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BAYLES v. K-MART CORP.

June 16, 1986

Ruth E. BAYLES, Plaintiff,
v.
K-MART CORPORATION, Defendant



The opinion of the court was delivered by: GASCH

 GASCH, Senior District Judge.

 In this diversity case, plaintiff, a Virginia resident, seeks to recover $20,000 for injuries that allegedly resulted from a fall that occurred in one of defendant's retail stores on John Marr Drive in Annandale, Virginia. The complaint states that, as plaintiff was shopping, she slipped on a plastic clothes hanger that was lying on one of the store's aisles. Currently before the Court is defendant's motion to dismiss for lack of personal jurisdiction or to transfer venue to the U.S. District Court for the Eastern District of Virginia.

 DISCUSSION

 A. Lack of Personal Jurisdiction

 The complaint alleges that the defendant is a Michigan corporation with its principal place of business in that state. The Court thus may hear the case only if the plaintiff can establish an adequate factual basis for the assertion of personal jurisdiction pursuant to District of Columbia law. See Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039 (D.C.Cir.1984); Naartex Consulting Corp. v. Watt, 232 U.S. App. D.C. 293, 722 F.2d 779 (D.C.Cir.1983), cert. denied, 467 U.S. 1210, 104 S. Ct. 2399, 81 L. Ed. 2d 355 (1984).

 Here plaintiff first asserts that defendant "transacted business" in the District of Columbia within the meaning of D.C. Code § 13-423(a)(1), a provision of the District's long-arm statute. While plaintiff acknowledges that defendant operates no retail stores in the District of Columbia, she contends that defendant's advertising of its suburban stores through Washington, D.C. media satisfies the "transacting business" requirement. *fn1"

 The "transacting business" provision has been held to extend personal jurisdiction to the fullest extent permissible under the due process clause. Mouzavires v. Baxter, 434 A.2d 988, 993 (D.C.App.1981), cert. denied, 455 U.S. 1006, 102 S. Ct. 1643, 71 L. Ed. 2d 875 (1982); see also Reuber, 750 F.2d at 1050 n. 13. Thus, personal jurisdiction exists when the defendant "purposefully establishes 'minimum contacts' in the forum state." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528 (1985). In this case, defendant's "affirmative act" of advertising in the District may be found to satisfy the requirements of due process and D.C. Code § 13-423(a)(1). See Hummel v. Koehler, 458 A.2d 1187 (D.C.App.1983).

 The due process clause and the long-arm statute also require, however, that plaintiff's claim for relief must arise from the defendant's contacts with the District. See D.C.Code § 13-423(b); Burger King, 105 S. Ct. at 2181. Thus, plaintiff's claims must bear some relation to the acts in the District that are relied upon to confer personal jurisdiction. See Cohane v. Arpeja-California, Inc., 385 A.2d 153, 158 (D.C.App.), cert. denied, 439 U.S. 980, 99 S. Ct. 567, 58 L. Ed. 2d 651 (1978). Because the "arising from" requirement serves to ensure that states do not exceed their powers under the due process clause, see Burger King, 105 S. Ct. at 2182, it has been strictly enforced by courts in this jurisdiction. *fn2"

 Plaintiff attempts to meet this requirement by arguing that defendant's advertising is necessarily intended to induce people to patronize its suburban stores. This invitation is said to place defendant under an obligation to ensure that its stores are reasonably safe for the use of invitee customers. Plaintiff asserts that her injury was caused by defendant's breach of this duty. Thus, plaintiff argues, her claim "arises from" defendant's advertising in the District of Columbia.

 The Court rejects this argument for several reasons. First, it is incorrect to assert that defendant's duty of reasonable care somehow arose because of its advertising. Under the law of Virginia, any customer of a retail store occupies the status of an invitee and is owed a duty by the shopkeeper to maintain the premises in reasonably safe condition. See Shiflett v. M. Timberlake, Inc., 205 Va. 406, 137 S.E.2d 908 (1964); See also Thomason v. Great Atlantic and Pacific Tea Co., 413 F.2d 51 (4th Cir.1969); Roll "R" Way Rinks, Inc. v. Smith, 218 Va. 321, 237 S.E.2d 157 (1977). This invitee status is not contingent upon the shopkeeper's advertising. It is therefore difficult to find that plaintiff's claim is related to defendant's advertising in the District.

 Second, plaintiff's complaint is based upon defendant's alleged failure to maintain its Annandale, Virginia store in a reasonably safe condition. From the face of the complaint, it appears that all occurrences relevant to this case occurred in Virginia. Where "all of the alleged acts at issue . . . occurred other than in the District of Columbia," D.C.Code § 13-423(b) is not satisfied. Appel v. Southeastern Employers Service Corp., 605 F. Supp. 74 (D.D.C.1985); see also Cockrell v. Cumberland Corp., 458 A.2d 716 (D.C.App.1983); Berwyn Fuel, Inc. v. Hogan, 399 A.2d 79 (D.C.App.1979) (per curiam). In this case, the "virtual absence of any interest in the forum state in hearing this matter also argues for dismissal for want of jurisdiction." Willis v. Willis, 211 U.S. App. D.C. 103, 655 F.2d 1333, 1339 (D.C.Cir.1981).

 Finally, defendant's advertising through District of Columbia media does not constitute "a 'purposeful availment' of the benefits and privileges of this forum . . . such that [the defendant] could reasonably anticipate being haled before this Court" on a claim related to the allegedly negligent maintenance of a store outside this jurisdiction. Mizlou Television Network, Inc. v. National Broadcasting Co., 603 F. Supp. 677, 682 (D.D.C.1984) (citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239-40, 2 L. Ed. 2d 1283 (1958)). Even if there is a relation between defendant's advertising and the alleged negligence, it is simply too tenuous to satisfy the requirements of due process and the long-arm statute. Cf. Willis v. Willis, 655 F.2d at 1333; Martin-Trigona v. Acton Corp., 600 F. Supp. 1193 (D.D.C.1984).

 Plaintiff's second asserted basis for personal jurisdiction is D.C.Code § 13-334(a), which provides: "In an action against a foreign corporation doing business in the District, process may be served on the agent of the corporation . . . and that service is effectual to bring the corporation before the court." Plaintiff states that she complied with the requirements of Section ...


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