Margoles v. Johns

• Citation: 483 F.2d 1212
• Decision Date: 15 June 1973
• Docket Number: No. 72-1059.,72-1059.
• Parties: Milton MARGOLES, M.D., Appellant, v. Alida JOHNS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

483 F.2d 1212 (1973)

Milton MARGOLES, M.D., Appellant, v. Alida JOHNS et al.

No. 72-1059.

United States Court of Appeals, District of Columbia Circuit.

Argued December 19, 1972.

Decided June 15, 1973.

William H. Seckinger, Washington, D.C., with whom John P. Diuguid, Rockville, Md., was on the brief, for appellant.

Roberts B. Owen, Washington, D.C., with whom William Iverson, Washington, D.C., was on the brief, for appellees.

Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.

TAMM, Circuit Judge:

On August 19, 1971, appellant, Dr. Milton Margoles, filed a two count complaint in the federal district court seeking relief for alleged slanderous utterances made by Alida Johns, an employee of The Journal Company of Milwaukee, Wisconsin hereinafter "The Journal", naming both Alida Johns and The Journal as defendants. The district court on November 18, 1971, granted the defendants' 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 affirm.

I

Appellant's complaint alleged that on August 20 and September 2, 1970, Alida Johns telephoned, from her Wisconsin office with The Journal (publisher of the Milwaukee Sentinel and Milwaukee Journal), employees of an Illinois Congressman¹ at the Congressman's office in the District of Columbia and "maliciously spoke of and concerning" the appellant with false and defamatory words. These defamatory words consisted of allegations that the doctor was guilty of "abortion charges," that he ran a "house of ill-fame," that he was "unfit for help by decent people," that everyone "knew his hospital was an abortion mill," and finally that if given a license in Illinois the doctor would still have a hand in his "abortion mill" in Wisconsin. The complaint further stated that at all times pertinent to this action Alida Johns was an agent and employee of The Journal and was acting for The Journal within the scope of her employment. The complaint additionally alleged that The Journal failed to correct or control Alida Johns' actions, and asked for relief consonant with the "great pain and mental anguish" Dr. Margoles suffered, i. e., a total of one million dollars in compensatory and punitive damages.

The defendants filed no answer, but severally filed motions to dismiss under Fed.R.Civ.P. 12(b) for lack of jurisdiction over the person, insufficiency of process, and improper venue.

In the Memorandum filed with the Order granting defendants' motions the district judge properly inferred from the plaintiff's uncontested allegations of publication that the injury to the plaintiff's reputation, if any, occurred in the District of Columbia. That alone, however, was not recognized as affording personal jurisdiction, for "the statute² 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." 333 F.Supp. at 944-945 (footnote omitted). Finding that the act in question was performed in Wisconsin, the service of process on Alida Johns was quashed. The court found that the activities of The Journal might ordinarily render it amenable to suit under another section of the jurisdiction statute,³ but nonetheless felt compelled to quash service of process as to The Journal, stating that "it has long been settled that a foreign newspaper corporation maintaining an office and news correspondents in the District of Columbia for the gathering of news is not `doing business' for the purpose of service of process ...." 333 F.Supp. at 946. See Bulletin Co. v. Origoni, 128 U.S.App.D.C. 282, 387 F.2d 240, cert. denied, 389 U.S. 928, 88 S.Ct. 287, 19 L.Ed.2d 278 (1967).

II

1. Legislation and Legislative History

When the District of Columbia Court Reform and Criminal Procedure Act of 1970⁴ generally became effective on February 1, 1971, the local courts were afforded a long-arm statute of "moderate reach." See 4 C. Wright and A. Miller, Federal Practice and Procedure § 1068 (1969). Section 132(a) of the Act added a chapter 4 to title 13 of the District of Columbia Code,⁵ providing in pertinent part:

(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person\'s —

(1) transacting any business in the District of Columbia;

* * * * * *

(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;

(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia;

* * * * * *

(b) When 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.

13 D.C.Code § 423 (Supp. V, 1972). Appellant seeks to assert in personam jurisdiction over appellee Johns by virtue of section (a)(3) and over appellee The Journal by virtue of sections (a)(3) or (a)(4).

The legislative history concerning this portion of the Court Reform Act is, at best, meager, for it consists almost entirely of two short references in the respective House and Senate committee reports. The Senate Committee on the District of Columbia reported:

A new chapter (4) is added, incorporating a modified version of the first two articles of the Uniform Interstate and International Procedure Act. The uniform provisions codify recent case law with respect to extraterritorial jurisdiction over and service upon persons in civil litigation, and supply the reorganized trial bench of general jurisdiction with a necessary procedural adjunct. Chapter 4 more specifically grants expanded bases of jurisdiction and modes of service identical to or reciprocal with those provided under the laws of the nearby State of Maryland for the courts of that State, and substantially the same as those provided in the adjacent State of Virginia and approximately 10 other States.

S.Rep.No.405, 91st Cong., 1st Sess. 35 (1969). Similarly, the House Committee on the District of Columbia reported:⁶

Section 132 on civil jurisdiction and service outside the District of Columbia is modeled on the Uniform Interstate and International Procedure Act, more specifically grants expanded bases of jurisdiction and modes of service identical to or reciprocal with those provided under the laws of the nearby State of Maryland for the courts of that State, and substantially the same as those provided in the adjacent State of Virginia and approximately ten other States.

H.R.Rep.No. 907, 91st Cong., 2d Sess. 61 (1970).

Section (a)(3) of the District's longarm statute is in fact more restrictive than that of the Uniform Interstate and International Procedure Act hereinafter "Uniform Act", for the latter does not restrict jurisdiction to instances where the tortious injury occurs within the forum state. In all other respects the two acts are identical. At the effective date of the Court Reform Act Virginia's long-arm statute, Va.Code Ann. § 8-81.2 (Cum.Supp.1972), was identical to that of the Uniform Act with the exception of one section not here relevant, and Maryland's statute, Md.Code Ann. Art. 75, § 96 (Cum.Supp.1972), was identical to that of the Court Reform Act with the exception of section (a)(4), which replaced "goods used or consumed, or services rendered" with "goods, food, services or manufactured products used or consumed."⁷

If anything can be ascertained from the history it must be that Congress' overall intent was to provide the District's courts, to the greatest extent possible, with essentially identical long-arm jurisdiction as was then available in Maryland and Virginia. Obviously the geographical proximity of those jurisdictions and the constant flux caused by the transpontination of their residents rendered action such as that taken by Congress both wise and necessary. Little more can be discerned, and we thus must look to the background of the Uniform Act itself for guidance, at all times tempering our inclinations with the realization that Congress sought to attain uniformity in the area's three primary jurisdictions.

2. The Predominant Long-Arm Statutes

Three formulations of the various long-arm statutes currently in force predominate: (1) Statutes which predicate jurisdiction over a non-resident upon either a "tortious act" or "tortious conduct" occurring within the state. See, e.g., Ill.Rev.Stat. 1971, ch. 110, § 17(1)(b). This type of statute has been subject to varying interpretations, compare Fayette v. Volkswagen of America, Inc., 273 F.Supp. 323 (W.D.Tenn.1967), with Tate v. Renault, Inc., 278 F.Supp. 457 (E.D. Tenn.1967), aff'd, 402 F.2d 795 (6th Cir.1968), but is generally given broad construction — essentially limited only by due process considerations — which may include vesting jurisdiction when the only contact with the state is the injurious consequence of an act or omission committed elsewhere. See Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), and Annot., 24 A.L.R.3d 532, 563-567 (1969). (2) Statutes which predicate jurisdiction over a non-resident upon the commission of "a tort in whole or in part" within the jurisdiction. See, e.g., Vernon's Texas Ann. Civ.St. art. 2031b, § 4 (1964). In general, these too are broadly construed. See Hearne v. Dow-Badische Chemical Co., 224 F.Supp. 90 (S.D.Tex.1963). (3) Statutes which substantially adopt the Uniform Act and separate "act" from "injury," granting jurisdiction over non-residents who by their out-of-state acts or omissions cause tortious injury within the state only where additional minimum contacts with the...