# Petition for Writ of Certiorari — Radice v. Etchebarne-Bourdin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 892

## Text

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

(3) § £23(a) (1) “Transacting Business”

The court turns finally to plaintiffs’ claim that
jurisdiction can be based on § 423(a)(1), the “transacting
business” provision of D.C.’s Long Arm Statute. This

(Cont’d)

which lists Mr. and Mrs. Bourdin as suing on “behalf of the
heirs of Baby Girl Etechebarne-Bourdin,” there is no further
reference to the heirs in the Complaint. That ineludes the final
WHEREFORE clause, setting out the damages sought by each
party. In addition, D.C. Code § 16-2702 requires that a wrongful
death action be brought “within one year after the death of the
person injured.” The present action was not brought within
one year, and this requirement has been strictly construed. Sce
Group Health Ass'n Inc. v. Gatlin, 463 A.2d 700 (D.C. 1983). See
also Perry, supra, 741 F. Supp. at 986. (D.C.’s Wrongful Death
Act “creates a cause of action only for deaths caused by injuries
occurring within | D.C.].”)

170a
Appendix D

provision requires less of a nexus between the defendant
and D.C. than the “doing business” test. 7'rerotola,
supra, 601 A.2d at 63; Cohane v. Arpejia-California,
Inc., 385 A.2d 153, 158 (1978), cert. dented, 439 U.S. 980,
99 S. Ct. 567, 58 L. Ed. 2d 651 (1978). To fall within
§ 423(a)(1), a non-resident defendant need not have been
physically present in D.C.Mouzavires v. Baxter, 434 A.2d
988, 992 (1981), cert. denied, 455 U.S. 1006, 102 S. Ct.
1643, 71 L. Ed. 2d 875 (1982). Moreover, under certain
circumstances, a single act may be sufficient to
constitute transacting business. /d. Indeed, § 423(a) (1)
permits the exercise of personal jurisdiction over non-
resident defendants to the full extent permitted by the
due process clause. /d.; Environmental Research Intl
Inc. v. Lockwood Greene Eng’r, Inc., 355 A.2d 808, 810-
811 (1976).

To justify personal jurisdiction, due process requires
“certain minimum contacts” between the non-resident
and the forum “such that the maintenance of the suit
does not offend traditional notions of fair play and
substantial justice.” Jnternational Shoe Co. v.
Washington, 326 U.S. 310, 316, 66S. Ct. 154, 158, 90 L.
Ed. 95, 99 (1945). See also Trerotola, supra, 601 A.2d at
64; Fisher, supra, 601 A.2d at 64; Mouzavires, supra,
434 A.2d. at 993; and Environmental Research, supra,
355 A.2d at 811. Regardless of the minimum contacts,
however, there are two other predicates to the exercise
of jurisdiction under § 423(a)(1). One, derived from §
423(b), is that the claims must arise from the defendant’s
contacts with D.C. Hverett, supra, 628 A.2d at 107;
Cockrell v. Cumberland Corp., 458 A.2d 716, 717 n.2

l7la
Appendix D

(1983); Berwyn Fuel, supra, 399 A.2d at 80; Cohane,
supra, 385 A.2d at 158. The other is that the defendant
must have undertaken “some affirmative act to bring
himself or herself within the jurisdiction.” Everett,
supra, 628 A.2d at 107; 7'rerotola, supra, 601 A.2d at
64-65; Mouzaviers, supra, 434 A.2d at 993; Hummel v.
Koehler, 458 A.2d 1187, 1190 (1983); Berwyn Fuel, supra,
399 A.2d at 80; Cohane, supra, 385 A.2d at 158.

The contacts relied upon must manifest a deliberate
and voluntary, rather than a fortuitous connection with
the forum. Mouzavires, supra, 434 A.2d at 995. They
cannot have had their source in the “unilateral activity
of those who claim some relationship with a non-resident
defendant.” Hanson v. Denkla, 357 U.S. 235, 253, 78 S.
Ct. 1228, 1229, 2 L. Ed. 2d 1283, 1298 (1958). Rather,
the contacts must involve conduct by which a defendant
“purposefully avails [himself] of the privilege of
conducting activities within the forum State, thus
invoking the benefits and protections of its laws.” Jd.
See also Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475, 105 S. Ct. 2174, 2183, 85 L. Ed. 528, 542 (1985).

With these principles in mind, the court turns to the
contacts which would be meaningful for a determination
of whether defendants were “transacting business” in
D.C. within the context of § 423(a)(1). To establish that
defendants were “transacting business,” plaintiffs have
relied on the same panoply of factors which they cited
to establish that the defendants were “doing business”
within D.C. or had the necessary “plus factors” for
jurisdiction under § 423(a)(4).

172a
Appendix D

This reliance is misplaced. Rather, the court must
look to the contacts that are specifically related to the
claims here. Attendance at Grand Rounds or at
meetings of the Washington Gynecological Society,
teaching, or acting as a consultant to BOBSNCA,
regardless of where or how often such activities take
place, are not relevant to this inquiry because the
present claims do not derive from any of those activities.
For the same reason, the defendants’ relationship with
other patients who may be D.C. residents or employed
in D.C. is not relevant.

In the end, the court concludes that the only
conceivably relevant contacts for purposes of § 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 (8) the D.C. medical
licenses held by both Dr. Gahres and Dr. Radice.

The court finds that the phone call from Mrs.
Bourdin to the doctors’ office in Virginia cannot be used
as a basis for minimum contacts. The call was initiated
by Mrs. Bourdin, not defendants. To bring the
defendants within the jurisdiction of the court based on
this act would be contrary to the principle that
jurisdiction must be based on a deliberate, voluntary
act of a defendant.

This ruling is consistent with the many cases in this
jurisdiction which have found that a non-resident
defendant was transacting business in D.C. for

173a
Appendix D

jurisdictional purposes based, at least in part, on a phone
call. Many of those cases have involved a suit for unpaid
legal fees brought by a D.C. lawyer ina D.C. court against
a client from another jurisdiction. The disputes have
arisen after the non-resident client made a call to the
D.C. lawyer in D.C. seeking legal services to be
performed in D.C. See, e.g., Fisher, supra, 519 A.2d 162;
Mouzavires, supra, 434 A.2d 988; and Hummel, supra,
458 A.2d 1187. Thus, the non-D.C. party deliberately
and voluntarily sought out services to be performed on
his behalf in D.C., and thus subjected himself to the
jurisdiction of a D.C. court. This is contrary to the
present case, where a party in D.C. called a doctor’s
office in Virginia and later used the call to argue for
jurisdiction in D.C., rather than in Virginia. As the Court
of Appeals wrote in Environmental Research, “a plaintiff
cannot rely on its own activities, rather than those of a
defendant, to establish the requisite minimum contacts
for personal jurisdiction.” Supra, 355 A.2d at 812.

This principle is well-illustrated by Bueno v. La
Compania Peruana Radiodifusion, 375 A.2d 6 (1977),
where the plaintiff, a D.C. corporation, sued a Peruvian
corporation for negligence and breach of contract. The
D.C. corporation had contacted the Peruvian corporation
to provide it services in Peru. Although an agent of the
Peruvian corporation had on one occasion come to D.C.
to deliver a copy of the contract, the Court of Appeals
found no basis for jurisdiction in D.C., noting that the
defendant had not initiated or pursued the contract
negotiations in D.C. and had not provided services here.
Thus, the defendants’ actions did not show purposeful,

1 74a
Appendix D

affirmative activity within D.C. See also Blair v.
Norwegian Caribbean Lines, 622 F. Supp. 21, 23 n.3
(D.D.C. 1985), where the District Court concluded:
“Plaintiffs’ own unilateral actions [of initiating a phone
call to defendant in Florida] cannot provide a basis for
asserting jurisdiction over a non-resident defendant.”

Plaintiffs also argue that the fact that Dr. Gahres
and Dr. Radice are licensed to practice medicine in D.C.
supports the exercise of jurisdiction over them. As
explained above, however, “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, supra, 624 F. Supp. at 25.

To distinguish Ghanem, plaintiffs argue that the
1).C. medical licenses are necessary to permit Dr. Gahres
and Dr. Radice to treat patients who live or work in D.C.
See PJ. Opp. at 8, 11. This, plaintiffs claim, is because
the phone conversations which the doctors have with
patients located in D.C. constitute the practice of
medicine in D.C.

In support of this argument, plaintiffs rely on an
opinion issued by the D.C. Medical Society concluding
that a psychiatrist located outside D.C., who conducted
therapy sessions with patients located in D.C. by means
of a videophone, would be practicing medicine in D.C.
and would need to be licensed in D.C. Pl. Opp., Ex. 28.
Not only is that opinion not binding on this court in
determining the present question of jurisdiction; it is
also obviously distinguishable. A psychiatrist who made

175a
Appendix D

such an arrangement would be taking voluntary,
affirmative actions to associate himself with D.C. in
connection with the very core of his relationship with
the patient. That differs substantially from the present
case, where the patient regularly visits the doctors at
their Virginia office, but may initiate contact over the
phone for a specific and isolated concern or question.
There is no indication that the D.C. Medical Society
would conclude that this latter scenario constituted the
practice of medicine in D.C.

lurther, as the Court of Appeals wrote in
Mouzavires, “|T)he most critical inquiry is not whether
the non-resident defendant is physically present in the
forum, but whether the contacts with the forum are of
such a quality and nature that they manifest a deliberate
and voluntary association with the forum.” Mouzavires,
supra, 434 A.2d at 995. Videophone therapy is of such a
quality and nature. Responding on occasion to phone
call inquiries is not.”

42. Plaintiffs also cite the decision of the Honorable
Harriett Taylor in Huang v. D’Albora, No. 1043-90 (D.C. Super.
Ct. May 10, 1990), where the court found that a doctor was
“transacting business” in D.C. when he called the parents of a
child from Georgetown Hospital. See Pl. Sur-reply, Ex. A. The
advice given by the doctor on that phone call, made while he
was in D.C., was at the heart of the plaintiffs’ claim, since the
child died later that same night. The Huang case is not heipful
to plaintiffs. Rather, it supports the defendants’ argument that
under § 428(a)(1), a defendants’ location during a phone call
here, Virginia is determinative.

176a
Appendix D

Finally, the listing of Dr. Gahres & Dr. Radice in the
Yellow Pages and the listing of Dr. Radice at the IMI
Health Center do not help plaintiffs in this case. While
“advertising reasonably calculated to reach a particular
[forum] is one factor that may be considered in
determining whether the exercise of jurisdiction would
meet due process requirements,” 2d. at 994; blair, supra,
662 I. Supp. at 24, simply listing a phone number in a
D.C. telephone directory is insufficient for the exercise
of jurisdiction under § 423(a)(1). Blaiy, supra, 662 F.
Supp. 21; Cornwell, supra, 3873 F. Supp. 661; and
Ghanem, supra, 624 F. Supp. 28. Indeed, an
advertisement in the Washington Post which led to a
contract to perform work in Virginia was found
insufficient for jurisdiction under § 423(a)(1) despite the
defendant telephoning and writing the plaintiff in D.C.
during contract negotiations. Cockrell, supra, 458 A.2d
at 717.

In any event, as with the patient plaintiffin Ghanem,
Mrs. Bourdin was referred to defendants by a friend,
that is, her sister-in-law — not as a result of any
solicitation efforts directed to D.C. residents. Thus,
there is no connection between the listing in the Yellow
Pages or at the IM Health Center and the claim. The
mere fact that Mrs. Bourdin would not have gone to
defendants unless their IMF insurance would cover the

costs also does not mean there is a connection between
the listing at the IMF Health Center and the claim. In
his affidavit, Mr. Bourdin did not say that the listing
was what caused Mrs. Bourdin to consult defendants.
Even if it had been, however, the court would find the

177a
Appendix D

connection between the listing and the claim too tenuous
and insignificant for a finding that defendants were
“transacting business” in D.C. See Hverett, supra, 628
A.2d at 108; Mitchell Knergy Corp. v. Mary Ilelen Coal
Co., 524 I. Supp 558, 564 (D.D.C. 1981); and Bayles,
supra, 636 I. Supp. at 855.

Accordingly, itis this 6" day of June, 1996,

ORDERED, that the motion of defendants Luis C.
Radice, Edward Gahres, and Gahres & Radice, M.D.’s,
Ltd., to dismiss for lack of jurisdiction shall be granted
on all claims pending in favor of defendants Luis C,
Radice, kdward Gahres and Gahres & Radice, M.D.’
Ltd. and against all plaintiffs in this action,

s/ Noel Anketell Kramer
NOKLANKETHLEL KRAMER
JUDGE
SIGNEDIN CHAMBERS

178a
APPENDIX E — ORDER OF THE DISTRICT COURT
OF COLUMBIA COURT OF APPEALS DENYING
PETITION FOR REHEARING FILED APRIL 8, 2010

DISTRICT OF COLUMBIA
COURT OF APPEALS

No. 05-CV-1059
ALICIA ETCHEBARNE-BOURDIN, ET AL.,
Appellants,
v.
LUIS RADICHE, ET AL.,
Appellees.
CAM12352-93
BEFORE: Washington, Chief Judge; Ruiz, Reid,
Glickman, *Kramer, Fisher, Blackburne-Rigsby,
Thompson, and Oberly, Associate Judges.
ORDER
On consideration of appellees’ petition for rehearing
en banc, and the response thereto; and it appearing that

the majority of the judges of this court has voted to deny
the petition for rehearing en bane, it is

* Judge Kramer is recused from this case.

| 79a

Appendix E

ORDERED that the petition for rehearing en bane
is denied.

PER CURIAM

Chief Judge Washington and Associate Judges Glickman
and Fisher would grant rehearing en bance.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2206%3A1. Public record. Not legal advice.