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12/20/91 JOSEPH TREROTOLA AND EASTERN CONFERENCE

December 20, 1991

JOSEPH TREROTOLA AND EASTERN CONFERENCE OF TEAMSTERS, APPELLANTS
v.
JOHN JOSEPH COTTER, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Paul R. Webber, III, Trial Judge)

Before Ferren and Farrell, Associate Judges, and Belson,* Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: In this employment contract dispute a jury awarded plaintiff-appellee, John Joseph Cotter, $8,500 and interest against his former employer, defendant-appellant Eastern Conference of Teamsters, and its international director, defendant-appellant Joseph Trerotola. The jury found that appellants had breached a unilateral, implied-in-fact contract in refusing to pay Cotter a retirement gift. This appeal focuses on whether the trial court erred in refusing to dismiss the complaint for lack of personal jurisdiction. Concluding that the court did err in this respect, we reverse and remand with directions to dismiss for want of jurisdiction. *fn1

I.

The Eastern Conference of Teamsters employed Cotter from October 29, 1956, until July 31, 1977, most recently as the representative of its Automotive and Petroleum Trade Division. The Eastern Conference is a labor organization chartered by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. It is comprised of local unions and joint councils in fifteen eastern states and the District of Columbia. From October 1956 until August 1971, the Eastern Conference was located in the District at 100 Indiana Avenue, N.W. In August, 1971, the Eastern Conference moved its offices to Bethesda, Maryland.

Cotter alleges that in 1973 Joseph Trerotola, the international director of the Conference, implemented a custom and practice of granting each retiring employee of the Conference a bonus or "gift" of a week's pay for each year of service, not to exceed three months' pay, in addition to formal retirement benefits. Michael Miles, the Conference's Comptroller and the administrator of its Retirement Plan, testified that the Conference had formulated the retirement gift plan to standardize the gift employees normally would receive upon leaving Conference employment. The employees commonly referred to this gift as "severance pay." Between 1973 and the spring of 1977, ten employees retired from the Conference, and each received a retirement gift based on the specific formula. During this period, at least two employees left the Conference to work elsewhere, including one who -- like Cotter -- went to work for the International union. While neither received a retirement gift based on the formula, each was arguably in a different category from Cotter because neither -- unlike Cotter -- was eligible for Conference retirement benefits. Everyone who left Eastern between 1973 and 1977 and was eligible for retirement benefits received a retirement gift based on the formula.

In August 1977, Cotter left the Conference to become assistant to the President of the International Brotherhood of Teamsters, Frank Fitzsimmons. Miles told Cotter that Cotter could not receive formal retirement benefits under the Conference's Retirement Plan (not to be confused with the formula retirement gift) until he retired from the International Teamsters. Cotter, therefore, did not file for retirement benefits when he left the Conference to join the International.

In September 1977, Cotter asked Trerotola about his retirement gift; Trerotola replied that he would look into the matter and get back to him. Trerotola did not do so. About six weeks later, Cotter again asked Trerotola about a retirement gift. Trerotola replied: "I didn't look into it. I'll get back to you." Again, Cotter heard nothing from him. In November 1977, Cotter again questioned Trerotola and was told that Trerotola had not looked into a retirement gift but would get back to him. Trerotola never did so.

Cotter retired from the International in August 1985. Just before doing so, in July 1985, Cotter asked Trerotola about the retirement gift from the Conference. Trerotola replied that two employees had left the Conference without receiving a retirement gift. Cotter pointed out, however, that those employees had left several years before implementation of the gift plan in 1973. Trerotola responded that he would talk to Miles about it. Some time later, Miles told Cotter that he was not involved in Cotter's retirement gift dispute. Cotter immediately called Trerotola, who told him that because he had not retired directly from the Conference but, instead, had taken other employment, Cotter was not entitled to a retirement gift. Cotter then wrote Trerotola, asking for a ruling by the Eastern Conference Policy Committee. Trerotola denied his request. Finally, in a letter dated November 13, 1985, Trerotola told Cotter that the Conference would not give him a retirement gift.

Cotter filed suit against the Eastern Conference and Trerotola in Superior Court on September 25, 1986, alleging that they had breached the custom and practice of providing a retirement gift. On October 20, the Conference and Trerotola moved to dismiss for lack of personal jurisdiction. The trial court denied the motion without opinion on January 13, 1987. At Trerotola's deposition, Cotter learned that despite advice from Miles to the contrary at the time, he could have received retirement benefits under the Conference's Retirement Plan if he had requested them in 1977 when he left the Conference. With this discovery, Cotter filed suit in the United States District Court for the District of Maryland to recover benefits under the Conference's Retirement Plan (as distinguished from the smaller retirement gift or severance pay at issue in this case). After a too day bench-trial, the District Court awarded Cotter $137,697. That judgment was affirmed. See Cotter v. Eastern Conference of Teamsters Retirement Plan, 898 F.2d 424 (4th Cir. 1990).

The present case was tried before a Superior Court jury on March 8-10, 1989, before Judge Graae. The jury deadlocked, five votes to one, for dismissal. A second jury heard the case on November 16-20, 1989. At this trial, Cotter was allowed to introduce in evidence the Maryland decision entitling him to retirement benefits upon leaving the Conference in 1977. The defendants moved for a directed verdict which the trial court denied. The jury awarded Cotter $8,500 with interest from July 31, 1977. On December 1, 1989, the defendants moved for judgment notwithstanding the verdict or a new trial, both of which the trial court denied on January 24, 1990. The Conference and Trerotola filed a timely appeal.

II.

The threshold -- and dispositive -- question is whether the Superior Court had personal jurisdiction over the Conference and Trerotola. Personal jurisdiction depends on: (1) "the presence of reasonable notice to the defendant that an action has been brought"; and (2) "a sufficient connection between the defendant and the forum state as to make it fair to require defense of the action in the forum." Rose v. Silver, 394 A.2d 1368, 1370 (D.C. 1978) (quoting Kulko v. Superior Court of California, 436 U.S. 84, 91, 56 L. Ed. 2d 132, 98 S. Ct. 1690 (1978)), reh'g denied, 398 A.2d 787 (1979).

The trial court's jurisdiction theoretically could be derived from D.C. Code §§ 13-334, -422, or -423 (1989). Cotter does not rely on § 13-334, which confers jurisdiction, after proper service of process in the District, upon any "foreign corporation which carries on a consistent pattern of regular business activity within the jurisdiction." AMAF Int'l Corp. v. Ralston Purina Co., 428 A.2d 849, 850 (D.C. 1981); see Price v. Griffin, 359 A.2d 582, 586 (D.C. 1976) ("any continuing corporate presence in the forum state directed at advancing the corporation's objectives is sufficient for the exercise of jurisdiction" under the "doing business" provision of § 13-334 (a)). Cotter does not claim there was service of process in the District or that the Conference has sufficient activity in the District to sustain a claim of jurisdiction under § 13-334.

Nor does Cotter rely on § 13-422, as the Conference is not "domiciled in, organized under the laws of, or maintaining . . . its principal place of business in the District of Columbia." D.C. Code § 13-422. Miles stated, in an affidavit attached to appellants' motion to dismiss for lack of personal jurisdiction, that the Conference "has its offices and place of business in Bethesda, Maryland, It and "maintains no offices or facilities in the District of Columbia." There is nothing of record, nor has Cotter proffered, that the Conference was organized under the laws of the District. Jurisdiction, therefore, if at all, must come under § 13-423, the long-arm statute.

"A court may properly assert personal jurisdiction over a nonresident [1] where a statute authorizes service of process and [2] where such service is consistent with due process. Smith v. Jenkins, 452 A.2d 333, 336 (D.C. 1982); see Mouzavires v. Baxter, 434 A.2d 988, 990 (D.C. 1981) (en banc), cert. denied, 455 U.S. 1006, 71 L. Ed. 2d 875, 1 ...


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