and to dismiss the complaint against it in this diversity case for breach of contract on the ground that the Court lacks personal jurisdiction over it. In the alternative, defendant moves that the case be dismissed under the doctrine of forum non conveniens, because its home state of Ohio is a more appropriate forum for the case to be heard. Both sides having presented affidavits and other materials outside the pleadings, the Court must treat the motion as one for summary judgment of dismissal pursuant to Fed.R.Civ.P. 12(b). For the reasons set forth below, the motion will be denied.
Plaintiff is a District of Columbia real estate broker who sues defendant First Union Real Estate Equity and Mortgage Investments ("First Union"), an Ohio business trust, for a commission to which he claims he is entitled. The suit arises out of an alleged contract between plaintiff and defendant by which, according to plaintiff, he would receive a two percent cash commission at closing if he were able to secure a buyer for certain Tennessee real property owned by defendant (the "Two Rivers" property). Plaintiff asserts that he did, in fact, secure two ready, willing and able buyers for the property, but that defendant refused to consummate a sale with either.
Defendant contends that this Court is without personal jurisdiction over it because First Union did not "transact business" in the District of Columbia within the meaning of the applicable portion of the D.C. long-arm statute, D.C. Code § 13-423(a)(1),
and that service of process upon it in Ohio must, therefore, be quashed. D.C. Code § 13-424. First Union represents that it is an Ohio business trust with its only place of business in Ohio, and that it has never owned property in D.C., nor derived any revenue from the District. Defendant further maintains that it did not initiate contact with plaintiff with respect to the Two Rivers property, nor did any of its employees or agents ever visit the District in connection with that transaction or any other.
Ordinarily an inquiry into the basis for a court's exercise of personal jurisdiction over a non-resident defendant begins with consideration of whether service of process is authorized by statute; if so, it proceeds to whether the defendant has the requisite "minimum contacts" with the forum to satisfy the Due Process Clause. International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945). The District of Columbia Court of Appeals having held that the D.C. long-arm statute permits the exercise of personal jurisdiction by a District of Columbia court to the fullest extent permitted to it under the Due Process Clause, the first question has been eliminated. Environmental Research International, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 810-11 (D.C. 1976) (en banc); Mouzavires v. Baxter, 434 A.2d 988, 990-92 (D.C. 1981) (en banc) (per curiam), cert. denied, 455 U.S. 1006, 71 L. Ed. 2d 875, 102 S. Ct. 1643 (1982); Textile Museum v. F. Eberstadt & Co., Inc., 440 F. Supp. 30, 31 (D.D.C. 1977). The sole issue before the Court, therefore, is whether defendant had sufficient nexus with the District in connection with the Two Rivers transaction such that this Court's exercise of in personam jurisdiction over it will not offend "traditional notions of fair play and substantial justice." International Shoe, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)).
A nonresident defendant may be considered to have transacted business within the meaning of § 13-423(a)(1) without ever having been physically present in the District, and, under certain circumstances, even a single act may be sufficient to bring a defendant within the purview of the statute. See, e.g., Dorothy K. Winston & Co. v. Town Heights Development, Inc., 376 F. Supp. 1214, 1216 (D.D.C. 1974); Bueno v. La Compania Peruana de Radio-Difusion, S.A., 375 A.2d 6, 9 (D.C. 1977).
A plaintiff may not, however, depend upon his own activity to establish the existence of minimum contacts; the defendant must in some way have voluntarily and purposefully availed himself of the protection of the forum state's laws. Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958). More specifically:
The mere fact that a nonresident has retained the professional services of a District of Columbia firm, thereby setting into motion the resident party's own activities within this jurisdiction, does not constitute an invocation by the nonresident of the benefits and protections of the District's laws.