Aiken v. Lustine Chevrolet, Inc., Civ. A. No. 74-1665.

• Decision Date: 26 March 1975
• Docket Number: Civ. A. No. 74-1665.
• Citation: 392 F. Supp. 883
• Parties: Mary L. AIKEN, Plaintiff, v. LUSTINE CHEVROLET, INC., and Lawrence Zapol, Defendants.
• Court: U.S. District Court — District of Columbia

392 F. Supp. 883

Mary L. AIKEN, Plaintiff, v. LUSTINE CHEVROLET, INC., and Lawrence Zapol, Defendants.

Civ. A. No. 74-1665.

United States District Court, District of Columbia.

March 26, 1975.

Leonard J. Koenick, Washington, D. C., for plaintiff.

Gerard E. Mitchell, Washington, D. C., for defendant Lustine.

Howard M. Rensin, Hyattsville, Md., for defendant Zapol.

MEMORANDUM-ORDER

GASCH, District Judge.

This matter is before the Court on the motions of both defendants to dismiss for lack of personal jurisdiction and for forum non conveniens. Defendant Zapol asks, in the alternative, that service be quashed as to him.

I. The Claim.

Plaintiff Mary L. Aiken is a resident of the District of Columbia. She alleges that defendant Lawrence Zapol, a salesman for defendant Lustine Chevrolet, Inc., falsely and fraudulently represented to her that she could purchase a new car from Lustine Chevrolet with the right to return the car within 10 days of the purchase date if she were not fully satisfied therewith. She alleges that this misrepresentation was made with the full knowledge of defendant Lustine. In reliance on the false statement, she traded in her 1970 auto and purchased a 1973 auto. She was not, however, satisfied with the new car and attempted to return it within 10 days of the date of purchase. Lustine refused to permit the return of the 1973 car. Her claim here is based on the actions of Zapol, acting as Lustine's agent, or (alternatively) on Lustine's negligent training and supervision of Zapol. The action thus sounds in tort.

Lustine Chevrolet is a Maryland corporation located in Hyattsville, Maryland.¹ Zapol is a Maryland resident. The subject matter jurisdiction of this Court is based on 28 U.S.C. § 1332 (1970) (diversity of citizenship).² Plaintiff asserts personal jurisdiction over both defendants on the basis of D.C. Code Ann. § 13-423 (1973). This is the "long-arm" statute of the District of Columbia.

II. Personal Jurisdiction.

A. The Legal Framework.

An analysis of the "long-arm's" reach usually has two levels. The first of these concerns whether the terms of the statute are met. The second explores whether, assuming the conditions of the statute itself are fulfilled, the would-be defendant has sufficient contacts with the jurisdiction of the plaintiff's forum as to make the assertion of jurisdiction over him constitutionally permissible. Here, however, defendant Lustine has conceded that — if the terms of the statute are met — it has such contact with the District of Columbia as to permit an assertion of personal jurisdiction over it.³ Resolution of the question before the Court, therefore, turns solely on an interpretation of the local long-arm statute.

B. Defendant Lustine.

Plaintiff urges that two sections of the statute support the assertion of jurisdiction over Lustine.⁴ The first of these two subsections⁵ provides that jurisdiction may be asserted over one who has contracted to supply goods and services in the District of Columbia.⁶ The second subsection⁷ provides for jurisdiction over one who causes tortious injury in the District of Columbia by acts or omissions outside the District. The Court has jurisdiction if the putative tortfeasor "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."⁸

Lustine is a local car dealership. As such, it advertises heavily in the District of Columbia and makes sales to persons who are residents of that jurisdiction. There can be but little doubt that Lustine solicits business in the District of Columbia and derives substantial revenues from goods used or consumed there. Two questions, however, remain.

The first of these is the impact of D.C.Code Ann. § 13-423(b) (1973), which reads as follows:

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.

The quoted language, when read in conjunction with D.C.Code Ann. § 13-423(a)(4) (1973), would at first glance seem to indicate that jurisdiction is appropriate only if the tortious injury alleged resulted from the doing or soliciting of business in the District, the use or consumption of goods in the District or some other persistent course of conduct in the District. Despite its apparent logic, however, such an interpretation is not correct.

The long-arm statute of the District of Columbia is, where possible, to be interpreted and construed so as to make it uniform with the laws of those jurisdictions which enact in comparable form the first two articles of the Uniform Interstate and International Procedure Act.⁹ The Commissioners' Notes to that Uniform Act, however, state, in relevant part:

It should be noted that the regular solicitation of business or the persistent course of conduct required by section 1.03(a)(4) D.C.Code Ann. § 13-423(a)(4) (1973) need have no relationship to the act or failure to act that caused the injury. No distinctions are drawn between types of tort actions.

In sustaining the exercise of jurisdiction . . . the courts have often emphasized that the defendants had contacts with the state that bore no relation to the particular tort.¹⁰

Thus the interpretation favored by the drafters of the Uniform Act belies the apparent meaning of D.C.Code Ann. § 13-423(b). It is abundantly clear that the position of the Commissioners, quoted above, has been adopted in this Circuit.¹¹ It is equally clear that, under the interpretation of the statute which exists in this Circuit, the Court may assert jurisdiction over Lustine.

Lustine, however, vigorously contends that it has not caused tortious injury in the District of Columbia. Any such injury, Lustine asserts, must have occurred in Maryland at the time of any fraudulent misrepresentations or when it refused to accept the return of the car. Thus, says Lustine, the case is vastly different from Liberty Mutual Insurance Co. v. American Pecco Corp.¹² and quite similar to Norair Engineering Assoc., Inc. v. Noland Co.¹³ Liberty Mutual involved a construction crane made by a German firm which sold it to a firm in New York which in turn furnished it to another firm (on a lease-purchase basis) for use in the District. The crane collapsed here, causing substantial damage to an adjacent building. The Court held that there was tortious injury here. The Norair case, on the other hand, involved the failure in West Virginia of certain flawed tubing which Norair was required to replace. No business of any sort was transacted here. Norair's principal place of business, however, was here. Plaintiff in Norair alleged that it had sustained injury here because it had to borrow money here and reach into corporate reserves here in order to replace the tubing. The Court did not view this as a tortious injury within the terms of the long-arm statute.

The District of Columbia's long-arm statute does not attempt to pierce the murky metaphysics of the nature of a "tort" and does not try to ascertain where a tort is incurred. Instead, it distinguishes sharply between the act or omission which produces the injury and the injury itself.¹⁴ This, however, is not the only distinction which must be made. One must also distinguish between the injury suffered and any pecuniary losses, which are merely one measure of such an injury. It was this distinction that the Court made in Liberty Mutual and in Norair. It is this distinction that Lustine ignores here.

In Liberty Mutual, the injury was sustained when and where the defective crane collapsed. Hence the Court held as it did. In Norair, the injury was sustained when and where the defective tubing failed and had to be replaced — in West Virginia. All that occurred in the District of Columbia were mere bookkeeping transactions regarding the funds necessary to pay for the replacement of the tubing. In Norair, then, the injury was in West Virginia; only the measure of the injury was here.

In the case at bar, plaintiff claims injury to her credit rating here and to her mental and emotional well-being. Such alleged injuries could only have been sustained in the District of Columbia. The case is thus clearly distinguishable from Norair. It seems to the Court, therefore, that it may assert personal jurisdiction over Lustine pursuant to D. C.Code Ann. § 13-423(a)(4) (1973). The Court need not consider the other jurisdictional head urged by plaintiff.

C. Defendant Zapol.

Plaintiff makes much the same arguments regarding Zapol as she made regarding Lustine. Zapol, however, is sued in his individual capacity. The actions by which Lustine did or solicited business or engaged in other activities in the District were not shared by Zapol as an individual. The record is absolutely devoid of any showing that Zapol, as an individual, had any contacts whatsoever with the District of Columbia. In these circumstances, there is no basis for this Court to assert personal jurisdiction over defendant Zapol.¹⁵ This resolution makes unnecessary any consideration of the further points raised by Zapol.

III. Forum non conveniens.

The Court now turns to Lustine's request that this case be dismissed on grounds of forum non conveniens. Defendant points to D.C.Code Ann. § 13-425 (1973) as authorizing this Court to dismiss a case on such grounds. That section reads:

When any District of Columbia court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss such civil action in whole or in part on any conditions that may be just.¹⁶

The Court doubts the applicability of the cited statute,¹⁷ but will treat the motion as one directed to its inherent powers in such matters.

It is well-settled in this jurisdiction that a plaintiff's choice of forum is rarely to be disturbed.¹⁸ Where strictly private interests are concerned, plai...