
here. While the first and second activities appear to
contemplate matters of a commercial nature, the third
the persistent course of conduct does not.
Accordingly, the court believes that there is no rational
basis for lumping in non-commercial factors related to
a possible persistent course of conduct with factors
relating to “transacting business.
994
6. As the court wrote in llolde rv llaarmann A& flevmer
Corp., 779 A.2d 264 (D.C. 2001)
(I}f sufficiently close contacts of any kind between
the nonresident defendant and the District of
(Cont'd)
t/a
Appendix Bh
In this case, the finding of “persistent course of
conduct” was based upon matters that were not of a
commercial nature, although tangentially related
thereto the continuing: medical education activities
of the doctors that took place here in the District of
Columbia. Many defendants, however, who engage in a
consistent course of conduct here are involved with
activities that have not the slightest commercial]
connection. kxamples would be baseball tickets, opera
tickets, shopping, or school that would bring a defendant
into the city a number of times each month. This court
cannot imagine cumulating such contacts with factor:
bearing on “transacting business” to determine whether
jurisdiction exists. Having said that, the court will
examine the totality of the contacts that the court found
to exist under both the “persistent course of conduct”
test and the “transacting business” test to determine if
there is a sufficient basis for concluding that the
defendants were “transacting: business” in the District
of Columbia.
In considering whether the phone call, the Yellow
Payes, the IMF listings and the medical licenses were
(Cont'd)
Columbia were sufficient to allow the Superior Court
to exercise personal jurisdiction over [a] defendant
under the “transacting business” prong: of section
13-42:3(a)(1) - then the other prony of the lony arm
statute would be superfluous. See D.C. Code § 1%
423(a)(2) (7)
fd. at 270 n.5 (emphasis in original)
38a
Appendix B
sufficient to find that the defendants were “transacting
business” in the District of Columbia, the court reviewed
the available case law at that time, particularly from the
District of Columbia, and briefly reviews below what it
concluded with respect to each of those contacts:
Phone Call: With respect to the phone call that
Mrs. Bourdin made to the doctors’ office in Virginia on
the day of the accident, the court found that the case
law would not support its inclusion in the mix of contacts
supporting “transacting business” because it was Mrs.
Bourdin who initiated that contact, not either doctor or
any other agent of G&R, Ltd. Amend. Ord. at 56-58. In
so finding, the court relied upon Environmental
Research Int'l, Inc. v. Lockwood Greene Engineers, Inc.,
355 A.2d 808, 812 (D.C. 1976), where the Court of Appeals
wrote: “[A] plaintiff cannot rely on its own activities,
rather than those of a defendant, to establish the
requisi.2 minimum contacts for personal jurisdiction.”
7. Moreover, the court found insufficient evidence that
either Dr. Radice or Dr. Gahres spoke with the receptionist before
she gave advice to Mrs. Bourdin.
8. The court noted the longstanding case law in this
jurisdiction that any negligence that might have taken place
on that phone call occurred in Virginia, where the doctors’ office
was located, not in the District of Columbia. Amend. Ord. at 38-
41 (citing Margoles v. Johns, 157 U.S. App. D.C. 209, 214-215,
483 F.2d 1212, 1217-1218 (1973). In Margolis, the D.C. Circuit,
confronted with a defamation claim arising from a phone call
that the out-of-jurisdiction defendant placed to the District of
Columbia, found that the alleged defamation could not provide
(Cont'd)
39a
Appendix B
This bedrock principle was reiterated more recently
in Shoppers Food Warehouse, 746 A.2d at 325. There,
Judge Reid cited to the Supreme Court’s language in
Hanson v. Denckla, 357 U.S. 285 (1958): “The unilateral
activity of those who claim some relationship with a
nonresident defendant cannot satisfy the requirement
of contact with the forum State.” Jd. at 253. See also
Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945).°
(Cont'd)
a basis for jurisdiction under Section 13-423(a)(3) of the long-
arm statute because the injury resulting from a phone call is
deemed to occur where the defendant is located. 483 F.2d at
1217-1219. Accord, Tavoulareas v. Comnas, 232 U.S. App. D.C.
17, 18-19, 720 F.2d 192, 193-194 (1983); Security Bank v. Tauber,
347 F.Supp. 511, 516-517 (D.D.C. 1972).
9. On the other hand, a defendant who makes a e¢all into
the District of Columbia to retain an attorney may find himself
subject to suit here when he does not later pay his bill. In Digital
Broad.Corp. v. Rosenman & Colin, 847 A.2d 384 (D.C. 2004), the
Court of Appeals, relying on Fisher v. Bander, 519 A.2d 162
(D.C. 1986), held that a defendant who had retained a D.C. law
firm by phone is subject to suit here beeause (1) “the District of
Columbia kas a substantial interest in providing a forum to
redress wrongs inflicted upon its citizens by clients who fail to
pay for professional services supplied in the District of
Columbia by a District of Columbia Law firm;” (2) “the client
sought the special benefits of doing business with a Washington,
D.C. law firm because of its expertise in regulatory matters;”
and (3) “where an out-of-state client employs a District of
Columbia attorney to perform services in the District of
Columbia, it can hardly be said that litigation of a fee dispute
with that same attorney in the same forum poses any undue
burden upon the client.” Digital Broad.Corp., 847 A.2d at 390-
391 (emphasis added).
40a
Appendix B
Thus, the phone call cannot go into the mix of
jurisdictional factors for “transacting business”
purposes.”
Medical Licenses: With respect to Dr. Gahres’ and
Dr. Radice’s District of Columbia medical licenses, the
defendants had asserted that such medical licenses were
necessary to treat patients who live or work in the
District of Columbia, because the doctors would
otherwise not be able to have phone conversations with
their patients in the District of Columbia. Amend. Ord.
at 58. The plaintiffs provided no support for this
proposition, however, and the court rejected their
argument. See Amend. Ord. at 58-59.
In so doing, the court relied upon Ghanem v. Kay,
624 F. Supp. 23, 25 (D.D.C..1984), which adopted the
reasoning of Lebkuecher v. Loquasto, 389 A.2d 148, 145
(Pa. Super. Ct. 1978), holding that “it is the actual
practice of a profession ... and not the possession of
the right to practice that brings a person within the
jurisdiction of a... court.” Ghanem concluded:
[WJhere the physician has not aggressively
sought patients in the forum and the plaintiff
did not consult the defendant as a result of
forum activities by the defendant, possession
of a license (and a listing in the forum
10. The impact of a phone eall on jurisdictional issues is
also discussed at length in connection with the issue of whether
the District was the situs of injury by the defendants. See, infra,
at 37-41.
4la
Appendix B
jurisdiction’s phone book) without practicing
in the forum is not sufficient to meet the due
process requirements that limit jurisdiction
under all long-arm statutes.
624 F Supp. at 25 n.5. This does not appear to be an
issue on remand, and the court again concludes that this
is not an ingredient to add to the jurisdictional mix.
Yellow Pages and IMF Listings: The above quote
from Ghanem 7s equally applicable to the significance
of the Yellow Pages and IMF listings. Just as with the
medical licenses, there is no indication that the
defendants “aggressively sought patients in the forum.”
Id. Their Yellow Pages listing was limited to the names
of Dr. Gahres and Dr. Radice, the address and phone
number for their Virginia office, and the area of their
medical specialty. Dr. Radice’s listing at the IMF Health
Center was much the same, adding only his year of
graduation from medical school, his proficiency in
Spanish, his affiliation with Dr. Gahres, his affiliation
with the Alexandria Hospital, and that his requirement
that payment be made at the time that services are
rendered. Such listings are passive, not aggressive, and
there is no indication that they were designed to, or
particularly likely to, attract District of Columbia
residents as patients. Indeed, neither the Yellow Pages
listing ner the IMF listing included the fact the doctors
were admitted to practice in the District of Columbia.
Amend. Ord. at 34.
42a
Appendix B
Moreover, support for the conclusion that the
doctors were not attempting to attract District of
Columbia patients is provided by the low percentage of
their mess who were District of Columbia residents
— only 5.5%, or 205 out of 3,742. Indeed, there is
evidence that they were actively attempting to
discourage District of Columbia patients. The record
shows that on a form filled out by Dr. Gahres for Blue
Cross/Blue Shield of the National Capitol Area
(BCBSNCA) in July 1990, four months before the events
at issue here, he crossed off his D.C. Medical License
Number and inserted the words “no practice in D.C.” A
second copy of that form contains the following notation:
“No longer practices in D.C.; will send Virginia license
only per Dr. Gahres 8/30/90.” This is despite the fact
that Dr. Gahres had in fact not surrendered his license
to practice in D.C. Similarly, in 1992, both Dr. Gahres
and Dr. Radice listed only their Virginia licenses on the
BCBSNCA Participating Provider Agreements, in
contrast to the 1985 Agreements, where both doctors
listed both licenses. Indeed, when asked by the plaintiffs
during discovery whether any of the defendants’ D.C.
patients were referred by BCBSNCA, Dr. Radice
responded that they were not. Amend. Ord. at 23-24.
There is ample authority in the District of Columbia
and from other jurisdictions that a simple listing in the
Yellow Pages is insufficient for the exercise of
jurisdiction under Section 13-423(a)(1). For example, in
Cornwell v. C.1.T. Corp., 373 F. Supp. 661, 663 (D.D.C.
1974), the court found that a defendant’s listing of an
address and telephone number in the District of
43a
Appendix B
Columbia telephone directory, particularly when the
listing showed the address to be in Virginia, did not
provide the requisite contacts. See also Blair v.
Norwegian Caribbean Lines, 622 F. Supp. 21, 23-24
(D.D.C. 1985). In Kennedy v. Ziesmann, 526 F. Supp.
1328 (E.D. Ky. 1981), a case involving a malpractice suit
by a Kentucky resident against an Ohio doctor, the court
wrote:
Nor may the mere carrying of a telephone
listing, without additional advertising or other
solicitation, amount in and of itself to regular
solicitation of business such as to make a
physician situated as is the defendant subject
to suit under the long-arm statue of a
neighboring state where the directory is
distributed.
Kennedy, 526 F. Supp. at 1331. Indeed, in Lebkuecher,
389 A.2d at 145, the court held that listing oneself in a
Pennsylvania classified telephone directory and
possessing a license to practice medicine in Pennsylvania
were insufficient contacts to exercise jurisdiction over
an out-of-state doctor who was not aggressively seeking
out patients in Pennsylvania. See also, O’Brien v.
Hackensack Univ. Med. Ctr, 305 A.D.2d 199, 201 (NY.
App. Div. 2003)(absent overt solicitation in New York, a
listing in a New York telephone book and a New York
medical license did not provide a basis for jurisdiction
over a New Jersey medical center); Carte v. Parkoff, 152
A.D.2d 615, 616-617 (N.Y. App. Div. 1989)(listing by a
New Jersey dentist in a New York telephone directory
insufficient to show “transacting business”).
44a
Appendix B
Moreover, while the trial judge in Shoppers Food
Warehouse, supra, at 18-20, pointed generally to
Shoppers’ Yellow Pages advertising, as well as its
advertising in The Washington Post as contacts that
would support a finding iat Shoppers was ‘transacting
business’ in the District, see 746 A.2d at 324, the en bane
decision did not. In articulating the holding of the case,
Judge Reid wrote:
Consistent with the trial court’s conclusion,
we hold that the trial court properly exercised
jurisdiction in this matter because appellant,
through its extensive advertising activity in
a major District of Columbia newspaper
purposefully and deliberately solicited District
residents as customers for its nearby
Maryland and Virginia stores and thus
transacted business in the District.
746 A.2d at 336 (emphasis added). This court econstrues
the absence of mention of the Yellow Pages in
announcing the holding of the en banc court in Shoppers
Food Warehouse as a signal that the question of whether
a listing in the Yellow Pages is sufficient to constitute
“transacting business” was, at the very least, left to
another day."
11. The court also notes that there is no description of what
type of advertising Shoppers might have been doing in the
Yellow Pages. Thus, there is no basis for comparison with the
facts here.
45a
Appendix B
In any event, the difference between the facts in
this case and the facts of Shoppers Food Warehouse
could not be more stark.'* The current case involves
12. Judge Reid set out the facts underlying the Shoppers
Food Warehouse decision in detail. As explained by Judge Reid,
they were as follows:
Shoppers regularly solicits customers for
its Maryland and Virginia stores by placing
advertisements in the District of Columbia
market through The Washington Post, the major
newspaper headquartered in Washington, D.C., and
other communications media. The record shows
extensive Shoppers’ weekly advertisements in The
Washington Post from October 6 through December
1, 1993, including the November 1993 date on which
Ms. Moreno slipped and fell in a Shoppers’ store.
The weekly ads appeared with the bold caption
“SHOPPERS TOTAL WAREHOUSE PRICES...
EVERYDAY! FEATURE PRICES IN EFFECT 7
FULL DAYS!” The body of the ads contained a
description of the products for sale in bold letters
with the price, and sometimes with a picture of the
sale item. At the top of the ad some additional
inducement to shop at Shoppers appeared. For
example, the October 13 and November 3, 1993 ads
for the periods October 13 through 19, and
November 38 through 9, 19913, included an
opportunity to win tickets to a Washington Redskins
football game with an inducement to “see store for
details.” The ad for November 10 through 16 also
offered an opportunity to meet several football
players from the Redskins’ team on November 23,
1993. In the middle of one of the pages containing
(Cont'd)
46a
Appendix B
small listings in the Yellow Pages and at the IMF Health
Center. Shoppers Food Warehouse involved the flooding
of the Washington area with ads in The Washington Post
and on the broadcast networks, describing and showing
pictures of their products, touting their low prices and
offering inducements such as Reds‘ins tickets and free
turkeys to lure customers to its stores in Maryland and
Virginia (Shoppers having no store in the District of
Columbia). One advertisement even said: “No Matter
Where You Live... It’s Worth the Drive!” 746 A.2d at
330 (emphasis in original).
(Cont'd)
the October 1, 1993 ad, Shoppers stated in bold
letters: “No Matter Where You Live ... It’s Worth
the Drive!” The November 17 through November
25, 1993 ad pointed to the possibility that customers
“could get a free Thanksgiving turkey or ham” if
they collected enough coupons; in addition, the ad
offered holiday postage stamps with a savings of
ten cents on each book of twenty stamps.
All of Shoppers’ advertisement in The
Washington Post, including those covering the
relevant week listed the addresses of its numerous
stores located in Maryland and Virginia, including
those in Takoma Park, Maryland. The record before
us reveals that Shoppers also placed advertisements
on television networks in the District, as well as
listed one of its stores in the Yellow Pages of the
C & P Telephone book in 1993-1994.
746 A.2d at 330 (emphasis in original).
47a
Appendix B
Shoppers was clearly out to “solicit” business from
residents of the District of Columbia. For that reason, it
is hardly surprising that it was found to be “transacting
business” in the District. As Judge Reid wrote in
Shoppers Food Warehouse, that grocery chain conducted
“purposeful, affirmative activity within the District of
Columbia by purposefully directing advertisements for
its Maryland and Virginia stores at a potential customer
base in the District of Columbia.” 746 A.2d at 331
(citation omitted). The Court of Appeals found that
“(t]lhese advertisements are not random, fortuitous,
accidental or attenuated, nor are they too trivial to cause
a consequence in the District, or too tenuous to satisfy
the minimum contacts requirement of the due process
clause.” Jd. at 331 (citations omitted).
In the present case, the defendants’ passive Yellow
Pages and IMF listings bear no similarity to the efforts
made by Shoppers to bring District of Columbia
residents into their stores. On the contrary, the evidence
in the record shows that the doctors were not looking
for patients from the District of Columbia, though the
doctors would not turn them away if they came. In any
event, with a practice and a hospital affiliation located
solely in Alexandria, Virginia, the likelihood that District
of Columbia residents would seek them out for
treatment based on these listings was small. Certainly,
the fact that the doctors were licensed in the District of
Columbia and visited the District a couple of times
monthly for medical education purposes would not
increase that likelihood. As Judge Reid explained, under
the “minimum contacts” principle, it is necessary to
4ka
Appendix B
examine the quality and nature of the nonresident
defendant’s contacts, as well as whether those contacts
are voluntary and deliberate, or only random, fortuitous,
tenuous and accidental. Jd. at 329. Examining the
contacts here, the court finds that the quality and nature
are not sufficient to meet the applicable test. Rather,
the contacts are superficial, trivial and tenuous."
Grand Rounds and the Washington Gynecological
Society: Following the direction of the remand opinion,
the court now turns to the issue of the significance of
13. In Wilson v. Wilson, 785 A.2d 647 (D.C. 2001), the Court
of Appeals wrote: “Even a small amount of in-jurisdiction
business activity is generally enough to permit the conclusion
that a nonresident defendant has transacted business here.”
Id. at 650 (quoting Environmental Research Int'l, 855 A.2d at
811). In Wilson, that small amount consisted of the joint
ownership and management of an office operating from a
townhouse in the District and receiving most of the income, or
at least profiting from the business activity conducted there.
This “small amount” is considerably greater than exists in the
instant case. Moreover, the Court of Appeals in Environmental
Research Int'l, supra, wrote:
[T]o recognize [the] trend |making even a small
amount of in-jurisdict.on business activity generally
enough to permit the conclusion that a nonresident
defendant has transacted business here] is not to
suggest that restraints upon jurisdictional authority
now are nonexistent, or that the inquiry into the
extent of a defendant’s contacts with the forum state
is an empty process. A meaningful assessment of
the defendant’s activities is constitutionally
mandated.
355 A.2d at 811.
49a
Appendix B
the doctors’ attendance at Grand Rounds and meetings
of the Gynecological Society, which formed the basis for
the court’s finding of a “persistent course of conduct,”
to the separate issue of whether they were “transacting
business” in the District of Columbia. In the Amended
Order, the court found that attendance at Grand Rounds
and at the Society meetings were for the purpose of
continuing medical education. Since these were not
activities directly related to their practice, nor were they
remunerative, the court concluded that they should not
be included in the “transacting business” analysis.
In so finding, the court relied upon Helicopteros
Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 418
(1984), where the Supreme Court found the fact that
the out-of-state defendant sent its employees into the
state for training simply was not significant for
jurisdictional purposes. There appears to be a scarcity
of additional authority addressing the significance of an
out-of-state defendant or its agent going into a state
for educational/training purposes. The court does note,
however, two cases: Lane v. Boston Scientific Corp., 48)
S.E.2d 753, 763 (W.Va. 1996), holding that doctors
affiliated with the University of Virginia Hospital had
not subjected themselves to West Yirginia’s jurisdiction
by entering that State for continuing medical education
seminars; and Advance Petroleum Service, Ine. v.
Cucullo, 614 So. 2d 878, 880 (La. Ct. App. 1993), holding
that a Texas lawyer was not subject to jurisdiction in
Louisiana by being licensed there, attending continuing
legal education courses there, and listing his Louisiana
Bar license on his letterhead. Although not articulated
SOa
Appendix B
in the Amended Order, in reaching this conclusion, the
court also considered the importance of continuing
medical education for doctors, and concluded that it
would be unwise to discourage the entrance into a
jurisdiction for that purpose by the threat that the
attendance could be used as a factor to sue the doctor
for malpractice in that location for treatment that took
place elsewhere.
Guidance from Shoppers Food Warehouse
While the court concludes that none of the factors
individually would be sufficient to satisfy the “minimum
contacts” requirement of the “transacting business”
provision of the District of Columbia long-arm statute,
the ultimate question is whether, in their totality, they
are sufficient. In making that determination, the court
looks to the valuable guidance provided by Judge Reid’s
comprehensive en banc opinion in Shoppers Food
Warehouse. In that opinion, Judge Reid surveyed
decisions of the Supreme Court addressing broad
jurisdictional principles, and decisions of our Court of
Appeals interpreting the “transacting business” and the
“arising from” language of Section 13-423(a)(1) and (b).
Krom those decisions, she distilled a set of seven legal
principles that provide an analytical framework for
deciding whether the activities of a non-resident
defendant meet the “minimum contacts” requirement
of the due process clause, and whether the “arising
from” requirement of Section 13-424(b) has been met
See Shoppers kKood Warehouse, 846 A.2d at 329
Sla
Appendix B
The first principle is that the “transacting business”
clause is “coextensive in reach with the personal
jurisdiction allowed by the due process clause of the
United States Constitution.” /d. Thus, an expansive
approach is required in determining whether jurisdiction
lies under this provision
Second, as Judge Reid explained, “there are no
‘mechanical tests’ or ‘talismanic formulas’ for the
determination of personal jurisdiction under Section 13
423(a)(1) and (b), and the facts of each case must be
weighed against notions of fairness, reasonableness and
substantial justice.” /d. Critical to such a weighing: is
the concept of “fair warning” or “foreseceability of suit”
that is, whether a defendant “should reasonably
anticipate being haled into court” in the location at issue.
Id. at 827-82% (citing World-wide Volkswagen Corp. v
Woodson, 444 U.S. 286, 297 (1980)). If there is
forseeability, then a business “can act to alleviate the
risk of burdensome litigation by procuring insurance,
passing the expected costs on to customers, or, if the
risks are too great, severing its connection with the
State.” Jd. at 827 (quoting World wide Volkswagen
Corp., 444 U.S. at 297).
Third, as Judge Reid noted, “under the due process
Clause, the minimum contacts principle requires
examination of the quality and nature of the nonresident
defendant’s contacts with the District and whether those
contacts are voluntary and deliberate or only random,
fortuitous, tenuous and aceidental.” Jd. at 329
“A plaintiff's unilateral activity in relation to a defendant
S2a
Appendix B
cannot alone sustain personal jurisdiction under the
‘minimum contacts’ theory.” /d. at 325 (citing Hanson,
orn
oo J . t 253).
The fourth principle articulated by Judge Reid is
that “where a nonresident defendant has purposefully
availed itself of the benefits and protections of the
District in engaging in a business activity in the forum
jurisdiction, it is fair and reasonable to expect it to
anticipate being sued in that jurisdiction.” /d. at 329.
Put another way, the issue is “whether the ‘quality and
nature’ of the defendant’s activity is such that is it
‘reasonable’ and ‘fair’ to require [the defendant] to
conduct his defense in that State.” Jd. at 325 Sve
Kulko v. Superior Court of California, 436 U.S. 84, 92
(1978)).
The fifth is that “in examining the nonresident
defendant’s contacts with the District, the focus is placed
on the relationship among the defendant, the forum and
the litigation.” 7d. at 329. The closer the relationship
between these three, the more likely that jurisdiction
will lie.
The sixth is that “it is reasonable and fair for the
District to exercise specific jurisdiction where a
nonresident defendant has purposefully directed its
activities at District residents, and claims against it by
a District resident ‘arise out of or relate to,’ Burger King
[Corp v. Rudzewicz/, 471 U.S [462], at 472 [(1985)]
(emphasis added), or have a ‘substantial connection’
| ee : )
{ppenaix B
with, citing McGee /v. Int'l Life Ins. Co.], 355 U.S.
(220,] 223 |(1957)]|, the business transacted in the District
.. Shoppers Food Warehouse, 746 A.2d at 329.
The seventh also looks to the protection of plaintiff
residents and is closely related to the sixth. This
principle is that “the District has a manifest interest in
providing a convenient forum in which its residents may
seek relief for injuries inflicted by the nonresident
defendant, especially where litigation within the District
would not impose an undue burden on the nonresident
defendant.” /d. at 327-329.
Application of Judge Reid’s Seven Principles
to the Facts of This Case
that the “transacting business” provision is co-extensive
with the due process clause, the court looks first to the
seventh principle — the interest of the District of
Columbia in providing a convenient forum in whic} ?ts
residents may seek relief for injuries inflicted by a
nonresident defendant. None of the plaintiffs in this case
are residents of the District. They are all residents of
Virginia, just as are the defendants. Thus, unlike a case
where a State has reached out to provide a convenient
forum for its injured resident, the District has no
manifest interest in providing a forum for relief here.
Indeed, in Hughes v. A.H. Robins Co., Ine., 490 A.2d
1140 (D.C. 1985), the Court of Appeals wrote:
With these principles in mind, and understanding
S4a
Appendix B
In this case... the District of Columbia has
no “interest in adjudicating the dispute.”
Although the District has a general concern
with protecting its residents ... it has no
reason to add to its crowded court dockets a
suit by a Virginia plaintiff against a Virginia
defendant on a cause of action which arose
entirely in Virginia.
Id. at 1146 n.9. This is particularly so since adding such
a suit “to its crowded docket” threatens to delay ‘the
resolution of suits in which District of Columbia
residents have an indisputable interest. Accord, Willis
v. Willis, 211 U.S. App. D.C. 103, 108, 655 F.2d 1333,
1338 (1981) (“The District of Columbia has little interest
in providing a forum to a nonresident plaintiff.”).
Cf Digital Broad v. Rosenman & Colin, 847 A.2d 384,
390 (D.C. 2004) (citing Fisker v. Bander, 519 A.2d 162,
163 (D.C. 1986))(“[T]his court has a substantial interest
in providing a forum to redress wrongs inflicted upon
its citizens by clients who fail to pay for professional
services supplied in the District of Columbia by District
of Columbia law firms.”)."
14. In the remand opinion, Judge Ruiz suggests, in the
context of Section 13-423(a)(4), that because both Mrs. Bourdin
and her husband were employed in the District of Columbia,
their “presence” here “was not incidental.” Etchebarne-
Bourdin, 754 A.2d at 328. The court is uncertain what
significance it is to draw from that assessment. In its Amended
Order, the court cited Ussery v. Kaiser Found. Health Plan, 647
A.2d 778, 781 (D.C. 1994), which noted that “[t]he fact that a
(Cont'd)
S5a
Appendix B
With respect to Judge Reid’s sixth principle — that
the defendants’ activities be directed at District of
Columbia residents — as discussed above, the record is
clear that the defendants did not purposely direct their
activities at District residents. The Yellow Pages, the
IMF listings, and the medical licenses were passive. The
Grand Rounds, and the attendance at the Washington
Gynecological Society were directed at providing the
doctors themselves with continuing edueation, and there
is nothing in the record to suggest that they used the
continuing legal education to attract D.C. residents as
patients. Mrs. Bourdin’s phone call to the doctors’ office
in Maryland surely could not be construed as an effort
to attract D.C. residents, since it was initiated by her.
Judge Reid's fifth principle requires an examination
of the relationship between the defendant, the forum
and the litigation. In this instance, there is virtually no
relationship between the defendants, the forum and the
litigation. All of the treatment took place in Virginia,
including the purportedly negligent advice given on the
phone call that Mrs. Bourdin made on the day of the
accident from her office at the IMF to the doctors’ office
(Cont'd)
plaintiff is employed in [D.C.]... carries very little weithi when
[the employment] is not related to the alleged injury.”
Id. at 781. While Ussery involved an issue of forum non
conveniens, the court found its reasoning significant for
jurisdictional purposes also. In any event, Judge Reid’s seventh
principle in Shoppers Food Warehouse makes clear that the
District’s “manifest interest” is in providing a forum for its own
residents, not the residents of other states.
S6a
Appendix B
in Virginia. The effects of that treatment were suffered
most particularly in Virginia. All plaintiffs and all
defendants reside in Virginia. The defendants are
licensed and actually conduct their business in Virginia.
In this instance, the relationship between the forum,
the defendants and the litigation is virtually nil, and
underscores the fact that the District has little interest
in providing a forum for resolution of this dispute.
Judge Reid’s fourth principle looks to whether or
not the defendants have purposely availed themselves
of the benefits and protections of the District by
engaging in a business activity here. On the contrary,
the opposite is true in this case. As indicated above, the
court does not find that the medical education activities
of the doctors in the District are “business” activities,
though admittedly somewhat related thereto. Indeed,
the doctors, at the urging of their insurance company,
resolved to close down their District practice rather than
“avail” themselves “of the benefits and protections of
the District in engaging in a business activity,” and
hightailed it to Virginia. When there is purposeful
availment, “it is fair and reasonable to expect [a
nonresident defendant] to anticipate being sued in that
jurisdiction.” Shoppers Food Warehouse, 746 A.2d at 329.
Without purposefui availment, however, there is no such
expectation and so jurisdiction does not lie.
Judge Reid’s third principle requires examination
of the quality and nature of the nonresident defendant’s
contacts with the District and whether those contacts
are voluntary and deliberate, or only random, fortuitous,
S7Ta
Appendix B
accidental or attenuated. As Judge Reid wrote in
Shoppers Food Warehouse, “[t]hese advertisements are
not random, fortuitous, accidental or attenuated, nor
are they too trivial to cause a consequence in the District,
or ‘too tenuous to satisfy’ the minimum contacts
requirement of the due process clause.” /d. at 331
(citations omitted). Eliminating Mrs. Bourdin’s phone
call to the doctors on the day of the accident, which was
not a voluntary act on the part of the doctors, the court
finds that the quality and nature of the other contacts
are not sufficient to meet the applicable test. Rather,
the contacts are superficial, trivial and tenuous.
Under Judge Reid’s second principle, the facts of
each case must be weighed against “notions of fairness,
reasonableness and substantial justice.” Jd. at 329.
Application of the guidelines formulated by Judge Reid
show the parties have so little connection with the
District of Columbia that exercise of jurisdiction on the
theory that the defendants are “transacting business”
here would offend “notions of fairness, reasonableness
and substantial justice.” Most particularly, the court
finds it highly unlikely that, given the superficial, trivial
and tenuous nature of the “business contacts” with the
District of Columbia, the defendants in this case could
have foreseen that they would be sued here by Virginia
residents for medical treatment rendered entirely in
Virginia. See also, Holder v. Haarmann & Reimer Corp.,
779 A.2d 264, 275 (D.C. 2001). Therefore, even though
the first principle provides that the “transacting any
business” provision reaches the limits of constitutional
due process, an application of the second through
58a
Appendix B
seventh principles to the facts of this case shows that a
finding of jurisdiction here would reach beyond those
constitutional limits.
“Claim for Relief [Must] Aris[e]
from Acts Enumerated”
Even, however, if the court were to find sufficient
contacts to conclude that the defendants were
“transacting business” in the District of Columbia, the
court could not find a sufficient nexus for the “arising
from” requirement of the Long-Arm Statute. In
Shoppers Food Warehouse, Judge Reid closely examined
the precedent interpreting the “arising from”
requirement. In the end, the Court of Appeals concluded
that the “arising from” language of Section 13-423(b)
should be interpreted “flexibly and synonymously with
‘relate to’ or having a ‘substantial connection with,’ in
the same way that the Supreme Court’s due process
analysis has used these terms interchangeably.” 746
A.2d at 335. As Judge Reid explained:
This means that, for the Superior Court to
have jurisdiction over Ms. Moreno’s claim, the
claim had to be related to or substantially
connected with Shoppers’ advertising activity
in the District, Cohane [v. Arpeja-California,
Inc., 385 A.2d 158, 158 [(D.C. 1978)]; Berwyn
[Fuel Inc. v. Hogan, 399 A.2d 79,] 80 [(D.C.
1979)j, that is, as we said in Trerotola [v.
Cotter], 601 A.2d [60,] 64 [(D.C. 1991)], it had
to have some ‘discernible relationship to
Shoppers’ advertising activity.’
59a
Appendix B
The Court of Appeals thus concluded:
Where Shoppers has deliberately and directly
solicited District residents to become
customers in its Maryland and Virginia stores,
there can be no doubt that its advertising
relates to or has a discernible relationship to
a claim by a District resident who becomes a
customer in one of Shoppers’ stores and is
injured. This is true because it is reasonably
foreseeable that, as a result of advertising
extensively and over a substantial period of
time in the District’s major circulation
newspaper, Shoppers could be sued in the
District on a claim similar to that filed by Ms.
Moreno.
Shoppers Food Warehouse, 746 A.2d at 335-336 (citing
Thomason. v. Chemical Bank, 661 A.2d 595, 603 (Conn.
1995)).
Thus, the question here is whether there is a
“discernible relationship,” defined as “relating to” or
having a “substantial connection with” the medical
malpractice claim of a Virginia resident against a
Virginia doctor for treatment in Virginia that makes it
“reasonably forseeable” to the doctor that, as a result
of going into the District for continuing medical
education, listing his name in the Yellow Pages and the
IMF Health Center, being licensed (though not
practicing) in the District of Columbia and accepting a
phone call from a patient who is Virginia resident, but
60a
Appendix B
called from the District of Columbia, he has subjected
himself to suit here on a medical malpractice claim.
In its Amended Order, the court concluded that
there was no relationship because it was not the Yellow
Pages or IMF listing that caused Mrs. Bourdin to go to
the defendants, but rather a referral from her sister-in
law. Amend. Order at 60-61. Shoppers Food Warehouse,
however, made clear that such a direct relationship is
not required. Instead, using the language of Shoppers,
the issue is whether Mrs. Bourdin’s claims have a
“discernible relationship to” or a “substantial connection
with” any of the five contacts considered in connection
with the “transacting business” test — that is, the Yellow
Pages and IMF listings, the D.C. medical licenses,
participation in Grand Rounds, attendance at meetings
of the Washington Gynecological Society and the phone
call from Mrs. Bourdin.
In answering that question, the distinction between
the facts of the instant case and the facts of Shoppers
Food Warehouse are critical to an analysis of whether
there was the necessary “discernable relationship”
between the various contacts listed here and the
defendants’ claims. In Shoppers, there was “advertising
[that was] extensive[] and over a substantial period of
time in the District’s major circulation newspaper.”
746 A.2d at 336. Here, on the other hand, there were
only modest listings in the Yellow Pages and at the IMF
Health Center, medical licenses that were not being
utilized in the District of Columbia, visits to the District
of Columbia a couple of times a month for educational
6la
Appendix B
purposes, and the phone call from Mrs. Bourdin. Most
importantly, all of the activity that forms the basis for
the malpractice claim occurred in Virginia. Thus, even
if the facts of this case were construed as showing that
the defendants were “transacting business” in the
District of Columbia, no discernible connection between
those activities and the injury to the plaintiffs could be
said to exist. Indeed, the claims here are simply not
connected to any of the defendant’s activities in the
District.
Moreover, Berwyn Fuel, Inc. v. Hogan, 399 A.2d 79
(D.C. 1979), referred to in Shoppers as properly applying
Section 13-423(b)’s nexus requirement, squarely
supports that conclusion. The defendant in Berwyn Fuel
was a Maryland corporation in the business of delivering
fuel. Some of those deliveries were made in the District
of Columbia. Thus, Berwyn was admittedly “transacting
business” here. The cause of action, however, resulted
from an auto accident in Maryland where one of its
trucks struck a vehicle driven by the plaintiff, who was
a District of Columbia resident. The Court of Appeals
held that the plaintiff’s “claim for relief from the accident
did not arise from any of Berwyn’s District of Columbia-
related acts,” that is, deliveries to the District. Rather,
the Court of Appeals found the claim for relief arose
from activity that occurred completely within Maryland,
that is, the accident. The Court of Appeals held that
“since the claim must relate to the particular act or
transaction forming the basis for personal jurisdiction,
62a
Appendix B
and the claim here did not, the court lacked
jurisdiction.”® Berwyn Fuel, 399 A.2d at 80.
Trerotola v. Votter, 601 A.2d 60 (D.C. 1991), where
the “discernible relationship” language appears to have
first been used, provides further support for the court’s
conclusion that the necessary nexus does not exist here.
In Trerotola, the Court of Appeals overruled the trial
court’s finding of jurisdiction on the grounds that the
plaintiff’s claim did not have a “discernible relationship”
to the business transacted by the defendants in the
District of Columbia. The defendants were the Eastern
Conference of Teamsters and its international director,
Joseph Trerotola. The plaintiff Cotter was a retired
employee of the Conference. The dispute arose over the
defendants’ refusal to pay the plaintiff a retirement gift
that was based on an implied-in-fact contract entered
into after the Conference’s office moved from the
15. By analogyto the Berwyn Fuel case, putting Dr. Gahres,
Dr. Radice and G&R, Ltd. in the shoes of Berwyn Fuel, and the
Ktchebarne-Bourdins in the shoes of the hypothetical District
of Columbia resident, it becomes clear that regardless of the
doctors’ activities in the District, when all the acts forming the
cause of action arose in Virginia, and the plaintiffs are Virginia
residents, there is not a sufficient nexus to satisfy the
requirement. Since a resident of the District of Columbia was
unable to establish the nexus for jurisdiction here in the District
of Columbia based on those facts, it is surely clear that a resident
of Maryland suing Berwyn Fuel here in the District of Columbia
for an accident in Maryland would have had no chance of doing
so. If neither a District of Columbia resident, nor a Maryland
resident could acqure jurisdiction here, it is clear that Virginia
residents like the defendants cannot either.
63a
Appendix B
District of Columbia to Bethesda, Maryland. There was
no dispute that after that move, the Conference
continued to “transact business” in the District of
Columbia by representing local unions with
approximately 13,000 members. /d. at 63. Cotter, who
had become an employee of the Conference before its
move to Bethesda, himself made frequent trips to the
District to transact business for the Conference,
assisting local unions in organizing and negotiating labor
agreements and in handling labor grievances. /d.
In overruling the trial court’s finding that the
District had jurisdiction over this claim, Judge Ferren,
writing for the court, stated that the District’s long-arm
statute requires a “discernible relationship” between a
claim for relief and the “business” transacted in the
District. The issue posed, according to Judge Ferren,
was “whether Cotter’s claim for a retirement gift based
on an implied-in-fact contract can be said to have arisen
out of the “Conference’s activities in representing unions
in the District l[including the activities of Cotter
himself].” /d. at 64. The Court of Appeals concluded that
the claim had not arisen out of those activities, reasoning
that the Conference formed the implied contract with
certain retiring employees, including Cotter, in
Maryland, based on the fact of retirement alone, and
altogether independent of any employee’s activities in
any particular place, whether in the District of
elsewhere.” /d.
Citing World-wide Volkswagen Corp., 444 U.S. at
297, Judge Ferren explained that “[t]he critical test is
OAa
Appendix B
whether the nonresident’s ‘conduct and connection with
the forum state are such that he Jor she] should
reasonably anticipate being haled into court there.”
Trerotola, 601 A.2d at 64. Quoting from Mouzavires v.
Baxter, 434 A.2d 988, 992 (D.C. 1981), he wrote: “For
proper jurisdiction, the Conference’s contacts with the
District must have been ‘of such a quality and nature
that they manifested a deliberate and voluntary’
anticipation of litigation here over retirement gift (or
severance pay) contracts.” T'rerotola, 601 A.2d at 64.
Applying that standard, the Court of Appeals concluded
that “the Conference cannot reasonably be said to have
anticipated being haled into a court in the District of
Columbia to litigate a Maryland retirement ‘gift’
contract as a result of sending Conference
representatives to the District to work with unions
there.” /d. Further, Judge Ferren wrote: “|Wle cannot
say that the [Conference], by unilaterally choosing: to
provide certain employees with a supplementary
retirement gift — a bonus — based solely on the fact of
retirement, not on particular business activities,
committed an affirmative act related to its ‘contractual
activities’ in the District.”'® /d. at 65 (emphasis in
original). As in T'rerotola, the plaintiffs’ malpractice
16. In so concluding, the Court of Appeals specifically
distinguished cases where the plaintiff claims were based on
the defendant’s acts relating to the nonresident defendant's
District business, citing in that regard Cohane, 385 A.2d at 159
(claim for sales commissions, some of which were based on
District transactions, sufficiently related for jurisdiction), and
Smith v. Jenkins, 452 A.2d 333, 337 (D.C. 1982)(claim derived
from partnership activities in the District).
65a
Appendix B
claims in Mtcehebarne-Bourdin cannot be said to have
arisen out of the doctors’ contacts inthe Distmet — their
listings, licenses or continuing medical education
activities. Thus, as in T'rerotola, the defendants “cannot
reasonably be said to have anticipated being haled into
a court in the District to litigate” a Virginia malpractice
claim.
The gravaman of the claim in the ease before this
court is negligent treatment. With all of that treatment
occurring in Virginia, and the plaintiffs and defendants
all being Virginia residents, there is simply no reasonable
likelihood that the defendants would have anticipated
being haled into court here in the District of Columbia
ona claim arising from acts occurring solely in Virginia
based upon educational visits here, passive listings in
the Yellow Payes and at the IMI° Heath Center, unused
medical licenses, and a phone call placed in the District
of Columbia by the plaintiff herself. Accordingly, the
court finds that the necessary nexus between the claim
asserted and the District of Columbia does not exist,
Having concluded that the defendant’s were not
“transacting business” in the District of Columbia and
that, in any event, the plaintiff’s claims for relief do not
“arise out of” any business that the defendant’s might
have been transacting here, the court now turns to the
third issue that the remand opinion directed the court
to re-examine — “whether the defendants caused
‘tortious injury’ in the District resulting from “an aet
or omission outside the District.” kichebarne-Bourdin,
754 A.2d at 827.
66a
Appendix B
Section 13-423(a)(4): An Out-of-Forum
Tort Causing In-Forum Injury
In the remand decision, the Court of Appeals
directed that if the court did not tae personal
jurisdiction under D.C. Code Section 13-423(a)(1), the
“transacting business” provision, ich § it has not, the
court should then “reevaluate whether the defendants
caused ‘tortious injury in the District’ resulting from
‘an act or omission outside the District,’ D.C. Code § 138-
423(a)(4), in the context of the ‘nexus’ requirement as
articulated in Shoppers Food Warehouse.” Id.
Accordingly, the court next proceeds to consider that
issue.
D.C. Code § 13-423(a)(4) provides:
(a) A District of Columbia court may exercise
personal jurisdiction over a person, who
acts directly or by an agent, as to a claim
for relief arising from the person’s —
(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.
67a
Appendix B
D.C. Code § 13-423(a)(4) (2005). Thus, this Jabiaonti has
the same nexus requirement as the “transacting
business” ee both in the introductory phrase and
in D.C. Code § 13-423(b).
As discussed above, supra, at 8, the court found that
while the defendants were not “regularly doing or
soliciting business,” nor “deriv|ing] substantial revenue
from goods used or consumed, or services rendered, in
the District of Columbia,” they were engaging in a
“persistent course of conduct” here through their
attendance at Grand Rounds and the meetings of the
Washington Gynecological Society. In the remand
decision, the Court of Appeals coneluded that Mrs.
Bourdin had suffered “tortious injury in the District of
Columbia by an act outside the District of Columbia,” in
the language of D.C. Code § 13-423(a)(4), “to the extent
that her pregnancy began to be imperiled ... as a result
of the unmonitored and untreated physical impact on
Oetober 29, 1990 [from the rear end collision],” and,
therefore, that Ms. Bourdin’s original injury occurred
while she was in the District of Columbia.” Etchebarne-
Bourdin, at 327-328. Continuing on, the court wrote:
Ms. Bourdin could be said to have been injured
in the District because the District is where
she first had contact with defendants
negligent advice and where she first began to
experience the resulting physical reaction;
Virginia is the jurisdiction where her injuries
continued to cumulate and become more
serious, with repeated acts of negligence
there.
68a
Appendix B
Id. at 328. Thus, the question is whether there was
sufficient nexus between that “imperilment” and the
defendants’ “persistent course of conduct” in the District
of Columbia, that is, their attendanee at Grand Rounds
and the Washington Gynocological Society meetings, to
hale the defendants into court here.
This issue was essentially resolved in the discussion
of the “transacting business” basis for jurisdiction
discussed above. See, supra, at 7-29. Having combined
the contacts for “transacting business,” that is, the
doctors’ medical licenses and listings in the Yellow Pages
and at the IMF Health Center, with the contaets for a
“persistent course of conduct,” that is, the Grand
Rounds and the meetings at the Washington
Gynecological Society, as instructed to do by the remand
decision, the court found that “no discernible connection
between those activities and the injury to the plaintiffs
could be said to exist.”
Since the “persistent course of conduct” basis has
even fewer contacts supporting it than the “transacting
business” basis, it follows that there is an even weaker
nexus for jurisdiction under the “persistent course of
conduct” provision. Putting this in the terms of Shoppers
Food Warehouse, there is no “substantial connection”
between Grand Rounds or the meetings of the
Washington Gynecological Society and_ the
“imperilment” that may have occurred on the phone call.
In addition, although the issue of injury caused by
advice or other treatment provided by doctors loeated
09a
Appendix B
in one jurisdiction to patients located in another
jurisdietion appears to be an issue of first impression in
the Distriet of Columbia, it has been exhaustively dealt
with by other courts aeross the country that have nearly
unanimously rejected the idea that medical care or
advice rendered in one jurisdiction that has effects such
as “imperilment”' or worse in another jurisdiction
provides the foreign jurisdiction with a basis for
jurisdiction. Because the adoption of a different rule for
the District of Columbia would place this jurisdiction
entirely out of the mainstream of the law across the
United States,’ the court sets out below in what may
appear to be tedious detail the authority to the contrary.
17. The court notes that “imperilment” suggests that no
harm has actually oceurred, but simply that the risk of harm
has been created. It would therefore appear to be a slim reed
upon which to base jurisdiction predicated on the existence of
“tortious injury in the Distriet of Columbia.” As discussed in
the Amended Order, for jurisdiction, the in-forum injury cannot
be of any type or amount. Amend. Order at 47-48. Moreover,
“(t]he fact that some harm occurs in a jurisdiction is not alone
sufficient under [Section 13-423(a)(4)] to find that a defendant
‘caused injury’ to a plaintiff in that jurisdiction.” Amended
Order at 47 (citing American Kutectic Welding Alloys Sales Co.
v. Dayton Alloys Corp., 439 Fi2d 428, 433-434 (2d Cir. 1971)). See
Van Essche v. Leroy, 692 F. Supp. 320, 325 (S.D.N.Y. 1988);
(rranada Television Int'l, Ltd. v. Lorindy Pictures Int'l, 606 F.
Supp. 68, 71 (S.D.N.Y. 1984).
18. See generally, Dave R. Bonelli, Annotation, J Personam
Jurisdiction, Under Long-Arm Statute, Over Nonresident
Physician, Dentist, or Hospital in Mcadical Malpractice Action,
25 A.L.R. 4" 706, $$ 11(A)(3), TL(A)(5)(b) (2005).
0a
Appendix B
The Ninth Circuit's Seminal Case of
Wright v. Yackley
The seminal decision addressing the issue of
malpractice claims that cross jurisdictional boundaries
is the Ninth Circuit’s opinion of Wright v. Yackley, 459
F.2d 287, 288-90 (9th Cir. 1972). In Wright. when the
relationship between the plaintiff patient and the
defendant doctor began, both were South Dakota
residents and thus the treatment began in South
Dakota. Jd. at 288. The plaintiff later moved to Idaho,
where she filled the prescriptions, which were written
by the defendant doctor, who was still located in South
Dakota, at an Idaho pharmacy. /d. The South Dakota
doctor also sent a confirmation to the Idaho druggist
that the plaintiff’s prescription should be refilled. /d.
The plaintiff subsequently experienced injury in Idaho
that she claimed was due to the doctor’s negligence in
prescribing the medication. /d. She sued her South
Dakota doctor in the federal District Court of Idaho,
relying on Idaho’s long-arm statute and alleging that
her doctor committed medical malpractice out-of-state
that caused her “tortious injury within |the state of
Idaho].” Jd. That provision of the Idaho long-arm statute
had been construed by the Idaho Supreme Court in
Doggett v. Electronics Corp. of Am., 454 P2d 63, 65-66
(Idaho 1969), to permit the Idaho courts to exert
jurisdiction over nonresidents whose actions taken
outside of Idaho result in injury to persons in Idaho.
The provision thus is parallel to the District’s long-arm
provisions for jurisdiction over out-of-state torts
provided in Section 13-423(a)(4).
/la
{ppenaix B
Although the plaintiff suffered injury in Idaho
allegedly due to the doctor’s malpractice in South
Dakota, the Ninth Circuit held that “the exercise of
jurisdiction in these circumstances would be
unreasonable and in fact would work contrary to what
we deem to be the dominant state interest.” Wright,
459 K2d at 289. The court explained that rendering
personal services, such as medical care, requires that
the jurisdictional analysis consider the tort to be located
where the service was rendered, regardless of where
the resultant injury occurred. As the Ninth Circuit
explained:
In the ease of personal serviees focus must
be on the place where the services are
rendered, since this is the place of the
receiver's (here the patient’s) need. The need
is personal and the services rendered are in
response to the dimensions of that personal
need. They are directed to no place but to the
needy person herself. It is in the very nature
of such services that their consequences will
be felt wherever the person may choose to go.
ld. at 289-90.
Wright went on to articulate three specific reasons
why personal medical services require the locus of a
medical malpractice tort to be where the services are
physically rendered. First, while traditional personal
jurisdiction analysis has usually focused on the location
of activities, doctors do not primarily direct medical
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services at locations, but rather at people, who can
unilaterally change the location where treatment might
subsequently injure them. As a result, if jurisdiction
were based on the location of the patient, mobile patients
could subject doctors to suit in jurisdictions where the
doctor has made no “systematic or continuing effort . . .
to provide service.” It would violate due process, Wright
reasoned, to subject a doctor to suit based solely on
where a patient was located when she began to
experience injury, unless there was a “systematic or
continuing effort on the part of the doctor to provide
services which are to be felt in the forum state.” Jd. at
290 (comparing Int’l Shoe Co., 326 U.S. at 320). This
reasoning has particular relevance to the instant case,
where the doctors were making xo “systematic or
continuing effort” to provide medical service in the
District of Columbia and had shut down their practice
at the urging of their medical malpractice insurer.
The second reason articulated in Wright why
personal medical services require the focus of a medical
19. See also Cowan v. Krick, 1994 U.S. Dist. LEXIS 9048, 5-
8 (E.D. Pa. 1994):
Further, the very nature of medical care anticipates
that the consequences of treatment adhere to the
person treated, regardless of his location. To hold
medical providers subject to personal jurisdiction
in different, and unforeseen, forum states simply
because their patients are mobile vehemently
ciashes with the notions of fairness underlying the
concept of personal jurisdiction.
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malpractice tort to be where services are physically
rendered is that “the nature of the contacts [in a doctor-
patient relationship] is normally grounded outside of any
relationship with the [foreign] forum state.” Wright, 459
F.2d at 290. Moreover, the medical services of local
practitioners are not usually directed at any forum other
than the one in which their practices are physically
located. This is surely true here, where the doctors
practice solely in Virginia, the plaintiffs’ residence is in
Virginia and all treatment was rendered in Virginia.”
Thus, as in Wright, predicating personal jurisdiction on
the location of the injured plaintiff would appear to
unconstitutionally divert the focus of the jurisdictional
analysis away from the purposeful availment of the
defendant.
Third, the court concluded in Wright “the forum
state’s natural interest in the protection of its citizens
is here countered by an interest in their access to
medical services whenever needed.” /d. at 290-91. The
Ninth Circuit, and many of the courts that followed it,
expressed concern that doctors’ readiness to provide
medical services to patients with out-of-state
connections would be chilled if the doctors reasonably
20. By contrast, as pointed out in Wright, if a manufacturer
regularly ships a faulty product into a forum for sale, personal
jurisdiction is proper because the manufacturer purposefully
sent the product into the forum in order to benefit from the
market there and in order that customers there might benefit
from the product’s use. 459 F.2d at 290. See also Atl. Tubing &
Rubber Co. v. Int'l Engraving Co., 364 F. Supp. 787, 792 (D.R.1.
1973).
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Appendix B
feared that they could be sued wherever such patients
happened to go. Wright noted that a jurisdiction’s
interest in providing redress for harms inflicted from
outside the forum does not exist in a vacuum. It must
be balanced against the need of its residents to have
access to health care when they are outside their
jurisdiction, as well as access to health care not readily
available in their own jurisdiction.” /d. at 291. For these
reasons, the Ninth Circuit concluded that “no tort was
committed within the State of Idaho which would
constitutionally confer jurisdiction.” Jd.
Analysis in Other Federal and State Courts
Numerous other federal courts have adopted the
same rule: medical malpractice injuries are located
where the service is rendered, regardless of the location
of the patient, unless the health care provider has
purposefully directed services at the forum where the
plaintiff seeks to sue. As the District Court for New
Hampshire wrote in Estate of Mullen by Mullen v.
Glick, No. C-94-377, 1994 U.S. Dist. LEXIS 16020
(D.N.H. 1994):
Several courts have rejected the view that the
“tortious rendition of such medical services
is a portable tort which can be deemed to have
been committed wherever the consequences
foreseeably were felt...” Lemke v. St.
Margaret Hospital, 552 F. Supp. 833, 8387-838
(N.D. Ill. 1982) citing to Wright v. Yackley, 459
F.2d 287 (9th Cir. 1972); Chancellor v.
Lawrence, 501 F. Supp. 997 (N.D. Ill. 1980);
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Soares v. Roberts, [417 F. Supp. 304 (D.R.I.
1976)]; Gelaneau v. New York University
Hospital, 375 F. Supp. 661 (D.N.J. 1974);
McAndrew v. Burnett, 374 F. Supp 460 (M.D.
Pa. 1974); Aylstock v. Mayo Foundation, 341
FE. Supp. 560 (D. Mont. 1972).
Id. at 13-15. Mullen itself concluded that there was no
personal jurisdiction over a Massachusetts doctor who
was alleged to have negligently treated a New
Hampshire patient, where the doctor did not
purposefully direct services at New Hampshire
residents. Jd. at 15.
A further example, is Salerno v. Massimino, No.
80 Civ. 2296, 1980 U.S. Dist. LEXIS 12799 (S.D.N-Y.
1980), where a New York plaintiff sought to sue New
Jersey doctors in New York for a negligent prescription
written in New Jersey. Under a long-arm statute similar
to the District’s, the plaintiff sought jurisdiction over
the defendants based on her claim that the out-of-state
tortious medical malpractice first caused her injury when
she took the prescribed medication in New York. /d. at
2-3. The court denied the claim, holding that to subject
the New Jersey doctcrs to suit in New York would be
fundamentally unfair and would have a chilling effect
on the availability of medical services to New York
residents. Jd. at 5.”
21. See also Gallant v. Trustees of Columbia Univ., 111 F.
Supp. 2d 638, 643 (E.D. Pa. 2000) (“The weight of authority holds
that when treatment is rendered outside the forum state, a
nonresident medical provider cannot be subject to specific
jurisdiction.”).
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Appendix B
State courts have also adopted the rule that medical
malpractice injuries are held to occur where treatment
was provided, unless services were purposefully directed
at the forum state. In Hume v. Durwood Medical
Clinic, 318 S.E.2d 119, 122 (S.C. 1984), for example, the
South Carolina Court of Appeals denied personal
jurisdiction over North Carolina defendants when a
South Carolina resident, whom they treated in North
Carolina, subsequently died in South Carolina. Echoing
Wright, 459 F.2d at 289-290, the court chose to follow
the “very substantial line of cases from other
jurisdictions that have rejected the view that the tortious
rendition of medical services out of the forum state is a
portable tort which can be deemed to have been
committed wherever the consequences foreseeably were
felt.” Hume, 318 S.E.2d at 122.
Likewise, in H’state of Poole v. Grosser, 731 N.E.2d
226, 229 (Ohio Ct. App. 1999), the Ohio Court of Appeals,
as in Wright, 459 F.2d at 289-290, declined to find
jurisdiction in a case where the medical treatment
occurred in Kentucky, but the patient died in Ohio. The
court noted: “No Ohio court has adopted this ‘portable
tort’ theory, and several courts from other jurisdictions
have explicitly rejected it.”” E’'state of Poole, 731 N.E.2d
at 229.
22. See also Dunn v. Upjohn Co., 350 So.2d 127, 129 (Fla.
Dist. Ct. App. 1977)(holding that, since the Georgia defendant
pharmacist had no other contacts with Florida, Florida had no
personal jurisdiction over him for allegedly negligent filling of
a prescription for a Florida resident who subsequently returned
to Florida and suffered harm there).
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Appendix B
Cross-Forum Telephonic Medical
Malpractice Claims
Several courts have dealt more specifically with
personal jurisdiction in medical malpractice cases
alleging cross-forum negligent care over the telephone.
They have likewise held that the locus of the alleged
malpractice tort is the forum in which the service
provider is physically located, not where the allegedly
negligent advice is received and acted upon.
For example, in Bradley v. Mayo Foundation, Civ.
No. 97-204, 1999 U.S. Dist. LEXIS 17505 (E.D. Ky. 1999),
the plaintiff, a Kentucky resident, visited the Mayo Clinic
in Minnesota for treatment, and then returned to
Kentucky. /d. at 4-5. He returned to Minnesota, however,
for follow-up visits, and had frequent telephone
conversations by phone in Kentucky with his doctor in
Minnesota. See id. at 6-
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