it has an office in Arlington, Virginia, Capitol has none in the District, nor does it employ personnel or "operate aircraft into or out of the District . . ." Topham Affidavit in Support of Motion to Dismiss. Finally, Capitol has not entered into any contracts, nor does it have any outstanding obligations to perform any services within the District of Columbia. If, indeed, Capitol has any nexus with the District insofar as plaintiff's fatal flight is concerned, there is nothing in the record to so indicate. On the facts presented, it is readily apparent that Capitol has simply not "transacted any business" in the District of Columbia.
In light of Plaintiffs' failure to allege facts sufficient to satisfy their burden of proof in establishing jurisdiction over Capitol, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135 (1936); Mosley v. Nationwide Purchasing, Inc., 485 F.2d 418 (T.E.C.A. 1973), the Court holds that Capitol is not subject to in personam jurisdiction under the "transaction business" section of the D.C. long-arm statute and service of process by mail was not authorized by Sections 13-424 and 13-431 of the Code. Thus, the return of service upon Capitol shall be quashed and plaintiffs' Complaint dismissed as to Capitol, without prejudice to plaintiffs in the event they can establish jurisdiction elsewhere.
The remaining defendant, C.I.T., predicates its Motion to Dismiss upon the theory that plaintiffs' right of action is barred by the Virginia and/or Alaska statutes of limitations for which the instant type of action is two years, or by the Warsaw Convention (International Air Transportation), 49 Stat. 3000, TS 876 (Oct. 12, 1929), which has a two-year limitation on the commencement of suits arising from certain international airplane flights. The District of Columbia's general statute of limitations is three years. D.C. Code § 12-301 (1973). Defendant regards the choice of the applicable limitation of actions as a conflict of laws problem governed by the so-called "interest analysis" approach which has been recently employed by the United States Court of Appeals for the District of Columbia in the area of tort law. Tramontana v. S.A. Empresa De Viacao Aerea Rio Grandense, 121 U.S. App. D.C. 338, 350 F.2d 468, 471-473 (1965). See also Farrier v. May Department Stores Company, 357 F. Supp. 190 (D.D.C. 1973). On the basis of the case as presently constituted, the Court agrees. Since the Court of Appeals decision in Tramontana was rendered prior to February 1, 1971, the date on which the District of Columbia Court of Appeals became the highest court of the District of Columbia pursuant to the District of Columbia Court Reform and Criminal Procedure Act of 1970, the conflict of law rule articulated therein constitutes the case law of the District of Columbia. See MAP v. Ryan, 285 A.2d 310 (D.C. App. 1971). It should be pointed out, however, that soon after its decision in Tramontana, the United States Court of Appeals availed itself of what is known as the "contacts analysis" in resolving a choice-of-laws problem arising in the area of contracts. Fox-Greenwald Sheet Metal Co., v. Markowitz Bros., Inc., 147 U.S. App. D.C. 14, 452 F.2d 1346, 1353-1354 (1971). There the Court passed over the law of the District of Columbia in resolving a contract between a subcontractor and a sub-subcontractor, and chose to apply the law of the jurisdiction having the "more essential contacts with the contract transaction." 452 F.2d at 1354. The principal issue in that case concerned the construction of a contract's nonassignability clause and the Court followed the Maryland approach to construction of such provisions.
Most recently, however, our Court of Appeals has once again made use of the "interest analysis" to determine the relative interests of the forum and another jurisdiction, with a relationship to the controversy, in the application of their respective rules of law pertaining to the apportionment of an inheritance tax. Mazza v. Mazza, 154 U.S. App. D.C. 274, 475 F.2d 385 (1973). Thus, with that formula fresh in mind, and fully aware of our responsibility to follow the conflict of laws rule prevailing in the District, Klaxon Co. v. Stentor Electric Mfg. Co., 316 U.S. 685, 62 S. Ct. 1284, 86 L. Ed. 1757 (1941); Erie Railroad v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), the Court turns to a consideration of the prevailing interests of the states involved in the controversy at bar.
At the outset, it is important to clarify the conflicts question in this case, since, as plaintiffs suggest, there are precedents in this jurisdiction that stand for the proposition that the D.C. statute of limitations is exempt from a choice of laws analysis on the grounds that a "limitation on the time of suit is procedural and is governed by the law of the forum." Kaplan v. Manhattan Life Ins. Co., 71 App. D.C. 250, 252-253, 109 F.2d 463, 465-466 (1939); Filson v. Fountain, 90 U.S. App. D.C. 273, 274, 197 F.2d 383, 384 (1952); Wells v. Alropa Corp., 65 App. D.C. 281-282, 82 F.2d 887-888 (1936). This principle has also been discussed in a more current decision by our Circuit Court. See Fox-Greenwald Sheet Metal Co. v. Markowitz Bros., Inc., supra.
However, Fox-Greenwald is not controlling and will not be applied here. It is this Court's conclusion that in its most recent decision in Nyhus v. Travel Management Corporation, 151 U.S. App. D.C. 269, 466 F.2d 440 (1972), the Court of Appeals discards the law of the forum approach to statute of limitations questions where it can be demonstrated that other jurisdictions have a prevailing interest in the application of their laws to a case which is brought in this Court.
The Court is not unmindful of its function to "ascertain what the state law is, not what it ought to be." Klaxon v. Stentor Electric Mfg. Co., Inc., 61 S. Ct. at 1022. In keeping with that duty, the Court finds that the consideration of statute of limitations question afforded by the Court of Appeals in Nyhus points unambiguously to what the law is, if not what the law is becoming. We refer specifically to the language which appears at note 11 of the Opinion, which reads in pertinent part:
"The record does not disclose where the employment contract was made or where it was to be performed. The law of the District of Columbia -- the forum -- thus governs the determination as to whether the action was barred by the statute of limitations, as well as all other determinations respecting application of the statute." 466 F.2d at 443 (emphasis added).