Tavoulareas v. Comnas

• Decision Date: 28 October 1983
• Docket Number: No. 82-1654,82-1654
• Citation: 720 F.2d 192,232 U.S.App. D.C. 17
• Parties: William P. TAVOULAREAS, et al., Appellants v. George D. COMNAS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 192

720 F.2d 192

232 U.S.App.D.C. 17

William P. TAVOULAREAS, et al., Appellants v. George D. COMNAS.

No. 82-1654.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 16, 1983.

Decided Oct. 28, 1983.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-02841).

Joseph A. Artabane, Washington, D.C., with whom Joseph A. Ingrisano, Washington, D.C., was on the brief, for appellants.

Joel M. Wolosky, New York City, with whom John B. Williams, Washington, D.C., was on the brief, for appellee. Laurence Storch, New York City, also entered an appearance for appellee.

Before WRIGHT and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

This is an action for libel and slander. Plaintiffs William Tavoulareas and his son Peter Tavoulareas allege that the defendant, a former business associate of Peter Tavoulareas, defamed them in testimony given in Washington, D.C., to investigators for the Securities and Exchange Commission, and in telephone conversations between the defendant in Massachusetts and New York and various individuals (staff members of the House Subcommittee on Interstate and Foreign Commerce, and reporters for the Washington Post ) in Washington, D.C. The district court found that it did not have personal jurisdiction over the defendant and granted defendant's motion for dismissal under Federal Rule of Civil Procedure 12(b)(2). We affirm.

Subject matter jurisdiction in this case is founded on diversity of citizenship. ¹ 28 U.S.C. Sec. 1332(a)(1) & (2) (1976). A court sitting in a diversity case is bound to apply the jurisdictional law of the jurisdiction in which it sits. Gatewood v. Fiat, S.p.A., 617 F.2d 820, 822 n. 3 (D.C.Cir.1980). The District of Columbia Code extends personal jurisdiction to nonresident defendants through its long-arm statute, which provides, in relevant 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--

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(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 of 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;

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(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.

D.C.Code Ann. Sec. 13-423 (1981). Plaintiffs assert jurisdiction under these subsections, based on three theories which we will consider in turn.

TELEPHONE CONVERSATIONS

Plaintiffs contend that the defendant's utterance of the defamatory statements in the course of telephone communications between him in Massachusetts and New York and individuals within the District Plaintiffs assert that the telephone conversations in this case nonetheless satisfy (a)(4), since their frequency makes them "a persistent course of conduct." It may indeed--but not, as the statute requires, "a persistent course of conduct in the District." The same non-presence within the District that prevents the calls from being an "act within the District" for purposes of (a)(3) prevents them from being a "course of conduct in the District" for purposes of (a)(4). The Margoles court considered and rejected a similar argument. Margoles v. Johns, supra, 483 F.2d at 1218 n. 10.

                is sufficient to establish personal jurisdiction for purposes of the present suit.  We think otherwise.  The defendant's telephone conversations do not amount to tortious acts within the District of Columbia necessary to satisfy the requirements of subsection (a)(3).   Margoles v. Johns, 483 F.2d 1212 (D.C.Cir.1973), presented a comparable situation.  There the plaintiff brought an action for allegedly slanderous comments made in the course of telephone calls placed by the defendant from her office in Wisconsin to the District of Columbia.  We rejected the contention that those calls amounted to tortious acts in the District of Columbia, concluding that "[u]nless we wish to delve into a magical mystery tour of 'projecting presences,' we must find that no jurisdiction can be afforded by virtue of section (a)(3)."    Id. at 1218.  Because all of defendant Comnas's acts with respect to the telephone calls took place outside of the District, we find that they do not satisfy (a)(3)
                

APPEARANCES BEFORE THE SEC

Comnas appeared, pursuant to subpoena, before investigators for the SEC meeting within the District of Columbia on December 18, 1979, February 5, 1980, and October 27, 1980. The plaintiffs allege that Comnas published defamatory statements in these meetings, and seek damages for that initial publication and any subsequent republication. Complaint paragraphs 5-11 ("[b]y reason of, and as a direct result of, the publication and republication of the statements [before the SEC]"). The district court initially interpreted the complaint to seek damages only for the publication of statements in the Washington Post, and rejected the defendant's appearance before the SEC as a basis of jurisdiction because that occurred after the newspaper publication. Tavoulareas v. Comnas, No. 80-2841, slip op. at 6 (D.D.C. Mar. 22, 1982) (memorandum accompanying order granting motion to dismiss). The court later explained its decision, however, as based on the "absolute[ ] privilege[ ]" accorded testimony in investigations of this type. Tavoulareas v. Comnas, No. 80-2841 (D.D.C. May 14, 1982) (order denying motion to amend or alter order of dismissal).

The latter explanation amounted to a determination that the defendant's testimony did not "caus[e] tortious injury in the District of Columbia" and therefore did not come within subsection (a)(3) of the long-arm statute. We agree with the conclusion, but choose to rest our decision upon a somewhat narrower ground. Regardless of whether the defendant's actions caused tortious injury, they did not do so "by an act or omission in the District of Columbia" within the meaning of (a)(3). We interpret that language to mean an act or omission that is voluntary; since the defendant's testimony in the present case was given pursuant to subpoena, it does not qualify.

It is not entirely clear whether the "causing tortious injury" provisions of the D.C. long-arm statute were meant to assert the full scope of extraterritorial jurisdiction which that type of nexus has been held constitutionally sufficient to sustain. Compare Environmental Research International, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 810-11 (D.C.1976) (en banc) with Mouzavires v. Baxter, 434 A.2d 988, 990-91 (D.C.1981) (en banc), cert. denied, 455 U.S. 1006, 102 S.Ct. 1643, 71 L.Ed.2d 875 (1982). It is clear, however, that the D.C. statute, like the Uniform Interstate and International Procedure Act from which it was ultimately derived, did not intend to exceed the scope of jurisdiction...