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MANDELKORN v. PATRICK

May 8, 1973

Joel MANDELKORN
v.
Theodore PATRICK et al.


Aubrey E. Robinson, Jr., District Judge.


The opinion of the court was delivered by: ROBINSON, JR.

Aubrey E. Robinson, Jr., District Judge.

 This action for injunctive relief and damages involves an alleged conspiracy to deprive Plaintiff and the class he purports to represent of their privileges and immunities under the Constitution and laws of the United States, specifically their freedom of speech, religion, association and travel. The alleged conspiracy is claimed to be actionable under 42 U.S.C. §§ 1983 and 1985, with jurisdiction in this Court to hear such claims conferred by 28 U.S.C. § 1343(1-4). Pendent jurisdiction is asserted as to non-federal tort claims for, inter alia, assault and battery. Plaintiff is an adult *fn1" resident of the District of Columbia and an adherent of a religious sect known as "Children of God." Defendants are the parents of the Plaintiff, parents of other members of the Children of God, an unincorporated association known as Freecog (apparently an acronym for the Parents Committee to Free Our Sons and Daughters from the Children of God) and several individuals, including police officers in the District of Columbia and in Opa-Locka, Florida, who are alleged to have conspired to separate and "convert" plaintiff from his adherence to the Children of God. Presently before the Court are two Motions to Quash Service, by Defendants Mr. & Mrs. John Moody of Manhasset, New York, and by the defendants Nelson, Martino, and Ripa, all of Florida, and Motions to Dismiss for Failure to State a Claim by Defendant Nelson individually and by Defendant Nelson, Martino and Ripa (the Florida Defendants) collectively. *fn2"

 I. Motions to Quash Service

 Service of process against all but one of the fourteen named Defendants in this case was made outside the territorial limits of the District of Columbia. Under Rule 4(f) of the Federal Rules of Civil Procedure service beyond the state in which the District Court is held is valid only when "authorized by a statute of the United States or by these rules . . ." Rule 4(e) authorizes extraterritorial service "whenever a statute or rule of court of the state in which the district court is held (so) provides . . ." Plaintiff here relies on a statute of the District of Columbia, 13 D.C. Code § 423(a), the local "long-arm" statute, as authorizing extraterritorial service in this case. That statute 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 --
 
(1) transacting any business in the District of Columbia;
 
(2) . . .
 
(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; . . . (emphasis added) *fn3"

 Both the Moody's and the Florida Defendants assert that they have had no direct contacts with the District of Columbia and thus no sufficient nexus, or "minimum contacts", with this forum such that they may properly be served outside this jurisdiction consistent with due process of law. International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). It is true that the Complaint herein does not allege any direct contacts by these Defendants with the District of Columbia. What the Complaint does allege is a conspiracy, and overt acts in furtherance of that conspiracy, at least one of which overt acts is an alleged tort *fn4" in the District of Columbia by some of the Defendants acting as co-conspirators in furtherance of the conspiracy. Under Plaintiff's theory co-conspirators are agents of all their fellow conspirators when acting in furtherance of the conspiracy. Thus, Plaintiff contends, by their "agent" both the Moodys and the Florida Defendants have caused a tortious injury in the District of Columbia.

 At this stage of the proceedings, the Court cannot say that Plaintiff's theory is without foundation, and will therefore deny the Motion to Quash based on these grounds. While the burden is on Plaintiff to prove his jurisdictional allegations when challenged, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135 (1936), it is significant that neither the Moody's nor the Florida Defendants have thus far denied the allegations of conspiracy nor their alleged roles therein. *fn5" For present purposes the allegations will thus be taken as true.

 The question of the validity of "longarm" service to reach participants in an allegedly wide-ranging conspiracy has received surprisingly little judicial attention. Co-conspirators have long been held to an agency relationship when overt acts are done in furtherance of the conspiracy:

 
If sufficient allegations appear of the acts of one defendant among the conspirators, causing damage to plaintiff, and the act of the particular defendant was done pursuant to the conspiracy, during its course, in furtherance of the objects of the conspiracy, with the requisite purpose and intent . . . then all defendants are liable for the acts of the particular defendant under the general principle of agency on which conspiracy is based.

 Hoffman v. Halden, 268 F.2d 280, 295-296 (9th Cir. 1959) (footnote omitted.) *fn6" ...


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