Shoppers Food Warehouse v. Moreno

WAREHOUSE, SHOPPERS FOOD

Appellant, MORENO, Appellee.

Asuncion

No. 96-CV-21. Court Appeals. Columbia

Reargued En May Banc 1999.

Decided Feb. WAGNER,

Bеfore Judge, Chief TERRY, STEADMAN, SCHWELB, FARRELL, REID, RUIZ and Associate Judges.

ON REHEARING EN BANC REID, Judge: Associate The presented by main issue this case is whether the personal juris trial court had appellant, diction over Maryland corpo a ration extensively which gro advertised its cery stores the District of Columbia’s major circulation newspaper and other media, communications appellee, where a resident, District alleged negligence a “slip and fall” lawsuit that she suffered injuries in one of appellant’s Ma ryland stores located near the District’s borders. The trial court concluded it personal jurisdiction had appellant, over jury and a appellee damages awarded for injuries. her A majority panel of this court affirmed the trial opinion court 16, 1998, July issued on Shoppers Food Moreno, (D.C. Warehouse v. 715 A.2d 107 1998) (Moreno I). panel’s opinion was vacated Shoppers’ petition for re hearing en banc granted January (D.C.1999). 1999. 722 A.2d 845 After re banc, hearing en granted only which we issue,1 jurisdictional consider the we reaf firm the judgment. trial court’s We hold that the trial properly per court exercised sonal because appellant, through its extensive advertising activity in major District newspaper, of Columbia purposefully solicited District residents as nearby customers for its Maryland and Virginia stores and thus transacted busi District; further, ness because Broderick, Michael P. Spring, Silver Ms. Moreno’s claim had a discernible relа MD, appellant. for tionship advertising, to its Shoppers could Cohen, Jill F. Wayne whom R. reasonably have anticipated being haled Cohen, DC, brief, Washington, was on the into against court to defend a personal appellee. injury suit brought a District resident. I, 1. We disposition leave intact the division’s 715 A.2d at 111-12. remaining appeal. issues on See Moreno land, in the of her home I. within two miles of Columbia. SUMMARY FACTUAL 13-423(a)(4) Shoppers maintained jury A District of Columbia found that injury no apply did not because tortious 20, 1993, appellee on November Asuncion Furthermore, place took District. gro fell on in a slipped Moreno okra failed to that Ms. Moreno Shoppers argued cery by appellant Shoppers store owned 13-423(a)(1) §of the applicability show Warehouse, Maryland corporation Food asserted, which, in con must be read (“Shoppers”), and as result of 13-423(b). pointed §with It also junction inju back hand negligence, sustained Maryland Corpora out that damages ries. She was awarded having place its of business principal $197,807 past of for and amount future in Maryland; in the store which Ms. More expenses, anguish, medical mental and in and shopped Maryland; no is located pain suffering. beginning and From of the showing Moreno no affidavit provided Ms. lawsuit, argued Ms. Moreno’s Shoppers Washington the Post actually that she saw that, contrary position, to Ms. Moreno’s advertisements. trial personal jurisdiction the сourt lacked 13-423(a)(4) § over under D.C.Code 22, 1994, mo- In its June the order of (1995) (causing injury tortuous in the Dis sub- agreed Shoppers tions court with Columbia).2 Later, trict of Ms. Moreno (a)(4) Ms. inapplicable because section jurisdiction claimed that were not even in Maryland, not injury Moreno’s occurred (a)(4), based subsection it rested on However, the conclud- the District. court 13-423(a)(1) (transacting any business in un- jurisdiction personal ed that there was Columbia). pointed the District of out She (a)(1) following rea- subsection for the der in placed extensive ads The sons: Post, major Washington of Co District First, require it is reasonable to newspaper, soliciting lumbia customers to in defend suit Defendant this its stores in In Maryland Virginia. and The Defen- District of Columbia.... deed, the appeal record on with replete Maryland dant owns numerous stores of pages weekly Shoppers’ advertisements Virginia, of which are locat- and several in Washington peri The Post between of within a miles of the District ed few 1, 1993, od and October December The Defendant Columbia border.... including which November the date on in [T]he contracts with and advertises Ms. The alleged Moreno she fell. ads Post, thereby and Washington targeting Shoppers’ Maryland Virginia for of soliciting customers the District pictures prices stores contained Furthermore, meats, .... goods, area produce, beverages, canned Columbia it [is] has failed to “show that packaged candies Defеndant goods.3 and other The disadvantage’ being re- at a Shoppers’ store where Ms. Moreno was ‘severe Park, Mary- of Co- injured quired [the is located in Takoma defend District business, any engages other part, or solicits relevant D.C.Code states conduct, persistent derives sub- follows: course or as goods from used or con- stantial revenue (a) may A District of Columbia Court ex- sumed, rendered, in the District or services person, ercise over Columbia; by agent, directly who or as to a acts arising person’s— claim relief (b) person is When over (1) transacting any business in Dis- section, upon only a claim solely this based Columbia; trict of arising enumerated for relief from acts may against him. be asserted this section (4) causing injury tortious in the District the ads regarding 3. Additional information of Columbia an act or omission outside opinion. analysis regularly appears in section of does the District of Columbia if he lumbia];” Francis, Tom Brown & Co. tacts with the District of in this Columbia (D.C.1992) A.2d satisfy case to the minimum re- contacts Electronic Media Int’l v. Com quirement.” Pioneer munications, Inc., (Me.1991)[) Since ]. the Plaintiff resides II. District, strong she has a interest litigating this suit here. ANALYSIS Second, Defendant, by contracting Personal Jurisdiction

n (i.e., Washington based businesses has never This court determined wheth Post, Washington the District of er newspaper other advertisements Pages) Columbia Yellow for adver- a the District nonresident corporation ti[s]ing purposes, has transacted busi- stоres, owning a chain of some of which Thus, ness the District of Columbia. very are located in close proximity to the Defendant volun- purposefully and borders, are District’s sufficient meet tarily availed privileges itself of the requirement the minimum contacts protections of the Colum- long-arm statute, District’s and whether ... bia. advertising constitutes a sufficient nex Finally, the Defendant’s -with contacts us for personal the District’s exercise of the forum state quality were of such and jurisdiction a over nonresident defendant nature that it is reasonable for the De- in a personal injury lawsuit the where to reasonably fendant anticipate being in injury took in place neighbor store haled into court in the of District Colum- ing jurisdiction. Trial in courts the Dis bia. It is reasonable to conclude that trict that have examined this have issue the Defendant por- derives a substantial Judges in disagreed. both Superior the of its revenue from of District Co- Court of the District of the Columbia and lumbia specifically targets residents —it United States District Court for Dis the with advertisements that demonstrate trict expressed of Columbia have different compare how Defendant’s fa- prices stages views at of involving different cases vorably prices with the in supermarkets. Shoppers as a defendant.5 Although the motions court not ex- did 13-423(b) § plicitly mention in its June Survey Supreme Court and Decisions of order, prior referenced a court trial Past Decisions this Court of oрinion, Kanof, Daily Daniels v. 116 Wash. 2053, L. Rptr. (Super.Ct.1988), 2057 involv- of Our consideration this difficult matter ing by advertisement District a begins a review of past with Supreme corporation. opinion nonresident That past Court and the of decisions decisions stressed “the foreseeability injury § of to this 13- interpreted court which have 423(a)(1) (b). District of Columbia plaintiffs as result and The review will us assist determining of defendant’s actions and the conse- whether the trial court’s quences soliciting jurisdiction of its by actions and exercise in this personal of advertising for business the' District of case the “minimum re- satisfies contacts” Accordingly, clause, Columbia.”4 trial court quirement of the due and 13-423(b)— enough “concIude[d] that there the-requirement § are con- whether of 5. 4. Daniels also concluded that "defendant’s judges The differences the views of the activities, i.e., 1994, 22, soliciting advertising in the and are reflected orders of June 15, 1995, case; presumably Duffy which has attracted and December this Warehouse, plaintiff, many as well as other District of v. 93- Food No. Civ. A. stores, 2372, 151204, 14, (D.D.C. clearly Apr. Columbia residents to its has WL at 1994 *3 District, i.e., 31, 1995, 1994), consequence caused a July and order of plaintiff’s injuries.” Rptr. transferring 116 Wash. L. at matter the United States Maryland. District for the of Court

325 2569, 53 13-423(a)(1) Heitner, 97 U.S. S.Ct. § under a claim for relief (1977), deriva- a shareholder’s L.Ed.2d 683 [in acts enumerated must aris[e] action, Superior v. Court and Kulko tive 13-423(a) § met. been ] — has 84, 98 S.Ct. California, 436 U.S. years after early In the (1978), rela- a domestic 56 L.Ed.2d enactеd, cases were decisions our matter, reiterat- Supreme Court tions by Supreme precedent Court guided both and “reasonableness” the “fairness” ed and existing Maryland and also then Shoe. in International sounded theme early look first at Su Virginia law. We and “rea- “fairness” indices of One of the initial shaped our preme Court eases personal the exercise sonableness” 13—423(a)(1). nati under decisions Inter is whether by the forum state Washington, 326 U.S. Co. v. onal Shoe [it- availed “‘purposefully defendant ” (1945), 90 L.Ed. 95 66 S.Ct. protections’ the ‘benefits self]’ decision, that, in with keeping held seminal “ Kulko, laws, supra, 436 forum state’s play fair and sub ‘traditional notions of Shaffer, (citing at 98 S.Ct. U.S. ” be “minimum justice,’ there must stantial (foot- at 97 S.Ct. supra, 433 U.S. and the contacts” between the defendant thus, omitted)), reason- “could note forum state before being ‘haled before anticipated ably have due consistently proc be exercised can at 97- jurisdiction. Id. ... court’ (quoting ess.6 Id. 66 S.Ct. Shaffer, supra, 98 S.Ct. 457, 463, 61 Meyer, Milliken (footnote (1940)). At the L.Ed. 278 omitted)). whether also examined Kulko time, emphasized same International Shoe be- connection” was a “sufficient there “enjoys that when a defendant seeks and the forum state defendant tween the of the laws” of protection the benefits and ‘quality determining “whether state, may face the defendant activity is such the defendant’s nature’ of or are arise out of “obligations [which] require and ‘fail'’to ‘reasonable’ thаt it is activities with the [defendant’s] connected in that State.” defense him to conduct his 319, 66 state.” Id. at [forum] within the Part of the 1690. Id. (citations omitted). Under these S.Ct. 154 whether the defen- depended on answer circumstances, “to requiring a defendant from derive[d] benefit “purposefully dant state] to a suit ... the forum respond [in relating [forum to the any instances, hardly be said to [can] in most 96, 98 1690. Id. at S.Ct. state].” undue Id. [an] [burden].” be cases decided significant of our The first Denckla, v. 357 U.S. Re 13-423(a)(1), Hanson § Environmental under (1958), 1228, 2 further En Int’l, L.Ed.2d 1283 S.Ct. Inc. v. Lockwood Greene search (en (D.C.1976) plaintiffs A required Inc., nexus. refined 355 A.2d 808 gineers, activity banc), in relation to a defen aforemen only unilateral articulated the not juris personal Supreme Court cannot alone sustain principles dant tioned that Con cases, “minimum contacts” the demonstrated under the also diction but Rather, stat long-arm the District’s S.Ct. 1228. intended ory. gress Id. at in statutes Ma held, ute, corresponding in case “it each like the is essential the Court in to be coextensive Virginia, de by ryland act which the that there be some juris personal the exercise of itself of the reach with avails purposefully fendant the due by permitted within diction conducting activities privilege of that: we stated Specifically, clause. ....” Id. forum State Shaffer of fair ‘traditional notions offend does not process requires ... that in order "[D]ue ” International judgment person- justice.’ play substantial subject a defendant to am, territory Shoe, present within the 66 S.Ct. 154 not U.S. at supra, if he be forum, omitted). contacts he have certain minimum (citations the suit maintenance of with it such that the legislative history [t]he of [the District’s in the forum state relied upon to confer long-arm statute] makes clear that it jurisdiction.” Malinow v. Eberly, 322 was Congress’ provide intent to the Dis- (D.Md.1971). F.Supp. Once, trict with equivalent statute however, the claim is related to acts scope already those effect District, § 13-423 require does not Maryland and Virginia_ In inter- that the scope the claim be limited to statutes, preting their the courts of both within activity jurisdiction. Maryland and Virginia have concluded that they permit Thus, Cohane, the exercise of Id. at 158-59.8 under if a jurisdiction over nonresident defendants claim is “related to [defendant’s] acts permitted the extent pro- the due District,” requirement 13- cess clause of the United States Consti- 423(b) is applied met. We the same “re tution. Fuel, late to” principle Berwyn Inc. v. (D.C.1979), Hogan, 399 A.2d (footnotes omitted). Id. at 810-11 where We then stated: we explicit “We reach a also made the principle recog similar conclu- sion as to our statute.” Id. at 811. Greene, We nized Lockwood “note[d] trend toward liberalization of § jurisdictional “permits reach jurisdictional limitations” and the fact that permitted coextensive with that by the due “[e]ven small amount in-jurisdiction process clause.” Id. (citing at 80 Interna activity generally enough to Shoe, tional supra, 326 U.S. at permit the conclusion that a nonresident 154; Cohane, S.Ct. supra, 385 A.2d at defendant has transacted business here.” 158). Berwyn reiterated only that “[t]he Id.7 13-423](a)(1) nexus required by [§ ... be Although our earliest cases did not focus tween the District of Columbia and the 13-423(b), much on we had occasion to nonresident defendant is ‘some affirmative interpret provision Arpej Cohane v. act which the brings defendant itself Inc., (D.C.1978), a-California, 385 A.2d 153 within the and establishes min denied, rt. ce Cohane, imum contacts.’ Id. (quoting su (1978), 58 L.Ed.2d 651 where we ex 158). pra, 385 A.2d ‍‌‌‌‌‌‌‌‌​​‌​​​​‌​‌​​​‌‌‌​​​​​‌​​​​‌‌‌​‌​​​‌​‌‌​​‍at plained: Between 1981 and after the Su 13-423(b)

The § limitation in that preme Court decided World-Wide Volks claim for relief must arise from the Woodson, wagen 286, 100 v. Corp. 444 U.S. transaction of the District of 559, (1980), S.Ct. 62 L.Ed.2d 490 we deter Columbia is meant prevent to “the as- mined that personal jurisdiction sertion of claims the forum over non state that do not bear relationship some to the acts resident defendants existed under our Compania 7. See also Bueno v. La Peruana de The Maryland drafters of the forebear of the S.A., 6, Radiodifusion, (D.C. 1977) 375 A.2d 8 statute probably ... would state that (focusing upon whether the defendant had 96(b) prevents merely the assertion of engaged "purposeful, in some affirmative ac claims in the forum state that do not bear tivity Columbia”) (cita within the District of relationship some to the acts in the forum omitted). tions upon jurisdiction.... state relied confer McGee, The Court in [v. International Malinow, supra, 8. In a Life decision of the United Co.[,] 220, 199, Ins. 355 U.S. 78 S.Ct. 2 States District Mary- Court fоr the District of land, (1957),] (b) page L.Ed.2d 223 stated on 223 the court discussed the subsection of U.S., existing comparable Maryland long- the then S.Ct. [78 199] that it was suffi "(b) specified: arm statute which juris- When jurisdiction constitutionally cient to confer “ * * * person solely diction over a upon is based this that the suit was based aon con section, only a arising cause of action tract which had substantial connection with acts enumerated in may this section be assert- that State.” against ed F.Supp. him.” 322 at 597. The Malinow). (emphasis Id. at added in Maryland court stated: wheth in the forum but present physically five cases.9 in four out of long-arm statute the forum with contacts that er the defendant’s Volkswagen reaffirmed World-Wide they and nature quality are of such imposed limits on state “[t]he voluntary associ and Clause, a manifest deliberate in its role as Process by the Due “fortui are not the forum” and litigation, ation against inconvenient guarantor Mouzavires, supra, tous or accidental.” over substantially relaxed have been Smith, 995, 997; supra, 452 at 292, It 434 A.2d 559. Id. at 100 S.Ct. years.” declared also at 337. Mouzavires A.2d transforma- the “fundamental referenced 13-423(a)(1) those con “embraces economy” “[t]he and in the American defen States,” of a nonresident tractual interdependence of economic consequence [in cause a 559, dant which 293, highlighted at id. And see at 992. 434 A.2d jurisdiction].” a due governing principles two (1) Corp., v. Cumberland Cockrell jurisdiction cases: analysis (D.C.1983) a con the “cause (applying .... is 716 is critical foreseeability that “the sequence” principle). and connec- the defendant’s conduct that he the forum State are such tion with 1993, important 1984 and three Between haled reasonably anticipate being should by the Su handed down were decisions (2) there”; corpo- “[w]hen into court Maga v. Hustler Keeton preme Court: priv- avails itself of ‘purposefully ration zine, Inc., 104 S.Ct. 465 U.S. activities within the ilege conducting (1984); Nacio Helicopteros L.Ed.2d State,’ that it ... it has clear notice Hall, Colombia, v. U.S. de S.A. nales there, subject to and can act suit (1984); L.Ed.2d 404 104 S.Ct. litigation alleviate the risk of burdensome Rudzewicz, 471 v. Burger King Corp. insurance, ex- passing the by procuring 85 L.Ed.2d 105 S.Ct. U.S. customers, or, if the pected costs on to (1985). in Keeton centered Discussion great, severing too its connection risks are require minimum contacts whether at 100 S.Ct. 559 with the State.” Id. Hampshire’s New was met under ment Hanson, supra, 357 brought action statute in a libel 1228). 78 S.Ct. York who sued of New resident Inc. Magazine, corporation, Hustler Volkswagen helped to Ohio World-Wide If Hampshire. court in New in a federal in the cases decided guide our decisions “random, isolated, or are signifi those contacts 1981 and the most between stated, fortuitous,” Baxter, due Court v. cant of which were Mouzavires (en (D.C.1981) banc); are not satisfied. requirements Smith 434 A.2d 988 only connec (D.C.1982); Jenkins, 452 A.2d 333 New (D.C. had with corporation Koehler, tion the Ohio 458 A.2d 1187 Hummel v. of its monthly sale 1983). was the Hampshire following previous addition which contained issues of magazine, these cases clarified principles, announced the focus of that was alleged not libel inquiry is “the most critical that the fairness reiterating lawsuit. After defendant whether the nonresident com cases, dismissal of the versing trial court’s Corp. Int’l of these AMAF 9. One (D.C.1981), Co., we personal jurisdiction, plaint 428 A.2d 849 for lack of Ralston Purina per- § 13-334 World- decided under D.C.Code principle re-articulated stressed “ corporations "do” or taining foreign corpora ‘When a Volkswagen, supra, Wide AMAF In- the District. transact business in ternational, privilege avails itself of purposefully corporation, Ral- sued forum conducting within the of ston, negligence corporation for a Missouri State, subject to that it is has clear notice it " relating to an order and breach of contract International, 428 A.2d AMAF suit there.’ shipped to bags poultry feed to be Volkswagen, su (quoting World-Wide at 851 type engaged another Nigeria. Ralston (other 297, 100 S.Ct. 559 pra, 444 U.S. at making activity sales District— omitted)). quotations internal citation and supermarkets. In re- products of its to local reasonableness principles governing activities, relate to’ those Helicopteros, su doctrine, minimum Supreme contacts the- 414, pra, 466 U.S. at 104 S.Ct. 1868.” Court reversed the trial court’s dismissal Burger 8, King, supra note at U.S. complaint, “Where, of the saying part: Third, “[jurisdiction is proper ... case, inas respondent Hustler Maga where the contacts proximately result zine, Inc., continuously has and deliberate by from actions the defendant himself ly exploited market, Hampshire the New create a ‘substantial connection’ with the must reasonably anticipate being haled 475, forum State.” Id. at 105 S.Ct. 2174 into court there a libel action based on McGee, supra note 355 U.S. at contents of its magazine.” Id. at (other omitted)). 78 S.Ct. 199 citation Volkswagen, 104 S.Ct. (citing World-Wide Fourth, “where a defendant who purpose sup ra, 297-98, at 100 fully has directed his activities at forum 559). jurisdiction, residents seeks defeat he

Helicópteros, supra, present must compelling elucidated the dis- case that the tinction general juris- between and specific presence of some other considerations (1) in personal jurisdiction diction cases: would render unreasonable.” “[W]hen a State personal juris- exercises Id. at Finally, 105 S.Ct. 2174. “[a] diction over a defendant in a suit arising generally State has a ‘manifest interest’ in out of or related the defendant’s con- providing its with a residents convenient forum, tacts with the the State is exercis- forum for redressing injuries inflicted ing ‘specific jurisdiction’ over the defen- out-of-state actors.” Id. at 105 S.Ct. dant,” 466 U.S. at 414 n. 104 S.Ct. 1868 McGee, 2174 (citing supra note (citation (2) omitted); and “When a State 199). 78 S.Ct. exercises personal jurisdiction over a de- Our later construing decisions fendant in a suit not arising out of or have been teaching consistent with the related to the defendant’s contacts with Supreme Court in these due forum, the State has been said to be See, Salins, e.g., cases. Way Inc. v. Sure exercising jurisdiction’ ‘general over the Brokers, Refrigerated Transp. Truck (citations omitted). defendant.” Id. at n. 9 Inc., (D.C.1986); 510 A.2d 1032 Fisher v. Burger turn, King, summarized the Bander, (D.C.1986); 519 A.2d 162 Lex Tex principles and policies relating to the due Skillman, (D.C.1990); Ltd. v. 579 A.2d 244 personal jurisdiction. clause and ‍‌‌‌‌‌‌‌‌​​‌​​​​‌​‌​​​‌‌‌​​​​​‌​​​​‌‌‌​‌​​​‌​‌‌​​‍Cotter, (D.C.1991). Trerotola v. 601 A.2d 60 First, rejected the court any “mechanical Fisher, for example, we three stressed tests” or “talismanic formulas” for the de justifications asserting jurisdiction. jurisdiction, termination of personal First, “[the has an District] interest 478, 485, U.S. at 105 S.Ct. and reaf “ providing its residents with opportuni firmed that ‘the facts of each case must ty grievances to redress inflicted out-of- [always] be weighed’ determining state defendants.” 519 A.2d 164. Sec personal jurisdiction whether would com ond, “when out-of-state actors avail them port play with ‘fair jus and substantial selves of the 485-86, 105 benefits of contact tice.’ Id. at within the (quot S.Ct. 2174 Kulko, jurisdiction], [asserting ing fairness re 436 U.S. at 1690). Second, quires they be held a forum accountable there “[w]here seeks to in for the specific jurisdiction consequences assert of such over an activities.” out-of- Third, Id. “the voluntary state defendant who has not establishment consented to there, juris suit ‘fair contacts within the forum warning’ requirement [asserting [the] is ‘purpose helps diction] satisfied the defendant has to assure that litigating with fully [jurisdiction] directed’ his in that activities at residents of would not impose an forum, Keeton, 774, suрra, undue 465 U.S. at burden on the out-of-state party.” Trerotola, 104 S.Ct. litigation and the results Id. supra, our focus was on from alleged injuries 13-123(b), § that ‘arise out of or question and the was “wheth-

329 na- 13-423(b), quality er, quires § us to examine in the words of Cotter’s con- enumer nonresident defendant’s ‘claim for relief from acts ture of the [arose] § the District and whether those any ated in’ subsection of 13-423 — in tacts with 423(a)(1).” voluntary at and deliberate or this case in 601 A.2d contacts are 13 — 158). Cohane, random, fortuitous, acci- at tenuous and (citing supra, only 63 385 A.2d 13-423(b) (4) dental; “§ a nonresident defendant Pointing out that bars claims where of the bene- availed itself forming purposefully ‘unrelated to the acts the basis has the District in en- jurisdietion[,]’ (citing protections id. Willis fits and personal Willis, 103, 106, activity 211 655 in a business U.S.App.D.C. gaging 1333, 1336(1981)), jurisdiction, it is fair and reasonable to F.2d we continued: being sued in that expect anticipate it to therefore, jurisdiction, proper For (5) jurisdiction; examining the nonresi- requires statute that the claim District, dent defendant’s contacts with relationship have a raised discernible relationship placed the focus is on the the “business” transacted in the District defendant, the forum and the among .... The critical test is whether (6) and fair for litigation; it is reasonable “conduct and connection nonresident’s jurisdiction specific the District to exercise the forum such that he [or state are pur- a nonresident defendant has where reasonably being anticipate she] should at District posefully directed its activities haled into court there.” World-Wide residents, against by and claims a Dis- Volkswagen, supra, 444 U.S. at 100 to,” relate trict resident “arise out of or Smith, quoted supra, 452 S.Ct. Burger King, S.Ct. A.2d at 336. added), or have a “substan- (emphasis Id. at 64. also Everett v. Nissan See with; McGee, supra note tial connection” U.S.A., Corp. Motor the business 355 U.S. at 78 S.Ct. (D.C.1993), (emphasizing “the seminal re- (7) District; transacted quirement that [the out-of-state defendant] in provid- has a manifest interest must undertake ‘some affirmative act ing a convenient forum which its resi- brings which the defendant itself within injuries inflicted may dents seek relief for jurisdiction and established minimum defendant, especially by the nonresident ”) Cohane, (quoting contact.’ the District would litigation where within 158) (citation omitted). A.2d at an undue burden on the non- impose not resident defendant. Applicable Legal Principles Distilled From Prior Cases of these application turn to the We now However, begin with the though survey past Even our we principles. since of the case before us yields squarely point, decisions no case factual context [always] must be which “the facts of each case pertinent legal principles there are fairness, rea- weighed” against notions may guide be distilled from these cases (1) justice in and substantial as- before us: sonableness our decision the case 13-423(a)(1) exercise certaining may in reach whether the court section is coextensive over а nonresident jurisdiction allowed personal personal with the defendant, Burger King, supra, 471 U.S. of the United the due clause (internal (2) 485-86, quota- Constitution; there are no “me S.Ct. States omitted); and be- and citation “talismanic formulas” for tion marks chanical tests” or “ placed] on the rela- cause focus ‘[the the determination 423(a)(1) defendant, (b), the forum among the tionship and the facts under 13 — Keeton, supra, 465 litigation.’” no and the weighed against be of each case must fairness, and sub U.S. at reasonableness tions of Shaf- 2569) (3) supra, 433 U.S. at justice; fer, the due stantial under omitted). (other clause, re- citations principle the minimum contacts Factual Context its stores located in Maryland numerous Virginia, including in those Takoma Shoppers regularly solicits customers Park, Maryland. The us record before Maryland its Virginia stores Shoppers reveals that placed also adver- placing advertisements in the District of tisements on television networks through Washington market Columbia The District, as well as listed one of its stores Post, major newspaper headquartered Pages in the Yellow of the C & P Tele- D.C., Washington, and other communi- phone Together book in 1993-94. with her media. cations The record shows exten- niece, Moreno, husband, Ms. sister Shoppers’ weekly sive advertisements resident, District of engaged Columbia Washington The Post October Saturday, in Thanksgiving shopping on through 1, 1993, including December 20, 1993, Shoppers’ November at one of November date on which Ms. Moreno Takoma Park stores within of two miles and fell in slipped Shoppers’ The store. slipped her home when she and fell on weekly ads appeared caption with the bold personal injuries.10 okra and sustained TOTAL “SHOPPERS WAREHOUSE ... PRICES EVERYDAY! FEATURE Application Legal Principles

PRICES IN EFFECT 7 FULL DAYS!” of To Ms. Moreno’s Case body of the a descrip- The ads contained the products tion of for sale bold letters Having set forth the factual price, with the a pic- and sometimes with Shoppers’ Dis context of contacts with the ture of sale item. At of the ad top of presence trict and Ms. Moreno’s one shop some additional inducement stores, Maryland ana we now appeared. Shoppers For example, Oc- lyze parts. the due issue two 13 and tober November ads for the guiding principle parts As the for both periods through October 13 and No- analysis, our we we made reiterate what 9, 1993, 3 through vember included an plain Berwyn, supra: “[Section] to win opportunity Washington tickets to a jurisdictional ... permits coexten reach football game Redskins with an induce- permitted by sive with the due pro to “see ment store for The ad for details.” (citations cess clause.” 399 A.2d at 80 10 through November 16 also offered an Fisher, omitted); also supra, see opportunity play- to meet several football (“We at 163 have held that 13- [§ ers from the Redskins’ team November 423(a)(1) pro ] is co-extensive with the due 1993. the middle of the of one amendment, cess the fifth clause of ad, containing pages the October its construction is subsumed a due stated in bold “No Mat- letters: (citations omitted). analysis.”) ter You Live ... Where It’s Worth Therefore, examine, first, we whether the through Drive!” The November 17 No- process requirements threshold due have pointed possibil- 1993 ad vember to the been pro satisfied this matter. “[D]ue ity get customers “could free only that in requires subject cess order to they Thanksgiving turkey or ham” if col- a judgment personam, defendant to a addition, enough coupons; lected the ad territory he be not within the present holiday postage offered a sav- stamps with forum, have certain he minimum con twenty of ten cents ings on each book with it such that the tacts maintenance stamps. the suit not offend ‘traditional does notions of Shoppers’ justice.’ All in The play advertisements fair and substantial In Post, Shoe, Washington including covering those ternational the relevant week listed the addresses of 66 Milliken v. Meyer, important to note Moreno It that Ms. ad. Thanksgiving claimed to have never seen the

331 random, fortuitous, acci- 463, 339, not 457, L.Ed. tisements are 61 S.Ct. 85 Keeton, omitted). attenuated, supra, (1940)) (other see If dental or citations 278 774, 1473; nor are at 104 S.Ct. con 465 U.S. the nonresident defendant’s business in consequence trivial to cause “sufficiently sys they and too tacts are continuous District, Cockrell, supra, 458 A.2d see jurisdiction, tematic” within the 717, satisfy” jurisdiction, at or “too tenuous general may court exercise Bank, the due requirement of minimum contacts Thomason v. Chemical 234 Conn. Everett, (1995); A.2d supra, 628 see also clause. 661 A.2d quality Shoe, they Rather are “of such at at 108. supra, International U.S. they a deliberate and nature that manifest 154. If the business contacts 66 S.Ct. voluntary [the association with jurisdiction are not “suffi and within the forum Mouzavires, supra, residents].” and its systematic,” continuous and ciently at 995. may specific assert court purposefully ‘has “whenever defendant large, illustrated By placing pages at residents of the directed’ [its] letters, often bold advertisements forum, Keeton, litigation supra, and incentives, major in the District’s shopping alleged injuries that resulted] from [has] Washington newspaper, The cireulation activities, ‘arise out or relate to’ those Post, obviously custom- Shoppers solicited at Helicopteros, [supra, 466 U.S. the District for them stores ers from added.) 1868][;] Burger (Emphasis S.Ct. Maryland Virginia, clearly and “with 472-73, King, supra, 471 at U.S. S.Ct. residents would expectation” that District Thomason, supra, 661 A.2d at 599. 2174.” stores. purchase products sold those at Burger King, 471 U.S. See Requirement The Minimum Contacts Consequently, Shoppers S.Ct. 2174. “ in-juris “Even a small amount of privi- itself of the ‘purposefully availfed] activity generally diction business conducting activities within lege of the conclusion that a enough permit [District],’ su- Volkswagen, World-Wide has transacted nonresident defendant busi 297, 100 and pra, 444 U.S. at Greеne, supra, 355 ness here.” Lockwood be- reasonably anticipate^] [have] “should case, placed Shoppers A.2d at 811. this aby ing [in District]” haled into court advertisements extensive substantial the District who received customer from over a continuous Washington Post Maryland of its stores. injury in one time, at from period of least October Id.; Fisher, at supra, 519 A.2d see also However, un December 1. it is through busi

necessary to decide whether these and Reasonableness “sufficiently Fairness ness contacts were continuous Exercising Jurisdiction jurisdic general to confer systematic” Columbia case, the District we are satisfied this because specific trial court had warning’” “‘fair Shoppers had Shoppers. over resident sued a District that it could be of its stores. and fell one slipped affir- who “purposeful, conducted Shoppers at King, supra, U.S. Burger of Co- activity within the District mative Fisher, 2174; at 163. supra, 519 A.2d lumbia,” Bueno, note 375 A.2d at S.Ct. that reached advertising By engaging directing advertise- by purposefully locating its stores stores into the District Maryland Virginia ments for its access to customers convenient base in the District with potential at a customer District, reasonably could Shoppers Columbia, matter declaring “No even customers these anticipated have the drive” to you five ... it’s worth where there, and, once stores shop its supra, 471 would Burger King, Shoppers. See as other same hazards subject to thе adver- be 2174. These customers, 13-423], including slip and fall like the only [§ a claim for relief arising one Ms. Moreno suffered. from acts enumerated may section therefore had “fair warning” that it could be against asserted him.” The words be sued the home of the arising “claim for relief from” also appear customers courted. Under the circum- 13-423(a)(1): §in “A District of Columbia “ stances, the District would have a ‘mani- may Court personal jurisdiction exercise fest interest’ in providing its residents with person, over a who directly acts or by an a convenient forum for redressing injuries agent, as to a claim arising for relief from inflicted by out-of-[jurisdiction] actors.” (1) person’s transacting any business Burger King, supra, 471 at U.S. 105 in the District of (emphasis Columbia” S.Ct. 2174. Nothing in the record before added). Supreme precedent Court us indicates that defense of Ms. Moreno’s 13-423(b)’s § our case law have construed action in the District constituted an undue “arising requirement from” flexibly. Indeed, Shoppers. burden on “the volun- tary establishment of contacts within the requirement The of a nexus be [jurisdiction] helps to assure that tween plaintiffs claim and the defen litigating within [jurisdiction] would dant’s business jur the forum impose not an undue burden on the out-of- isdiction disjunctive: has been stated in the Fisher, party.” state supra, 519 A.2d at the claim for relief must “result[] 164. The Metropolitan Washington, D.C. alleged injuries that ‘arise out of or relate functions, many area respects, a uni- as to’ those Burger King, supra, activities.” lеgal fied community. commercial 471 U.S. at 105 S.Ct. 2174 Consequently, “when out-of-state actors Helicopteros, supra, 466 U.S. avail themselves of the benefits of contact 1868) added). Thus, (emphasis if the within the forum [jurisdiction],” as did claim either arises out of or to relates Shoppers in soliciting customers from the nonresident defendant’s business activity, population, District’s requires “fairness specific jurisdiction may be exercised. they be held accountable therein for Earlier, considering insurance con the consequences of such activities.” Id. case, McGee, tract supra Note asserted: satisfied, then, We are that the minimum “It is sufficient for purposes of due requirement contacts of the due process that the suit was on a based contract which clause has been met this Shop case. had substantial connection with fo pers [the transacted the District of rum] State.” 355 Columbia within S.Ct. 199 meaning of D.C.Code (references 423(a)(1).11 omitted). Thus, § jurisdiction in the 13 — Superior Court of the District of Columbia proper, provided that Berwyn Ms. Moreno es Cohane and fol we

tablished a injury Cohane, nexus between her and lowed the “relate to” language. (under advertisements the District supra, 385 A.2d at 158-59 13- 13-423(b). sufficient satisfy 423(b), We turn “the claim [must ‍‌‌‌‌‌‌‌‌​​‌​​​​‌​‌​​​‌‌‌​​​​​‌​​​​‌‌‌​‌​​​‌​‌‌​​‍related to acts be] now to the second due issue. District”); Berwyn, supra, 399 A.2d (“the at 80 claim must relate to partic Requirement Nexus ular act or forming transaction the basis 423(b) jurisdic- Tex,

Section personal jurisdiction”). states: “When for In Lex person solely over a upon based supra, we fleetingly focused on the “aris- Shoppers argues simply that “there is contrary no the absence of evidence to the any evidence in the record from which con- relating corporate evidence to the structure of clusion could be reached that Food Shoppers, that the advertisements in the Dis- defendant, Corp., Warehouse MD con- Shoppers’ grocery trict for Maryland stores in any advertising, tracted for of this or that it placed by Shoppers were Food Warehouse did so in the District of Columbia.” Howev- Corp. MD er, assume, reasonably the trial court could strict, category Into the causation-based rather than the language, of’ nexus ing out proxi- relevance fall the substantive to,” that “one concluding words “relate have some- These tests mate cause tests. right to come to hardly can demand the sub- as one test: times been described pursue activi- the District of Columbia cause. The relevance/proximate stantive exclusively of an out-of-state ties on behalf ex- test has been relevance substantive im- expect absolutely to be principal and as follows: plained principal here mune from suit test, for a cause of action Under arising directly action out of the causes of a defendant’s or relate to” “arise from activities,” 579 A.2d performance of such state, the con- with the forum contacts Trerotola, recently, at 250. Most relevance must have substantive tacts requirement the nexus interpreted we the plainly, action. More the cause of 13-423(b) only “that the claim to mean necessary to the be forum contacts must have discernible relation- raised [must] cause of action. proof of the in the ship to the ‘business’ transacted (citations Personal Maloney, Specific M. District.” 601 A.2d at 64 omit- Mark Note, ted). From Or Re and the “Arise explain on to Jurisdiction We went “ ... Does It Requirement late To" What is ‘cer- relationship” “discernible shown Washington Mean?, 50 minimum the non Re tain contacts’ between and Lee Law also, (1993); Lea Bril 1282 see (quot and the forum” exist. Id. resident view Due Process mayer, How Contacts Count: 444 ing Volkswagen, supra, World-Wide Jurisdiction, Limitations On State Court 559). mini These U.S. “ Supreme Rev. In Pizarro Ct. mum and con contacts reflect ‘conduct Int’l, C.A., F.2d Hoteles Concorde nection with the forum state ... such that (1st Cir.1990), the First Circuit reasonably should antici [the nonresident] ” proximate applied the summarized pate being haled court there.’ Id. into affirm a federal trial court’s cause test to (quoting Volkswagen, supra, World-Wide action for lack of negligence of a dismissal 559). Stated jurisdiction: certain “Whether 13-423(b) differently, only “claims bars defen out of a nonresident events ‘arise for forming ‘unrelated to the acts the basis jurisdic forum [the dant’s actions within personal jurisdiction.’ Id. at 63 to wheth comparable analogous or tion] Willis, 103, 106, 211 U.S.App.D.C. Willis v. to be the actions can be said er certain (1981) (other F.2d citation injuries proximate cause of. legal, or the omitted)). 13-423(b) operates thus Section Peckham by plaintiff.” See also suffered as a due check on the reach or Co., Casualty Ins. 895 F.2d v. Continental scope “transacting provi of the business” (1st Cir.1990). 830, 836 of the sion statute. case, Tak How In a Nowak v. later jurisdictions Other have wrestled (1st Cir.1996), Ltd., Invs., 94 F.3d jurisdic- requirement specific the nexus Circuit, desiring greater flexibili- the First variety settings in a of factual proxi- the from its reliance on ty, deviated as to the have reached diverse conclusions test, saying part: “we mate causation determining prop- test for appropriate emphasize importance intend to nonresident defen- er nexus between the causation, slight to allow a but proximate as- activity and the claim dant’s business circum- when loosening of that standard adopted The tests plaintiff. dictate,” serted concluding stances from narrow or strict causation- range that: “While wrongful death action flexible relatedness defen- based tests to more nonresident [the nexus between ... showing [in of some con- business requiring dant’s] tests solicitation ... death jurisdiction] [the] [of the claim relationship or between forum nection wife, resi- a Massachusetts’ plaintiffs activity. and the business dent] does not constitute a proximate mate cause approach adopted by the First Circuit.”) (Citation relationship, omitted). cause represent does The “but meaningful link between nonresident [the for” test has been described as follows: contact juris- defendant’s] [with general theory [T]he [of “but for” and the harm suffered.” The diction] test] is that a cause of action ‘arises stated, court also in language relevant to from or relates to’ the defendant’s forum foreign our case: “When a corporation di- state activities when for” “but those ac- rectly targets ongoing residents ef- tivities the cause of action would not fort to further a relationship, ... Therefore, have arisen. if plaintiff can corporation’s [t]he own conduct increases trace the train leading of events up to specific the likelihood that a resident will the cause of action and find that respond favorably.” Id. at 715. defendant’s activities contribute to this chain, the cause of action is said to arise rejected

Other courts have the substan from those purposes tive relevance/proximate cause test alto determining personal jurisdiction. gether. For example, Companies, Vons Foods, Inc., 434, Inc. v. Seabest 14 Cal.4th Washington Maloney, supra, 50 and Lee 899, (1996), Cal.Rptr.2d 926 P.2d 1085 (footnotes omitted). Law Review at 1277 the court stated: proximate “[A] cause test In Alexander v. Circus Circus Enterpris- ... is inconsistent with the fairness ratio es, Inc., (9th Cir.1991), 939 F.2d 847 the underlying specific jurisdiction nale the Ninth Circuit said: critical “[T]he focus A person doctrine. purposefully who ‘arising whether, the prong out of is ‘but avails himself or herself of the benefits of for’ the defendant’s forum-related activi- doing business the forum state must be ties, occurred; injury the would have that prepared to answer lawsuits that relate to is, whether the ‘entire course events ... his activity or her there.” at 1104 was an uninterrupted began whole which Id. (referencing Burger King, supra, 471 U.S. with, uniquely and was made possible by, 472, 2174); 105 S.Ct. see Mary also the contacts in the [defendant’s] [forum Twitchell, The Myth General Jurisdic Id. at state].’ Shute v. Car- tion, (1988) 610, 101 Harv. L. Rev. (9th Lines, 377, nival Cruise 897 F.2d (“[T]he substantive relevance approach is Cir.1990), grounds, rev’d on other guide not the best dispute-specific juris to 1522, 113 L.Ed.2d 622 in part Supreme diction” (1991)). “[t]he because Supreme Court of California Court did not limit specific the rejected has probably the “but for” test as quid pro quo rationale in International “theoretically “too lax” because may [it] ‘directly Shoe to claims arising out of fo any include historical plain cause of the activities; rum noted that due injuries,” Companies, tiffs Vons supra, 58 would be satisfied ‘in most instances’ the Cal.Rptr.2d 926 P.2d at obligations arise out of or are connected overly because it “is mechanical and fails state.”) (foot mth the within to concentrate on the central pre issue omitted). note quash sented a motion to for lack .of is, jurisdiction— specifiс whether The “but for” test has adopted by been defendant’s forum contacts and plaintiffs other courts. In contrast to the First claim sufficiently are related so that it is Circuit, example, Supreme Judicial subject to the defendant Court of fair rejected Massachusetts has in the forum.” Id. at (emphasis sup relevance/proximate substantive cause test plied); see also supra, 1980 Brilmayer, a favor of “but for” test. See v. Tatro Supreme Court Review at 84. Care, Inc., Manor 416 Mass. (1994) (“There N.E.2d is no readi- Two other nexus should tests be men- ly apparent basis in the statutory language early Supreme tioned. As as from’) (‘arising proxi- for the restrictive applied Court California the “substantial impose legislative decision whether the ciles connection” test to determine constitutionally permitted had been satisfied: some limits requirement nexus to re- jurisdiction with its decision not plain to whether inquiry “Our is directed action, a causal connection between quire on an accident tiffs cause of based and the solicitation here allegedly defendant’s which resulted from defendant’s Nevada, interpretation lawsuit. Our plaintiffs’ out of or has tortuous act arises appli- purposes [the follows. For connection with business as substantial statutory es Connecticut relationship purposefully defendant has cable action plaintiffs “cause of provision], tablished with California.” Cornelison ... out of ... solicited Cal.Rptr. Chaney, aris[es] 16 Cal.3d (1976). if, the defen- in this state” at the time after 545 P.2d in Connecti- engaged nexus solicitation revisiting proper the issue of the dant that, law, cut, reasonably it was foreseeable surveying test and other case solicitation, the defen-' as a result of Supreme Court of California decided as a dant could be sued Connecticut retain its “substantial connection” test on a cause of action interprets person solicited flexible standard which best being brought by The court stat similar to now requirement. relatedness plaintiffs. ed: directly A claim need not arise from 661 A.2d at 603. forum contacts or- the defendant’s upon Based our review of nex sufficiently der to be related to the jurisdictions, used in us tests other spe- warrant the exercise of contact to them, leveled at some of and the criticisms Rather, jurisdiction. long cific as as that there Supreme Court’s admonition claim a bears substantial connec- tests” or “talismanic are no “mechanical to the nonresident’s forum con- tion person for the determination of formulas” tacts, jurisdic- specific the exercise of to deviate jurisdiction, al we see no reason appropriate. is The due de past thus we reaffirm —our from—and protecting clause is concerned with the “arise interpreted which have cisions being nonresident defendants 13-423(b) flexibly and language from” unfairly in the fo- brought into court a having to” or synonymously with “relate rum, contacts. on the basis of random with,” in the same “substantial connection however, provision, That constitutional Supreme Court’s due way that the not with a provide does defendants interchange analysis has used these terms against jurisdiction shield when the de- that, Superior for the This means ably. has availed him- purposefully fendant Ms. More jurisdiction to have over Court self or herself of benefits the forum. claim, related to claim had to be no’s P.2d at 1096. Companies, supra, Vons Shoppers’ with substantially or connected Domtar, Niagara Inc. v. Fire Ins.

See also Cohane, District, activity in the advertising (Minn.1995) (“When Co., 533 N.W.2d 158; Berwyn, supra, A.2d at supra, 385 a out of a contract has claim arises 80; is, we said A.2d at as connection’ with the ‘substantial Trerotola, A.2d at it had supra, 601 state, (citing exists.” specific relationship” to have some “discernible McGee, supra note Where advertising activity. Shoppers’ 199)). directly so deliberately and Shoppers has also Supreme Court of Connecticut cus residents become licited District stores, rea a flexible or less restrictive articulated Maryland Virginia and tomers its in Thoma sonably advertising standard foreseeable that its no doubt there can be son, declaring: relationship has a discernible relates to or resident who be by a District ... must to a claim “arising out of’

The words Shoppers’ one comes customer in a manner that recon- interpreted be (1985), rev’d, and injured. stores This is true because N.W.2d 428 Mich. that, (1987). reasonably it is foreseeable as re- N.W.2d advertising extensively sult of and over a Consistent with the trial court’s period substantial of time in the District’s conclusion, we hold that the trial court major newspaper, circulation Shoppers properly exercised in this mat could be sued the District on a claim ter appellant, through because its exten similar to filed Ms. Moreno. See advertising activity major sive in a Thomason, supra, 661 A.2d at 603. The newspaper purposefully Columbia and trial court found that Shoppers “owns nu- deliberately solicited District residents as Maryland Virginia, merous stores in and customers for nearby Maryland its several of which are located within a few Virginia stores and thus transacted busi miles of the District of Columbia border.” District; further, ness because The trial court also that Shop- determined Ms. Moreno’s claim was related to or had a pers “contracts and advertises in relationship discernible to its advertising, Washington [T]he [and Post the Yellow Shoppers could have reasonably anticipat Pages], thereby targeting soliciting ed being haled into court to against defend customers the District of Columbia personal injury brought by suit a District so, doing area.” In it “voluntarily availed short, resident. Ms. Moreno met the itself of the privileges protections 423(b). requirements of 13 — the District of Columbia .... According- concluded, ly, the trial court Shoppers’ Virtually Fear of “contacts with the were of such [District] Unlimited Jurisdiction quality and nature that is reasonable for argument In its final Shoppers’ raises to reasonably anticipate being [it] haled specter “virtually jurisdic- unlimited into court the District of Columbia.” tion in the District over businesses and contends that this case the claims with little or no relationship requirement nexus is not satisfied because District.” This is an argument without there is no inherent relationship support between in fact or law. World-Wide (to store) duty provide Volkswagen, breached a safe supra, made clear that “the and the advertising “transaction” of foreseeability that ... is critical is that the District of Columbia media. Under this defendant’s conduct and connection with reading requirement, of the nexus Ms. the forum are State such he should Moreno would something reasonably have to show anticipate being haled into akin to advertising by false But Shoppers. court there.” 444 at U.S. 100 S.Ct. require only since we a showing of a “dis- analysis 559. Under our fact-driven in this case, cernible relationship” particu- between the specific while Shoppers’ transacted, lar claim and the advertising solicitation of customers from Shoppers imposes heavy too a burden. the District will support slip a and fall Trerotola, claim, 601 injury A.2d at 64. The record pro- vendors who sell their reveals extensive and repeated advertising or, Shoppers’ duce to for that mat- stores — by Shoppers ter, Wаshington In Shoppers’ employee Post. a slips who light of such advertising, Ms. Moreno’s company falls warehouse in Mary- case is plain- dissimilar those which land —are by not within the class solicited jurisdictional tiffs based their Shoppers’ claims on a advertising extensive in The advertisement, single sporadic Moreover, or advertis- Washington Post. non-directed ing from a agency travel located far from advertising Internet might present dif- See, the forum e.g., state. v. Hil- Crocker ferent factual situation from the one before Barbados, Ltd., ton Int’l 976 F.2d 799 us. Corp. Micropatent See E-Data v.

(1st Cir.1992); (D.Conn.1997) v. Cody’s Corp., Witbeck Bill F.Supp. 177 Inn, (defendant’s Ranch 147 Mich.App. Internet advertising that had reasons, foregoing Accordingly, for the ... potential to reach Connecticut “the the trial court. judgment we affirm as a basis for consumers” was insufficient “hundreds of jurisdiction because personal So ordered. sites [existed] thousands Web Internet”). WAGNER, dissenting: Judge, Chief foreign corporation The mere fact that a pur a defendant who “[W]here within the advertises for business at fo directed posefully [its] has long- under our is insufficient Columbia jurisdiction, to defeat rum residents seeks to exercise for our local court arm statute case that present compelling must [it] corporation personal jurisdiction over presence of some other considerations advertising to that for claims unrelated jurisdiction unreasonable.” would render foreign statе.1 wholly arise which King, supra, 471 Burger U.S. to hold other- majority appears Since Shoppers presented has not wise, dissent. order for respectfully I that the District now will compelling case proper- the District of Columbia Courts unlimited over busi exercise jurisdiction over a for- ly assert nesses. over corporation, “service of eign dissent, authorized the nonresident must be Judge part, Schwelb’s for its confines of the and be within the appears depend entirely on the distinc- statute clause of the United States and a due hypotheti- tion between Ms. Moreno “Yes, Arpeja-Califor v. Cohane plaintiff testify, cal who could I’ve Constitution.” (D.C.), nia, Inc., ads, cert. they’ve got great seen denied, prices!” testimony presumably Such (1978) (citing L.Ed.2d 651 International support

would the inference he believes 310, 66 actually Washington, ‍‌‌‌‌‌‌‌‌​​‌​​​​‌​‌​​​‌‌‌​​​​​‌​​​​‌‌‌​‌​​​‌​‌‌​​‍necessary plaintiff Shoe Co. (1945)). The statu 90 L.Ed. 95 induced to visit a store the S.Ct. here are D.C.Code tory provisions issue advertising. Insistence on whether -423(b) 13-423(a)(1) (long-arm §§ plaintiff question the ads in shifts the saw statute).2 in this dispute There is no real process inquiry away focus of the due it, Shoppers Food Warehouse’s has on case that Supreme placed where Court Furthermore, for customers advertisements (Shoppers’) the defendant’s actions. mini were sufficient within the District importance purpose minimizes the “transacting statute, mum activities to meet the which we have al- 423(a)(1). See requirement of ways understoоd to afford District resi- business” (D.C. Cotter, A.2d Trerotola v. access to our courts limited dents broad 158).3 1991) Cohane, 385 A.2d at (citing considerations. only by process due (a) may exer- court A District of Columbia is no contention in this case that There person, jurisdiction over a cise jurisdiction derives from D.C.Code court’s agent, a directly by an as to acts or who (1995) (authorizing upon a § service 13-334 - person’s arising relief from claim for corporation doing in the Dis- foreign business (1) transacting any in the Dis- transacting or business in trict of Columbia Columbia; trict of arising entered the District out "of contracts part, performed, whole or in or to be into (b) person is jurisdiction over a When growing out of of Columbia or in the District section, only a claim solely upon this based District”), any in the or tort committed arising acts enumerated relief for (pertaining jurisdiction § D.C.Code 13-422 against him. may be asserted section this corporations organized the laws under over of, principal place maintaining a of busi- or 13-423(a)(1), be § less of a nexus 3."Under District, claim). any as to ness of Co and the District tween the defendant finding jurisdiction required a lumbia is statute, ‘doing required busi provides § under the long-arm 13-423 than would be 2. The pres- corporate determine test used to ness’ pertinent part: What divides the court is whether accident in a in Maryland store belonging 13-423(b) further imposed by § condition to Shoppers, foreign corporation which I agree satisfied. with my dissenting happens to advertise for customers 423(b) colleagues that it is not. Section daily newspaper which is distributed jurisdiction bars the exercise of over a metropolitan area. Her cause of action foreign corporation where the claim is un- of, neither arises out nor is it related to related to the business transacted in the Shoppers’ advertising activities. For Trerotola, the corporation. See reasons, these essentially for those set words, 601 A.2d at 63. In other under this forth in Judge Schwelb’s dissenting opin- section, “jurisdiction is limited to claims ion, I respectfully dissent from the opinion arising particular from the transaction of of the court. provides

business which juris- the basis for Cohane, diction.” 385 A.2d at (citing SCHWELB, Associate Judge, with 13-423(b)). § D.C.Code Ms. Moreno’s STEADMAN, whom Associate Judge, claim injuries arose out of she sustained in joins, dissenting: an accident which occurred in Shoppers’ division, When this case was before I

Maryland store as a result of Shoppers’ explained view, negligent act some detail why, my or omission in the state of Moreno Maryland. Ms. has failed to establish simply There is no that her relationship here between claim from” Shoppers’ “ar[ose] advertisements contacts the District and with the District Shoppers’ alleged Shop- of Columbia. See tortious Moreno, conduct pers which caused Food Ms. Moreno to Warehouse v. slip (D.C.1998) (Moreno I) (dis- and fall in Maryland as required by our statute. accept To thе contrary position senting I opinion). pointed out that “[s]o would render imposed by limitation far record, as we can discern from the Ms. 423(b) § nullity. That we have “inter- Moreno would have injuries suffered the preted this statute as permitting the exer- for which she compensation seeks in this personal jurisdiction cise of over nonresi- action even if had not advertised dent permitted by defendants to the extent in the District at all.” Id. at 113. The clause,”4 due does not elimi- suggestion that Ms. Moreno’s claim “arises nate the requirement the courts of from” Shoppers’ advertising, when she jurisdiction adhere to the due would have injuries sustained her even under our statute. process, That as ad, set the absence of a single ascribes dis- statute, forth in our provides in tinctly odd meaning straight- to the rather 423(a)(1) (b) a specific basis for the statutory forward language. I continue to court’s exercise of personal position I, adhere to the I took in Moreno a foreign over corporation. The exercise and rather than burdening a second vol- of that must conform to the ume of Reporter the Atlantic 2d with the statute and be consistent with process. due dissenting prose, same I incorporate by Trerotola, 64; Cohane, See 601 A.2d at my 385 reference separate opinion at the divi- 423(b), A.2d at 158. Under unless sion level. majority Because the en banc 13 — the claim “has a discernible relationship to now legislative history invokes the of our District[,] statute, 13-423(b) the ‘business’ in transacted the long-arm § D.C.Code jurisdiction ... (1995), asserted exceeds the limits as well as the case law of certain of the due clause of jurisdictions, the Constitu other I think it appropriate Trerotola, tion.” 601 (citing A.2d at 64 to following add the observations to the Cohane, 158). Here, 385 A.2d at there was expressed my views in opinion Moreno only the fortuity of Ms. I. having Moreno Cohane, (cita- Cohane, supra, ence." 385 A.2d at 158 4. at 385 A.2d 158. omitted).

339 (1995); City 11 v. New Em- Piracci York i. ployees’ Sys., F.Supp. Retirement In its the issue presently discussion of (D.Md.1971).1 1067, Although the us, surveys plethora the before court Maryland specifically cases do not decide decisions, and correctly federal and local here, I think question the to us presented of, in Ma- arise the defendant’s activities “arising terms out of” and "related to” have out and, do, they ryland. meanings whether different 340

Significantly, agree courts ‘arising this cau- from’ the alleged neg- defendant’s sation element requires more than sim- ligence in leaving the elevator floor wet causation; ple requires slippery, not from wholly defendant’s “but-for” something legal proximate akin to or advertising unrelated and solicitation activ- causation. ities.” Id.

Chedid v. Regency Boardwalk Corp., 756 phrase The “arising from” in Virgi- the (E.D.Va.1991) F.Supp. (emphasis nia statute has thus been construed as added) (citing Pizarro v. Hoteles Concorde requiring strong link causal between the Int’l, C.A., (1st 907 F.2d Cir. defendant’s transaction of business in the 1990))2; City Virginia see also Beach v. plaintiffs state and the claim. No such Ass’n, Roanoke River 776 F.2d link alleged causal here. The common (4th Cir.1985) (“[i]n order for a cause of interpretation sense statutory lan- action to arise from business transacted in guage by the court in Chedid is fatal to Virginia, the activities that support position Ms. Moreno’s this case. jurisdictional claim must coincide with those that form the plaintiffs basis of the II. claim”);

substantive Verosol v. Hunter Inc., Douglas, F.Supp. In my opinion, foregoing authorities (E.D.Va.1992).3 render it most improbable that Ms. More- Chedid, plaintiff slipped and fell no prevail could if the controversy were to in an elevator at a Jersey New casino. He be decided under Maryland Virginia or brought negligence action a United however, majority, statutes. The has cho- States District Court in Virginia against sen not Maryland to look to or Virginia the corporate owner of the establishment. law, on which the District’s statute was plaintiff argued that the court had based, rely but to precedents instead on jurisdiction over the defendant under Vir from Connecticut and California. But the ginia’s long-arm statute because the casino jurisdictions cases from these were decid- had solicited customers and placed ads ed under statutes that differ significantly Virginia, and because his claim had arisen District’s, from the they therefore pro- from these activities in the forum. Al vide scant support for the majority’s posi- though plaintiff alleged that the defen tion. solicitation, dant’s telephonic in which it Bank, In Thomason v. Chemical had offered free limousine travel to and (1995), Conn. Jersey, New had him go induced to casino,4 Supreme Court of to the Connecticut held that the court held that it did not phrase “arising have out of’ in corporation, over the the Connecti- rea soning long-arm that there cut require was no causal relation statute “does not ship plaintiffs between the accident causal connection between the defendant’s corporation’s transaction of business in plaintiffs’ forum-directed activities and the Chedid, Virginia. supra, F.Supp. statute, lawsuit.” Connecticut’s however, 943. “[P]laintiffs cause of action is one provides that a suit must arise Pizarro, 2.In the court appears stated: Virginia It state courts Chedid, yet have not addressed this See issue. Whether certain events "arise out of” a F.Supp. at 944. nonresident defendant's actions within comparable analogous Puerto Rico is or Chedid, plaintiff 4. Unlike the Ms. Moreno whether certain actions can be said to be offered no evidence that she was induced to legal, proximate injuries or cause of go Shoppers by Shoppers' Food Warehouse by plaintiff. suffered advertising in the District. The court in Che appears F.2d at 1259. It obvious to me necessary did thus went further than I find it proximately that Ms. Moreno's fall was not go in order tо conclude by Shoppers’ advertising. caused lacking present case. “sub- majority also cites California’s The with the contacts out of the defendant’s support for the test as connection” stantial permit to Connecticut’s in order state jurisdiction exercise of Superior Court’s general specific or to exercise either courts The Su- maj. op. at 335. case. See if recognized court jurisdiction. The has stated: of California preme Court construed “arising out of’ were the words directly from the not arise A claim need “the requirement,5 a causation imposing as to contacts order forum defendant’s courts the exer- would limit our statute contact to related to the sufficiently be prohibit jurisdiction ‘specific’ cise of jurisdic- specific the exercise warrant any ‘general’ exercising from our courts Rather, claim bears long as as the tion. The court Id. at 600-01. jurisdiction.” nonresi- to the connection substantial had legislature that the sensibly reasoned contacts, the exercise dent’s forum jurisdic- general to exclude not intended appropriate. jurisdiction specific elected instead entirely, but had with clause is concerned due general test for a more restrictive enact nonresident defendants protecting requires. than the jurisdiction Constitution court in the brought unfairly into being fact, Thomason Id. at 602. forum, contacts. basis of random on the general jurisdic- and decided as brought however, provision, That constitutional tion case. Id. at 603-05. with a defendants provide does not statute, when the de- jurisdiction Dis- against the shield the Connecticut Unlike has availed himself purposefully statute fendant jurisdiction long-arm general trict’s benefits the forum. or herself of Superior Court to exercise permits the if a claim does jurisdiction plaintiffs even Inc., Foods, Cos. Seabest Vons defendant’s out of an out-of-state not arise P.2d Cal.Rptr.2d Cal.4th in the forum. See D.C.Code activities (Ca.1996). 1085, 1096 13-334(a). Thus, unhelpful Thomason is District, counterpart its Unlike (1) unlike reasons: to Ms. Moreno for two not have does long-arm statute California’s Connecticut, this Court of Supreme Rather, “arising requirement. from” an artificially broad court need not accord long-arm statute states California’s from” in “arising to the construction words juris may state exercise court of this “[a] statute, jurisdiction specific the District’s with not inconsistent any on basis diction gen- Superior may for the Court exercise or of the of this state the Constitution that the showing without a eral Proc. Civ. Cal. Code United States.” claim arises from the defendant’s (1999). Thus, if were even one § 410.10 Thomason, (2) forum; claim has that Ms. Moreno’s assume “arising construing phrase ac court was with “substantial connection” gen- distinctly dubious appears as it Connecticut’s out of’ tivities in the District —a statute, sheds analysis while Vons assumption eral —the proper construction solely light her сase under little on brought Moreno Ms. 13-423(b). from” in “arising phrase jurisdiction statute. specific District’s require a causal connection tion does not explained: Significantly, the court the defendant’s contacts suggested, between courts have Some [federal] lawsuit, dicta, may only be exer- because specific jurisdiction it is and the a causal connection proof "arising cised without out only contains not that test ac- forum-directed the defendant’s between "relating to” language, but also the of” courts, All of those tivities and the lawsuit. however, test em- language. the constitutional If the their conclusion have based “arising language, a only out ployed of’ test specific jurisdiction fact that the required. be would causal connection cause of action merely requires that the added). The Dis- (emphasis 600 n. 4 Id. at " the defendant’s of or relate to "arise out course, statute, does not contain trict’s Thus, even activities.... forum-directed "relate to.” words specific jurisdic- test for the constitutional III. ORDER widespread There is a perception PER CURIAM. community large lawyers and appellant’s On consideration of petition

judges sometimes make things unnecessar- banc, for rehearing en and the opposition ily complicated. I suggest that if one were thereto; appearing and it majority intelligent lay to tell an citizen that Shop- judges of the of this court has voted to рers widely advertised in the District but grant petition banc, for rehearing en that there was no evidence that Ms. More- is ads, no ever read Shoppers’ and if one were then ask that citizen whether Ms. ORDERED, sponte, sua that this court’s proved Moreno had that her “slip and fall” 16, 2000, February order filed granting accident “arose from” advertis- appellant’s petition for rehearing en banc ing, the interrogated individual would look vacated, it is questioner at the incredulously rather not,” then answer “of course appellant’s or words to FURTHER ORDERED that petition effect. I believe that for rehearing granted the result would en banc is be posed the same this issue were and that the opinion judgment of Au- professor English. gust hereby This is a case in are vacated with which, my judgment, legal profes- respect appellant only. Rivas It is profitably sion could look at the problem FURTHER ORDERED that the Clerk would, average as the citizen and accord shall schedule this matter for argument legislature words used their sitting before the court en banc as soon as meaning. common sense permits. the calendar It is

I respectfully dissent. parties FURTHER ORDERED that the

shall simultaneously file briefs on new or 23, 2000, before March and shall file re- sponsive April briefs no later than party 2000. Each copies shall file ten its briefs. These new briefs shall be spe- cifically designed for consideration addressed to the en banc court and shall supersede all previously briefs filed in this RIVAS, appeal. It is Appellant, Baltazar FURTHER ORDERED that any re- quests for extension of time will be looked STATES, Appellee. UNITED upon with granted disfavor and will be only upon showing good cause. No. 97-CF-304. District of Appeals. Columbia Court of

Feb. WAGNER, Judge;

Before Chief

TERRY, STEADMAN, SCHWELB,

FARRELL, RUIZ, REID, GLICKMAN, WASHINGTON, Judges. Associate notes there is no District Columbia that, in the even of unlikely it absence “squarely maj. op. case See point.” on “but connection between for” out, But as majority points 329. the “[t]he accident, Ms. the advertising and Moreno’s legislative history long of the District’s either Maryland courts would conclude arm statute it clear it was makes from” plaintiffs injury the “arose Congress’ provide intent to the District in the or that Shoppers’ activities District long-arm equivalent scope statute “directly it was related” them. Maryland already to those in effect prospects Ms. would be even Moreno’s Virginia.” Id. at 326 Environ promising less under law. That Virginia mental Inc. v. Research Int’l Lockwood state’s statute is also ‍‌‌‌‌‌‌‌‌​​‌​​​​‌​‌​​​‌‌‌​​​​​‌​​​​‌‌‌​‌​​​‌​‌‌​​‍identical long-arm Inc., 808, Engineers, 355 A.2d Greene in all provision the District (D.C.1976) (en corresponding banc)). The legislature Virginia See Code respects. material having Maryland Virginia, focused on (1992). 8.01-328.1(A)-(B) § construing surely explore we should the construction jurisdiction the un personam extent of in neighboring jurisdic courts these statute, der the Su Virginia’s the tions of on which own statutes our preme Virginia, much like its Court legislation was based. Mary in the District and in counterparts Maryland’s specific jurisdiction long-arm land, the legislative pur stated that has statute is identical to the in all District’s pose jurisdiction assert over non was “to respects. material Md.Code Ann. See Cts. engage purposeful who some residents (1994). & Jud. Proc. Mary 6-103 activity permis in this State the extent Appeals land Court of has that in stated sible the due clause.” Kol under statute, enacting legislature the intend be, Co., 211 Va. Inc. v. Chromodern Chair expand ed “to the exercise of personal 664, (1971). 736, 180 S.E.2d jurisdiction to limits allowed on an solely When is based Due Process of the Clause Fourteenth out-of-state defendant’s transaction Amendment to the States United Constitu claim Virginia, plaintiffs business Corp. Behning, tion.” Camelback Ski v. must from the transacted arise (1986) 307 Md. A.2d Virginia See 8.01- state. Code (Camelback I), vacated and remanded 328.1(A)-(B). The United States grounds, other Virginia Court the Eastern District of for (1987). 1341, 94 L.Ed.2d 512 The exercise phrase “arising from” interpreted has specific permissible is as follows: of, out Maryland the suit arises or is to, directly meaning starting point is the related the defendant’s activi Plain is the Corp. analysis, by’’ and “caused ties state. See Camelback Ski Thus, evi- Behning, phrase’s meaning. plain v. 312 Md. A.2d (Camelback (1988) II); accord, Assembly Virginia’s Pres dent that General Wilson, re- from” to byterian Hosp. phrase “arising Univ. v. 337 Md. used the (1995); link quire 654 A.2d Tale that there be causal between personal jurisdic- gen Corp. Signet Leasing Fin. the acts relied on cause of asserted. 657 A.2d 410- tion and the action Corp., Md.App. I, may specific jurisdiction where In Camelback 881 n. be asserted to, plaintiff’s does not open questions left claim relates but court whether

Case Details

Case Name: Shoppers Food Warehouse v. Moreno

Court Name: District of Columbia Court of Appeals

Date Published: Feb 17, 2000

Citation: 746 A.2d 320

Docket Number: 96-CV-21

Court Abbreviation: D.C.