Willis v. Semmes, Bowen & Semmes

• Decision Date: 22 November 1977
• Docket Number: Civ. A. No. 77-539-A.
• Citation: 441 F. Supp. 1235
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Charles F. WILLIS, Jr., Plaintiff, v. SEMMES, BOWEN & SEMMES, a partnership of the State of Maryland, David R. Owen, managing partner, Cleaveland D. Miller, a partner, David F. Albright, a partner, and Norman P. Ramsey, William A. Fisher, Jr., John H. Mudd, George D. Hubbard, James P. Garland, James D. Peacock, David M. Buffington, William R. Dorsey, III, A. MacDonough Plant, Benjamin R. Goertemiller, H. Thomas Howell, David E. Belcher, Robert E. Mittelman, William R. Levasseur, Thomas W. W. Haines, Alan N. Gamse, Sidney G. Leech, Geoffrey S. Mitchell, Charles E. Iliff, Jr., Francis J. Gorman, James E. Gray, Partners, Semmes, Bowen & Semmes, a partnership of the State of Maryland, Defendants.

441 F. Supp. 1235

Charles F. WILLIS, Jr., Plaintiff, v. SEMMES, BOWEN & SEMMES, a partnership of the State of Maryland, David R. Owen, managing partner, Cleaveland D. Miller, a partner, David F. Albright, a partner, and Norman P. Ramsey, William A. Fisher, Jr., John H. Mudd, George D. Hubbard, James P. Garland, James D. Peacock, David M. Buffington, William R. Dorsey, III, A. MacDonough Plant, Benjamin R. Goertemiller, H. Thomas Howell, David E. Belcher, Robert E. Mittelman, William R. Levasseur, Thomas W. W. Haines, Alan N. Gamse, Sidney G. Leech, Geoffrey S. Mitchell, Charles E. Iliff, Jr., Francis J. Gorman, James E. Gray, Partners, Semmes, Bowen & Semmes, a partnership of the State of Maryland, Defendants.

Civ. A. No. 77-539-A.

United States District Court, E. D. Virginia, Alexandria Division.

November 22, 1977.

COPYRIGHT MATERIAL OMITTED

Frederick H. Miller, Jr., Miller, Perkins & Givens, Leesburg, Va., Jeffrey B. Rice, Fairfax, Va., for plaintiff.

Richard L. Williams, W. Carter Younger, McGuire, Woods & Battle, Richmond, Va., for defendants.

OPINION AND ORDER

CLARKE, District Judge.

Plaintiff, Charles F. Willis, Jr., brings this action against a law partnership, Semmes, Bowen & Semmes (hereinafter Semmes), alleging malpractice, breach of contract, conversion and conspiracy. Plaintiff is a citizen of Virginia, defendant partnership carries on its activities in Maryland and its partners are citizens of Maryland. The amount in controversy exceeds $10,000 exclusive of interest and costs. Jurisdiction is grounded in diversity. 28 U.S.C. § 1332.

Defendant has made two motions to dismiss under Rule 12(b), Federal Rules of Civil Procedure. Since Rule 12 contemplates a single motion and defendants' two applications were made simultaneously, the Court will treat them as one motion. Defendant first seeks dismissal of the complaint against four individuals on the ground that they are not partners of Semmes, so that service on one of the Semmes partners under §§ 8-59.1 (1957) and 8-81.2 (Supp.1976), Va.Code Ann. cannot effect service upon them. Plaintiff in his October 5, 1977, response to this motion has conceded this issue and therefore, defendants Ambler H. Moss, Lawrence Perin, Rignal W. Baldwin and Thomas J. S. Waxter are dismissed from this action. Rules 12(b)(4), (5); 21, Fed.R.Civ.P.

Defendant also moves under subsection (b)(2) of Rule 12 asserting that defendant has insufficient contacts with the forum state to subject it by way of Virginia's long arm statute, Va.Code Ann. § 8-81.2 (Supp. 1976), to the jurisdiction of this Court. In addition, defendant seeks dismissal for plaintiff's failure to join an indispensable party in the malpractice and breach of contract counts of the Complaint, Rules 12(b)(7) and 19; for failure to state a claim, join necessary parties, and name the real party in interest in the conversion count, Rules 12(b)(6), (7), 19 and 17; and for failure to join necessary parties in the conspiracy count, Rules 12(b)(7) and 19. Finally, defendant seeks a more definite statement of the conspiracy allegations. Rule 12(e).

I.

Before dealing with the several other questions raised by defendants' motion, the Court must first decide if it has jurisdiction over the defendants' person, for lacking this the remainder of its ruling would be wasted effort. Arrowsmith v. United Press International, 320 F.2d 219, 221 (2d Cir. 1963).

Plaintiff has served the defendant with process in this action by serving the Secretary of the Commonwealth of Virginia, who, in turn forwarded to three partners of Semmes in Maryland copies of the Complaint by certified mail. Service on a partner is deemed service on the partnership and each individually named partner. Va. Code Ann. § 8-59.1 (1957). Serving a nonresident party through the Secretary of the Commonwealth is permitted where the basis of jurisdiction is under the Virginia long arm statute. §§ 8-81.2; 8-81.3, Va.Code Ann. (1976 Supp.). Virginia's provisions for both the mechanics of service and the predicate for in personam jurisdiction are available in a Federal Court action through Rule 4(e), (f), Fed.R.Civ.P.¹ Defendant does not dispute the sufficiency of process or its service but does deny that there is any basis for acquiring jurisdiction under Virginia's long-arm statute.

The background of the dispute between plaintiff and his former attorneys is complex but we will summarize the facts as briefly as possible. Plaintiff in May of 1972 was voted out of office as Chairman of the Board and Chief Executive Officer of Alaska Airlines (hereinafter Alaska) at a meeting of the board of directors. At issue at that meeting, according to plaintiff, was the transfer of effective control of Alaska to the Alaskan Continental Development Corporation (hereinafter Alco). Plaintiff has since sought through legal action and negotiation to rectify what he considers the wrong done to him in June 1972. In accordance with this plan, he retained Semmes as counsel in 1972 and it represented plaintiff in various matters involving his running dispute with Alco and Alaska. The phase of Semmes' legal representation pertaining to Virginia was a Chapter XI bankruptcy proceeding brought in this Court in 1973 on behalf of plaintiff and Great Alaska Corporation (hereinafter GAC), a closed corporation wholly owned and managed by plaintiff. In that proceeding, settlement agreements among Alco, Alaska, GAC and plaintiff were signed and submitted to the Court. By the terms of these agreements, plaintiff and GAC adjusted their disputes with Alco over ownership of stock in various corporations, settled payment under a promissory note, and obtained payment of money owed plaintiff by Alaska. More pertinently plaintiff agreed to dismiss various pending lawsuits and administrative proceedings brought against Alaska and Alco, and further agreed not to interfere in any manner with Alaska and Alco, including but not limited to refraining from seeking further judicial or administrative redress, contacting employees, agents, contractors, etc. of the two companies or communicating with public officials or the news media regarding them. Finally, the agreement was to be a complete mutual release of all rights, claims and demands among the parties.

This settlement of May 18, 1973, was approved by the bankruptcy court. Shortly afterwards on June 15, 1973, the Court, having found that plaintiff and GAC had violated those provisions calling for them to take no further action to interfere with Alco and Alaska, entered a restraining order to enforce these terms. Plaintiff's complaint alleging legal malpractice and breach of contract focuses chiefly on the May 18, 1973, settlement agreements and the June 15, 1973, restraining order. These documents and the bankruptcy proceeding underlying them also provide defendant's only nexus with Virginia.

Defendant acknowledges it acted as counsel for plaintiff during this period of time but denies it did so in Virginia in the bankruptcy proceedings. It denies that it had any contact with Virginia sufficient to meet the requirements of Virginia's long arm statute or the requisites of the due process clause of the Fourteenth Amendment. Although a plaintiff cannot normally be put to his proof on a motion to dismiss, if jurisdictional facts are placed in issue, it is up to plaintiff to prove their existence. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Haynes v. James H. Carr, Inc., 427 F.2d 700 (4th Cir. 1970). The Court's inquiry is twofold: if the plaintiff meets his jurisdictional burden under state law, he must further show that such an assertion of jurisdiction comports with Constitutional requirements of due process.² Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Haynes v. James H. Carr, Inc., supra; Arrowsmith v. United Press International, supra; Pulson v. American Rolling Mill Co., 170 F.2d 193 (1st Cir. 1948).

On the issue of who represented plaintiff in the Virginia bankruptcy proceedings, defendant claims the law firm of Boothe, Prichard and Dudley (hereinafter Boothe) did so independently of Semmes. This view is clearly not supported by the facts. The affidavit of Cleaveland D. Miller, a Semmes partner, which was submitted in support of defendants' position is equivocal at best and acknowledges Semmes contacted Boothe and arranged for its legal representation of plaintiff in Virginia as local counsel. Moreover, it is clear from the papers submitted by plaintiff, especially the two settlement agreements and the draft of the restraining order all signed by Cleaveland D. Miller that Mr. Miller took an active if not a dominant part on plaintiff's behalf in the Virginia litigation. The Court finds as a fact that Boothe, serving as local counsel in Virginia pursuant to Rule 7 of the Rules of Court for the Eastern District of Virginia, enabled Semmes through Boothe's good offices to continue its representation of plaintiff in Virginia and further that Semmes through Cleaveland D. Miller took an active role in the Virginia litigation independently of Boothe's activity.

These facts in the light of the complaint's allegations are sufficient to subject the defendant to in personam jurisdiction in this Court pursuant to § 8-81.2(a)(1), (2), (3), Va.Code Ann. (1976 Supp.) as implemented by Rule 4(e) and (f), Fed.R.Civ.P. The pertinent language of the Virginia long-arm statute provides:

(a) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's

(1) Transacting any business in this State;

(2) Contracting to supply services or things in this State;

(3) Causing tortious injury by an act or omission in this State.

Since even a single act may constitute a transaction of business in Virginia under this statute, Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736, 180 S.E.2d 664 (1971), it should be reasonably...