Williаm E. MOUZAVIRES, Appellant, v. Harvey BAXTER, et al., Appellees. Harvey BAXTER, et al., Appellants, v. William E. MOUZAVIRES, Appellee.
Nos. 11696, 11697
District of Columbia Court of Appeals
Argued En Banc April 28, 1980. Decided Aug. 5, 1981.
435 A.2d 988
PER CURIAM:
This is an appeal from an order entered by the trial court granting the motion of appellees Baxter, et al. (hereinafter appellees) to quash service of process on the ground that the court could not permissibly exercise personal jurisdiction over appellees.1 Appellant contends that the trial court erred in granting appellees’ motion to quash service since appellees had sufficient contacts with the District of Columbia as to fall within
In Part I of this opinion we set forth the pertinent facts. In Part II we address the issue of whether the “transacting any business” provision,
William R. Voltz, Washington, D. C., for appellant in No. 11696 and appellee in No. 11697.
Richard W. Boone, Washington, D. C., for appellees in No. 11696 and appellants in No. 11697.
* Judge Gallagher was an Associate Judge of the court at the time of argument. His status changed to Associate Judge, Retired, on February 27, 1981.
I
Appellant is a District of Columbia attorney who specializes in the practice of trademark and patent law. Appellees are a North Miami Beach, Florida, law firm and its individual partners. Sometime in May 1974, appellee Lawrence B. Friedman telephoned appellant in the District of Columbia, requesting him to assist Mr. Friedman and his law firm with a lawsuit that had been filed against a client of Mr. Friedman‘s law firm in the federal district court
During this telephone call, appellant agreed to work with appellees and the parties confirmed that agreement in subsequent discussions and correspondence which generally set forth appellant‘s duties and compensation.3 According to the agreement, appellant was to work primarily in the District of Columbia with some consultation and possibly some court appearances in Florida. Pursuant to that agreement appellant performed considerable work for appellees, most of the work being performed in the District of Columbia and, to a lesser extent, at the United States Patent Office facilities in Virginia. Appellant‘s services included the preparation of interrogatories, legal memoranda, and other matters in connection with discovery in the pending litigation.
A dispute arose as to the amount of compensation appellant was to receivе for his services. Thereafter appellant brought suit in the Superior Court of the District of Columbia seeking recovery of fees for the legal services rendered. Appellees were served by certified mail at their place of business in North Miami Beach, Florida. Appellees moved to quash service of process, contending that the Superior Court could not permissibly exercise personal jurisdiction over them. The trial court granted the motion to quash service without opinion, and this appeal followed.
II
A court may assert personal jurisdiction over a nonresident defendant where service of process is authorized by statute and where the service of process so authorized is consistent with due process. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The District of Columbia “long-arm statute” enumerates the various acts of a nonresident defendant which support the assertion of personal jurisdiction.4 We have held
If we consider the outer limits of jurisdiction permitted by the Due Process Clause as the circumference of a circle or the outer edge of a pie, and the six “enumerated acts” in § 96(a)(1)-(6) [Maryland‘s long-arm statute] as six slices of the pie it appears that some slices go all the way to the outer limit of the circle, while others stop short of the outer limit.
To be sure, Maryland courts have interpreted the “transacting any business” provision of their long-arm statute as being coextensive with the due process clause, while they have interpreted several other provisions as having a much narrower scope. Compare Groom v. Margulies, 257 Md. 691, 265 A.2d 249 (1970) (construing “transacting any business” provision) with Beaty v. M. S. Steel Co., 401 F.2d 157, 161 (4th Cir. 1968), cert. denied, 393 U.S. 1049, 89 S.Ct. 686, 21 L.Ed.2d 691 (1969) (construing the Maryland equivalent of our
Our concern in this case (as was true in Berwyn Fuel, Rose, Cohane, and Lockwood Greene) is not with the limits of other sections of the District‘s long-arm statute, but solely with the scope of the “transacting any business” provision. Again, the legislative history of the statute is illuminating. The relevant portion of the Senate Report accompanying the District of Columbia Court Reform and Criminal Procedure Act of 1970 states as follows:
A new chapter (4) is added, incorporating a modified version of the first two articles of the Uniform Interstate and International Procedure Act. The uniform provisions codify recent case law with respect to extraterritorial jurisdiction over and service upon persons in civil
litigation, and supply the reorganized trial bench of general jurisdiction with a necessary procedural adjunct. Chapter 4 more specifically grants expanded bases of jurisdiction and modes of service identical to or reciprocal with those provided under the laws of the nearby State of Maryland for the courts of that State, and substantially the same as those provided in the adjacent State of Virginia and approximately 10 other States. [S.Rep.No.405, 91st Cong., 1st Sess. 35 (1969).]
Moreover, the House Report accompanying the Court Reform Act states that our statute “is modeled on the Uniform Interstate and International Procedure Act....” See H.R.Rep.No.907, 91st Cong., 2d Sess. 61 (1970).5 The Commissioner‘s Comment, filed with the Uniform Act, states that the words “transacting any business” should be given an expansive interpretation. See Commissioner‘s Comment, § 1.03(a)(1) of the Uniform Act, 13 Uniform Laws Ann. 467 (1980). Thus, the legislative history of our long-arm statute, as well as decisions by the courts of Maryland and Virginia construing their comparable statutory provisions, compels the conclusion that the “transacting any business” provision is coextensive with the due process clause. See Margoles v. Johns, supra 157 U.S. App. D.C. at 215, 483 F.2d at 1218; Meyers v. Smith, 460 F.Supp. 621, 622 (D.D.C. 1978); John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736, 180 S.E.2d 664 (1971).
Normally, our analysis would require a two-step process. First we would address the question of whether appellant had alleged sufficient facts to reach appellees under the terms of the applicable District statute. Only then, if the answer to our first inquiry was in the affirmative, would we address the due process issue. However, “[o]ur inquiry need not be bifurcated [where] the constitutional and statutory provisions are coextensive....” Textile Museum v. F. Eberstadt & Co., 440 F.Supp. 30, 31 (D.D.C. 1977); see World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 290, 100 S.Ct. 559, 563, 62 L.Ed.2d 490 (1980) (“Although the [Supreme Court of Oklahoma] noted that the proper approach was to test jurisdiction against both statutory and constitutional standards, its analysis did not distinguish these questions, probably because [the statute] has been interpreted as conferring jurisdiction to the limits permitted by the United States Constitution.“) (emphasis added) (footnote omitted); Piracci v. New York City Retirement System, supra at 1070 (“So, in this case, the two questions specified by the Fourth Circuit in Haynes [whether the controlling statute permits service of process on the defendant, and whether service under the statute violates the due process clause] tend to merge and become essentially the same.“).
Decisions in this jurisdiction interpreting the “transacting any business” provision are but applications of this principle. It is now well-settled that the “transacting any business” provision embraces those contractual activities of a nonresident defendant which cause a consequence here. See, e. g., Rose v. Silver, supra; Cohane v. Arpeja-California, Inc., supra.6 Moreover, to fall within the purview of
III
Supreme Court decisions subsequent to International Shoe have defined due process limits of in personam jurisdiction over a nonresident defendant. See Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). These decisions, therefore, provide the necessary guidanсe for an inquiry into the due process limitations of the assertion of personal jurisdiction.
In McGee, the plaintiff sued a Texas life insurance company in California. The Texas company‘s contacts with California were slight. The policyholder bought his policy from an Arizona company whose obligations were assumed by the Texas company. The company mailed a reinsurance certificate to the policyholder in California and the policyholder accepted the offer to reinsure him on the same terms as his old policy, and until his death he continued to mail premiums from California. Otherwise, the Texas company had never solicited or done any business in California. A unanimous Court ruled that it was “sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State.” 355 U.S. at 223, 78 S.Ct. at 201.7 The Supreme Court refined the holding of McGee in Hanson. In Hanson, a Pennsylvania domiciliary executed a trust in Delaware, naming a Delaware bank as trustee. Later, the settlor moved to Florida where she received trust income and purported to execute a power of appointment as to the remainder of the trust. After the settlor‘s death, several of the residuary legatees brought suit in Florida challenging the validity of the power of appointment. Long-arm service was made on the Delaware trustee in Delaware. The Court held that the settlor‘s performance of small amounts of trust administration and the receipt of trust income in Florida did not give Florida a substantial connection with the trust agreement which was the basis of the suit. Moreover, the Court pointed out that at the time of the execution of the agreement, the defendant trustee had no contacts with Florida, and the contacts of the trustee-defendant which arose subsequently were in no sense voluntary but the result of the settlor‘s unilateral acts years after the execution of the agreement. The Court concluded that “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and рrotections of its laws.” Hanson v. Denckla, supra, 357 U.S. at 253, 78 S.Ct. at 1240.
Similarly, where in World-Wide Volkswagen v. Woodson, supra, “the defendants’ only connection with Oklahoma [was] the
It is important to note that in McGee, unlike in either Hanson or World-Wide Volkswagen, defendant had solicited business in the forum state. As the court stated in Vencedor Manufacturing Co. v. Gougler Industries, Inc., 557 F.2d 886, 891 (1st Cir. 1977); “The second fact distinguishing Hanson from McGee was the McGee defendant‘s solicitation of business in the forum state. After McGee it seems fair to say that one who solicits in a state may be sued there if the transaction he has sought goes sour.” Again, the court in Vencedor noted: ”Hanson is sufficiently distinguished from McGee by the absence, in Hanson, of any solicitation or other voluntary contact with the forum.” Id. at 894 (emphasis added).
The distinction between a plaintiff‘s unilateral acts and those acts of the defendant sufficient to subject him to long-arm in personam jurisdiction, was highlighted in the recent case of Pedi Bares, Inc. v. P & C Food Markets, Inc., 567 F.2d 933 (10th Cir. 1977). Pedi Bares, a Kansas footwear manufacturer, brought suit in Kansas against P & C, a New York wholesale grocer serving independently-owned stores in New York and Pennsylvania, for the balance claimed due on goods sold. P & C had placed an order with plaintiff‘s New York agent, after the agent had made a business solicitation. Pursuant to the order P & C received the goods shipped to it by plaintiff at its warehouse and sent partial payment to plaintiff in Kansas. In addressing P & C‘s contention that it could not be reached by means of the Kansas long-arm statute without offending due process, the court stated:
P & C contends that application of a long-arm statute cannot be based on the unilateral acts of the seller in the forum state. The argument is not pertinent here. P & C acted affirmatively. It wrote the letter which initiated the transactions. Stores serviced by P & C ordered the goods which were manufactured in and shipped from Kansas. P & C sent to Pedi Bares in Kansas payments for part of the goods. Due process does not require the presence in the forum state of the defendant or one of its agents. [Id. at 937.]
In the present case it is clear that, like P & C, appellees initiated the transaction; ordered the services which were performed in, and the results of which were in part dispatched from, the District; and sent payments in part for the services performed to appellant in the District. We do not, therefore, have a case where appellant relies on his own unilateral activities in asserting jurisdiction under the long-arm statute. See also O‘Brien v. Lanpar Co., 399 S.W.2d 340, 343 (Tex. 1966) (“Plaintiff O‘Brien did not depend upon his own unilateral activity with respect to one who was outside and remained outside of Illinois, but upon the fact that Lanpar‘s agеnt contacted him in Illinois.“)8
These considerations assume greater significance when the defendant‘s contacts with the forum arise out of a contractual arrangement with a forum plaintiff. Modern systems of communication have revolutionized commercial transactions to such an extent that parties may negotiate by telephone certain contractual arrangements which only a generation ago would have necessitated the physical presence of both parties in the same forum. Courts have recognized that, even though a nonresident defendant has never physically been present in the forum, his contacts with the forum when viewed qualitatively may be quite substantial. Thus, the exercise of personal jurisdiction has been sustained where the nonresident defendant‘s only contact with the forum has been by mail or telephone. See, e. g., Cook Associates, Inc. v. Colonial Broach & Machine Co., 14 Ill.App.3d 965, 304 N.E.2d 27 (1973); G & W Body Works, Inc. v. Estate of Eschberger, 557 S.W.2d 835 (Tex.Civ.App.1977). See also Morton v. Environmental Land Systems, Ltd., 55 Ill.App.3d 369, 13 Ill.Dec. 79, 370 N.E.2d 1106 (1977); Cohn-Daniel Corp. v. Corporacion De la Fonda, Inc., 514 S.W.2d 338 (Tex.Civ.App.1974).10 Clearly, the most critical inquiry is not whether the nonresident defendant is physically present in the forum but whether the defendant‘s contacts with the forum are of such a quality and nature that they manifest a deliberate and voluntary association with the forum. As one court has stated, “[t]he operative considera-
Courts of other jurisdictions have had occasion to consider facts analogous to those presented in this case under similar statutes. See, e. g., Cook Associates, Inc. v. Colonial Broach & Machine Co., supra (jurisdiction upheld in suit between resident employment agency and nonresident defendant); O‘Brien v. Lanpar Co., 399 S.W.2d 340 (Tex. 1966) (Illinois judgment secured by Illinois attorney through long-arm jurisdiction over Texas client held enforceable in Texas); Toulouse v. Swanson, 73 Wash.2d 331, 334, 438 P.2d 578, 580 (1968) (jurisdiction proper in suit by resident attorney to collect fees) (“It is beyond dispute that defendant consummated a transaction in this state when he employed plaintiff as his lawyer; and that the present action arises from that transaction.“); cf. Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235 (E.D. Va. 1977) (jurisdiction over Maryland attorney sustained in breach of contract suit brought by Virginia resident). But see Winick v. Jackson, 49 Misc.2d 1009, 268 N.Y.S.2d 768 (1966) (jurisdiction improper in suit between resident attorney and nonresident client in suit to collect attorneys fees). We find the analysis of those courts that have upheld jurisdiction in these circumstances to be persuasive. O‘Brien v. Lanpar Co., supra and Cook Associates, Inc. v. Colonial Broach & Machine Co., supra, are illustrative of these cases. In Lanpar, a Texas company retained an Illinois attorney to prosecute an action on its behalf in the federal district court in Illinois. Later, the attorney brought suit in Illinois, alleging that he was not compensated fully under the terms of the contract. A default judgment was secured and plaintiff brought suit in Texas to enforce judgment. The Supreme Court of Texas held that jurisdiction over the defendants in Illinois was proper and that the Illinois judgment thus was entitled to full faith and credit in Texas.11
In Cook Associates, a Michigan company contacted an Illinois employment agency by telephone. The agency recommended a prospective employee to the firm; the employee was later hired but the agency‘s fee was never paid. As the court stated:
Once defendant informed plaintiff that it was interested in a certain person to fill a position and agreed to pay plaintiff‘s referral fee if it eventuаlly hired that person, defendant knew, or should have known, that it had entered into a contract with an Illinois agency, that the agency would perform its services from its office in Illinois, that the fee, if due, would be paid to plaintiff in Illinois, and that if the fee were not paid as promised, defendant might be liable to suit in the Illinois courts. [Id. 14 Ill.App.3d at 970, 304 N.E.2d at 31.]
In applying these principles to the present case, we are persuaded that appellant has alleged sufficient facts to support jurisdiction under
Having concluded that the assertion of personal jurisdiction would not offend due process, we hold that the trial court erred in granting appellees’ motion to quash service. Accordingly, we reverse and remand with the instructions to deny the motion to quash service.
So ordered.
KELLY, J., concurs in the result.
NEWMAN, Chief Judge, with whom MACK and FERREN, Associate Judges, join, concurring:
I concur in the per curiam opinion, but would go one step further. The per curiam opinion does not resolve whether jurisdiction might be sustained under similar operative facts but where plaintiff, as opposed to the defendant, had initiated the contacts. I would note that the assertion of jurisdiction has withstood a due process challenge even where the initial solicitation to enter a contract was made by plaintiff rather than the defendant. See, e. g., Vencedor Manufacturing Co. v. Gougler Industries, Inc., 557 F.2d 886 (1st Cir. 1977); Shealy v. Challenger Manufacturing Co., 304 F.2d 102, 104 (4th Cir. 1962); J. Henrijean & Sons v. M. V. Bulk Enterprise, 311 F.Supp. 417, 421 (W.D.Mich.1970); Dornbos v. Kroger Co., 9 Mich.App. 515, 157 N.W.2d 498 (1968).
The United States Court of Appeals for the First Circuit observed in Gougler Industries that “[t]he intricacies of offer, counteroffer, and invitation to make an offer are irrelevant to the central concern for fairness that should illuminate this area of the law.” 557 F.2d at 890. And, as the court stated in Pedi Bares, Inc. v. P & C Food Markets, Inc., 567 F.2d 933 (10th Cir. 1977):
The principal distinction between the present case and McGee is that there the defendant made the initial solicitation while here that was made by the plaintiff. Initial contact is not decisive. The subsequent conduct of P & C shows that it purposely availed itself of the privilege of carrying on activities to secure goods from a Kansas manufacturer and seller. [Id. at 937.]
So, too, here, where a Florida defendant purposely availed itself of the privilege of carrying on activities to secure services from a district of Columbia attorney, it should not matter whether the plaintiff or defendant made the initial contact.
HARRIS, Associate Judge, with whom KERN and NEBEKER, Associate Judges, concur, dissenting from the result:
Today we draw the curtain on a longplaying act of virtual judicial futility. Our resolution of this appeal has no precedential significance, as the court is split 4-4 on the significant legal issue presented. The lead opinion incorrectly is designated as a “per curiam” opinion. It cannot be, аs a per curiam opinion speaks for the court, whereas the lead opinion speaks only for four judges. Similarly, there is no holding here; there is nothing more than a judgment of reversal. Only by virtue of Judge KELLY‘s concurrence in the result of reversal is the trial court‘s order overturned.
It is that result from which I respectfully dissent. In doing so, substantial reference is made to the lead opinion which four of my colleagues endorse. It should be noted that never before have we failed to have a majority (or even a plurality) opinion in an en banc case. The four-judge opinion is circuitous in its reasoning, as quite obviously it seeks incorrectly to have the requisite statutory analysis swallowed up by due process considerations. A major portion of the four-judge opinion consists of the discussion of, and out-of-context quotations from, other opinions which deal with significantly different statutes and/or substantially different factual situations.1
It is important to recognize what the four-judge opinion does not do. Since it has no efficacy beyond this case, it does not change the law in this jurisdiction. Remaining controlling on the issues before us are the Supreme Court‘s decision in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and our en banc decision in Environmental Research International, Inc. v. Lockwood Greene Engineers, Inc., D.C. App., 355 A.2d 808 (1976) (en banc). I firmly believe that those two decisions, considered together with virtually all other relevant authorities, compel affirmance of the trial court in this case.
I
This is a rather simple case, which was treated simply—and correctly—by the trial court. A Florida law firm was representing a client in the defense of a suit claiming trademark infringement, unfair competition, and false designation of foreign goods.2 As is often true, the firm had little or no expertise in those areas of the law, and it engaged William Mouzavires to assist it in the Florida litigation. He, like many other patent attorneys, has his office in the District of Columbia.
When a dispute arose between plaintiff and defendants as to plaintiff‘s fee, plaintiff sought to sue the Florida lawyers (with service by means of certified mail sent to their North Miami Beach office) in the Superior Cоurt of the District of Columbia. Jurisdiction over the Florida defendants was predicated upon one of the six provisions of our long-arm statute, namely,
These appeals initially were decided by a divided division of the court. Chief Judge Newman and Judge Mack apparently viewed what I perceived to be controlling precedents differently than I, and voted to reverse the trial court‘s action. I dissented.3 Defendants’ petition for rehearing en banc was granted, and the division‘s opinions were vacated. Hence, they were not published in Atlantic 2d.
Today, while only four members of the court concur in the lead opinion, a fifth concurs in the result оf reversal. Thus, once again, as I see it, we are faced with a misapplication of established law. It should be noted that this is not the first case in which Environmental Research has been avoided. In Rose v. Silver, D.C. App., 394 A.2d 1368 (1978), another division of the court—which included Judges NEWMAN and MACK—sought to distinguish the indistinguishable and resolved a long-arm case favorably to a plaintiff in a manner which was inconsistent with Environmental Research.4 I shall not dwell here upon
II
If the en banc court had not vacated the earlier division majority opinion, it would have had a precedential life of its own. That life would have been a troubled one, for it was obvious to any objective observer that the division opinion and Environmental Research were in irreconcilable conflict. Now, while the result of reversal is obtained, no precedent emerges from this case. Nonetheless, I deem it necessary to address what strike me as the fatal flaws in the per curiam opinion.5
To set the proper background, I quote the sole provision of оur long-arm statute upon which jurisdiction is claimed to be based. Section 13-423 of the Code provides in pertinent part:
(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person‘s—
(1) transacting any business in the District of Columbia.
I turn now to the faulty premise—or, perhaps more accurately, to the two interrelated faulty premises of the four-judge opinion. That opinion states in part:
[T]he legislative history of our long-arm statute, as well as decisions by the courts of Maryland and Virginia construing their comparable statutory provisions, compels the conclusion that the “transacting any business” provision is coextensive with the due process clause. * * *
*
Decisions in this jurisdiction interpreting the “transacting any business” provision are but applications of this principle. It is now well-settled that the “transacting any business” provision embraces those contractual activities of a nonresident defendant which cause a consequence here. [Ante, at 992-993; citations and footnote omitted.]
Viewed from an overall perspective, the four-judge opinion would blur the controlling statute into obscurity and predicate resolution of the case on an abstruse due process theory. However, that may not properly be done. The first sentence quoted above is essentially an oversimplification. The correct standard, as expressed in Environmental Research, is that long-arm statutes such as that before us “permit the exercise of personal jurisdiction over nonresident defendants to the extent permitted by the due process clause of the United States Constitution.” The four-judge opinion seeks to convey the impression that to the extent that a long-arm statute and the due process clause may be deemed to be coextensive, the former is subsumed by the latter, which is not true. If it were, of course, there would be no need for the long-arm statute; actions against nonresident defendants could be predicated jurisdictionally solely on the due process clause. However, as has been stated by the Fourth Circuit:
Generally, the application of long arm statutes involves two steps. It is necessary to determine first whether the statute permits service of process on the nonresident defendant, and second, whether
service under the statute violates the Due Process Clause of the federal constitution. [Haynes v. James H. Carr, Inc., 427 F.2d 700, 703 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 238, 27 L.Ed.2d 245 (1970).]6
Thus, any analysis of whether the defendants properly may be subjected to the Superior Court‘s jurisdiction not only must begin with, but moreover must turn upon, whether they transacted business within the District of Columbia. The last sentence quoted above from the four-judge opinion—“that the ‘transacting any business’ provision embraces those contractual activities of a nonresident defendant which cause a consequence here“—is both conceptually wrong and unsupported by any sound authority.
Having thus established a flawed analytical framework, the four-judge opinion proceeds to state the issue as follows:
Thus, to determine whether the statute can reach the conduct at issue, we must consider whether appellees had sufficient cоntacts with the District such that the assertion of personal jurisdiction comports with due process. [Ante, at 993].
That statement evades the underlying question of whether the defendants met the initial jurisdictional prerequisite of having transacted any business here. As one secondary authority has noted, “no abstract test for determining whether or not a person transacts any business within [a] state has been articulated, and accordingly each case must be decided on its particular facts.” Annot., 27 A.L.R.3d 397, 429 (1969). This court has no authority to act in a fashion which serves to amend the statute. As the Fourth Circuit correctly has observed: “[I]t is clear that at least where the legislature has acted, even though the [long-arm] statute may not go to the limits of due process, the courts of a state may not go further and assert jurisdiction over persons not embraced within that legislation.” Beaty v. M. S. Steel Co., 401 F.2d 157, 161 (4th Cir. 1968), cert. denied, 393 U.S. 1049, 89 S.Ct. 686, 21 L.Ed.2d 691 (1969). Yet that is precisely what the resolution of these appeals by the majority does, as reflected by the four-judge opinion‘s ultimate conclusion:
In sum, appellees voluntarily initiated, and еntered into, a contract with one they knew to be located in the District and engaged in a transaction which had a substantial connection with the District and which they foresaw would have consequences here. In so doing, appellees have invoked the benefits and protections of the District‘s laws. [Ante, at 997; footnote and citation omitted.]
That summation is fallacious for two reasons. First, the defendant Florida lawyers did not invoke “the benefits and protections of the District‘s laws“; the plaintiff did. Second, even had they done so, that would be but one factor to consider in deciding the underlying jurisdictional question under the statute, namely, whether they transacted business here. The resolution of that question should be controlled by Environmental Research and by other relevant authorities.
III
As has been noted, the Florida defendants did engage the District of Columbia plaintiff to assist them in a Florida lawsuit. Plaintiff performed some of his services in Florida, some in Virginia, and some in the District. Defendants have had no contacts with the District of Columbia other than their utilization of plaintiff‘s services in connection with the Florida suit. There is no claim that any of the defendants entered
Appellant does not assert that the limited correspondence or telephone communications engaged in between it and the appellees satisfy the constitutional requirement for in personam jurisdiction. Rather, the thrust of appellant‘s argument is that since it was performing services in the District of Columbia for the benefit of appellees, its own activities here constituted a proper basis for the exercisе of personal jurisdiction over appellees. To accept such a position would be effectively to remove any protection which the due process clause affords a nonresident defendant. The position for which appellant argues has been rejected by the Supreme Court:
The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant‘s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. [Citations omitted.]9
Thus, a plaintiff cannot rely on his own activities, rather than those of a defendant, to establish the requisite minimal contacts for personal jurisdiction. The mere fact that a nonresident has retained the professional services of a District of Columbia firm, thereby setting into motion the resident party‘s own activities within this jurisdiction, does not constitute an invocation by the nonresident of the benefits and protections of the District‘s laws. [355 A.2d at 812 (footnotes omitted).]
IV
The unfortunate but inescapable fact is that the majority, in voting for reversal, is unwilling to follow such clear and controlling precedents as Environmental Research
Furthermore, in determining whether an instate activity may serve as the basis of jurisdiction over a nonresident defendant, the plaintiff‘s performance does not control: “It is [the defendant‘s] activity in the state which must provide the basis for jurisdiction.” [Citations omitted; see also id., at 74 & n.6.]
The majority‘s disposition of this case disserves not merely the losing parties, whose due process rights are being violated, but also the bench and the bar with respect to future cases. Environmental Research, which unquestionably has constituted and still constitutes binding authority in this jurisdiction, holds that in this type of situation, a resident professional may not bring suit here against a nonresident client based upon wоrk which has been done by the resident professional in the District of Columbia. See also Zyblut v. Shippers Best Express, Inc., D.C. App., 408 A.2d 978 (1979). The five judges who have voted for reversal also run afoul of the Supreme Court‘s recent opinion in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In concluding that due process considerations precluded long-arm jurisdiction in that case, the Supreme Court specifically reaffirmed the principles of Hanson v. Denckla. The Court analyzed the record and found
a total absence of those affiliating circumstances that are a necessary predicate to any exercise of state-court jurisdiction. Petitioners carry on no activity whatsoever in Oklahoma. They close no sales and perform no services there. They avail themselves of none of the privileges and benefits of Oklahoma law. * * * [444 U.S. at 295, 100 S.Ct. at 566.]
A comparable absence of affiliating circumstances exists in this case.
The result reached by my five colleagues not only is unprecedented; it is contrary to all applicable and controlling precedents. While the four-judge opiniоn has no vitality as to future cases, I respectfully dissent from the majority‘s disposition of these appeals.
GALLAGHER, Associate Judge, Retired, dissenting:
I join my three colleagues in disagreeing with the four-judge opinion and in dissenting from the judgment entered in these appeals. In light of the 4-4 division on the legal issues presented, no purpose would be served by my writing a detailed separate statement of my reasons for so voting.
Notes
Moreover, on August 30, 1974, appellant wrote a letter to appellee Lawrence Friedman which stated in pertinent part:Dear Bill:
Confirming our telephone conversation this date enclosed herewith please find the following items with regard to the above captioned matter:
1. Our client‘s check in the sum of $500.00, said sum representing partial retainer as оutlined in your previous correspondence. Our client will periodically make additional payments from time to time in order to meet the 2500.00 retainer which you require.
2. Photostatic copy of Amended Complaint. Our previous agreement with Plaintiff‘s counsel requires the filing of an answer on or before June 1, 1974.
3. We trust that you will, immediately upon receipt of these items forward to us the answer, Affirmative Defenses and/or Counterclaim that we have been discussing, together with the Interrogatories that you have spoken of.
If you need any further information, or if the questions in your letter of May 15, 1974 need to be answered before the filing of responsive pleadings, please call the undersigned immediately.
The division‘s opinions were issued on December 21, 1979.Dear Larry:
This will acknowledge receipt of your letter dated August 15, 1974 and the accompanying material identified in your letter. The copy of Plaintiff‘s interrogatories to Defendants enclosed with your letter does not indicate the date of service upon Defendants, therefore, please advise me in this regard.
(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person‘s—
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia;
(5) having an interest in, using, or possessing real property in the District of Columbia; or
(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.
(b) When jurisdiction over а person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.
The Rose v. Silver division‘s assertion that that case was “materially different from” Environmental Research [394 A.2d at 1369] was, in my view, not merely dubious, but manifestly inaccurate.Absent some indication that the agreement was signed or negotiated in the District of Columbia, the fact that one party is a resident of the forum state is an insufficient basis for asserting jurisdiction over the other. [Willis v. Willis, 655 F.2d 1333 at 1338 (D.C. Cir. 1981).]
The four-judge opinion states: “According to the agreement, appellant was to work primarily in the District of Columbia with some consultation and possibly some court appearances in Florida.” Ante, at 990. There was no such “agreement“; plaintiff‘s decision to perform much of his work in the District of Columbia was entirely his own.
The concept of minimum contacts can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.
The protection against inconvenient litigation is typically described in terms of “reasonableness” or “fairness.” ... Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State‘s interest in adjudicating the dispute; the plaintiff‘s interest in obtaining convenient and effectivе relief, at least when that interest is not adequately protected by the plaintiff‘s power to choose the forum; the interstate judicial system‘s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies. [444 U.S. at 291-92, 100 S.Ct. at 564-565 (citations omitted).]
The language thus quoted in the Environmental Research opinion was written in the landmark Hanson v. Denckla opinion, supra, 357 U.S. at 253, 78 S.Ct. at 1239. That decision was issued in 1958; no Supreme Court opinion since then has in any way eroded its rationale. Indeed, the Supreme Court twice recently has reaffirmed Hanson v. Denckla. See World-Wide Volkswagen Corp. v. Woodson, supra note 6; Kulko v. Superior Court, 436 U.S. 84, 93-94, 98 S.Ct. 1690, 1697-1698, 56 L.Ed.2d 132 (1978). See also Rush v. Savchuk, 444 U.S. 320, 329, 100 S.Ct. 571, 578, 62 L.Ed.2d 516 (1980).See Hanson v. Denckla, supra, 357 U.S. at 253 [78 S.Ct. at 1239] (unilateral activity of persons claiming relationship with nonresident defendant insufficient basis for jurisdiction); Environmental Research Intl., Inc., supra, at 812 (plaintiff may not rely on its District activities to establish jurisdiction over defendant). [Id., at 33.]
Soon thereafter, another District Court judge rejected a claim of jurisdiction under
The recent discussion of § 423(a)(1) by the District of Columbia Court of Appeals in Environmental Research International v. Lockwood Engineers, Inc., 355 A.2d 808 (1976), is persuasive and controlling in the view of this Court. [Realty World Corp. v. Real Estate World Services, Inc., 105 D.Wash.L.Rep. 2121, 2125 (D.D.C. 1977).]
For an entity to be transacting business within this jurisdiction some purposeful, affirmative activity within the District of Columbia is required. The claim must arise of such activity. Measured by this standard, the facts show an absence of transacting business within this jurisdiction by C.P.R. C.P.R. did not initiate or pursue contract negotiations in the District of Columbia. All such was done by C.B.B. No services were to be provided by C.P.R. in the District of Columbia and all its duties under the contract were to be performed either in South America or, with respect to the satellite, in outеr space. [Citations omitted; emphasis added.]
Cf. Product Promotions, Inc. v. Cousteau, supra at 491 (“[A]ppellant had to present prima facie evidence that (1) a contract to be performed in whole or in part within Texas existed between itself and appellees and (2) the present suit arose out of that contractual arrangement“).
See also Pedi Bares, Inc. v. P & C Food Markets, Inc., supra at 935: “[T]he [Kansas] single act statute ... permits the exercise of personal jurisdiction over a nonresident when the sole basis is a contract with a resident to be performed in Kansas.” (Citations omitted.) “In the instant case, the purchase orders were accepted in Kansas. The goods were manufactured in, and shipped from Kansas. Partial payment was made to Pedi-Bares in Kansas.” Id. at 937 (upholding long-arm jurisdiction under both the statutory provision and the due process clause).