Margoles v. Johns, Civ. A. No. 1669-71.
Decision Date | 18 November 1971 |
Docket Number | Civ. A. No. 1669-71. |
Citation | 333 F. Supp. 942 |
Parties | Milton MARGOLES, Plaintiff, v. Alida JOHNS and The Journal Company, Journal Square, Milwaukee, Wisconsin, Defendants. |
Court | U.S. District Court — District of Columbia |
This is an action for slander in which the plaintiff, a physician and a resident of Illinois, alleges that defendant Johns, a newspaper reporter for the Milwaukee Sentinel and a resident of Wisconsin, made defamatory statements in two telephone calls from Milwaukee, Wisconsin, to the District of Columbia. Specifically, the complaint alleges that in the courts of an August 20, 1970 telephone conversation, Miss Johns stated that the plaintiff was guilty of "abortion charges," ran a "house of ill-fame," and was "unfit for help by decent people;" and that in a subsequent telephone conversation on September 2, 1970, Miss Johns declared that plaintiff ran an "abortion mill" in Wisconsin and that "all the women who went there came out with hysterectomies." Miss Johns' employer, the Journal Company, which publishes the Milwaukee Sentinel, is named as a co-defendant pursuant to plaintiff's allegation that Miss Johns' telephone calls were on behalf of the Journal Company and were within the scope of her employment.
This matter is before the Court on defendants' motions to dismiss for lack of personal jurisdiction, lack of service of process and improper venue. Since the Court bases its ruling on the jurisdictional issue, the question of venue need not be considered.
Although plaintiff might have asserted federal jurisdiction on the grounds of diversity under 28 U.S.C. § 1332, he chose to avoid such jurisdiction and to rest his complaint solely on local jurisdiction.1 When queried by the Court during the oral argument, plaintiff's counsel insisted that the action was brought locally and declined to assert federal jurisdiction. Accordingly, the Court entertains this action pursuant to D.C.Code § 11-501 (Supp. IV, 1971) and treats the jurisdictional issue under D. C.Code § 13-423 (Supp. IV, 1971), a provision of the recently enacted long-arm statute of the District of Columbia.2
Our long-arm statute enumerates six bases for personal jurisdiction over non-residents based on conduct. Although some form of tort action might conceivably arise under another subsection, only two subsections, (3) and (4), specifically deal with tortious injury. The applicable portions of the statute are set out below:
Plaintiff bases his assertion of personal jurisdiction over defendant Johns on Section 13-423(a) (3) of the District of Columbia Code: "causing tortious injury in the District of Columbia by an act or omission in the District of Columbia." The statute permits service if the tortious injury occurs in the District of Columbia and the act causing the injury also occurs in the District of Columbia. The only issue of any moment is whether the defendant Johns acted in the District of Columbia. That injury, if any, to the plaintiff's reputation occurred in the District of Columbia may be inferred from his uncontested allegation that publication occurred here. Plaintiff need not specifically allege that he had a reputation in the District and that he suffered injury to that reputation here—both the reputation and the injury may be inferred from the complaint and the nature of the tort itself.
On the question of where Johns acted, plaintiff argues that:
Although this argument may have some persuasive value, any such value is diminished by the final sentence. While it is correct to state that no "tort" occurs until the words are heard, one may not infer that no "act" occurs prior to or separate from the hearing of the words. At a minimum the tort of slander requires two persons to act: the first person must act by speaking the words and the second must listen to the words. Obviously, in point of time these acts generally occur simultaneously. In the instant case, the defendant was not in this jurisdiction when she performed the act of speaking (nor indeed the acts of holding or dialing the telephone). The listener was here and the "tortious injury" occurred here, but it does not follow that defendant's act occurred here. The fact that the District may be the place of the tort for conflict of laws purposes is not pertinent to this discussion.3 The statute clearly separates the act from the tortious injury and affords personal jurisdiction over non-residents only when both act and injury occur in the District.4
Since personal jurisdiction cannot be exercised over Miss Johns for the reasons discussed above, service of process by mail was not authorized by Sections 13-424 and 13-431 of the Code, and the return of service of process upon Miss Johns should be quashed.
Defendant Johns' employer, the Journal Company, is named as a co-defendant pursuant to plaintiff's allegation that Miss Johns' telephone calls were on behalf of the Journal Company and were within the scope of her employment. The Journal Company is a Wisconsin corporation with its principal place of business in that state. The company publishes two newspapers in Milwaukee, the Journal and the Sentinel, which report international and national events along with local stories. The Journal Company maintains three permanent offices in the National Press Building here in the District of Columbia and has assigned three reporters to this jurisdiction. Subsection (a) (4) of Section 13-423 of the District of Columbia Code affords personal jurisdiction over a person—defined in Section 13-421 so as to include a —who acts directly or by an agent, as to a claim for relief arising from the person's:
"causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia; * * *." (emphasis supplied)
The Journal Company's gathering of news in this jurisdiction is clearly a persistent course of conduct. However, this finding, alone, is not conclusive, because the plain language of subsection (b) of Section 13-423 appears to limit jurisdiction over the defendant to a "claim for relief arising from acts enumerated in this section." The interaction of Subsection (b) and the various provisions of Subsection (a) of the statutory provision is somewhat confusing. Although the legislative history sheds little light on this interaction, the Commissioners' Note following Section 1.03 of the Uniform Interstate and International Procedure Act (from which Section 13-423 derives) indicates that Subsection (b) does not limit Subsection (a) in the manner suggested above. The Note reads in pertinent part as follows:
In light of the Commissioners' Note and the dictates of Section 13-402 ( ), this Court would otherwise be inclined to assert personal jurisdiction over the corporate defendant.
However, the...
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Margoles v. Johns
...motions to dismiss the action and quash service of process for failure to effect proper in personam jurisdiction. Margoles v. Johns, 333 F.Supp. 942 (D. D.C.1971). This appeal is taken from that order, and we I Appellant's complaint alleged that on August 20 and September 2, 1970, Alida Joh......
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...and affords personal jurisdiction over nonresidents only when both the act and the injury occur in the District." Margoles v. Johns, 333 F.Supp. 942, 944 (D.C.D.C. 1971), affirmed, 483 F.2d 1212 (D.C.Cir. Only two of plaintiffs' alleged injuries could have occurred in the District of Columb......
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Envir. Res. Int., Inc. v. Lockwood Greene Engineers, Inc.
...the free exercise of First Amendment rights. New York Times Co. v. Connor, 365 F.2d 567 (5th Cir. 1966). See also Margoles v. Johns, 333 F.Supp. 942, 946 (D.D.C.1971), aff'd, 157 U.S.App.D.C. 209, 483 F.2d 1212 12. See Siam Kraft Paper Co. Ltd. v. Parsons & Whittemore, Inc., supra, at 812. ......
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Rose v. Silver
...it pertains to free speech and a free press. See New York Times Co. v. Connor, 365 F.2d 567 (5th Cir. 1966). See also Margoles v. Johns, 333 F.Supp. 942, 946 (D.D.C.1971), aff'd, 157 U.S.App.D.C. 209, 483 F.2d 1212 (1973). None to our knowledge has done so with reference to the right "to pe......