*1 H75 аge, provides mobile which was involved in the accident No-Fault appellant’s motorcycle, ap- liable to with is can be reimbursed the insurer of victim pellant for the PIP benefits. the other vehicle involved in the accident. 35-2107(5). Dairyland, D.C.Code See § (1984 Supp.) D.C.Code 35-2107 deter- § therefore, appellant’s for PIP is bene- liable priority responsible mines the of insurers fits. paying appellant’s for PIP benefits. case, come, first, reimbursement must summary judgment in Accordingly, favor providing “required
from the insurer insur- affirmed, summary judgment Cumis is insured, ance” under which victim is or reversed, Dairylаnd in favor of is deni- providing from the insur- required insurer partial motion for summa- al Coleman’s respect any with in- ance motor vehicle against ry judgment is re- Dairyland accident, in the if is volved the victim not versed.24 any insured policy.21 an under D.C.Code part, part. reversed Affirmed (1984 Supp.) provides that “re- § quired oper- for insurance” a non-resident
ating a motor vehicle the District is payment
“insurance for of the benefits re- quired by chapter personal injury for protection, property damage liability pro-
tection, protection” and uninsured motorist
while the motor vehicle is in the District. interpret
We this section to mean that the MATTHEWS, Cheryl Appellant, required insurance a non-resident must linkеd operated be to a motor vehicle in the Johnson, District.22 supra, See A.2d AUTOMATED BUSINESS SYSTEMS & (insurance per- at follows vehicle not SERVICES, INC., al., Appellees. et son). Since a non-resident cannot recover No. 87-529. from the insurer of the non-resident’s mo- tor vehicle if that motor is in- vehicle not Appeals. District of Columbia Court of District, appel- volved an accident in the lant Argued cannot recover from under March Cumis 1988. 35-2107(3).23 Although accident victims § May 1989. Decided usually are compensated by their own system, surance in a company no-fault see
Dimond, supra, 792 F.2d at where the applicable has
victim nо insurance cover- 35-2107(3), (5). 24.Dairyland’s required See 21. D.C.Code is contention that Cumis pay appellant’s PIP benefits D.C.Code under 35-2103(a) appears 22. No such link in section 35-2106(d) (1984 Supp.) appellant is because respect required with to the insurance that a Cumis, beneficiary policy a with under resident of the District of Columbia must main- reading of without The correct this sec- merit. tain. payable tion benefits an insurer makes PIP (1) argued to a District, the accident Cumis victim if occurred trial court that its insur- policy (2) appellant’s ance car an out- included or if aсcident occurred of-state insurance endorsement if (a) another state at a time the victim a benefi- when jurisdiction required greater insurance than that ciary injury protection policy, personal under a policy, liability under its the limits of Cumis' (b) occupant of owned or or was an a car coverage and the shall kinds of afforded exist policy. registered by beneficiary of a PIP See respect operation or use of a supra, F.Supp. Wimple, at 501. Weeks v. jurisdiction. Appellant motor vehicle in such case oсcurred Since the accident instant this, dispute judge did hence the trial District, part second of this section is representation Cumis’ entitled to treat in its appel- inapplicable, it does not matter that purposes statement of material facts as true for beneficiary policy. lant under Cumis’ ruling summary judgment. for I(k); its motion Super.Ct.Civ.R. Murphy, Dilbeck v. 12— 502 A.2d
H77 non conveniens light issue in of our ruling jurisdiction.
I
Cheryl employed Matthews as an manager from February account ABSS 22, 1983, *3 by until fired Mr. Ho- she was ABSS, 4,1985. ward October corporation principal its with Riverdale, Maryland, of business in proсessing provides automated data servic- governmental private es to and various en- tities, including agencies of the federal government within the District of Colum- comput- bia. Matthews’ duties to sell were software, hardware, er and services to Ralph Temple, Washington, D.C., J. for ABSS customers. She was dismissed when appellant. sign proposed she refused to a new con- tract for fiscal 1986. Fairfax, Chavous, Va., ap-
Kevin P. for complaint pellees. first count of Matthews’ alleged engaged appellees had in un- TERRY, age Before lawful on hеr BELSON and discrimination based and REILLY, Rights Judges, Associate sex violation of Human Act. and Senior Judge. counterparts claimed that her male re- She higher expense
ceived salaries and allow- TERRY, Judge: did, Associate though ances than she had she even longer tenure at the firm. When she com- Appellant Matthews filed a four-count Howard, allegedly she was plained to Mr. against in the Superior Court salary told that she a lower received be- appellees Systems Automated Business & colleagues younger cause she than her Services, (ABSS), president Inc. and its that, female, she should “as a ‘work officer, Howard, chief Theodore executive smart’, ‘hard’, referring just and not alleging unlawful discrimina- factors unrelated to her work ABSS.” tion in violation of the District of Columbia Matthews based her of contract breach Rights Act,1 contract, breach of pay claim on ABSS’ refusal certain com- wrongful discharge, and interference with she missions and bonuses said were contractual relations. The trial past performance. sales owed to her for her motion, appellees’ dismissed one count of discharge her She also asserted that for lack wrongful new contract she because the jurisdiction and the other three counts on sign the terms of her was asked to violated ground non conveniens.3 forum retroactively changed current contract and Appellant appeal contends on that the Finally, quota record. her sales and sales findings factual on which court based Howard’s discrimi- she maintained that Mr. its dismissal were Because erroneous. natory and unfair constituted an actions support record fails to the trial court’s dis- relations interference with her contractual count, missal of the first we reverse that with ABSS. dismissal and this case for further remand proceedings. Appellees a motion to responded We also vacate the dismis- alia, on, inter remaining lack of sub- sals of the three counts and di- dismiss based non rect court on ject-matter remand reconsider the seq. (1981). 1-2501 et 1. D.C.Code 3.D.C.Code 12(b)(1). 2. Super.Ct.Civ.R. motion,
conveniens. support ap- In entertain an action under the Human pellees filed three two Mr. Act. The court then dismissed the Simpson, Howard and one remaining Elizabeth three counts on the Vice President of Administration at ABSS. non conveniens after balancing These affidavits stated substantial private public interests involved. part of ABSS’ in Maryland business was ruling that private Matthews’ minimal and that its activities in the District of terests “heavily outweighed” by Columbia were limited. The affidavits also public District’s clogging interest in not its said that all con- Matthews’ good reason, court calendars without executed, negotiated, tracts were and sub- court reiterated that Matthews’ “actual stantially performed in Maryland аnd that was at all times in assigned Matthews Mary- work Maryland.” land, supervisors, where her personnel records, phone and her business were all II located. Finally, Simpson *4 Matthews contends that the trial court performed stated that Matthews never finding erred in that she employed was “at actual service work on the contracts for all times” in Maryland solely on the basis responsible. which she was Simpson Howard and affidavits. She claims that the opposed facts set forth her
Matthews the motion to dismiss performed and filed affidavit —that she an affidavit of hеr In it a substantial own. she acknowledged employment amount of her in the District that ABSS had its main of- Columbia, Maryland was, fice in negotiated but asserted that she terms of that it be, District, publicly employment held itself her out to a District and that corporation. Matthews certain acts of stated discrimination perform that ABSS did indeed a substantial took have District —should District, amount of particu- accepted business by been as true the trial court. installing larly computer on-site reject argument services We because it fails to agencies for governmеnt.4 of the federal recognize Rule the difference between 12(b)(1) She forty sixty 12(b)(6): estimated that between and Rule the trial percent performed 12(b)(1), of her work considering a motion under Rule Finally, District of required Columbia. Matthews was not to assume the truthful- said that the terms of her ness of Matthews’ affidavit. For a differ- substantially negotiated reason, however, were within the ent the trial we hold that dismissing District and that some of the acts al- court erred in the first count of leged occurred in discrimination the Dis- for lack jurisdiction, trict. and thus we reverse that dis- missal and remand the for case further granted appellees’ The trial court motion proceedings. complaint. to dismiss the As to the first count, Though appellees sought the court held that because Mat- to dismiss Mat- subject- thews’ “actual atwas thews’ both for lack of 12(b)(1), in Maryland,” all times there not a Super.Ct.Civ.R. matter sufficient nexus upon between Matthews and the and for failure to state a claim permit granted, Super.CtCiv.R. District of Columbia to to court relief could be asserted, however, during employ- only estimated Mr. seven- Matthews Howard ninety percent ment of ABSS’ сontracts came ty-five percent government of ABSS’ contract through the Small Business Administration’s set- through program, work came the SBA and that businesses, program minority for aside which ABSS became a subcontractor to federal under by "graduated’’ April from the 198S ABSS had program performed any contracts and had agencies performed on-site work in the Dis- year. Simpson's under it for over that, trict Columbia. She also claimed when many contained a numerical breakdown of how hired, seventy-five percent she was of ABSS’ assigned employees temporarily ABSS to government performed work for the federal perform Colum- service work in the District, figure dropped but that this had bia. sixty percent at the time her dismissal.
1179
328-329,
905-906;
12(b)(6),
2A
count C. at
835 F.2d at
the court dismissed the first
supra,
only
ground.
Practice,
the former
These two Moore’s
12.07
II
Federal
Wright
12-48;
12
su
[2.-1],
Miller,
subsections
Rule
differ
several
at
&
respects,
significant being
that a
2713,
cases).
most
pra, (citing
at 608-611
may
weigh
review
evidence
Rather,
may
indepen
the court
conduct an
Haase v.
12(b)(1)
See
upon a Rule
motion.
dent review of
evidence submitted
Sessions,
328-329,
325,
U.S.App.D.C.
including
рarties,
resolve
902,
(1987);
Wilderness
835 F.2d
905-906
concerning
disputes
whether
sub
factual
Griles,
277,
Society
U.S.App.D.C.
exists. See Land v.
jurisdiction
ject-matter
10,
4,
n.
F.2d
16-17 n. 10
Dollar,
289-290
731,
4,
735 n.
67 S.Ct.
U.S.
(1987);5 2A J. Mooke & J.
Lucas,
(1947);
Moore’s
1009,
4,
Wil
1011 n.
The
termination
submission
see
William
however,
12(b)(1)
jury,
not a
does not
a Rule
ter for the
convert
son,
413,
supra, 645 F.2d at
court
summary judgment.
and the
motion to one for
Sessions,
supra,
determining
Haase v.
U.S.App.D.
in
how to
266
has broad discretion
Super.Ct.Civ.R.
should be made concern-
5. Because
12 is identical to its
7.A further distinction
12,
counterpart,
may
12(b)(1)
recog-
federal
Fed.R.Civ.P.
ing
Courts have
a Rule
motion.
interpreting
look to federal court decisions
may
a
either assert that
nized that such motion
"persuasive authority
as
federal rule
preting
in inter-
apparent
on the face
a lack of
Properties,
local
Vale
[the
rule].”.
Ltd. v.
(a
attack”)
rely
complaint
on mat-
"facial
or
Tales, Inc.,
11,
Canterbury
(D.C.1981)
431
13 n. 3
A.2d
attack").
(a
complaint
"factual
outside the
ters
(citations omitted).
general
As a
party
Rule
makes a facial attack under
When
proposition,
Supe-
"we cоnstrue the rules of the
12(b)(1),
filed
court treats the motion as one
light
meaning
in
of the
of the corre-
rior Court
sponding
12(b)(6)
alle-
and must consider the
under Rule
rules,
interpre-
insofar as such
federal
gations
plaintiffs complaint
But
in
as true.
contrary
binding precedent."
tation is not
to
upon
attacks the factual basis
when a movant
730,
Employees
Warehouse
Union No.
Wallace v.
opposing party alleges jurisdiction, as
which the
801,
(D.C.1984)(citations omitted).
A.2d
807
482
case, the court is free to
Matthews did in this
itself,
presumption
major
weigh
no
other
difference is that a dismissаl
the evidence
6. The
12(b)(1),
12(b)(6),
complaint.
Rule
is not
under Rule
unlike
See
of truthfulness attaches to the
given
judicata
413;
Tucker,
merits and is not
res
supra,
at
Williamson
supra,
Ass'n,
2A Moore’s
effect.
Savings & Loan
Mortensen v. First Federal
'Practice,
Federal
12-45;
[2.-1],
at
10
12.07
Wright &
(3d Cir.1977).
Miller,
If
F.2d
891
549
supra,
at 611-612.
§
facts,
proceed
finding
including
in
such
specifically
thews’ affidavit
stated not
Pra
affidavits. basing its decision on
portion”
that “a substantial
of her work
University,
kash v.
American
234 U.S.
“performed
in the District of Colum-
75, 80-81,
App.D.C.
1179- bia,”
F.2d
but that
terms of
(1984).
cases, however,
some
“negotiated
between
and Mr.
[herself
may
required
provide plaintiff
be
Howard],
part,
in
on a number of occasions
hearing
with a
on the issue of
were working
when we
the District
especially if
presented
the evidence
alleged
Columbia.” Most significantly, she
sufficient,
affidavits is not
or if “the facts
that some
the acts of sex discrimination
complicated
testimony
are
would be
alleged
occurred
Tucker,
supra,
Williamson v.
helpful.”
District of Columbia. The
sub-
affidavits
414;
see Timberlane Lumber
F.2d at
by appellees
mitted
did not contradict or
America, supra,
Bank
Co. v.
allegation.
refute that
1461;
43(e);
seе
F.Supp.
Super.Ct.Civ.R.
at
purpose
Prakash,
The
supra,
also
U.S.App.D.C.
at
end secure an
the District of
(evidentiary hearing
F.2d
is “to
at 1181
necessary
relating
resolve factual issues
discrimination for
reason
diversity jurisdiction).
While an eviden- other
that of
than
individual merit....”
tiary hearing
certainly
(1987)
added).
would
have been D.C.Code 1-2501
(emphasis
case,
“helpful” in this
we need not decide Discriminatory practices
are
required,
one was
there is a
whether
expressly made
unlawful
D.C.Code
more fundamental flaw in the trial court’s
alleged
If
events
ruling.
Dis
Matthews’
occurred in the
Columbia, they
subject
trict of
to scru
are
any express
trial court
did not make
tiny
1-2512,
section
regardless
under
findings. Rather,
factual
it summarized
whether her “actual
employment”
presented
as
the facts
in the Howard and
Maryland,
District,
inwas
both.
or
said,
Simpson affidavits and then
“Based
bearing
Thus the critical factual
issue
on the facts and
circumstances
case,
jurisdiction is whether
took
these events
plain-
the Court
stant
concludes that
place in the District.8
Matthews’
tiff’s actual
was at all
*6
says
did,
of
appellees’
in
that some
them
Maryland.
presence
times
in
but
Plaintiff’s
do not
question.
affidavits
address this
the District of Columbia arose from the
accounts,
servicing
Because
trial court did
it
occasional
of
and
the
not address
there
erroneously
a
either and
on
give
is not
sufficient nexus to
the Court
based its decision
jurisdiction
matter
I
the
factor of
“actual
subject
under Count of
irrelevant
Matthews’
complaint.”
employment,”
the
But this conclusion does
of
its dis
we reverse
jurisdictional
the
complaint.9
not resolve
issue. Mat-
of the first count
missal
of the
assume,
8. We
deciding,
ground
without
that
District
We
affirm
cаnnot
the dismissal on the
right
Rights
that the
court “reached
apply
[for
trial
result
of Columbia Human
Act does not
reason,"
wrong
colleague
concurring
as our
the]
occurring
outside the
See Dis
acts
District.
suggests. Post at 1183. A
dismissal
Co.,
Trucking
trict
Columbia v. Schwerman
of
always
ground
non
a
conveniens is
(D.C.1974) (District of
327 A.2d
Colum
discretionary
decision
In this
the trial court.
Wage
applicable
bia
Minimum
Act not
work
case, however,
II, III,
IV were
counts
District);
performed outside
also Boures
see
ground;
on
dismissed
count
I was dis-
Aramco,
pro
(employment
lan v.
H81 complaint grounds a “on the III dismiss administrative convenience.”10 conclusion that trial court’s give there was “not a sufficient nexus” to viewing opin- court erred in our The trial apparent jurisdiction it Honig establishing a “nexus” ion in as test ly misreading based on a of this court’s plaintiffs must meet before a court which Honig v. District Columbia decision in may jurisdiction exercise over their discrim- Rights, Human A.2d 887 Office of Honig exclusively deals ination claims. (D.C.1978). In Honig a deci affirmed we agency dis- with the issue of administrative (OHR) Rights sion the Office of Human cretion, subject a of no relevance to in which it declined to exercise may While the OHR de- Superior Court. against a for over a discrimination claim in not to entertain a cide its discretion petitioner eign corporation brought by a reasons, complaint for administrative whose District Columbia contacts were Superior Court cannot decline to consider a Honig as minimal. The trial court read alleges the neces- properly Hu requiring persons who sue under the sary jurisdictional facts. This distinction Rights man Act to have a sufficient nexus claiming important person a a vio- because provide the District in order to a Dis with Rights has a lation of the Human trict of Columbia court with filing complaint before choice between did not estab and concluded Matthews bringing original an OHR action Honig does lish this nexus. We hold that Superior under D.C.Code Court require plaintiff such a nexus before (1987). Indeed, recognized in we may bring an action the courts under Honig that “enforcement by private per- Rights Human Act. may still even if the OHR son” be available Honig employee a former of a Dela- declines, discretion, juris- in its to exercise corporation filed a ware 888; accord, Brown v. diction. 388 A.2d at OHR, alleging that he had fired in been Club, 1809, 1311 Capitol Hill 425 A.2d predecessor current violation Honig Act. Mr. had been Honig imposes no Thus hold that supervised hired in Minnesota and was in the District jurisdictional test for actions Jersey, payroll from New where his the Human of Columbia courts under рersonnel records maintained. His Rights Act. The trial court’s reliance performed principally actual duties were Honig regard erroneous. though occasionally he some Maryland, did work in the District of Columbia. The servicing of OHR found that the accounts IV origi- the District on orders Matthews also contends that nating did not actual elsewhere establish dismissing her other trial court erred employment within the District. Conclud- *7 non ground of three counts on forum Honig ing on facts that had these failed argu Again conveniens. she bases prove that his had a “suffi- that the facts are as premise ment on the Columbia, cient nexus” the District of in alleged them to be her affidavit. she to exercise the OHR “declined independent evalua Although make an we presence in the District petitioner’s because ruling on a tion of a trial court’s servicing of accounts forum arose from occasional Smith, motion, Jenkins v. non conveniens purposes, all other his actual here. For (en banc), 1367, (D.C.1987) 1369 535 A.2d employment was else- assignment of deference to that we nonetheless afford omitted). (footnote at 888 We
where.” Id. clear ruling. it on a We will reverse discretionary ruling as a deci- affirmed this its statute, showing that the trial court has abused spe- entrusted to the OHR sion Mills v. Aetna Fire Un- authorizing cifically by language the OHR broad discretion. l-2556(a) (1987). language appears in the current The same D.C.Code of the Human Act. version 1182 Co.,
derwriters Insurance
8,
REILLY,
Judge,
511 A.2d
10
specially
Senior
concurring:
Taveres,
(D.C.1986);
Asch v.
976,
467 A.2d
(D.C.1983).
978
Such reversals are ex-
agree
portion
As I
with that
of the ma-
Smith, supra,
Jenkins v.
tremely
rare.
jority opinion
recognizes
While with the holding incorrectly V that the trial court re- subjеct-matter jurisdictional solved the is- We reverse the trial court’s dismissal of sue, signifi- it does seem to me that undue claim Matthews’ discrimination for lack of allegations plain- cance is attached to subject-matter jurisdiction. We vacate the employ- tiff’s affidavit that the terms of remaining claims on the dismissals *8 negotiated ment were between herself and non conveniens ground and re- principal part the defendant on a number mand this case to the trial court for further they together in of occasions when opinion. proceedings consistent with this party But one call the District. how can an part, part, Reversed in vacated in and contract, par- very which that remanded. ty sign, product negotia- refused to the of a (1981). 11. D.C.Code right reached the result even affi- trial court is to The
tion
difficult
understand.
gave
wrong
the
reason for its
though
the
of sex
it
that some of
acts
ant’s assertion
grounds
on such
is cer-
occurred in the
Affirmance
discrimination
action.
vague
scope
authority.
of our
In
nothing
tainly
to
more than a
the
amounts
within
description
allegation. Any
scope of review over ad-
conclusionary
distinguishing the
disposition
“acts of sex
agencies
the facts which constituted
and the
ministrative
lacking.1
court,
conspicuously
Supreme
is
discrimination”
a trial
appeals from
leading
&
case
Securities
Court
however,
majority
may,
that as it
Be
Corp.,
Chenery
Exchange Commission
pleadings
on the
opinion concedes that
454, 459,
80, 88,
87 L.Ed.
U.S.
justified un-
the trial court was
(1943),
principle:
this
reiterated
12(b)(1)
finding
motion in
that
der a Rule
judgment
confining our review to a
In
Maryland resident and that
plaintiff was a
upon
validity
grounds
upon of the
at all
her “actual
its
basis,
itself based
the Commission
Maryland.”
On this
which
times
action,
the settled rule
conclusion that
do not disturb
trial court then reached the
that,
reviewing
of a
give
nexus to
the trial court
the decision
lower
a sufficient
lacking, citing
result is
Count I
affirmed if the
jurisdiction over
it must be
case,
controlling
“although
should Maryland. in the courts view, disposition of this my wiser affirm, rather than to be to case would rеmand, ground that the reverse explanation just "hard.” While not allegation affidavit refers two 1. This improper revealing complaint, interpreted an designated paragraphs might as be facts, viz., alleges No. certainly of discrimina one of which saying not an act policy, it was complained to on one occasion she tion, justify attempt conduct rather an but being paid as well as the Hence, Howard about raises no already in effect. replied managers, and that he male account they disputed fact. issue work "smart” and she should were older