Opposition Brief — Jennings v. Coutscoudis

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No. 98-1406

In The

Supreme Court of the United States

October Term, 1998

EDNA M. JENNINGS,

Petitioner,

VS.

SANDRA E. COUTSCOUDIS, et vir,

Respondents.

On Petition For Writ Of Certiorari To

The District Of Columbia Court Of Appeals

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MicuHaet P. CHERVENAK

Counsel of Record

Forp & CHERVENAK

255 North Washington Street

Suite 201

Rockville, Maryland 20850

(301) 279-2000

Attorney for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

—

natin itl AS He! Tem + Sere oe

QUESTION PRESENTED FOR REVIEW

Should this Honorable Court agree to review a deci-

sion of the District of Columbia Court of Appeals which

affirmed the quashing of service of process upon the

respondents and the dismissal of a personal injury com-

plaint on the basis of the District of Columbia long-arm

statute, where the decision is not in conflict with other

decisions of the District of Columbia Court of Appeals or

decisions of the United States District Court for the Dis-

trict of Columbia or the United States Court of Appeals

for the District of Columbia Circuit?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

TABLE OF CONTENTS. i. 2 iiss secs tines vaeeesues ii

TABLE OF AUTHORITIES «2 i063 eisce etvervenges il

STATEMENT OF THE CASE... 0. 2ccsccncvescevens. 1

REASONS THE WRIT SHOULD BE DENIED....... 2

CONCLUSION 3 aii wks is dee ieeeeeae vere enaye eet 10

TABLE OF AUTHORITIES

CASES

Jennings v. Coutscoudis, 941 F. Supp. 5 {oR EY ost

1996), affirmed 1997 WL 411792 (D. C. Cir.)..... 9, 10

Lott v. Burning Tree Club, Inc., 516 F. Supp. 913

(DA, TOGO cas ic cis 5 tek wees ees See aes eee 4

Perry v. Criss Bros. Iron Works, 741 F. Supp. 985

(BD, F990) vain k oie See ia eee eee 8

STATUTES AND RULES

This case involves District of Columbia Code §§ 13-422

and 13-423 and Rule 4 of the District of Columbia Supe-

rior Court Rules of Civil Procedure. The pertinent text of

these statutes and Rule 4 is set forth in the brief.

STATEMENT OF THE CASE

Procedural Background

Edna Jennings’ civil complaint for personal injury

was filed in the Superior Court of the District of Colum-

bia on March 19, 1996. Jennings had filed an identical

complaint in 1995 but that action was dismissed due to

her failure to affect service of process on the defendants.

In response to the 1996 action, the defendants filed a

motion to quash service and motion to dismiss for lack of

personal jurisdiction. On September 23, 1996, Judge

Michael Rankin entered an Order granting defendants’

motion to dismiss for lack of personal jurisdiction and

quashing the service of the summons upon the defen-

dants. Jennings’ request that Judge Rankin reconsider his

decision was rejected and the plaintiff then noted an

appeal to the District of Columbia Court of Appeals. The

Court of Appeals affirmed the Order of the Trial Court in

a Memorandum Opinion and Judgment set forth in full in

the Appendix to plaintiff’s Petition.

Factual Background

Plaintiff Jennings’ 1996 complaint alleges a motor

vehicle accident occurring in Fredericksburg, Virginia on

August 28, 1993. Jennings, a resident of the District of

Columbia, alleges that she sustained injuries and dam-

ages as the result of the negligence of Sandra Coutscoudis

in the operation of a vehicle owned by her husband,

Constantinos Coutscoudis. The complaint acknowledges

that the Coutscoudises are residents of Virginia. Jennings’

complaint asserted jurisdiction in the Superior Court pur-

suant to the general jurisdiction statute, § 11-921, District

of Columbia Code.

The defendants moved to dismiss the complaint and

quash the service of process based on a lack of personal

jurisdiction. A supporting affidavit executed by the Cout-

scoudises established that they resided in Spotsylvania

County, Virginia and were both retired. The affidavit

further established that neither defendant worked in, nor

maintained a principal place of business in, the District of

Columbia. Both defendants were served with the Supe-

rior Court summons and complaint at their home in

Spotsylvania, Virginia by a Deputy Sheriff of Spot-

sylvania County.

REASONS THE WRIT SHOULD BE DENIED

The Superior Court of the District of Columbia does

not have personal jurisdiction over the defendants under

the circumstances of this case. The plaintiff overlooks the

fact that service of process over non-resident defendants

must be authorized by statute or rule. Rule 4, Superior

Court Rules of Civil Procedure, places territorial limits on

the service of summons effective to establish personal

jurisdiction over defendants. Those limits do not embrace

these non-resident defendants unless they could be sub-

jected to the jurisdiction of the Superior Court of the

District of Columbia.

The District of Columbia Code sets forth two methods

by which a District of Columbia court may exercise per-

sonal jurisdiction over persons outside the District of

Columbia — personal jurisdiction based upon an enduring

relationship (§ 13-422) and personal jurisdiction based

upon conduct (§ 13-423). The defendants are individuals

who neither reside nor work in the District of Columbia

and are, therefore, not subject to personal jurisdiction

under § 13-422. The incident giving rise to plaintiff's civil

complaint is a motor vehicle accident which occurred in

Virginia. The defendants cannot, therefore, be said to

have caused injury in the District of Columbia under

§ 13-423.

The defendants are not subject to personal jurisdic-

tion of the Superior Court of the District of Columbia

under the facts of this case and the Court cannot acquire

jurisdiction over the defendants by issuing (and serving)

a summons which exceeds the territorial limitation of

Rule 4(k). Accordingly, the Superior Court of the District

of Columbia cannot gain personal jurisdiction over these

residents of Virginia by service in Virginia under the

circumstances of this case and this Honorable Court

should decline to grant the writ.

While the Superior Court of the District of Columbia

is a court of general jurisdiction that has authority to

adjudicate civil actions such as motor vehicle torts, the

mere fact that the present action is a civil tort and the

plaintiff is a resident of the District of Columbia does not

provide the Superior Court of the District of Columbia

with jurisdiction over all persons. In order to entertain a

viable action against a non-resident defendant, not only

must the service be within limits set by the due process

clause of the Constitution, but service of process over the

non-resident defendant must be authorized by statute or

rule. Lott v. Burning Tree Club, Inc., 516 F. Supp. 913

(D.D.C. 1980).

Service upon the defendants of a summons issued by

the Superior Court must comply with Rule 4 of the Supe-

rior Court Rules of Civil Procedure. Subsection (k) places

territorial limits on effective service:

Rule 4. Summons

+* + * + © #

(k) Territorial Limits of Effective Service.

(1) Service of a summons or filing an acknowl-

edgment of service is effective to establish juris-

diction over the person of a defendant

(A) who could be subjected to the jurisdiction of

this Court, or,

(B) Who is a party joined under Rule 14 or Rule

19 and is served at a place not more than 100

miles from the place of hearing or trial, or

(D) when authorized by a statute of the United

States or the District of Columbia.

The defendants are not potential parties to be joined

under Rule 14 (third party practice) or 19 (joinder of

persons needed for just adjudication) nor has the plaintiff

alleged the existence of any other federal statute or spe-

cial statute of the District of Columbia authorizing service

of summons over non-resident defendants in a simple

tort case. Accordingly, sub-sections (B) and (D) are not

applicable and the plaintiff cannot take refuge therein.

Subsection (A) of Rule 4(k) would recognize service

of process in Virginia as effective if the defendants

7 . could be subjected to the jurisdiction of this

Court...” Accordingly, in order to ascertain whether the

defendants could be subject to the jurisdiction of the

Superior Court of the District of Columbia under the

circumstances of this case, it is necessary to examine the

District of Columbia’s long-arm statute.

Ms. Jennings’ complaint is one for personal injuries

arising out of a motor vehicle accident which occurred in

Fredericksburg, Virginia. The defendants are residents of

Spotsylvania County, Virginia and were served in Vir-

ginia. The District of Columbia Code, Chapter 4 —- Civil

Jurisdiction and Service Outside the District of Columbia

— Subchapter II — Bases of Personal Jurisdiction over

Persons Outside the District of Columbia - sets forth the

manner in which a District of Columbia court may exer-

cise personal jurisdiction over persons outside the Dis-

trict of Columbia. There are only two methods:

§ 13-422. Personal jurisdiction based upon

enduring relationship.

A District of Columbia court may exercise per-

sonal 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.

and

§ 13-423. Personal jurisdiction based upon con-

duct.

(a)

A District of Columbia court may exercise

personal jurisdiction over a person, who

acts directly or by any agent, as to a claim

for relief arising from the person’s —

(1)

(2)

(7)

transacting any business in the District

of Columbia;

contracting to supply services in the

District of Columbia;

causing tortious injury in the District of

Columbia by an act or omission in the

District of Columbia;

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;

having an interest in, using, or possess-

ing real property in the District of

Columbia;

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

marital or parent and child relationship

in the District of Columbia if...

* + * * *£ * * + * +* + ©

(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.

With regard to § 13-422, the defendants are not

“domiciled in, organized under the laws of, . . . (nor do

they maintain their) . . . principal place of business in, the

District of Columbia... ”. The defendants are retired and

live in Spotsylvania County, Virginia. They are, therefore,

not subject to personal jurisdiction under § 13-422 and are

not subject to service of process outside the District of

Columbia with a summons issued by a District of Colum-

bia court.

With regard to § 14-423, the accident giving rise to

the plaintiff’s complaint occurred in Fredericksburg, Vir-

ginia. In fact, no events or omissions giving rise to plain-

tiff’s claim occurred in the District of Columbia.

Accordingly, the plaintiff’s claim cannot be said to arise

from any of the activities enumerated in that section. The

defendants, therefore, are not subject to personal jurisdic-

tion under § 13-423 and are not subject to service of

process outside the District of Columbia with a summons

issued by a District of Columbia court.

Inasmuch as neither District of Columbia Code

§§ 13-422 or 13-423 are applicable to the facts of this case,

and inasmuch as plaintiff has not alleged the existence of

any other statute empowering a District of Columbia

court with personal jurisdiction over persons outside the

District of Columbia, simple service in Virginia with a

Superior Court summons is ineffective as a means by

which the Superior Court may acquire jurisdiction over

these non-resident defendants.

Plaintiff’s recitation of the factual background and

her efforts to serve the defendants in Virginia and refer-

ences to an earlier-filed suit (dismissed by the Court) in

support of her position are, for the most part, facts not

present in the record and facts having no relevance or

materiality to the issue of whether the Superior Court

lacks in personam jurisdiction over the defendants. While

the plaintiff spends much effort in establishing her con-

tacts with the District of Columbia, her contacts are

irrelevant in addressing the issue of whether personal

jurisdiction can be exercised over the defendants by the

Superior Court. Neither the fact that the plaintiff received

medical care in the District of Columbia following the

accident, nor the fact that her loss of earnings in the

District of Columbia resulted from the accident constitute

a basis for establishing long-arm jurisdiction over non-

resident defendants. Perry v. Criss Bros. Iron Works, 741

F.Supp. 985 (D.D.C. 1990).

A significant portion of plaintiff’s brief is actually an

argument in opposition to a forum non conveniens argu-

ment, an argument not advanced by the defendants. A

forum non conveniens discussion only arises where more

than one court has both subject matter and in personam

jurisdiction. In the instant case, it is clear that the Supe-

rior Court does not have personal jurisdiction over the

defendants under the circumstances of this case, and,

thus, an analysis of the relative convenience of competing

forums does not arise.

Finally, the Court should be aware that this is the

plaintiff’s second attempt at a bite of the apple. As the

decision of the District of Columbia Court of Appeals

discloses, on August 26, 1996 the plaintiff filed an identi-

cal complaint for damages against these defendants for

the same cause of action in the United States District

Court for the District of Columbia. The defendants chal-

lenged the personal jurisdiction of that Court over them

and Judge Charles Richey entered a Memorandum Opin-

ion and Order granting the defendants’ motion to dismiss

for lack of personal jurisdiction, quashing the potential

service of the summons upon the defendants and denying

plaintiff’s request for removal of the case to the United

States District Court for the Eastern District of Virginia.

Jennings v. Coutscoudis, 941 F. Supp. 5 (D.D.C. 1996).

Judge Richey examined FRCP 4 and the District of

Columbia long-arm statute and concluded:

The defendants could not be subjected to the

jurisdiction of a court of general jurisdiction in

the District of Columbia because they have no

enduring relationship with the District nor did

their allegedly tortious conduct have a nexus

with the District.

Judge Richey also observed that if the court of general

jurisdiction does not have personal jurisdiction over the

defendants, service of summons cannot confer such juris-

diction.

Jennings noted an appeal to the United States Court

of Appeals for the District of Columbia Circuit from

Judge Richey’s orders and that Court issued a per curiam

decision affirming Judge Richey’s decision. Jennings v.

Coutscoudis 1997 WL 411792 (D. C. Cir.).

CONCLUSION

There being no basis for personal jurisdiction over

non-resident defendants by a District of Columbia court

for a personal injury claim arising from a motor vehicle

accident occurring in Spotsylvania County, Virginia

under the circumstances of this case, and there being no

statute or rule authorizing extra-territorial service of

summons, the defendants submit that the summons

issued by the Superior Court and served upon the defen-

dants in Virginia should have been quashed as that ser-

vice cannot exceed the territorial limitations of Rule 4(k).

Respondents pray that this Court decline to grant the

writ presented as the Superior Court of the District of

Columbia does not have personal jurisdiction over the

respondents under the circumstances of this case and the

issue needs no further review.

Respectfully submitted,