goods used or consumed, or services rendered, in the District of Columbia."
Apparently, plaintiff bases his assertion on the fact that although all of defendant's real estate development took place outside of the District of Columbia, he settled some of these transactions in the District of Columbia office of the District-Realty Title Company, and had a bank connection in the District of Columbia.
Margoles makes clear that unlike § 13-423(a)(1), § 13-423(b) does not limit § 13-423(a)(4) to doing only that business which gives rise to the claim for relief. Thus, regularly doing any kind of business within the District or engaging in any kind of persistent course of conduct within the District will subject defendant to long-arm jurisdiction. The question thus presents itself whether defendant's use of a District title company and a District bank sufficiently satisfies the "regularly doing business" or the "regularly engaging in any persistent course of conduct" requirements. This issue cannot be resolved by applying a mechanical formula as resolution must depend on the facts of each case. Cf. Franklin National Bank v. Krakow, 295 F. Supp. 910 (D.D.C. 1969).
In approaching the resolution of this question, this Court is impressed with the apparent Congressional intent to confine the minimum contacts set out in this section of the statute to those contacts which are continuing in nature. The statute does not say "doing business" or even "doing substantial business". Rather it clearly specifies " regularly doing business". Moreover, the statute does not say "engages in a course of conduct" or even "engages in a significant course of conduct". Instead, Congress, consistent with their use of "regularly" above, specifies "a persistent course of conduct". The use of "persistent" and "regularly" to describe the type of contact contemplated indicates that Congress was more concerned with a continuing contact than with the impact or substance of a single contact. Therefore, the minimal contacts with the District that are required should at least be continuing in character. Cf. Topik v. Catalyst Research Corp., 339 F. Supp. 1102 (D. Md. 1972).
Although it is plain that defendant had some contact with the District through use of the title company for settlement of his out-of-state real estate business transactions, plaintiff has not provided this Court with any indication of the degree of regularity with which the defendant allegedly engaged in this activity. Clearly, the strength of a contact with a jurisdiction cannot be ignored and yet it must be weighed along with the continuity of contact in evaluating the applicability of this section of the statute. The strength of the title company contact is questionable and when weighed along with plaintiff's failure to establish some degree of contact regularity, this Court must decide in favor of defendant and grant his motion to quash service of process.
However, assuming arguendo jurisdictional basis for a decision on the merits in Security Bank, the assignment and attendant circumstances, as a matter of law do not show a misrepresentation by the defendant to the effect that he, rather than Whiting-Turner, held the cement contract with Ray Gaines, Inc. In addition, the plaintiff could have learned the facts and parties to the contract by any reasonable inquiry or investigation. Plaintiff's officers are experienced bank officials and the contract and its terms were available to the bank for perusal upon request of these officials. Plaintiff admits that at no stage does it contend that defendant deliberately lied to plaintiff regarding this matter. In the opinion of the Court if there was any negligence present in this case, it was the negligence of the bank officials in lending money based on an unsupported assumption. Cf. Zoslow v. National Savings and Trust Co., 91 U.S. App. D.C. 391, 201 F.2d 208 (1952); Public Motor Service v. Standard Oil Co. of New Jersey, 69 App. D.C. 89, 91, 99 F.2d 124, 126 (1938). Finally, there was no proximate cause between the claimed misrepresentation and the damages suffered. Rather, the proximate cause of plaintiff's loss was Gaines' insolvency and its financial inability to complete a job. This failing cost Gaines its retainage and the bank its collateral. It was this failure, as well as the bank's carelessness, that was the proximate cause of plaintiff's injury.
Therefore, the Court grants the defendant's motion for summary judgment.
In the Kea case, the second of the two cases now before the Court, the plaintiff was approached in the District of Columbia by a salesman working on a commission basis for a Florida corporation. The salesman persuaded the plaintiff, a District of Columbia resident and retired government worker, to become a distributor in the Metropolitan/District of Columbia area for the Florida corporation's products. In exchange, plaintiff paid the salesman $3,520.00. The defendant in this case is the President and minority stockholder of the Florida corporation. The defendant, a Florida resident, is being sued in her individual capacity and not as a corporate officer. The Florida corporation itself has since gone bankrupt, and the plaintiff seeks a refund of her money plus consequential and punitive damages from the individual Florida defendant. Service of process on defendant Hoffman was made by registered mail, and this Court's jurisdiction over this out-of-state defendant is bottomed on D.C. Code §§ 13-423(a)(1), (3) and (4), supra.
In order to bring herself within the requirements of these sections, the plaintiff primarily relies on the following factual allegations:
(a) That the salesman who negotiated the contract with the plaintiff in the District of Columbia was not only an agent for the Florida corporation, but also an agent for the defendant in her individual capacity;
(b) That the defendant herself and her agents made misrepresentations about the personal liability of the defendant;