Shoppers Food Warehouse v. Moreno

SCHWELB, Associate Judge,

dissenting:

The District’s long-arm statute provides that “[w]hen jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.” D.C.Code § 13-423(b) (1995). Asuncion Moreno’s assertion of personal jurisdiction *113over Shoppers Food Warehouse MD Corp. (Shoppers) was “based solely” on § 13^123, but she failed to demonstrate that her claims “ar[ose] from” Shoppers’ contacts with the District. I would therefore hold that the motions judge should have granted Shoppers’ motion to dismiss for lack of personal jurisdiction.

I.

Shoppers is a Maryland corporation. It operates no stores in the District, and it has no office here. In opposing Shoppers’ motion to dismiss the complaint for lack of personal jurisdiction, however, Ms. Moreno claimed that Shoppers transacts business in the District, within the meaning of § 13-423(a)(1), by advertising in The Washington Post and the Yellow Pages, and that the Superior Court therefore had jurisdiction over Shoppers.

The burden of proving the necessary jurisdictional facts, as set forth in the long-arm statute, is on the plaintiff. Trerotola v. Cotter, 601 A.2d 60, 64 n. 2 (D.C.1991), citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 56 S.Ct. 780, 80 L.Ed. 1135 (1936).1 Ms. Moreno has not alleged, by affidavit or otherwise, that her presence in Shoppers’ store was precipitated by those advertisements, nor has she claimed that her injury was related in any way to Shoppers’ jurisdictional contacts with the District. The question before us is whether, under these circumstances, the motions judge correctly held that the court had jurisdiction over Shoppers.

II.

In order to defeat Shoppers’ motion to dismiss the complaint, Ms. Moreno was required first, to establish jurisdictional facts sufficient to reach the defendant under the District’s long-arm statute, and second, to show that it would be consistent with due process to require Shoppers to defend the suit in the District. See International Union of Electrical, Salaried, Machine, and Furniture Workers v. Taylor, 669 A.2d 699, 699-700 (D.C.1995). Here, the first and dis-positive question is whether Ms. Moreno has alleged facts which bring the case within the jurisdictional requirements of D.C.Code § 13-423(b), or, more specifically, that the claim arises from Shoppers’ activities in the District.2 If Ms. Moreno has not satisfied this statutory requirement, then we have no occasion to inquire as to whether the Constitution has been transgressed. Id, at 700. Indeed, if the case can be decided on statutory grounds, then any constitutional inquiry would contravene the “deeply rooted doctrine that a constitutional issue is to be avoided if possible.” Id. (citation omitted).

“Courts have uniformly held that a subsection (a)(1) confers personal jurisdiction over a defendant only if the plaintiffs claim arises from the defendant’s contact with the District.” Everett v. Nissan Motor Corp., 628 A.2d 106, 107 (D.C.1993) (citation omitted). Accordingly, we have repeatedly dismissed claims where the “arising from” requirement of § 13-423(b) has not been satisfied. See, e.g., id. at 107-08 (products liability suit against Nissan following an automobile collision in North Carolina did not arise out of Nissan’s distribution of automobiles in the District); Trerotola, supra, 601 A.2d at 64-66 (employee’s claim for a retirement gift based on implied contract did not arise out of employer’s representation of unions in the District); Berwyn Fuel Inc. v. Hogan, 399 A.2d 79, 80 (D.C.1979) (per curiam) (personal injury suit against fuel company whose truck struck a car in Maryland did not arise out of fuel company’s occasional deliveries to the District).

The present ease falls neatly within these precedents. Whatever the nature and extent of Shoppers’ activities within the District, Ms. Moreno’s injury did not arise from those activities. So far as we can discern from the record, Ms. Moreno would have suffered the injuries for which she seeks compensation in this action even if Shoppers had not advertised in the District at all.

*114According to the majority, “[ojur case law has not construed § 13-423(b)’s ‘arising from’ requirement restrictively.” Maj. op. at 110. The cases that I have cited, however, stand for the proposition that the statutory language is to be construed in accordance with its terms. See also Bayles v. K-Mart Corp., 636 F.Supp. 852, 854 (D.D.C.1986) (“the ‘arising from’ requirement ... has been strictly enforced by courts in this jurisdiction”); id. at 854 n. 2 (citing cases). We have explained that

the statute would not grant the Superior Court jurisdiction over a nonresident defendant with respect to a claim arising from a shipment of goods to a purchaser in Pennsylvania, solely on the ground that the defendant had also shipped goods to purchasers in the District.

Cohane v. Arpeja-California, Inc., 385 A.2d 153, 158 (D.C.) cert. denied, 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1978); accord Everett, supra, 628 A.2d at 108; Berwyn Fuel Inc., supra, 399 A.2d at 80. Thus, no matter how extensive a defendant’s contacts with the District may be, if those contacts are unrelated to the plaintiff’s claim, then they cannot serve as a basis for exercising personal jurisdiction under § 13-423(b).3

III.

The majority’s view that the trial court properly exercised personal jurisdiction over Shoppers appears to rest on the following rationale: (1) under Tremióla, § 13-423(b) operates merely as “a due process cheek” on § 13^23(a)(l), and (2), the exercise of personal jurisdiction over Shoppers comports with due process, because Shoppers “could reasonably anticipate being haled into court” in the District. See maj. op. at 110. I am unable to agree with this reasoning.

The District’s long-arm statute, by its terms, confers only limited or specific jurisdiction, and not general jurisdiction, and it has been construed accordingly.4 It is true that § 13-423 should be read in conjunction with the Due Process Clause, see Environmental Research Intern., Inc. v. Lockwood Greene Eng’rs, Inc., 355 A.2d 808, 810-11 (D.C.1976) (en bane), but the due process limits of subsection (b) are defined by the constitutional bounds of specific jurisdiction. If Ms. Moreno had sought to obtain personal jurisdiction over Shoppers based on a general jurisdiction theory, then she could have invoked D.C.Code § 13-334(a) (1995). Section 13-334(a) authorizes service of process on any foreign corporation doing business in the District, and it confers jurisdiction over any such corporation which “carries on a consistent pattern of regular business activity within the [District].” AMAF Int’l Corp. v. Ralston Purina Co., 428 A.2d 849, 850 (D.C.1981) (per curiam).5

The distinction between statutes conferring general jurisdiction and those conferring specific jurisdiction becomes more readily apparent when § 13-334(a) and § 13-423 are compared to their corresponding bodies of Supreme Court case law. Both § 13-334(a)6 *115and the Supreme Court’s general jurisdiction due process cases7 pertain to the exercise of jurisdiction over nonresident corporations for any suit, based on the continuing nature and extensive character of the defendant’s contacts with the forum. In contrast, both § 13-423 and the Supreme Court’s specific jurisdiction cases8 involve the conferral of jurisdiction where the defendant’s contacts with the forum may be less extensive, but where the plaintiffs claim arises from those contacts.

In recognition of this critical distinction, this court has construed, and should continue to construe, the phrase “arising from,” as used in § 13-423(b), in the same literal manner that the Supreme Court has construed corresponding language, i.e., “arise out of, or relate to,” in Burger King Corp., supra, 471 U.S. at 471-73, 105 S.Ct. 2174, Helicopteros Nacionales supra, 466 U.S. at 413-16, 104 S.Ct. 1868, and in other specific jurisdiction cases. If § 13-423(b) is read literally, then we must require proof that the plaintiffs injury arose from the defendant’s activities in the District, and that she would not have been injured if these activities had not occurred.

The Supreme Court’s decisions in general jurisdiction cases such as Perkins, supra note 7, which hold that jurisdiction may be exercised over claims unrelated to the defendant’s contacts with the forum where these contacts are systematic, continuous, and “sufficiently substantial,” 342 U.S. at 447, 72 S.Ct. 413, have no bearing on actions brought pursuant to § 13-423(a). The Court’s “general jurisdiction” authorities would be relevant only if jurisdiction had been claimed pursuant to § 13-334(a), a statute which Ms. Moreno has not cited and on which she has not relied.9

The majority does not assert that Ms. Moreno’s claims “arose” out of Shoppers’ contacts in any literal sense. In fact, there is no evidence whatever that Shoppers’ advertising in the District induced Ms. Moreno to shop at the defendant’s Maryland store, either on the occasion on which Ms. Moreno was injured or at any other time. My colleagues rely instead on the extent of Shoppers’ advertising in the District, and they conclude that it would not be unfair to require Shoppers to defend a claim in our Superior Court. The majority thus appears to hold, without specifically saying so, that *116the long-arm statute may be invoked to confer general jurisdiction over a defendant, even though that statute, by its terms and as heretofore construed, confers jurisdiction only over claims that arise from the defendant’s activities in the District.

In my opinion, the majority’s approach effectively does away with the distinction between specific and general jurisdiction, as reflected in the language of § 13-423 and § 13-334(a) and in the Supreme Court’s analogous jurisprudence. Moreover, the majority’s reasoning renders meaningless § 13-423(b)’s provision that jurisdiction under the long-arm statute may be asserted only for a claim for relief arising from the defendant’s activities in the forum. Under my colleagues’ construction, § 13-423 may be invoked by a plaintiff, such as Ms. Moreno, whose injury is unrelated to the defendant’s activities in the District, and who would have been injured even if those activities had never taken place.10 There is obvious tension between the majority’s disposition of this case and the prior .decisions of this court that have enforced subsection (b) according to its terms.

I would adhere to the distinction we drew in Everett between § 13 — 334(a), which “confers jurisdiction over the defendant for all purposes,” and § 13-423, which confers jurisdiction “merely for those claims arising out of the defendant’s contacts with the District.” 628 A.2d at 108 (citation omitted). Because my colleagues view the issue differently, I respectfully dissent.11

. The motions judge wrote in her order of June 22, 1994 that "the burden of proving that jurisdiction is improper is on the moving party."

. I agree with the majority that the “transacting any business” requirement of subsection (a)(1) has been satisfied.

. Although it may be predictable that residents of the District will be persuaded by Shoppers’ advertising to shop in Shoppers’ Maryland stores, see maj. op. at 111, Section 13 — 423(b) confers jurisdiction only if the particular claim before the court arises from Shoppers’ activity in the District, and not if it is predictable that some other plaintiff’s claim might so arise.

. "Section 13—423(a)(1) provides special, not general jurisdiction.” Schwartz v. CDI Japan, Ltd., 938 F.Supp. 1, 5 (D.D.C.1996); see First Chicago Int'l v. United Exch. Co., Ltd., 267 U.S.App.D.C. 27, 29 n. 2, 836 F.2d 1375, 1377 n. 2 (1988).

. In AMAF Int’l Corp., supra, the court explained the differences between §§ 13-334(a) and 13-423 as follows:

Under D.C.Code 1973, § 13-334(a), a foreign corporation which carries on a consistent pattern of regular business activity within the jurisdiction is subject to the general jurisdiction of our courts, upon proper service, and not merely for suits arising out of its activity in the District of Columbia. This is in direct contrast to the "transacting any business” provision of our long-arm statute, § 13-423(a)(l), under which jurisdiction is limited to claims arising from the particular transaction of business which forms the basis of jurisdiction. p.C.Code 1973, § 13-423(b).

428 A.2d at 850. (Footnote and citations omitted.)

.D.C.Code § 13-334(a), as we have noted in the text, confers jurisdiction over foreign corporations "doing business” in the District. "Doing business'” requires a “continuing corporate presence” in the forum. AMAF Int'l Corp., supra, 428 A.2d at 851. This standard contemplates a *115more substantial connection between the defendant and the District than is required by the long-arm statute. See Trerotola, supra, 601 A.2d at 63. Further, “[u]nlike the long-arm statute,” § 13-334(a) “confers jurisdiction over the defendant for all purposes, not merely for those claims arising out of the defendant’s contracts with the District.” Everett, supra, 628 A.2d at 108 (citation omitted).

. A state may exercise general jurisdiction over a foreign corporation for any purpose, even "in a suit not arising out of or related to the defendant’s contacts with the forum,” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), so long as the corporation's contacts are "substantial” and "continuous.” Hughes v. A.H. Robins Co., Inc., 490 A.2d 1140, 1146-51 (D.C.1985). This rule is derived from International Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945), in which the Supreme Court recognized that "continuous corporate operations within a state” may be "so substantial and of such a nature as to justify suit ... on causes of action arising from dealings entirely distinct from those activities.” See also Perkins v. Benguet Cottsol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952).

. Specific jurisdiction lies where the litigation results from alleged injuries that "arise out of or relate to” the defendant’s “purposefully directed” activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations omitted). Where a court seeks to exercise specific jurisdiction, the defendant’s "minimum contacts" with the forum need not be as extensive as they must be where general jurisdiction is sought to be invoked. See, e.g., Helicopteros Nacionales, supra, 466 U.S. at 413-16, 104 S.Ct. 1868. Indeed, a single transaction may suffice to confer specific jurisdiction. See, e.g., McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). In the absence of a demonstrated nexus between the contacts and the claim asserted, however, due process is satisfied only if the contacts are sufficiently substantial to support general jurisdiction. See Helicopteros Nacionales, supra, 466 U.S. at 415-16, 104 S.Ct. 1868.

. Given the majority’s affirmance of the judgment, I take no position as to whether, if the court were to adopt my construction of § 13-423, the case should be remanded for consideration by the trial court of the question whether jurisdiction might be founded on § 13-334(a). Cf. Guevara v. Reed, 598 A.2d 1157, 1159 (D.C. 1991).

. Indeed, given the majority’s interpretation of § 13-423, there would he little if any occasion for a plaintiff to invoke § 13-334(a) as a basis for general jurisdiction. Our "specific jurisdiction" statute, § 13-423, could do double duty and serve as a "general jurisdiction" statute as well.

. The majority relies heavily on Tremióla, but that case does not support affirmance of the judgment. It was never suggested in Tremióla that § 13-423 may be invoked as a basis for general jurisdiction. The court did observe that the bounds of § 13-423(b) are defined by the Due Process Clause. 601 A.2d at 64. In defining those bounds, however, the court relied primarily on specific jurisdiction cases. Id. at 63-64. Moreover, the court specifically stated that § 13 — 423(b) requires a "discernible relationship” between the plaintiff’s claim and the defendant’s contacts with the forum. Id. at 64. In the present case, as in Tremióla itself, no such "discernible relationship" has been shown.