JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE
The Court has filed an order dismissing the actions against RG Industries, Inc. and ROEHM GmbH. In this memorandum, the Court briefly sets forth the grounds for its order.
Plaintiff bears the burden of proving facts sufficient to support jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 56 S. Ct. 780-82, 80 L. Ed. 1135 (1936). Where a defendant's challenge to the facts initially set forth by the plaintiff raise a genuine issue of fact, then the Court may hold an evidentiary hearing. Plaintiffs must then establish facts which support jurisdiction by a preponderance of the evidence. Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977), Mitchell Energy Corp. v. Mary Helen Coal Co., 524 F. Supp. 558, 561 (D. D.C. 1981).
In this case, plaintiffs have resorted to unusual sources to prove the presence of defendants' products within the District. They have relied on certain studies and computer printouts prepared by the Bureau of Alcohol, Tobacco, and Firearms (BATF), and the District of Columbia Metropolitan Police Department (DCMPD), which purports to indicate the extent to which Roehm and RG products are used by criminals and/or trafficked illegally, as well as defendants' knowledge of those events.
Defendants argue that plaintiffs have not submitted competent testimony to explain how the printouts were compiled, and how they are properly interpreted. The studies appear to be compilations of statistics of official traces of defendants' weapons. RG is required by law to provide BATF with this registration information, which they do on almost a daily basis.
If plaintiffs are able to properly authenticate these printouts, present a witness competent to testify as to their preparation and contents, and have these admitted into evidence, these documents will support a finding that defendants' nationwide distribution scheme has been successful in indirectly distributing large numbers of their handguns in the District of Columbia. For the reasons stated herein, the Court finds that, if admissible, these statistics would support jurisdiction.
Adjudicatory Authority Over the Defendants
The jurisdiction of this Court to enter a valid judgment against a non-resident defendant depends upon a two-pronged inquiry. First, whether the assertion of jurisdiction would offend the Due Process clause of the Fifth Amendment; and second, to what extent the local rules of "competence" have exercised that jurisdiction which is constitutionally permissible. Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty Ltd., 207 U.S. App. D.C. 375, 378, 647 F.2d 200, 203 (1981) (hereinafter that case will be referred to as "German Wine").
A. The Due Process Inquiry.
The Due Process clause requires the defendant to have sufficient minimum contacts with the forum to make it "reasonable and just, according to our traditional conception of fair play and substantial justice" to require the defendant to litigate there. International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S. Ct. 154, 160, 90 L. Ed. 95 (1945). In Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283 (1958), the Court held that to satisfy this requirement, there must be "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." As International Shoe and subsequent decisions caution, this criteria cannot be mechanically or quantitatively applied. 326 U.S. at 319, 66 S. Ct. at 160. Whether jurisdiction lies will fluctuate with "the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure." 326 U.S. at 319, 66 S. Ct. at 160.
Moreover, the Supreme Court has recently made clear that it is not solely the benefit and protection of the laws afforded the defendant which makes it fair to assert jurisdiction. The state's own legitimate interest in holding persons answerable for allegedly tortious conduct is also a factor to be weighed in the due process equation. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-703, n.10, 102 S. Ct. 2099, 2104-2105, n. 10, 72 L. Ed. 2d 492 (1982), Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984). Where there is a minimum of some purposeful, affirmative conduct by the defendant which has an affect in the forum state, the state's legitimate interest in enforcing its laws may tilt the balance in favor of jurisdiction. Keeton, 104 S. Ct. at 1479. This factor serves as a "surrogate" for other contacts which may be lacking. Id.
Defendants argue that, in this case, the requisite minimum contacts to support the District of Columbia's exercise of jurisdiction are missing. Defendants have no officers or agents here, and are not licensed to do business here nor, it is submitted, could they "purposefully avail themselves" of this market because of the Firearms Act, 6 D.C. Code Ann. § 2301 et seq. They contend that under these circumstances, they could not have reasonably anticipated having to defend here.
These arguments attempt to obscure the reality of defendants' marketing efforts. It is clear that both defendants purposefully engaged in a nationwide distribution scheme in order to avail themselves of the widest possible market. RG is the United States importer for Roehm's products. Between 1974-1983 it is estimated that RG distributed 1,187,446 of guns manufactured by Roehm.
RG distributes to approximately 140 wholesalers throughout the United States. RG does not sell to any dealers in the District of Columbia, but it is active in the District of Columbia metropolitan area. Approximately.53% of sales in 1982 were to wholesalers in Maryland, while.84% were to Virginia clients. Those businesses are located in various communities in Virginia, as well as Maryland..5% of all sales were delivered to nearby Laurel, Capitol Heights and Landover, Maryland.
Moreover, if plaintiffs' proffer were sustained by the evidence, at least 600 of defendants guns have been identified within the District's borders, and common sense compels the conclusion that there are many more here than legitimately registered or confiscated. See Gatewood v. Fiat Spa, 199 U.S. App. D.C. 238, 617 F.2d 820, 827 (1980) (where there were Fiat dealers in nearby Maryland and Virginia distributed vehicles also were bought by District of Columbia residents).
In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-298, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980), the Supreme Court declared that where
the sale of the product of a manufacturer or distributor . . . is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its products in other States, it is not unreasonable to subject it to suit in one of those states if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum state does not exceed its powers under the Due Process clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by the consumers in the forum state.
The foreign manufacturer and importer who are at the start of a nationwide distribution scheme cannot claim surprise at being called to answer in any state where they are actually successful in their efforts to disburse their products. Id., see Nelson v. Park Industries, Inc., 717 F.2d 1120, 1125 (7th Cir. 1983), cert. denied sub nom., Bunnan Tong & Co. v. F.W. Woolworth Co., 465 U.S. 1024, 104 S. Ct. 1277, 79 L. Ed. 2d 682, 104 S. Ct. 1278 (1984), Poyner v. Erma Werke GmbH, 618 F.2d 1186, 1190 (6th Cir. 1980), cert denied sub nom., Insurance Co. of North America v. Poyner, 449 U.S. 841, 66 L. Ed. 2d 49, 101 S. Ct. 121 (1980). H. Cummins, "In Personam Jurisdiction", 63 Mich. L. Rev. 1028, 1035 (1965) ("the sale of products to a consumer is a contact that is purposefully sought by the manufacturer; if the cause of action arises from such activity, the manufacturer should be subject to suit wherever this endeavor is accommodated.")
The Court must assess each defendant's contacts with the forum individually. Rush v. Savchuk, 444 U.S. 320, 322, 100 S. Ct. 571, 579, 62 L. Ed. 2d 516 (1980). Roehm has been sending its products into the stream of commerce in the United States, through its importer, RG Industries, for at least a decade. The officers of Roehm and RG are the same persons. Roehm cannot seriously contend that it has no knowledge or intention of its guns being sold to as many United States consumers as possible. Nelson v. Park Industries, supra, (foreign manufacturer and distributor of sleepwear who had longstanding business relationship with United States chainstore aware of its national marketing system, and thus subject to jurisdiction of Wisconsin courts).
Through RG, Roehm products have been advertised in nationally circulated publications. RG serves over 140 wholesalers nationwide, and.5% of its 1982 sales where made in the District of Columbia metropolitan area. Moreover, there is some support in the record to indicate that defendants stand ready to serve customers in the District of Columbia. Under the circumstances, where defendants contacts with the forum were "neither fortutious nor passive given the nature of national advertising [and a nationwide marketing scheme], the intent one can impute to a company that uses it, and the defendants real or constructive knowledge of where a plaintiff resides . . . a defendant should expect to be sued in the state where the injured party is a citizen and where the tort allegedly occurred." Fanelli v. Bodyscience, Inc., 540 F. Supp. 111, 114 (E.D. Pa. 1982). See also, Rockwell International Corp. v. Costruzioni Aeronautiche Giovanni Augusta, S.p.A., 553 F. Supp. 328, 330 (E.D. Pa. 1982).
It is inconsequential to the Due Process analysis that the forum provides but a drop in the bucket of a defendant's national revenues. See, e.g., German Wine, supra, 207 U.S. App. D.C. slip op. at 381, F.2d at 206 ($ 747.20 was 1.3% of national revenues), Keeton v. Hustler Magazine, supra, 104 S. Ct. at 1477.
Nor does it matter that defendants' products reached the jurisdiction indirectly, so long as they have not sought to curtail their access to this market. German Wine, 207 U.S. App. D.C. slip op. at 380, F.2d at 205. Gatewood v. Fiat, 199 U.S. App. D.C. slip op. at 245, F.2d at 827. For the same reason, it matters not that the District has sought to ban handguns. The jurisdictional inquiry properly focuses on the actions of the defendant. World-Wide Volkswagon, 444 U.S. at 297, 100 S. Ct. at 567. By enacting laws to protect its citizens from gun-related crimes, see McIntosh v. Washington, 395 A.2d 744, 754 (D.C. App. 1978), the District did not forfeit its interest in providing a forum in which to hold the manufacturers and distributors of handguns answerable for injuries occurring within its borders. To the contrary, it expressed a special interest in a subject of concern to every state. Accord, Poyner v. Erma Werke, GmbH, supra at 1192. This legitimate interest [in holding defendants answerable for injuries occurring within its borders] is a factor entitled to special weight in determining whether it is reasonable and fair for the Court to assert its jurisdiction. Keeton v. Hustler, 465 U.S. 770, 104 S. Ct. at 1479, Rush v. Savchuk, 444 U.S. 320, 332, 100 S. Ct. 571, 579, 62 L. Ed. 2d 516 (1980), McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), L. Brilmayer, "How Contacts Count: Due Process Limitations In State Court Jurisdiction", 1980 Supreme Ct. Rev. 77, 106, H. Lewis, "A Brave New World for Personal Jurisdiction: Flexible Tests Under Uniform Standards", 37 Vand. L. Rev. 1, 20 (1984) ("defendant's contacts are non-exhaustive predictor of the broader criterion of expectation").
The defendants have attempted to characterize the entry of their guns into the District as the unforseen, fortuitous acts of criminals. Plaintiffs have alleged that they were injured by the defendants failure to control distribution of their products to the criminal element, and for failure to warn that handguns are illegal in the District of Columbia. Plaintiffs' injuries were inflicted in the District by an attempted assassin, who used a gun manufactured by the defendants, and who illegally imported it here. Under the "substantive relevance" test, as it was articulated by Professor Brilmayer, 1980 Supreme Ct. Rev. at 82, and applied by the Supreme Court in Keeton, such a "geographical qualification of fact relevant to the merits" or "forum occurrence which would ordinarily be alleged as part of the cause of action", id, properly factor into the jurisdictional equation, and make it fair for the "court to impute to the defendant an expectation of suit" here. Lewis, 37 Vand. L. Rev. at p. 18, n. 75.
Moreover, even if plaintiffs were proceeding solely on a strict liability theory, the fact that guns entered the District illegally would not relieve the defendants of the responsibility to defend here. They have purposefully availed themselves of the widest possible market, and taken no steps to curtail distribution here. Some of their guns are here legitimately, and defendants have indicated no unwillingness to cease serving those customers here who are legally able to purchase their guns. See German Wine, 207 U.S. App. D.C. at 380, 647 F.2d at 205. As stated previously, it is the defendant's actions to which the Court looks. It is unreasonable for them to assume that because the District has attempted to control handgun distribution, that they are relieved of accountability to its courts.
Moreover, exercise of jurisdiction is still substantively related to a strict liability theory whether or not the gun entered the District fortuitously, because privity is not required in product liability actions. Singer v. Walker, 21 A.D.2d 285, 250 N.Y.S.2d 216 (1964), aff'd Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965), cert. denied Estwing Mfg. Co. v. Singer, 382 U.S. 905, 86 S. Ct. 241, 15 L. Ed. 2d 158 (1965), 63 Mich. L. Rev. at 1035, n. 27.
Having determined that the exercise of this Court's jurisdiction over Roehm and RG is not offensive to the Due Process clause, the Court must decide whether the District's long arm statute reaches to these defendants.
B. The Long-Arm Statute, D.C. Code § 13-423(a)(4)
The section of the District of Columbia long arm statute at issue authorizes the assertion of jurisdiction over a defendant who
caus(es) tortious injury in the District of Columbia by an act or omission outside of the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct or derives substantial revenue from goods used or consumed, or services rendered in the District of Columbia[.] D.C. Code Ann. § 13-423(a) (4).