Petition for Writ of Certiorari — Jennings v. Coutscoudis

Supreme Court, U.S.

f t TY)

No, 281406 OCT 2 7 1998

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

October Term 1998

EDNA M. JENNINGS

Petitioner

v.

SANDRA E. COUTSCOUDIS, ET AL.

Respondent(s)

ON PETITION FOR WRIT OF CERTIORARI TO

THE DISTRICT OF COLUMBIA

COURT OF APPEALS

Lloyd D. Iglehart

Attorney for Petitioner

1527 Pennsylvania Avenue, S.E.

Washington, D.C. 20003

(202) 332-7600

QUESTIONS PRESENTED FOR REVIEW

Le Whether the Superior Court’s

ruling in quashing the Plaintiff’s

Summons and Complaint which was served

upon defendant s for lack of in personam

jurisdiction, derogated the District of

Columbia Reorganization Act of 1970

and/or its own Rule SCR-4(f), which

defined the territorial limits of the

Court, thereby depriving the Plaintiff

of her right to due process of law under

the Fifth Amendment and the equal

protection of laws of the Fourteen

Amendment of the United States

Constitution?

2. Whether the Court violated

the Plaintiff’s Fifth Amendment rights

to due process and equal protection of

law when it quashed the Plaintiff’s

Service of Summons and Complaint upon

the non-resident Defendants, for lack of

in personam jurisdiction, when the

Defendants resided within geographical

proximity of less than a fifty (50)

miles radius of the District of

Columbia.

PARTIES

The parties to the proceedings in the

District of Columbia Court of Appeals

The Court, whose Judgment is

sought to be reviewed were;

Edna M. Jennings, the Plaintiff

(Petitioner herein)

and

Sandra E. Coutscoudis

and

Constantinos Coutscoudis

(Respondents herein)

me

TABLE OF CONTENTS

Pee OLOW fo gh eh viii

Wun NIN 6 hp og eS OS wes

Constitutional Provisions, Statutes and

RIEL gn og gw cs et ce a ae

eens On COBO 5 oS Lk. kK ae

Reason for Granting the Writ: .... 5

I

The quashing of the Plaintiff’s

Summons and dismissing her

Complaint, served pursuant to a

Court Order, upon the Defendants,

derogated the broad general

jurisdiction granted to the D.c.

Superior Court under the District

of Columbia Reorganization Act of

1970 and its own Rule SCR-4 (f) and

deprived the Plaintiff of due

process rights under the fifth

Amendment and equal protection

under the Fourteenth Amendment 5-14

II

The trial Court’s Ruling, Quashing

the Plaintiff’s service of the

Summons and Complaint upon the

Defendant for Lack of in Personam

Jurisdiction was manifest abuse of

discretion and denial of equal

DEOTOCELON OF JOW 2. cicccccce 15-22

-iii-

TA OF _C

» AMAF Intl’ Corp. v. Ralston Purina

Company,

428 A2.d 849 (1981) (D.C. App)....9

Beckwick v. Beckwick, 379 A.2d 955

(1977) ae a ee at We ee OR es wae hae ee

a4 Caravel Office Bldg Co. v. Peruvian Air

Attache,

347 A.2d 280 (1975) i. rete 6. are eo 2

4 Dunkwu. Neville 575 A.2da 293 (1990) 13

4 Envirionmental Research Intl Inc. Co. v.

Lockwood Greene Engineers, No. 7860

(2996) NS. akc a ee eee oan, S

Frazier v. Center Motors, 418 A.2d.

1018

(39BO FT 6 nce teed ne Rees CER EUCe wees 17

Garces v. Bradley, 299 A.2d 142

C1973) can ecd este ee bh awee 64606 6 Ua ee i?

£ Gulf O11 V. Gilbert, 330 U.S. 501

C1947) wc cccnccscccccccreseceasetcces 11

7 Hampton, vs. Mow Sun Wong, 426 U.S. 88,

482 L.Ed. 2nd 495, 96 S. Ct. 1895,

1976). cncnocc.cee-steevenss Cece ee eaves is

« Jenkins v. Smith, 535 A.2da 1367 (D.C.

1987) CERBRGE } «20 «bak (00.0 Wem od'd0 6 eek

Mills v. Aetna Fire Underwriters, Ins.

Oo. 821: A. 2G B; t20GGl cs os cde enue 16

x Mitchell Energy Corp. v. Mary Helen Coal

-iv-

Company, 524 F. Supp. 558, D.C.

@6:):3 9 Pee 10

Mouzavaries v. Baxter, 434, A.2d. 988

(1981). cee cee ee erence vereeeereeeees 10

Mullane v. Central Hanover Bank & Trust

Co, 339U.S. 306, 70 S. Ct., 652, 94 L.Ed

B65(1950). cece reer eens ecereeserseces 6

Natlynn Jimmerson v. Kaiser Foundation

Health Plan of the Middle Atlantic

States Et Al., 93CV1307 (1995) ..... 16

Norvack Natl. Hot Rod Ass’n., 247 Md.

350, 357: 231, A.2ad 22, 26,

(LOCTViseeeersbeceeceddcécretineeeeens 10

Renchard v. Humphrey and Harding, Inc.

59 FDR 530 (1973). cece eeenesevscsess 6

Smith v. Jenkins, App D.C. 452 A.2d 333

(1982). cece ececerrescereesesseeessees 12.

Washington Free Community Inc. v.

Wilson, 157 U.S. App, D.C. 360, 484 F.2d

1078 (1973) wocccceeeensercveressseens 14

Washington v. May Dept. Stores, 388 A.2d

O84. (EDIE) vcd cukaeaenee cess Ckaseaeee< 16

White v. Central Dispensary and Emer.

Hospital, 69 App, D.C. 122

(@0:) > ee ee 11

*Cases principally relied upon

-V=-

STATUTES CITED

District of Columbia Code, 11-721,1983,

Bastion Gs Amehete «4. 0.6.4 * 8 eee

District of Columbia Code, 11-921, 1983,

Edition as amended (Grant of

Jurisdiction over actions filed

therein)..... oe eeateveseedeebaeees re

District of Columbia Code, 13-331, 1983

Edition, as Amended (Services under

other Laws and Rules) ......... sevéceenke

District of Columbia Court of Appeals

RuULOS 3 ANd Ancccccvccevcesecvesesesesech

Fifth Amendment to U.S. Constitution,..

TErreeerEeEreTerrrer rere re re ee eT

Fourteenth Amendment to U.S.

OS Ce a i ae ein ai, Ne ee ee

District of Columbia Code, 13-422, 1983

As Amended (The Long Arm Statute)...8

District of Columbia Code, 13-423, 1983

Edition, as

AMONG. ccceccovocoveogvevucstavivctvsdruaseD

Reorganization Act of 1970...........5

Superior Court Rule 4. (£).0- -sesenserl

Superior Court Rule 4 csceceseocscsseS

Safety Responsibility Act May 25,

sh ).) Pere rrerr eee a eee Tee ee eeeveccerc |

Uniform Interstate Intl Procedure

D.C. Code 13-334, 1983 Edition, as

DN 6 no va CRW ew ER CHO CRESS SSO CORE HECS 9

CONTENTS

Appendix

(1) Order of trial Judge, Superior

Court of the District of Columbia, dated

September 23, 1996 ..+«++-e«-+e- 1

(2) Order of trial Judge, denying

Motion for

Reconsideration of Order dated October

15, 1996 ge a eS AOE 8 Nae we ee 2

(3) Opinion of District of Columbia

Court of Appeals,

denying Petitioners Petition for

Rehearing En Banc, dated

July 29, 1998 POR ews wees EO

OPINIONS BELOW

The Opinion of the District of

Columbia Court of Appeals was reported

on April 24, 1998 (D.C. App. 1998) and

is printed in the Appendix.

The Order of the District of Columbia

Court of Appeals, denying the Motion of

the Petitioner below for Rehearing En

Banc was reported on July 29, 1998 and

is printed in the Appendix.

JURISDICTION

The judgment of the District of Columbia

Court of Appeals was entered on April

24, 1998. A timely Petition for

Rehearing En Banc was’ filed, on May 13,

1998 and denied on July 29, 1998.

Jurisdiction of this Court is invoked

under 28 U.S.C. Section 1257(3).

-viii-

sel

TUTIO V ONS

STATUTES AND RULES INVOLVED

This case involves the Fifth and

Fourteenth Amendments to the

Constitution of the United States. The

District of Columbia Reorganization Act

of 1970, Superior Court Civil Rules 4

(c) and (f), D.C. Code 13-331, 13-422,

13-423, and 13-424, 1983 Edition, as

Amended.

STATEMENT OF THE CASE

The Petitioner, Edna M. Jennings,

domiciled in and a resident of the District

of Columbia, sustained personal injuries on

August 26, 1993, when her automobile was

involved ina collision with an automobile

driven by the Defendant, Sandra E.

Coutscoudis on Route 3, in Spotsylvania

County, Virginia.

The vehicle driven by Sandra E.

Coutscoudis was owned by Constantinos

Coutscoudis. Both defendants were residents

of Spotsylvania County, Virginia.

In Spotsylvania County where the accident

occurred, the District of Columbia is less

than fifty (50) miles, in distance.

The plaintiff received some of her medical

care at Mary Washington Hospital in

Fredericksburg, Virginia, where she incurred

a bill of $451.72, and subsequently had to

seek extensive follow-up medical care and

treatment in the District of Columbia and in

nearby Oxon Hill, Maryland, where she

incurred medical bills in excess of

$15,400.00. She lost earnings from her

employment with the District of Columbia

Government, in the amount of $9,878.00.

-l-

Among her numerous injuries, was an

injury which necessitated an operation on her

wrist.

On September 26, 1995, Plaintiff, filed

suit for personal injuries, in the Superior

Court for the District of Columbia, her place

of domicile, seeking damages against the

Defendant, Sandra E. Coutscoudis, the driver

of the vehicle which had caused her injuries,

and the Defendant, Constantinos Coutscoudis,

the owner of the said vehicle.

Despite diligent effort, there was some

delay in effectuating timely service of

process upon the Defendants in Spotsylvania

County, Virginia. Therefore, in order to

obtain service of the Summons and Complaint,

Plaintiff filed a Motion to Extend Time to

effectuate service of process upon the

Defendants.

On December 6, 1995, the Superior Court of

the District of Columbia, heard the Motion

for Extension of Time to Serve the Service of

Process upon the Defendants, and denied

Plaintiff’s Motion and dismissed Plaintiff’s

Complaint without prejudice.

On March 19, 1996, the Plaintiff refiled

her complaint for damages for personal

injuries against the Defendants, in the

Superior Court of the District of Columbia.

On April 11, 1996, Plaintiff attempted to

serve the Defendants by 4a Special Process

Server. This attempt proved futile because

an adult female at the Defendant’s premises,

refused to open the door and accept service

of the Summons and Complaint.

On that same day, April 11, 1996, after

the futile attempt by the Defendants by a

-2-

,

:

Special Process Server, Plaintiff caused to

be mailed to the Defendants, by certified

mail, a copy of the Summons and Complaint.

On April 20, 1996, the certified mail with

return receipt requested, containing the

Summons and Complaint which had been mailed

to the Defendants was returned to Plaintiff,

marked, "Refused".

Thereafter, Plaintiff by Motion to the

Court, requested an Extension of Time to

effectuate service of the Summons and

Complaint upon the Defendants and requested

authority from the Court to be allowed to

serve the Summons and Complaint upon the

Defendants by the Spotsylvania County

Sheriff’s Office.

On May 31, 1996, the Court granted

Plaintiff’s Motion to serve the Defendants by

the Sheriff’s Office of Spotsylvania County,

Virginia.

On July 9, 1996, service of the Summons

and Complaint were made upon the Defendants

in Spotsylvania, Virginia by the Spotsylvania

County Sheriff’s Office.

Subsequently, on September 23, 1996,

Defendants, through their Counsel, filed a

Motion to Quash Service for Lack of in

Personam Jurisdiction, and for Dismissal of

the Plaintiff’s Complaint. After a hearing

thereon, the Court granted the Defendant’s

Motion to Quash the Service of Process and

dismissed the Plaintiff’s Complaint, relying

upon Jenkins vs. Smith, 535 A.2d 1367, D.C.

1987), a forum non conveniens case.

Plaintiff filed a motion for

Reconsideration but the Court denied the

Motion for Reconsideration on October 21,

-3-

1996, this time simply quashing the

Plaintiff’s service of process for lack of in

personam jurisdiction and alluding to the

wording of its prior Order of September 23,

1996.

The cCourt’s Order of October 21, 1996,

being a final order, appeal was made to the

District of Columbia Court of Appeals,

pursuant to D.c. Code 11-721, 1981 Ed., as

amended and Rules 3 and 4 of the D.C. Court

of Appeals Rules.

On April 22, 1998, the Appellant’s case

appeared on the summary calendar of the

District of Columbia Court of Appeals. At

the request of Counsel for the Appellant,

pursuant to an order of this Court,

Appellant’s Counsel was permitted to present

oral argument to the Court.

On April 24, 1998, 4a three Judge panel of

the Court, affirmed the Trial Courts Order,

quashing service upon the Appellees and

dismissed the Appellant’s complaint for Lack

of in Personam Jurisdiction upon the

Appellees.

On May 13, 1998, the Appellant filed a

Petition for Rehearing or Rehearing En Banc.

On July 29, 1998, the Appellant’s Petition

for Rehearing or a Rehearing En Banc was

denied by a Per Curiam Order.

It is from this final Order of the

District of Columbia Court of Appeal that the

Appellant moves for issuance of a Writ of

Certiorari to the United States Court of

Appeals for the District of Columbia Circuit.

REASON FOR GRANTING THE WRIT

I

The quashing of the Plaintiff’s Summons

and dismissing the Complaint served upon the

Defendant’s, pursuant to a Court Order,

derogated the broad general jurisdiction

granted the D.C. Superior Court under the

District of Columbia, Reorganization Act of

1970 and its own

Rule SCR-4 (f) and deprived the

Plaintiff of due process rights under the

Fifth Amendment and equal protection under

the Fourteenth Amendment.

Prior to the enactment of D.C. Code,

Section 13-422 and 13-423, 1983 Edition, as

Amended, the Superior Court of the District

of Columbia, exercised jurisdiction over a

non-resident Defendant, if there was any

basis consistent with the United States

Constitution for exercise of personal

jurisdiction. Subsequently, the Court relied

upon the broadly expanded jurisdiction

bestowed upon it by The Reorganization Act of

1970 and the Rules promulgated pursuant to

the Reorganization Act of 1970.

Superior Court Rule 4, amended May 23,

1975, pertains to Service of Process and

expanded the Court’s territorial limits for

purposes of jurisdiction.

SCR Rule-4(c) is a service rule, and

delineates the rules for effectuating service

for this Court upon non-resident Defendants.

Rule 4(c) sets out the methods for service

of a Complaint and Summons as follows:

~~

"Rule 4(c) by whom served

1) U.S. Marshall

2) Competent person

3) By Mail"

Under this Rule, service upon Defendants

by certified mail, return receipt requested,

is reasonably calculated to give adequate

notice. Caravel Office Building Co. _v-

Peruvian Attache, 347 A.2ad 280,, (1975);

Vv. and Harding, Inc., 59

FDR, 530, (D.C.C.) (1973) and Mullane Vv.

Central Hanover Bank & Trust Co., 339 U.S.

306, 70 S. Ct 652, 94 L.Ed 865 (1950).

Service under the Rule, contemplated

notice consonant with the due process

requirements of the United States

Constitution. Environmental Research

international, Tne, Vv. Lockwood Green

Engineers, Inc., No. 7860 (1976).

Superior Court Rule 4(c) was given added

heft by SCR-4(f). This Rule clarified its

territorial limits. And says, territorial

limits effective service.

"All process other than a subpoena may be

served by hand delivery or by mail

anywhere within the territorial limits of

the District of Columbia, and when

authorized by an applicable statute or by

these Rules, beyond the territorial limits

of the District of Columbia."

To effectuate service and acquire personal

jurisdiction over a nonresident defendant,

residing in close geographical proximity to

the District of Columbia, reliance was upon

had upon, 4(f) which says..-.a subpoena may be

-6-

|

served by hand delivery or by mail anywhere

within the territorial limits of the District

of Columbia, and when authorized by an

applicable statute or by these Rules, beyond

the territorial limits of the District of

Columbia.

And it is, and was by this implementation,

an allusion to Rule 4(f) which has enabled

the District of Columbia Superior Court, to

assert its personal jurisdiction over non-

resident Defendants residing in close

geographical proximity to the District of

Columbia.

Early on, the Safety Responsibility Act,

enacted on May 25, 1954, had as its

ostensible purpose, to confer personal

jurisdiction over non-resident defendants,

who had been involved in an accident in the

District of Columbia with a District of

Columbia motorist or pedestrian through the

negligent operation of a motor vehicle, but

this statute required an injured District

resident to post a bond with the Superior

Court to pursue his cause of action. The

bond provision proved rather burdensome for

District residents, so the statute was of

limited benefit to residents of the District

of Columbia.

} ‘bilit Statute, *

remedial statute was enacted mainly to

effectuate Service of Process upon non-

resident defendant’s who did not reside in

close proximity to the District of Columbia

and were beyond the reach of D.C. Sup. Ct.

Rule 4(c) and 4(f).

As the District, increasingly became a

mercantile community, with ingress and egress

of non-resident mercantile traffic, these

non-resident drivers, through the negligent

~Jo

operation of their vehicles, would become

involved in collisions with District

motorists and pedestrians, and service of

process had to be effectuated upon them in

distant climes (jurisdictions), well beyond

the reach of Superior Court Civil Rules 4(c)

and 4(f), and made burdensome by the bonding

impediment of the Safety Responsibility Act.

To remedy this service defect, in 1973,

Congress enacted the Long Arm Statute.

The salient features of the Long Arm

Statute were:

13-422. Personal jurisdiction based

upon enduring relationship.

A District of Columbia court may exercise

personal jurisdiction over a person domiciled

in, organized under the laws of, or

maintaining his or its principal place of

business in, the District of Columbia as to

any claim for relief.

13-423. Personal Jurisdiction based

upon conduct.

(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 torious injury in the

District of Columbia by an act or

omission in the District of

E>

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 court of

conduct, or derives substantial revenue from

goods used or 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) not applicable.

(c) Notwithstanding the provisions

of subparagraphs (A) through

(D), the Court may exercise

personal jurisdiction if there

is any basis consistent with

the United States Constitution

for the exercise of personal

jurisdiction.

D.C. Code Section 13-334(a) is the

predecessor to D.C. Code Section 13-423 and

continues to exist as a basis for personal

jurisdiction, alongside this section’s more

comprehensive long arm provisions. AMAF

Cc i - j ° (App.

D.C.) 428 A.2ad 849 (1981). Moreover, the

-9-

District of Columbia Courts takes guidance

from neighboring jurisdictions of Maryland

and Virginia in the interpretation of their

long-arm statute. Mitchell EnergyCorp. v.Mary

Helen Coal Col., 524 F. Supp. 558 (D.C.

1981).

In fact, utilizing Maryland cases as

a guideline, the District of Columbia

Long Arm Statute has been interpreted to

embrace those purposeful acts, "in

relation to (a) contract, albeit

preliminary or (b) subsequent to its

execution. Vv j t

Assn, 247 ea... 380, 357, 232 Ac2G@ 22,

26, (1967) and incorporated a modified

version of the Uniform Interstate

International Procedure Act, to give the

then District of Columbia Court of

General Sessions, (predecessor to the

Superior Court of the District of

Columbia) expanding jurisdiction with

regard to transacting any business",

Mouzavires v. Baxter, 434 A.2d 988 at

991 (1981). Thus it becomes patently

clear that the Long Arm Statute was

never intended to impact upon matters

that were non-mercantile in nature. The

Long Arm Statute_has no applicability to

Plaintiff’s case, filed with the

Superior Court of the District of

Columbia. Plaintiff s case is a non-

j t and is a transit tort

action. The cCourt’s jurisdiction over

the Defendant therein does not depend

upon a mercantile transaction as

prescribed in D.C. Code 13-422 and 423

(1983, Edition, as amended).

The case before this Court, Edna M.

Jennings, Appellant vs. Sandra E.

Coutscoudis, et al., Appellee, 96-CV

1752, arose out of an automobile

-10-

collision in Fredericksburg, Virginia, a

contiguous area to the District of

Columbia, and less than fifty (50) miles

distant from the District, a case which

through custom and usage was reachable

by D.C. Sup. Ct. Civil Rule 4(c) and

4(f). A Court of the District of

Columbia, long ago in White v. Central

Dispensary and Emer. Hosp., 69 App. D.C.

122 at 129, held that an action in tort

for negligence is transitory in nature.

Service was effectuated upon the

Defendants pursuant to Sup. Ct. Civil

Rule 4(c) and 4(f). The defendants

challenged the Service of Process for

Lack of In Personam Jurisdiction under

D.C. Code Sections 13-422 and 13-423 of

the Long Arm Statute. This was an

anomalous anda novel challenge since

this was a misapplication of the Long

Arm Statute. This case had no features

of a mercantile transaction and to

extend its application to this case was

error.

The Court then must consider, whether

it can, by exercising jurisdiction over

Appellant’s case, meet the requirements

of due process and the public and

private interest delineated in Gulf Oil

v. Gilbert, 330 U.S. 501-509,, (1947)

and the nexus requirements, of Jenkins

v. Smith, 535 A.2d 1367 (D.C. 19878) (en

banc), a forum non conveniens case,

based upon its expanded jurisdiction

under the Reorganization Act of 1970 and

the rules it promulgated pursuant to

Sup. Ct. Civil Rule 4(f).

-ll-

D.C. Code 13-331, entitled,

"Service under other laws and rules of

Court," provides: This Chapter does not

limit or affect the right to serve

process in any other manner now or

hereafter required or permitted by, (2)

Rule of Court, (December 23, 1963), July

29, 1970, 1983 Edition, as amended and

D.c. Code 13-424, entitled “Service

Outside the District of Columbia, states

that when the exercise of personal

jurisdiction is authorized by this sub-

chapter, service may be made outside the

District of Columbia. This is

especially true when a non-resident

Defendant resides no more than fifty

(50) miles away, and, a Court may assert

personal jurisdiction over a non-

resident Defendant where service of

process is authorized by statute and

where th4e service of process as

authorized is consistent with due

process. Mouzavires v. Baxter, App.

D.c. 434 A.2da 988 (1981) cert. denied

455 U.S. 1006, 102 S&S. Ct. 1643, 71 L.

Fd. 2a 875 91982), Smith vs. Jenkins,

App. D.C. 452 A.2da 333 (1982).

This Plaintiff, 4 domiciliary in

and a resident of the District of

Columbia exercised her choice of forum

in which her suit could be filed by

selecting a court of general

jurisdiction in her place of residence,

in conformance with the due process

requirements of Gulf Oil v. Gilbert, 333

U.S. 501 (1947).

Due Process requirements are met

where the Defendant sued, is personally

-12-

served and has actual notice of the

complaint against him/her and where by

appearing to defend the action, he/she

is not placed at a disadvantage with

regard to marshalling proof to defend

against the complaint. See Gulf Oil v.

Gilbert, supra.

Under D.C. Code, 11-921, 1983

Edition, as amended, the Superior Court

was granted general jurisdiction over

any action filed therein; except the

jurisdiction, specifically reserved unto

the United States District Court.

In this matter where the Defendants

have received notice of Plaintiff’s

Complaint by having a copy of the

Summons and Complaint personally served

upon them, the notice requirement of due

process was met and the Court’ should

have exercised its jurisdiction,

especially as it pertains to this tort

action filed by a resident of the

District of Columbia.

Although, the Fifth Amendment

contains no equal protection clause,

the due process clause of the Fifth

Amendment authorizes traditional equal

protection analysis of federal rules and

therefore, the equal protection clause

has substantive as well as. procedural

aspects. Hampton v. Mow Sun Wong, 426

U.S. 88, 482 L.Ed. 2d 495, 96S. Ct.

1895 91976) and as it applies to the

District of Columbia, the due process

clause of the Fifth Amendment guaranty

against treatment which underlies the

equal protection clause of the

-13-

Fourteenth Amendment. Washington Free

Community v. Wilson, 157 U.S. App. D.C.

360, 484 F.2a 1078 (1973).

In the instant case, the trial Court,

no doubt, had in mind these principles

when it issued an Order on May 31, 1996,

granting Plaintiff the right to have the

Defendants served by the Sheriff’s

office of Spotsylvania County, Virginia,

after the Defendants had on two

occasions wilfully avoided service of

process.

Subsequently, after permitting

service by the Sheriff’s Office of

Spotsylvania County, Virginia, and after

Plaintiff’s had relied upon the Court’s

Order, allowing Service of Process upon

the non-resident Defendants by the

Sheriff’s Office, the Court upon motion

of the Defendant’s to quash said

service, granted Defendants’ Motion to

Quash the Service of Process and

dismissed the Complaint. In so doing,

the dismissal of Plaintiff’s complaint

had the effect of divesting the

Plaintiff of due process and equal

protection, to have her cause of action,

litigated in _the place_of her_domicile,

namely the District of Columbia, the

place of her domicile where she had a

substantial nexus for her complaint.

Additionally, the Order of the Court

served to derogate SCR Rules 4(c) and

(f) of the Rules of the Superior Court

of the District of Columbia, especially

since the area where the Defendants

resided, was contiguous to and within

proximity to the District of Columbia.

-14-

II

The Trial Court’s

Ruling, quashing the

Plaintiff’s service of

the Summons and

Complaint upon the

Defendants for Lack of

in Personam Jurisdiction

was a manifest abuse of

discretion and denial of

equal protection of Law.

The trial Court in quashing the

Service of Process and dismissing the

Complaint, showed no deference to the

due process Clause of the Fifth

Amendment and the equal protection

Clause of the Fourteenth Amendment.

This lack of deference by the Court was

prejudicial to the Plaintiff, thereby

depriving her of her cause of action to

litigate in her choice of forum, the

situs of her domicile and constitutes an

abuse of discretion by the Court.

Had the Court given deference to

the principles of due process and equal

protection, the Court would have

examined a host of cases which this

Court may have considered in guiding

it’s deliberations with regard to

deciding the outcome of this case and

not abused it’s discretion.

In reviewing "abuse of discretion"

the Court should have examined Dunkwu v.

Neville, 575 A.2d 293, 294 (D.C. 1990),

where the Court stated that "we have

-15-

described our review for abuse of

discretion as follows”.

"(a) Although only a clear showing of

abuse of discretion will suffice

to reverse the trial court’s

decision, such ruling receives

closer scrutiny than most

exercises of trial court

discretion, and convincing

circumstances may demonstrate

trial court error as a matter of

law, and quoting__Jenkins, supra

535 A.2a at 1370" (quoting in

part Washington v May Dept.

Stores), 388 A.2ad 484, 486, D.C.

(1978). Significantly, we also

noted that:

"While in general, unless the

balance is strongly in favor of

the Defendant, the Plaintiff’s

choice of forum should rarely be

disturbed "Mi

Underwriters, Inc. Co., 511 A.2d

8, 10 (D.C. (1986), quoting Gulf

Oi] v. Gilbert 330 U.S. 501, 508

(1947), that rule pertains

especially when the Plaintiff is

a resident of the District of

Columbia."

"Thus it becomes axiomatic that

a trial court must exercise its

discretion prudently and the

trial court must be especially

cautious where it utilizes its

discretion of dismissal".

"Dismissal should be imposed

-16-

sparingly". Frazier v. Center

Motors, Inc., 418 A.2d 1018,

1020 (D.C. 1980) and Beckwick v.

Beckwick, 379 A.2dad 955 (0,

i977} <

In Garces v. Bradley, 299 A.2d 142

(D.C. 2970 2 ee held that the

caution imposed upon a trial judge when

exercising discretion, is a reflection

primarily of our well established

preference for deciding cases on their

merit. Bradley at 144.

In the instant case, on September

23, 1996, the trial Court entered an

Order, Quashing Service of Process and

dismissing the Complaint. The trial

Court Order stated, "the issue is not

whether the District of Columbia is the

best source for the litigation, but

whether the District has so little to do

with the case that its Court should

decline to hear it. Jenkins v. Smith,

535 A.2d, 1367 (D.C. 1987) (en banc)".

Upon Plaintiff’s filing a Motion

for Reconsideration, on October 21,

1996, the trial Court affirmed its

previous ruling.

The trial Court abused its discretion

and deprived the Plaintiff of equal

protection and due process when it

affirmed its prior Order and stated as

reasons therefor the following:

"The prior Order of this Court

quashing the service of Summons

upon the Defendants and dismiss the

~-17-

———x——— rl

Complaint for want of personal

jurisdiction over the Defendants

be, and the same is AFFIRMED."

The cCourt’s failure to adhere in

its order of September 23, 1996, to its

ruling of October 21, 1996 resulted in

two disparate decisions.

The court in its earlier Order,

dated September 23, 1998, quashing the

Plaintiff’s Summons and Complaint and

basing its decision upon Jenkins Vv:

Smith, supra, misled counsel to believe

that since Jenkins v. Smith, supra, was

a forum non-conveniens case, Plaintiff

in her Motion for Reconsideration had to

demonstrate to the Court, Plaintiff’s

contact with the District of Columbia.

Plaintiff, therefore, in her Motion for

Reconsideration then established her

myriad contacts with the District of

Columbia, embracing in her motion, the

independent evaluation of the private

and public factors set forth in Gulf Oil

v. Gilbert, 330 U.S. 501-509, 1947.

In Gulf Oil v- Gilbert, supra, the

Court in considering due process

requirements, concluded that due process

requirements are met where the defendant

is personally served; has notice of the

Complaint and where by appearing to

defend the action, is not placed at a

disadvantage with regard to marshalling

proof to defend against the Complaint

and in, Jenkins v. Smith, 635 A.2da 1367

(D.C. 1987), by resolving whether the

District of Columbia has so little to do

with the case that its Court should

-18-

decline to hear it. Jenkins, supra 535

A.2d at 1371, (this principle was also

affirmed Additionally, the "public

private" interest evaluation, remains

the extant litmus test:

"Factors relevant to the private

interest concern the ease,

expedition, and expense of the

trial, and include the relative

ease as access to proof;

availability and cost of compulsory

process; the enforceability of a

judgment once obtained; evidence of

an attempt by the Plaintiff to vex

or harass the defendant by his

choice of forum; and other

obstacles to a Sate “ClEG2 sis

Factors related to the public

interest includes administrative

difficulties caused by local Courts

docket congested with foreign

litigation; the imposition of jury

duty on a community having no

relationship to the litigation; and

the inappropriateness of requiring

local Courts to interpret the laws

of another jurisdiction".

The Trial Court, in support of its

first order, quashing the Plaintiff’s

Summons and Complaint, treated the issue

of service of the Summons and complaint

upon the non-resident motorist of

Spotsylvania County, Virginia, as a

forum non-conveniens matter or at least,

one so closely parallel, as to be of

kindred nature, and relied in its order

upon the partial reasoning of the

concluding paragraph of Jenkins v.

-19=-

Smith, supra, which identifies the

ultimate question that must be resolved

by a forum non conveniens analysis:

" (Whether the District of Columbia

is the best forum for this litigation

is not the issue, rather, [the court]

must determine the District has so

little to do with the case that its

Court should decline to hear it]".

In her Motion for Reconsideration of

the Court’s initial Order, Plaintiff

clearly demonstrated her overwhelming

nexus to the District of Columbia

when she showed that:

She is domiciled in and a resident

of the District of Columbia.

Appellant is employed by the

District of Columbia Government; her

work location is in the District of

Columbia from which she lost time from

her employment.

Appellant received treatment from

the Pain Therapy Group, located at 100

Irving Street, N.W., in the District of

Columbia.

Appellant received treatment from

Drs. Morowitz, Singer, Marion and

Laessing, located at the 108 Irving

Street, "4... 42 the District of

Columbia.

Appellant received treatment from

the Metro Washington Orthopaedic

Association located in nearby Oxon Hill,

-20-

Maryland.

Appellant had an operation at

Hadley Memorial Hospital located on

Martin Luther King, Jr. Avenue, S.W., in

the District of Columbia as the result

of her injuries and received treatment

at the hospital.

Appellant received treatment from

Dr. William Dorn, located at 2600

Virginia Avenue, N.W., in the District

of Columbia.

Appellant received treatment from

the Physical Medicine Rehabilitation

Center, located at 2600 Virginia Avenue,

N.W., in the District of Columbia.

Appellant received treatment from

the Neurodiagnostic Associates P.C.,

located at 106 Irving Street, N.W. in

the District of Columbia.

Appellant is a member of Blue

Cross-Blue Shield of the National

Capital Area, located at 550 - 12th

Street, S.W., ih the District of

Columbia, which paid for some of her

treatment

In Contrast to these significant

contacts with the District of Columbia,

Appellant’s only contact with the State

of Virginia was being there for a visit

and receipt of emergency treatment at

Mary Washington Hospital. Under these

circumstances, Appellant had every

expectation that she could have filed

her transit tort action in the Superior

-21-

Court for the District of Columbia.

Moreover, Defendants, such as the

Appellees, who resides less than fifty

(50) miles from the District of

Columbia, who collides with an

automobile operated by a resident of the

District of Columbia, at aplace, at

that distance has every expectation that

a suit may be brought in either Virginia

or the District of Columbia.

The two conflicting Orders, entered

by the trial Court in this matter served

to becloud the issue which this case

presents and the action of the trial

court as affirmed by the p.c. Court of

Appeals in the interpretation of its own

statutes, denied the Plaintiff due

process and equal protection in

violation of the fifth and Fourteenth

Amendments to the United States

Constitution.

CONCLUSION

For all of the reasons set forth

herein, Petitioner requests that this

Court grants this Petition and issue a

Writ of Certiorari to the District of

Columbia Court of Appeals.

Respectfully submitted,

Lloyd D. Iglehart

Attorney for Petitioner

1527 Pennsylvania Avenue, S.E.

Washington, D.C. 20003

(202) 332-7600

Dated December 25, 1998

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APPENDIX

el

SUPERIOR COURT OF THE DISTRICT OF

COLUMBIA

CIVIL DIVISION

Washington, D.C. 20001

Edna M. Jennings

Plaintiff

CA No. 96ca2190

Sandra Coutscoudis, et. al.

Defendant

ORDER

Defendants Motion to Quash

Service and Dismiss for Lack of Personal

Jurisdiction

Upon consideration of the motion

filed by Defendant

and after hearing argument on behalf of

all parties concerned, it is, by the

Court, this 23rd Day of

S , 1996.

ORDERED:

(1) That the motion be, and it is

hereby, x GRANTED DENIED

(2) That "...the issue is not

whether the District of Columbia

Is the best forum for the

litigation but whether the District

has so little to do with the

case that its Court should decline

To hear it." Jenkins v.

Smith, 535 A.2d 1367, (D.C. 1987)

(en banc)

/S/ Michael Rankins

JUDGE

Willie Faye Garrett, Esq.

2701 Pennsylvania Ave., SE

Washington, DC 20020

Copies to:

Michael P. Chervenak, Esq.

Ford, Chervenak and Foote

255 N. Washington, St. Suite 201

Rockville, MD. 20850

IN THE SUPERIOR COURT FOR THE DISTRICT

OF COLUMBIA

Civil Division

EDNA M. JENNINGS

Plaintiff

Civil Action No. 0002190-96

Judge Rankin/Calendar #6

vs.

SANDRA E. COUTSCOUDIS, et al.

Defendants

ORDER

Upon consideration of the Plaintiff s

Motion to Reconsider, it is by the Court

this 15th Day of October

, 1996;

ORDERED; that the motion be, and the

same hereby is DENIED; and it is

further,

ORDERED, that the prior Order of the

Court quashing the service of Summons

upon the defendants and dismiss the

Complaint for want of personal

jurisdiction over the Defendants be, and

the same hereby is AFFIRMED.

i es

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 96-CV-1752

EDNA M. JENNINGS, APPELLANT

Vv.

SANDRA COUTSCOUDIS, APPELLEE.

Appeal from the Superior Court of the

District of Columbia

Civil Division

(Hon. Michael L. Rankin, Trial Judge)

(Argued April 22, 1998 Decided April

24, 1998)

Before FARRELL and REID, Associate

Judges, and BELSON, Senior Judge.

MEMORANDUM OPINION AND JUDGMENT

Appellant Edna M. Jennings appeals

from orders of the trial court quashing

service of process upon appellees Sandra

E. and Constantinos cCoutscoudis, and

dismissing her personal injury complaint

for lack of personal jurisdiction. We

affirm.

I.

Ms. Jennings alleges she was injured

on August 28, 1993, in Spotsylvania,

Virginia, when the car she was driving

collided with one driven by Ms.

Coutscoudis and owned by Mr.

Coutscoudis. Ms. Jennings filed a

personal injury complaint in the triel

court on September 26, 1995. Her

complaint was dismissed without

prejudice on December 6, 1995, due to

alin

failure to effect service of process on

appellees.

Ms. Jennings refiled her complaint on

March 19, 1996. By May 31, 1996, she

still had not served her complaint on

appellees, and requested an extension of

time for service. The motion was

granted, and on July 9, 1996, service of

process was accomplished through the

Spotsylvania County’s Sheriff’s

Department. Appellees filed a motion to

quash service and to dismiss the

complaint for lack of personal

jurisdiction.

On August 26, 1996, Ms. Jennings

filed an apparently identical complaint

against appellees in the United States

District Court for the District of

Columbia. With respect to the complaint

filed in the Superior Court, appellees

motion to quash service and dismiss the

complaint was granted on September 23,

1996 and on October 21, 1996, the trial

court denied Ms. Jennings’ motion for

reconsideration. On September 27, 1996,

the United States District Court

dismissed Ms. Jennings’ complaint for

lack of personal jurisdiction. Jennings

vy. Coutscoudis, 941 F. SuUpp- 5 (D.D.C.

1996)

Il.

As the United States District Court

made plain in Jennings, service of

process in Virginia cannot confer

personal jurisdiction over appellees in

the District of Columbia where no such

wfc:

jurisdiction exists. Under D.C. Code

13-422 and 13-423 (1995), the trial

court did not have personal jurisdiction

over appellees. Section 13-422 (a)

confers "personal jurisdiction over a

person domiciled in, organized under the

law of, or maintaining its principal

place of business in, the District of

Columbia as to any claim for relief."

Since appellees were not here, and did

not maintain a principal place of

business in the District, there is no

jurisdiction Under 13-422. Nor is

there personal jurisdiction over

appellees under 13-423 because they:

(1) do not transact any business or

provide any services inthe District;

(2) did not cause a tortious injury in

the District; (3) do not have any

property here; (4) do not regularly do

or solicit business in the District; (5)

do not act as a surety on transactions

in the District; and (6) do not have any

parent or child relationship in the

District. See D.C. Code 13-423 (a);

Trerotola v. Cotter, 601 A.2d 60, 63

(D.C. 1991).

"A Court may properly assert personal

jurisdiction over a nonresident where a

statute authorizes service of process

and where such service is consistent

with due process. Smith v. Jenkins, 425

A» 26.--333,:.- 336 -{0.€s~—'. 1963): 16360Cien

omitted). Here, 13-422 does not

authorize service of process on

appellees. Moreover, given the

requirements set forth in 13-423,

service on them is inconsistent with due

process.

cosets ai ee

Accordingly, for the foregoing

reasons, we affirm the judgment of the

trial court.

So ordered

FOR THE COURT

/s/GARLAND PINKSTON, JR.

Clerk of the Court

= 3

No. 96-CV-1752

Honorable Michael L. Rankin

Clerk, Superior Court

Willie Faye Garrett, Esq.

2701 Pennsylvania Ave., SE

Washington, DC 20020

Michael P. Chervenak, Esq.

255 N. Washington, St. Suite 201

Rockville, MD 20850

'

“at

as

District of Columbia

Court of Appeals

No. 96-CV-1752

EDNA M. JENNINGS,

Appellant,

CA2190-96

Ve

SANDRA E. COUTSCOUDIS,

Appellee.

BEFORE: Wagner, Chief Judge; Terry,

Steadman, Schwelb, *Farrell, King, Ruiz,

and *Reid, Associate Judges; *Belson,

Senior Judge.

ORDER

On Consideration of appellant s

petition for rehearing or rehearing en

banc, it is

ORDERED by the merits division* that

the petition for rehearing is denied;

and it appearing that no judge of this

court has called for a vote on the

petition for rehearing en banc, it is

FURTHER ORDERED that the petition for

rehearing en banc is denied.

PER CURIAM

Copies to:

Honorable Michael L. Rankin

Clerk, Superior Court

Willie Faye Garrett, Esq.

2701 Pennsylvania Ave., SE

Washington, DC 20020

Michael P. Chervenak, Esq.

255 N. Washington, St. Suite 201

Rockville, MD 20850

-1U-