In the alternative, Criss moves to transfer the case to the United States District Court for the District of Maryland for the convenience of the parties and witnesses. Considering the proximity of the parties and witnesses to the District of Columbia, the Court denies defendant's motion to transfer.
Defendant Harkless also moved to dismiss. Harkless's motion is based on an alleged lack of personal jurisdiction. Since Harkless is not organized under the laws of the District of Columbia, plaintiff asserts jurisdiction over Harkless pursuant to the District of Columbia long-arm statute section (a)(4). D.C.Code § 13-423 (1981). Section 13-423(a)(4) provides that a District of Columbia court may assert jurisdiction over one who "causes tortious injury in the District of Columbia by an act or omission outside 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." Therefore, the Court looks to (1) the location of the injury, and (2) the nature of the defendant's contacts within the District.
Defendant Harkless contends that the allegedly negligent acts of its employee did not cause tortious injury in the District of Columbia. The Court disagrees, since plaintiff claims a loss of consortium, which occurred in her marital domicile, the District of Columbia. In distinguishing between the act or omission which produces the injury and the injury itself, this court has found the locus of injury for an individual suffering peculiarly at home, to be her home. Aiken v. Lustine Chevrolet, Inc., 392 F. Supp. 883 (D.D.C. 1975). In Lustine, plaintiff suffered injury to both her credit rating and her mental and emotional well-being as a result of a fraudulent auto sale in Maryland. Id. at 884. The court held that such injuries could only have been sustained in the District of Columbia. Id. at 886. In this case, plaintiff alleges she has suffered loss of consortium, which occurs in her marital domicile, the District of Columbia. See Albert v. McGrath, 107 U.S. App. D.C. 336, 278 F.2d 16, 17 (D.C. Cir. 1960); Hitaffer v. Argonne Co., 87 U.S. App. D.C. 57, 183 F.2d 811 (D.C. Cir. 1950).
Defendant Harkless further argues that the nature of the defendant's contacts does not justify jurisdiction under the D.C. long-arm statute, § 13-423(a)(4). However, three percent of Harkless's sales occur in the District and thereby constitute substantial revenue. The District of Columbia Circuit has held that one percent of a company's total gross revenue was substantial. Founding Church of Scientology v. Verlag, 175 U.S. App. D.C. 402, 536 F.2d 429 (D.C. Cir. 1976). Even for a small corporation, low percentages of annual profits may constitute "significant revenue." Liberty Mutual Insurance Co. v. American Pecco Corp., 334 F. Supp. 522 (D.D.C. 1971) (yield from the sale of one crane, out of a company's total annual production of 18 cranes -- five and one-half percent -- constitutes "substantial revenue"). Additionally, due to the itinerant nature of the construction industry, three percent of annual business may simply reflect an atypically low percentage of receipts from a potentially significant market.
Defendant Gibbs also moves to dismiss plaintiff's claims based on lack of personal jurisdiction. The Court finds no basis for an assertion of personal jurisdiction over defendant Gibbs in his individual capacity. The burden of proving jurisdictional facts rests on the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936). Plaintiff makes the same claims against Gibbs as she made against defendants Criss and Harkless. Gibbs, however, is being sued in his individual capacity. Since Gibbs is domiciled in Seat Pleasant, Maryland, and the record is devoid of any showing that Gibbs had any contacts whatsoever with the District of Columbia, Gibbs's motion is granted. See Aiken v. Lustine Chevrolet, Inc., 392 F. Supp. 883, 886 (D.D.C. 1975); Security Bank, N.A. v. Tauber, 347 F. Supp. 511, 516 (D.D.C. 1972).
Pursuant to Fed.R.Civ.P. 19(b), the Court finds that dismissal of defendant Gibbs does not require dismissal of the entire action. The defendants in this action are before this Court as alleged joint tortfeasors. Liability is joint and several. The Court finds no reason to depart from the long-established principle that joint tortfeasors are not indispensable parties. Nottingham v. General American Communications Corp., 811 F.2d 873, 880 (5th Cir. 1987); Advisory Committee's Note to Rule 19, 39 F.R.D. 89, 91 (1966); 7 WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE § 1623 (1986). See also Picard v. Wall Street Discount Corp., 526 F. Supp. 1248 (S.D.N.Y. 1981). Agents need not be joined as indispensable parties in a negligence action where all allegations of negligence against them are as agents of other defendants so that judgment against other defendants could be obtained for negligent acts of their agents. Rieser v. District of Columbia, 183 U.S. App. D.C. 375, 563 F.2d 462, 472 (D.C. Cir. 1977); Milligan v. Anderson, 522 F.2d 1202, 1204-05 (10th Cir. 1975). See also Nash v. Hall 436 F. Supp. 633, 635 (W.D. Okla. 1977).
Accordingly, the Court denies defendant Criss's and defendant Harkless's motions to dismiss, and grants defendant Gibbs's motion to dismiss. An appropriate Order accompanies this Memorandum Opinion.
ORDER - October 23, 1989, Filed
For the reasons set forth in the accompanying Memorandum Opinion, it hereby is
ORDERED, that defendant Criss Brothers Iron Works, Inc.'s motion to dismiss or in the alternative to transfer is denied. It hereby further is
ORDERED, that defendant Harkless Construction Company, Inc.'s motion to dismiss is denied. It hereby further is
ORDERED, that defendant James Gibbs's motion to dismiss is granted.
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