Consideration of subscription sales and newsstand sales within the District of Columbia on an annualized basis using the two dates noted above reveals an average annual revenue of $ 32,897.04, which represents approximately .7% of defendant's total sales. Defendant, however, argues that only newsstand sales within the District of Columbia should be considered, since ". . . the only sales transactions engaged in by defendant entirely within the District of Columbia are newsstand sales, subscription revenue being derived from acts and transactions performed by defendant outside the District." Defendant's Reply Memorandum of Points and Authorities in Support of Motion to Dismiss or to Change Venue, at 4. Defendant's argument is without merit, and is unsupported by case law or by the language of the statute. The statute refers to revenue derived from "goods used or consumed . . . in the District of Columbia," not to revenue derived from acts engaged in entirely in the District of Columbia.
For guidance in determining whether the figures noted above constitute "substantial revenue," we turn to the test approved by this Circuit's Court of Appeals in Founding Church of Scientology v. Verlag, 175 U.S. App. D.C. 402, 536 F.2d 429 (D.C. Cir. 1976). ". . . the test looks both at the absolute amount and at the percentage of total sales, and determines which is "substantial' on the facts of each case." Id. at 433. In that case, the Court found that $ 26,000 of revenue in ten months, representing 1% of total sales, was substantial revenue within the meaning of § (a)(4). That Court also cited with approval a Fourth Circuit decision
holding that $ 37,000 of revenue representing one-half of 1% of total sales satisfied the "substantial revenue" provision of Virginia's long-arm statute, and noted that because the Maryland and Virginia statutes are similar and also derived from the Uniform Interstate and International Procedure Act, decisions construing these statutes are entitled to "substantial weight." Id. at 433.
We find that average total annual sales in the District of Columbia, of $ 32,897.04, which represents approximately .7% of total sales, constitutes substantial revenue under the meaning of § (a)(4). We do not believe it would "offend traditional notions of fair play and substantial justice" to subject a publishing company doing this level of business in the District of Columbia to jurisdiction before courts located here.
3. The Locus of the Act Causing Injury
To summarize, we have found one of the two elements necessary for jurisdiction under § (a)(3) (injury in the District, if an injury occurred) and we have found two of the three elements necessary for jurisdiction under § (a)(4) (injury in the District if an injury occurred, and substantial revenue derived from goods used or consumed in the District). Thus, defendant will be susceptible to jurisdiction under § (a)(3) if it can be shown that the act or omission causing tortious injury occurred in the District of Columbia. Alternatively, defendant will be susceptible to jurisdiction under § (a)(4) if it can be shown that the act or omission causing tortious injury occurred outside the District of Columbia.
We find it unnecessary to determine where the act occurred for purposes of asserting personal jurisdiction in this case, i. e. whether in or outside the District of Columbia. If the act, for purposes of the long-arm statute, occurred outside the District, jurisdiction is proper under § (a)(4). If the act, for purposes of the long-arm statute, occurred within the District, jurisdiction is proper under § (a)(3). Either way, this court has personal jurisdiction over defendant. We find that defendant is subject to the personal jurisdiction of this court pursuant to the District's long-arm statute without deciding whether the act occurred within the District or outside the District for purposes of this statute. Accordingly, we deny defendant's motion based on lack of jurisdiction.
B. Motion to Dismiss for Improper Venue
Plaintiffs seek to establish venue under 28 U.S.C. § 1391. Section 1391(a) provides that in cases brought solely under diversity of citizenship jurisdiction, venue is proper in the judicial district where all plaintiffs reside, were all defendants reside, "or in which the claim arose." Since neither all plaintiffs nor all defendants reside in the District of Columbia, venue is proper in this court only if the claim arose in the District of Columbia.
Because of its relevance to the question at hand, we quote this Circuit's approach to determining where the claim arose, taken in the context of determining venue under § 1391(b):
. . . where "the claim arose' should in our view be ascertained by advertence to events having operative significance in the case, and a common sense appraisal of the implications of those events for accessibility to witnesses and records. And, though a proliferation of permissible forums is staunchly to be avoided, it is evident that the often unfruitful pursuit of a single locality as the one and only district in which the claim arose is not needed to ensure the efficient conduct of the litigation. Not surprisingly, then, courts in some number have construed Section 1391(b) as conferring venue in a district where a substantial portion of the acts or omissions giving rise to the actions occurred, notwithstanding that venue might also lie in other districts. We endorse that interpretation wholeheartedly. So long as the substantiality of the operative events is determined by assessment of their ramifications for efficient conduct of the suit an important step upon which we would unfailing insist loyalty to the objectives of Section 1391(b) will be amply preserved.
Lamont, et al v. Haig, 192 U.S. App. D.C. 8, 590 F.2d 1124, 1134-35 (D.C. Cir. 1978).
The Supreme Court has also recently interpreted the scope of "where the claim arose," again in the contest of § 1391(b). We quote from that opinion:
In our view, therefore, the broadest interpretation of the language of § 1391(b) that is even arguably acceptable is that in the unusual case in which it is not clear that the claim arose in only one specific district a plaintiff may choose between those two (or conceivably even more) districts that with approximately equal plausibility in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff) may be assigned as the locus of the claim.