radio station; further, jurisdiction was first exercised by a federal district court in Massachusetts; and finally, dismissal of this action would avoid piecemeal litigation. See Martin-Trigona v. Acton Corp., No. 81-3065, slip op. at 2 (D.D.C. Feb. 26, 1982). Mr. Martin-Trigona appealed that decision, and on June 30, 1983, the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") vacated and remanded this Court's decision with instructions to determine whether there was any basis for the claims asserted and, if so, to determine whether these claims could be raised in the concurrent bankruptcy proceeding.
After the mandate from the D.C. Circuit was issued, plaintiff, on October 31, 1983, filed an amended complaint, adding AFC, G & H, and the Federal Deposit Insurance Corporation ("F.D.I.C.")
to this action. This amended complaint seems to allege that the additional defendants conducted a scheme to defraud plaintiff of certain assets, including the radio station, WDLM.
On April 16, 1984, defendants Acton, ACM, AFC, and G & H filed a joint motion to dismiss. Plaintiff failed to respond to this motion in a timely fashion so on May 9, 1984, defendants submitted a memorandum suggesting that their motion to dismiss be granted. On May 18, 1984, plaintiff filed a "Notice of Temporary Inability to Respond to Motion to Dismiss" and "Motion for Extension of Time Pending Plaintiff's Release from Custody for Civil Contempt." In the Notice, plaintiff requested that the Court withhold decision on this matter until he is released from custody for civil contempt.
The Court, in an order signed June 21, 1984, denied Mr. Martin-Trigona's request for an indefinite continuance and instructed him to respond to defendants' motion within 30 days from the date of the order. The Court also ordered that failure to submit a response to defendants' motion within that time period, "shall permit this Court to treat the motion as conceded pursuant to Rule 1-9(d) of the Local Rules of this Court."
On July 17, 1984, plaintiff wrote a letter to Chambers, stating that he would be unable to comply with the Court's order. That letter was immediately returned to the plaintiff and he was informed that "any correspondence to the Court must be done through formal motion filed with the Clerk of the Court with proper service to counsel opposite." Letter from Chambers (July 20, 1984). No motion for an extension of time was received by this Court.
On July 31, 1984, plaintiff filed a motion "For Leave to File Instanter." The Court granted plaintiff's motion and accepted his opposition to the motion to dismiss for filing. Replies and supplemental responses to defendants' motion have been filed by the parties.
On October 23, 1984, this Court notified the parties that it would consider, sua sponte, the question of whether this case should be transferred to the District of Massachusetts pursuant to 28 U.S.C. § 1404(a). The Court ordered briefing on that issue to be submitted by November 15, 1984. It further ordered that the briefing period would not be extended. Defendants Acton, AFC, ACM, and G & H have submitted the requested briefing. The FCC has also submitted briefing. These defendants do not support a transfer of this action and contend that the action should be dismissed. Mr. Martin-Trigona has failed to respond to this request for briefing, but the Court is aware that he opposes a similar proposal to transfer that was suggested by this Court in Martin-Trigona v. Shiff, No. 82-425. Because the parties do not support a transfer of this action pursuant to 28 U.S.C. § 1404, the Court will not effect such a transfer.
On November 15, 1984, defendant FCC filed a motion to dismiss, arguing that this Court does not have jurisdiction over the Commission for judicial supervision. Plaintiff has failed to respond to this motion. During the course of this litigation, the Court has indulged Mr. Martin-Trigona and has freely permitted him to file oppositions to motions on an untimely basis without seeking leave to file late. Fourteen days have lapsed since an opposition or a motion for extension of time was due. The Court will no longer wait for Mr. Martin-Trigona's tardy responses to arrive and shall act on the motions as they become ripe.
A. Necessity of Plaintiff's Presence for the Court to Act on the Dispositive Motions
Although plaintiff has not filed, in this action, a petition for writ of habeas corpus ad testificandum so that he may argue the motions that are before this Court, he has filed similar petitions in other actions that have been before this Court. See Martin-Trigona v. Smith, No. 84-510; Martin-Trigona v. Smith, 600 F. Supp. 1202; Martin-Trigona v. Shiff, 600 F. Supp. 1184. Therefore, this Court should, in anticipation of any argument that may be brought on appeal, address plaintiff's right to a hearing before a court may act on any dispositive motions.
Plaintiff is presently incarcerated at the Federal Correctional Institution, Danbury, Connecticut. He is being held there on civil contempt charges. He is to remain there until he answers questions put to him by the trustee of his personal bankruptcy estate concerning the extent of his assets.
Plaintiff has argued in similar cases that he must be released from the facility and brought to this Court in order to argue numerous motions that are ripe for determination. He asserts that failure to permit him to argue these motions amounts to a deprivation of his constitutional rights. Plaintiff's argument is without merit. There is no requirement that the Court grant a party the opportunity to a hearing. In fact, the local rules state that "[a] party may in his motion or his opposition specifically request an oral argument, but the allowance of an oral hearing shall be within the sole discretion of the Court." Local Rule 1-9(g) (emphasis added). Accordingly, the Court is free to decide these motions without the benefit of oral argument and will do so in this case.
B. In Personam Jurisdiction Over Defendants Acton, ACM, and AFC
Defendants first argue that this Court does not have jurisdiction over defendants Acton, ACM, and AFC because all three corporations are nonresident defendants. Defendants assert that no business has been transacted in the District of Columbia by these three corporations and so they, therefore, do not have the requisite "minimum contacts" in this forum for the Court to exercise personal jurisdiction over them.
A review of defendant corporations' principal place of business, place of incorporation, and contacts with the District of Columbia will be helpful in resolving defendants' motion.
Defendant Acton is incorporated in the State of Delaware. See Plaintiff's Supplement to Response to Motion to Dismiss, Exhibit C-1. As a corporation it has never transacted business in the District of Columbia. Defendant's Supplemental Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss, Affidavit of Michael B. Milsom at para. 3. ACM, as a wholly owned subsidiary of Acton, also has never transacted business in the District of Columbia. Id.
AFC is a subsidiary of Beltran Corporation ("Beltran"). Motion of Defendants' Acton Corporation, Acton Communications of Massachusetts, Acton Foodservices Corporation, and Gadsby & Hannah to Dismiss the Complaint as to Them and For Sanctions, Affidavit of Arthur Lincoln at para. 1 ("Lincoln Affidavit"). Both AFC and Beltran are incorporated in the State of Delaware and have never transacted business in the District of Columbia. Id. at para. 2, 3. Until January 4, 1982, AFC was a wholly owned subsidiary of Acton, whereupon on that date it was transferred to Beltran and became a second-tier subsidiary of that corporation. Id. at para. 4.
Beltran has never had any legal relationship with Acton. Id. at para. 4.
Acton Company, Inc. of Washington, doing business as Mann's Potato Chip Company, was a subsidiary of Acton until it was transferred to Beltran on January 4, 1982.
Neither AFC or Acton Company, Inc. of Washington has had any legal relationship with Acton since the date of the transfer effective January 4, 1982.
From a review of these facts, it is plain to the Court that Acton, AFC, and ACM do not have the requisite contacts necessary for this Court to attach in personam jurisdiction over them. Any basis for the exercise of personal jurisdiction over defendants Acton, AFC and ACM must be because of either the defendants' relationship to the District of Columbia under D.C. Code § 13-422 (1981)
or pursuant to the District of Columbia's "long-arm" statute, D.C. Code § 13-423 (1981 & 1984 Supp.),
consistent with the due process limitation contained in the United States Constitution.
Defendants Acton, AFC, and ACM all have no contacts with the District of Columbia, nor have they transacted business within the meaning of section 423. Further, plaintiff has not alleged any cause of action which might arise from the acts enumerated in section 423. Plaintiff argues principally, that at the time he filed suit, Acton owned Acton Company, Inc. of Washington, doing business as Mann's Potato Chip Company, a District of Columbia corporation, and, therefore, is subject to this Court's exercise of personal jurisdiction.
Plaintiff's argument is without merit. Sections 422 and 423 do not provide that personal jurisdiction may attach on a parent corporation merely because one of its subsidiaries is authorized to do business in the District. Cf. Naartex Consulting Corp. v. Watt, 542 F. Supp. 1196, 1199 (D.D.C. 1982), aff'd, 232 U.S. App. D.C. 293, 722 F.2d 779 (D.C. Cir. 1983), cert. denied sub nom. Naartex Consulting Corp. v. Clark, 467 U.S. 1210, 104 S. Ct. 2399, 81 L. Ed. 2d 355 (1984) (in order to demonstrate a basis for the exercise of in personam jurisdiction, the plaintiff must demonstrate not only that defendant has transacted business in the District, but also that the claims asserted relate to that business transacted in the District); LaBrier v. A.H. Robins, Co., 551 F. Supp. 53, 55 (D.D.C. 1982) (id.). As Professors Wright and Miller note:
When a subsidiary of a foreign corporation is carrying on business in a particular jurisdiction, the parent is not automatically subject to jurisdiction in the state. Thus, if a subsidiary's presence in the state is primarily for the purpose of carrying on its own business and the subsidiary has preserved some semblance of independence from the parent, jurisdiction over the parent may not be acquired on the basis of the local activities of the subsidiary.
Wright & Miller, Federal Practice and Procedure: Jurisdiction § 1069 (1984) (footnotes omitted). Merely because Acton and AFC may have had a subsidiary which was authorized to conduct business in the District of Columbia, the presence of that subsidiary alone would not provide this Court a sufficient basis to attain jurisdiction over the defendant corporations.
Any assertion that this Court has in personam jurisdiction over defendant corporations pursuant to the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. is also without merit. Plaintiff has asserted that this Court may attain in personam jurisdiction over the corporate defendants pursuant to section 1965 of Title 18, United States Code
because the "ends of justice" require that this Court attain such jurisdiction.
The Court need not address this argument because as Judge Norma Johnson has ruled in Berg v. First American Bankshares, Inc., 599 F. Supp. 500 (D.D.C. 1984), "there is a requirement of prior criminal conviction for the predicate acts forming the pattern of racketeering activity for all civil RICO claims." Id. at 506; see also Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482, 496 (2d Cir. 1984). There has been no prior criminal convictions as to the defendants in this case so, accordingly, plaintiff cannot use section 1965 as a basis for personal jurisdiction to attach over them. The Court, finding that there is no in personam jurisdiction over corporate defendants, must dismiss them from this action.
C. District Court of Connecticut's Permanent Injunction and Plaintiff's Amended Complaint Adding Defendants AFC, G & H, and F.D.I.C.
Presently, the United States District Court for the District of Connecticut has imposed a permanent injunction upon Mr. Martin-Trigona from instituting any action in any federal court of the United States without first obtaining the permission from that court. See In re Martin-Trigona, 573 F. Supp. 1245 (D. Conn. 1983). The district court order states in pertinent part:
it is further ORDERED:
That Anthony R. Martin-Trigona is hereby permanently enjoined from the filing of any action, in any court (state or federal) of the United States, arising out of (1) the acts of any person or entity involved in any capacity with either the litigation of any bankruptcy proceeding involving Anthony R. Martin-Trigona or any of the properties in which he claims or seeks to assert an interest filed on or before the date of this order or (2) the litigation of any civil action relating to such bankruptcy proceedings and filed by him. Upon the conclusion of any bankruptcy proceeding in which Anthony R. Martin-Trigona claims an interest and upon certification by the bankruptcy judge before whom the proceeding was held and to whom a copy of this order has been provided by Anthony R. Martin-Trigona, together with an application for such certification, Anthony R. Martin-Trigona may file a consolidated appeal from such bankruptcy proceedings, contingent upon the granting of leave by the court in which the appeal is sought to be filed (and pursuant to the terms of the following paragraph of this order). And it is further ORDERED: