United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2004 Decided December 21, 2004
No. 03-7179
JOHN HELMER,
APPELLANT
v.
ELENA DOLETSKAYA ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00460)
Bruce S. Marks argued the cause and filed the briefs for
appellant. John M. Mason entered an appearance.
William M. Sullivan, Jr. argued the cause for appellee.
With him on the brief was Sarah M. Hall.
Before: ROGERS, TATEL and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
2
ROGERS, Circuit Judge: This appeal involves personal
jurisdiction under the District of Columbia long-arm statute,
D.C. Code § 13-423 (2001). John Helmer, a United States
citizen, sued his former girlfriend Elena Doletskaya, a Russian
citizen, for fraud and breach of contract when she refused to
repay him for real and personal property acquired while they
lived together in Moscow. The district court dismissed the
complaint for lack of personal jurisdiction. Helmer v.
Doletskaya, 290 F. Supp. 2d. 61 (D.D.C. 2003). We reverse the
dismissal of Helmer’s contract claim for repayment of credit
card charges because the parties formed the contract in the
District of Columbia and contemplated future repeated contacts
with the District of Columbia as a condition of performance.
Otherwise we affirm, as the other contracts had no substantial
connection with the District of Columbia, and the fraud did not
cause injury in the District of Columbia. In light of our partial
reversal, however, the district court may have discretion to
exercise pendent personal jurisdiction over the dismissed claims,
an issue that was not briefed on appeal, or to dismiss the
complaint on other grounds raised in Doletskaya’s motion to
dismiss, such as forum non conveniens.
I.
The facts, based on the pleadings and affidavits
construed in the light most favorable to Helmer, are as follows.
John Helmer is a citizen of the United States and a resident of
the District of Columbia by virtue of his ownership of a home in
the District of Columbia, his payment of D.C. taxes, and his
possession of a D.C. driver’s license. However, he has lived and
worked in Moscow as an independent business journalist since
1990. Elena Doletskaya is a citizen of the Russian Federation
and a resident of Moscow. In 1993, Helmer and Doletskaya
commenced a romantic relationship and lived together in a
rented apartment in Moscow. They also began negotiations with
a Russian seller to purchase an apartment in Moscow. That
3
summer, the couple visited Helmer’s home in the District of
Columbia. While there, Doletskaya agreed to arrange for the
purchase of the Moscow apartment in Helmer’s name, as
Helmer did not speak or read Russian. Doletskaya also agreed
to repay Helmer for financially supporting her until her career
was established. Such financial support included her use of
Helmer’s credit cards, on the condition that the monthly billing
statements would be sent to Helmer’s home address in the
District of Columbia.
On November 19, 1993, after the couple returned to
Moscow, Doletskaya arranged for the purchase of the Moscow
apartment and registered it in her own name. Helmer paid cash
for the apartment and received a receipt acknowledging the sale.
The couple moved into the Moscow apartment in 1994. In 1996,
their romantic relationship ended, and Helmer loaned
Doletskaya $11,000 to purchase and renovate a dacha, or
country house, in the outskirts of Moscow. Helmer continued
to live in the Moscow apartment and to permit Doletskaya to use
his credit cards until 2000, when Doletskaya established her
financial independence as editor-in-chief of Vogue Russia. In
2000, after Doletskaya had moved into the dacha, Helmer
discovered that the Moscow apartment was registered in
Doletskaya’s name. When Doletskaya refused to transfer the
apartment to him, Helmer sued her in a Moscow court to recover
title to the apartment; his complaint was dismissed on the merits.
Doletskaya also refused to repay Helmer $68,000 for his
financial support, including $57,000 in credit card charges and
$11,000 for the dacha.
On March 15, 2002, Helmer sued Doletskaya in the
United States District Court for the District of Columbia for
fraud and breach of contract. Count One of the complaint
alleged that Doletskaya fraudulently induced Helmer to entrust
her with the purchase of the apartment and to lend her financial
4
support by concealing material facts about her personal
background. Count Two alleged that Doletskaya breached her
agreement to register the Moscow apartment in Helmer’s name
and her agreement to repay Helmer for his financial support.
Doletskaya moved to dismiss the complaint for lack of service
and personal jurisdiction, improper venue, forum non
conveniens, and failure to state a claim for fraud. The district
court granted the motion to dismiss for lack of personal
jurisdiction, finding that the contracts made during the couple’s
1993 visit to the District of Columbia did not constitute
“minimum contacts” with the District of Columbia, and that the
fraud did not cause injury in the District of Columbia, as Helmer
was not living there at the time. Helmer, 290 F. Supp. 2d at 68-
69.
II.
On appeal, Helmer contends that the district court erred
in dismissing the complaint because Doletskaya had sufficient
contacts with the District of Columbia to satisfy the
requirements of the D.C. long-arm statute and due process. Our
standard of review depends on “[t]he posture in which the
motion [to dismiss was] presented to trial court.” Herbert v.
Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
Although the district court permitted jurisdictional discovery, it
did not hold an evidentiary hearing and ruled only on the basis
of the pleadings and the affidavits, construed in the light most
favorable to Helmer. See Helmer, 290 F. Supp. 2d at 65 n.1.
Accordingly, we review the dismissal of the complaint de novo.
See Herbert, 974 F.2d at 197; 5B CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 1351, at 314 (3d ed. 2004).
In a diversity case, the federal district court’s personal
jurisdiction over the defendant is coextensive with that of a
District of Columbia court. See Crane v. Carr, 814 F.2d 758,
5
762 (D.C. Cir. 1987). The District of Columbia long-arm statute
provides that a District of Columbia court can exercise personal
jurisdiction over a defendant if the claim arises from the
defendant’s “transacting any business in the District of
Columbia.” D.C. Code § 13-423(a)(1). This provision is “given
an expansive interpretation” that is “coextensive with the due
process clause.” Mouzavires v. Baxter, 434 A.2d 988, 992 (D.C.
1981); see United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir.
1995); Crane, 814 F.2d at 762. The issue here is whether
Doletskaya purposefully established “minimum contacts with
[the District of Columbia] such that the maintenance of the suit
does not offend ‘traditional notions of fair play and substantial
justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
A defendant has minimum contacts with a forum if she enters
into a contract that has a “substantial connection” with the
forum. McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957).
Because a contract is “ordinarily but an intermediate step
serving to tie up prior business negotiations with future
consequences which themselves are the real object of the
business transaction,” a court must evaluate the “prior
negotiations and contemplated future consequences, along with
the terms of the contract and the parties’ actual course of
dealing” to determine whether the defendant “purposefully
established minimum contacts within the forum.” Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 479 (1985) (quoting
Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316 (1943))
(internal quotation marks omitted).
A.
The district court ruled that even though the contract for
repayment of the credit card charges was formed in the District
of Columbia, it had no substantial connection with the District
of Columbia because both the charges and the payments were
made outside the District of Columbia. Helmer, 290 F. Supp. 2d
6
at 68. Helmer attempts to demonstrate error by the district court
based on his Sixth Declaration claiming that the credit card
payments were made in the District of Columbia. However, he
did not submit his Sixth Declaration until he sought
reconsideration of the dismissal by the district court; hence, it
was untimely, see United Mine Workers of Am. 1974 Pension v.
Pittston Co., 984 F.2d 469, 476 (D.C. Cir. 1993), and we do not
consider it.
Helmer also contends that the contract for repayment of
the credit card charges had a substantial connection with the
District of Columbia because, as alleged in his complaint and his
timely declarations, the credit cards were issued to Helmer in the
District of Columbia, and the monthly billing statements were
sent to Helmer’s address in the District of Columbia for the
purpose of arranging for Helmer’s payment of Doletskaya’s
charges. According to the complaint, Doletskaya declared that,
as a condition of her use of Helmer’s credit cards, the monthly
billing statements would be sent to Helmer’s address in the
District of Columbia. Even though the credit card charges were
paid from Helmer’s bank account located outside the District of
Columbia, Doletskaya knew that her continued use of the credit
cards depended on the receipt of the statements in the District of
Columbia and the arrangement here for payment of the charges.
Thus, Doletskaya accepted the credit cards knowing that
repeated contacts with the District of Columbia would result
from her continued use of the credit cards and Helmer’s
arrangements for payments of her charges in performance of the
contract. Because the contract was formed in the District of
Columbia, the corpus of the contract involved credit cards issued
to a District of Columbia resident and registered with a District
of Columbia address, and the parties contemplated future
repeated contacts with the District of Columbia as a condition of
performance, we hold that the contract had a substantial
connection with the District of Columbia and that Doletskaya
7
“purposefully avail[ed] [herself] of the . . . benefits and
protections of [D.C.] laws,” Burger King, 471 U.S. at 475
(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)), such
that she “should reasonably anticipate being haled into court
[here],” id. at 474 (quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)). Accordingly, we reverse
the district court’s dismissal of the contract claim for repayment
of $57,000 in credit card charges.
The contract to repay Helmer $11,000 for the dacha,
however, is a different matter. According to the complaint,
Helmer agreed to pay for the dacha in 1996, when both parties
were living in Russia. Helmer does not allege that the payments
for the dacha were made in the District of Columbia; nor does
he allege any other connection between the contract and the
District of Columbia, other than his residence here. The
Supreme Court has held that a contract with a resident of a
forum does not by itself establish minimum contacts with the
forum. Burger King, 471 U.S. at 478. As such, we affirm the
district court’s dismissal of the contract claim for repayment of
$11,000 for the dacha.
B.
Whether the district court has personal jurisdiction over
the contract claim for repayment for the Moscow apartment is
more problematic, as no relevant authority establishes whether
the formation of a contract in the District of Columbia with a
D.C. resident is alone sufficient to constitute minimum contacts
with the District of Columbia. The district court found that the
negotiation, performance, and breach of the contract all occurred
outside the District of Columbia. Helmer, 290 F. Supp. 2d at
68. The corpus of the contract involved an apartment located in
Moscow. And the formation of the contract in the District of
Columbia was fortuitous rather than purposeful, as Doletskaya
8
came with Helmer to the District of Columbia to spend a holiday
with Helmer’s family, not to solicit business here.
Helmer contends that the contract had a substantial
connection with the District of Columbia because it was formed
in the District of Columbia and he is a resident of the District of
Columbia. However, the cases on which he relies involve more
than just the formation of a contract in the District of Columbia.
In four of the cases, the contract was partially performed in the
District of Columbia, see Schwartz v. CDI Japan, Ltd., 938 F.
Supp. 1, 6 (D.D.C. 1996); Abramson v. Wallace, 706 F. Supp. 1,
2 (D.D.C. 1989); Clements Distrib. Co. v. Celebrity Prods., Inc.,
699 F. Supp. 322, 323 (D.D.C. 1988); Dorothy K. Winston &
Co. v. Town Heights Dev., Inc., 376 F. Supp. 1214, 1219
(D.D.C. 1974), and in another case, the defendant traveled to the
District of Columbia on four occasions for the purpose of
negotiating the contract, see Unidex Sys. Corp. v. Butz Eng’g
Corp., 406 F. Supp. 899, 902 (D.D.C. 1976). Here, by contrast,
the contract to purchase the Moscow apartment was negotiated
and performed wholly outside the District of Columbia, and
involved only a single, fortuitous contact with the District of
Columbia.
Helmer’s attempt to distinguish Freiman v. Lazur, 925
F. Supp. 14 (D.D.C. 1996), on which the district court relied,
Helmer, 290 F. Supp. 2d at 68, is unpersuasive. In Freiman, the
district court ruled that a single meeting in the District of
Columbia to negotiate a contract was “insignificant in the
scheme of the parties’ dealings” because the contract was
executed and performed outside the District of Columbia. 925
F. Supp. at 25 (quoting Mitchell Energy Corp. v. Mary Helen
Coal Co., 524 F. Supp. 558, 564 (D.D.C. 1981)). In maintaining
that his case “differs significantly” from Freiman, Helmer relies
on the formation of the contract in the District of Columbia and
his residence in the District of Columbia. Appellant’s Br. at 12.
9
We are not persuaded, however, that the formation of the
contract here is more significant “in the scheme of the parties’
dealings” than the negotiation meeting in Freiman. Both were
“single contacts” in courses of dealing that otherwise took place
outside the District of Columbia. Freiman, 925 F. Supp. at 25;
cf. Burger King, 471 U.S. at 479; Religious Tech. Ctr. v.
Liebreich, 339 F.3d 369, 375 (5th Cir. 2003). Indeed, in the
choice-of-law context, “the place of contracting standing alone
is typically viewed as rather insignificant, especially when it was
fortuitous,” whereas the “place of negotiation and performance”
— in this case, Moscow — “should generally control.” Stephen
A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d 191, 194
(D.C. Cir. 1999) (citing RESTATEMENT (SECOND) OF CONFLICT
OF LAWS §§ 188(3), 188 cmt. e (1971)); see also Allstate Ins.
Co. v. Hague, 449 U.S. 302, 317 n.23 (1981).
Nor are we persuaded that Helmer’s maintenance of a
residence in the District of Columbia gives the contract to
purchase the Moscow apartment a substantial connection with
the District of Columbia, as Helmer actually lived and worked
in Russia when the contract was negotiated, performed, and
breached. The cases Helmer cites, such as Dorothy K. Winston
& Co., 376 F. Supp. at 1219, and Unidex Systems Corp., 406 F.
Supp. at 900, involved corporations that were not only
incorporated in the District of Columbia but actually had offices
and did business here, such that the contemplated future
consequences of the contracts took place in the District of
Columbia. Here, by contrast, although Helmer maintained a
home in the District of Columbia and happened to be visiting it
when the contract was formed, he actually lived and worked in
Russia when the contract was negotiated, performed, and
breached, such that the contemplated future consequences of the
contract took place in Russia. For these reasons, we hold that
Helmer fails to demonstrate that the contract to purchase the
10
Moscow apartment had a substantial connection with the District
of Columbia.
C.
Finally, we find no merit to Helmer’s contention that the
district court erred in dismissing his fraud claim. The District of
Columbia long-arm statute provides that a court may exercise
personal jurisdiction over a defendant if the claim arises from
the defendant’s “causing tortious injury in the District of
Columbia by an act or omission in the District of Columbia.”
D.C. Code § 13-423(a)(3). This provision is “a precise and
intentionally restricted tort section which stops short of the outer
limits of due process,” and requires that both act and injury
occur in the District of Columbia. Moncrief v. Lexington
Herald-Leader Co., 807 F.2d 217, 221 (D.C. Cir. 1986) (quoting
Margoles v. Johns, 483 F.2d 1212, 1219 (D.C. Cir. 1973); Davis
v. Costa-Gavras, 580 F. Supp. 1082, 1087 (S.D.N.Y. 1984))
(internal citations and quotation marks omitted). The district
court ruled that although Doletskaya fraudulently concealed her
personal background during her visit to the District of Columbia,
the fraud did not cause injury here because Helmer was not
“physically present” in the District of Columbia when
Doletskaya incurred the credit card charges, when Helmer paid
the credit card charges, when Helmer purchased the apartment,
or when Doletskaya registered the apartment in her own name.
Helmer, 290 F. Supp. 2d at 69.
Helmer contends that “economic harm is suffered at the
claimant’s home, meaning domicile,” and that the district court
was required to accept his allegation that he was domiciled in
the District of Columbia. Appellant’s Br. at 16. But Helmer
misreads the district court’s opinion as ruling that economic
injury occurs at the plaintiff’s domicile. Noting that Helmer did
not “expressly allege emotional losses as a result of
Doletskaya’s alleged fraud,” the district court stated only that
11
“because Helmer was not actually living in the District [of
Columbia] in 2000 when he discovered Doletskaya’s alleged
fraud, he could not have sustained any emotional damage at his
home in the District [of Columbia].” Helmer, 290 F. Supp. 2d
at 69 n.3 (emphasis added). Further, the cases that Helmer cites
do not establish that economic injury occurs at the plaintiff’s
domicile, but only that emotional or reputational injury occurs
where the plaintiff lives or works. See Calder v. Jones, 465 U.S.
783, 785, 788-89 (1984); Masterson-Cook v. Criss Bros. Iron
Works, Inc., 722 F. Supp. 810, 813 (D.D.C. 1989); Aiken v.
Lustine Chevrolet, Inc., 392 F. Supp. 883, 886 (D.D.C. 1975).
Because Helmer does not allege that the fraud caused emotional
injury, we have no occasion to address whether emotional injury
occurs at the plaintiff’s domicile.
Although District of Columbia law does not establish
where economic injury occurs, the case law of other circuits is
instructive. For example, in Mareno v. Rowe, 910 F.2d 1043 (2d
Cir. 1990), a New York resident sued his employer for
wrongfully terminating his employment in New Jersey, id. at
1045. In determining whether the employer caused tortious
injury in New York as required by the New York long-arm
statute, the Second Circuit held:
An injury . . . does not occur within the state
simply because the plaintiff is a resident. “[T]he
situs of the injury is the location of the original
event which caused the injury, not the location
where the resultant damages are subsequently
felt by the plaintiff.” Thus, despite the fact that
[the plaintiff] may suffer the economic
consequences of his firing in New York, the
location of the original event which caused the
injury is New Jersey.
12
Id. at 1046 (first alteration in original) (quoting Carte v. Parkoff,
152 A.D.2d 615, 616 (N.Y. App. Div. 1989)) (internal citation
omitted). Likewise, in Wenz v. Memery Crystal, 55 F.3d 1503
(10th Cir. 1995), a Colorado resident sued a London law firm
for wrongfully withdrawing funds from his London trust
account, id. at 1506. Noting that “the unauthorized disbursals
occurred in London and were from a London account, not a
Colorado account,” the Tenth Circuit held that “the loss or
injury occurred in London where the account was located, not in
Colorado. That [the plaintiff] may be economically impacted in
Colorado, simply because he lives there, is insufficient to
establish personal jurisdiction under . . . the Colorado long-arm
statute.” Id. at 1508. Similarly, in Beverly Hills Fan Co. v.
Royal Sovereign Corp., 21 F.3d 1558 (Fed. Cir. 1994), the
Federal Circuit held that the economic injury caused by patent
infringement occurs not where the patent owner resides, id. at
1570, but “where the infringing sale is made because the patent
owner loses business there,” id. at 1571.
Here, the original events that caused the alleged injury
to Helmer were the ones identified by the district court as
occurring outside the District of Columbia: Doletskaya’s use of
the credit cards and Helmer’s payment of her charges on them,
and the purchase and registration of the Moscow apartment in
Doletskaya’s name. Helmer, 290 F. Supp. 2d at 69. The fact
that Helmer was living in Russia when these events occurred
makes his contention that the fraud caused injury to him in the
District of Columbia even more implausible. Moreover, the
district court was not required to accept Helmer’s bare allegation
that he was domiciled in the District of Columbia, especially
because he first made this allegation in his motion for
reconsideration. See United Mine Workers, 984 F.2d at 476.
While a district court must resolve factual disputes in favor of
the plaintiff when dismissing a complaint for lack of jurisdiction
without an evidentiary hearing, Reuber v. United States, 750
13
F.2d 1039, 1052 (D.C. Cir. 1984), “the court need not accept
inferences drawn by plaintiffs if such inferences are unsupported
by the facts set out in the complaint. Nor must the court accept
legal conclusions cast in the form of factual allegations.” Kowal
v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994). Helmer’s contention that “merely the intentional
direction of tortious conduct into a state is sufficient to confer
personal jurisdiction without other contacts” is likewise
unpersuasive, Appellant’s Br. at 17, as it is based on cases that
involve long-arm statutes broader than D.C. Code § 13-
423(a)(3), either because they require only the tortious act to
occur in the forum state,1 or because they are coextensive with
the Due Process Clause.2 Because Helmer fails to demonstrate
that Doletskaya’s fraud caused injury to him in the District of
Columbia, we hold that the district court lacked personal
jurisdiction over Doletskaya with respect to the fraud claim
under D.C. Code § 13-423(a)(3).
Accordingly, we affirm the dismissal of the complaint
except with respect to Helmer’s contract claim for repayment of
credit card charges. Although we do not address the issue of
pendent personal jurisdiction because it was not briefed on
appeal, on remand the district court may have discretion to
exercise such jurisdiction over the dismissed claims, see Oetiker
1
See FMC Corp. v. Varonos, 892 F.2d 1308, 1311 (7th Cir.
1990); Murphy v. Erwin-Wasey, Inc., 460 F.2d 661, 663 (1st Cir.
1972).
2
See Neal v. Janssen, 270 F.3d 328, 331 (6th Cir. 2001);
Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001); Oriental
Trading Co. v. Firetti, 236 F.3d 938, 943 (8th Cir. 2001); Wien Air
Alaska, Inc. v. Brandt, 195 F.3d 208, 211 (5th Cir. 1999); Brainerd v.
Governors of the Univ. of Alberta, 873 F.2d 1257, 1258 (9th Cir.
1989); Vishay Intertechnology, Inc. v. Delta Int’l Corp., 696 F.2d
1062, 1066 (4th Cir. 1982).
14
v. Jurid Werke, G.m.b.h., 556 F.2d 1, 4-5 (D.C. Cir. 1977), or it
may dismiss the complaint on other grounds raised in
Doletskaya’s motion to dismiss, such as forum non conveniens.
So ordered.