whether such a factual basis exists, "factual discrepancies appearing in the record must be resolved in favor of the plaintiff." Crane v. New York Zoological Society, 282 U.S. App. D.C. 295, 894 F.2d 454, 456 (D.C. Cir. 1990).
In the instant case, plaintiffs allege several grounds for subjecting defendants Seel, Prime Time, Wohl, and Wohl Associates to personal jurisdiction in the District. First, in support of their argument that defendants' contacts satisfy Section 423(a)(3), i.e., that defendants Seel, Prime Time, Wohl, and Wohl Associates "did in fact conspire, act and cause injury in the District of Columbia," plaintiffs allege that on September 13, 1994, defendants Seel and Wohl and others met for lunch at Union Station and that this lunch was an "overt act in an ongoing conspiracy." See Pls.' Reply at 14, 7. Second, plaintiffs contend that defendants Seel and Prime Time's registration of copyright for the INSITE computer program at the U.S. Copyright Office in Washington, D.C. constitutes "transacting business" under Section 423(a)(1). See Pls.' Resp. at 9. Third, defendants Seel and Prime Time's "numerous substantial contacts in the District of Columbia in promoting their business activities over the years" also constitute "transacting business" under Section 423(a)(1). Pls.' Resp. at 11.
Section 423(a)(3) is a "precise and intentionally restricted tort section," which confers jurisdiction "only over a defendant who commits an act in the District which causes an injury in the District, without regard to any other contacts." Moncrief v. Lexington Herald-Leader Co., 257 U.S. App. D.C. 72, 807 F.2d 217, 221 (D.C. Cir. 1986). Plaintiffs allege that the September 13, 1994 lunch at Union Station, which defendants Seel and Wohl attended, was an "overt act in an ongoing conspiracy" and therefore constitutes a tortious act occurring in the District. Pls.' Reply at 7. To support this contention, plaintiffs proffer the affidavits of H. Paul Douglas, who was present at this lunch. See H. Paul Douglas Aff., June 22, 1995 (Pls.' Resp., Ex. A); H. Paul Douglas Aff., filed July 10, 1995, attached to Pls.' Reply. In his affidavits, Douglas states that "business was the only thing that was discussed at that luncheon." H. Paul Douglas Aff., filed July 10, 1995, at 4. Among other things, Douglas and defendants Wohl and Seel "sat and discussed the fact that Richard Seel had registered a copyright of INSITE" and also discussed the implications of "the letter from Freiman and FPS," which stated that "Richard Seel, RFS, Pierre Foussier and Prime Time were no longer affiliated with Freiman and FPS." Id. More pointedly, Douglas states that "at this [lunch] which lasted over two hours, there was much discussion and decisions were made as to what was to be said to Edward Lazur in the upcoming meeting at the Department of Energy in Edward Lazur's office. The purpose of this meeting was to assure Edward Lazur that Pierre Foussier was capable of engineering the parametric computer program now called INSITE. . . . [and] to have Edward Lazur direct monies to be paid to Prime Time on the FAMAS project." Id. at 5.
Defendants Seel and Wohl contest this version of the September 13, 1994 lunch at Union Station. Seel states that "while we discussed the parametric industry generally, there was no discussion of substantive business, of any plan of action or of any cooperative action by anyone at the meeting." Richard F. Seel Decl., June 17, 1995, at 5 (Seel Mot., Ex. 1). It was a "social gathering." Id. Wohl states that "no substantive business decisions were made or even raised" at the lunch. Kay Hudson Wohl Decl., June 29, 1995, at 2 (Wohl Reply, Ex. 1). Although the people who were at the lunch disagree on what was said there, any "factual discrepancy" in the record must be resolved in favor of the plaintiff. Crane, 894 F.2d at 456. For purposes of this motion, then, the H. Paul Douglas Affidavits satisfy plaintiffs' burden of showing a "tortious act" in the District.
However, Section 423(a)(3) also requires that, in addition to a tortious act occurring in the District, there be "tortious injury in the District of Columbia" as well. D.C. Code Ann. § 13-423(a)(3); see Gandal v. Telemundo Group, Inc., 302 U.S. App. D.C. 359, 997 F.2d 1561, 1565 (D.C. Cir. 1993). Our Court of Appeals reads Section 423(a)(3) as requiring "more than an 'act' that causes harm in the District; it requires that both the 'act' and the injury occur in the District. Therefore, it would be playing word games with the statute to say that 'act' occurs wherever the 'injury' it causes takes place." Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039, 1049-50 (D.C. Cir. 1984). On this point, plaintiffs allege that injury occurred in the District because "the approval for the contracts and the monies for the approved contracts from which the Defendants are profiting comes from the headquarters of the Department of Energy in Washington, D.C." Pls.' Resp. at 7-8. However, plaintiffs fail to demonstrate a prima facie showing of the "pertinent jurisdictional facts" to support this allegation. See First Chicago Int'l, 836 F.2d at 1378. Indeed, plaintiffs' allegation on this point is seemingly contradicted by the evidence they proffer. Plaintiffs' contact with the Department was defendant Lazur, the Acting Director of the Department's Office of Construction and Capital Projects. His office is in Germantown, Maryland. See Compl., Ex. R. Plaintiffs entered into the FAMAS contracts not with the Department directly, but with the Department's prime contractor, Kaiser Engineers. Kaiser Engineers is located in Richland, Washington. See Pls.' Reply, Exs. 22-24 (copies of the FAMAS contracts). Plaintiffs contend that after the September 13, 1994 lunch, defendant Lazur caused $ 180,000 to be transferred to defendants Seel and Prime Time. The source of the $ 180,000 was Richland, Washington: on "October 21, 1994, Defendant Lazur sent a memo to the Project Management Division and the Program Budget Branch in Richland, Washington for the transfer of funds from the Freiman Parametric Services [sic] contract to Defendant Prime Time for $ 180,000 for defendant Prime Time's generation of a proposal." Compl. at P 78; Ex. X. Plaintiffs further allege that defendants Seel, Prime Time, Wohl, and Wohl Associates entered into the contract for the allegedly infringing INSITE program with the Department's subcontractor, Dames & Moore. Compl. at P 79. The Dames & Moore office that dealt with defendants is located in Denver, Colorado. Pls.' Reply, Ex. 35 (letter from Dames & Moore to defendant Seel on Dames & Moore's fax letterhead).
On these facts, plaintiffs fail to make the requisite prima facie showing that tortious injury occurred in the District, although plaintiffs have met their burden to make a prima facie showing that a tortious act occurred in the District. Accordingly, there is no personal jurisdiction over defendants Seel, Prime Time, Wohl, and Wohl Associates under Section 423(a)(3).
Personal jurisdiction may be exercised over defendants, therefore, only if they "transacted business" in the District in connection with the operative facts of this action under Section 423(a)(1) and only if plaintiffs' claims arise from defendants' contacts with the District. See D.C. Code Ann. § 423(b); Willis v. Willis, 211 U.S. App. D.C. 103, 655 F.2d 1333, 1336 (D.C. Cir. 1981). Plaintiffs allege that defendants Seel and Prime Time have had "not a few, but numerous substantial contacts in the District of Columbia in promoting their business activities over the years." Pls.' Resp. at 11. First, in October 1987, Seel "sat in on training sessions given by Frank Freiman" at Department headquarters in the District; second, in June 1989, a Prime Time employee was awarded the "Best Speaker Award" at a meeting in Washington, D.C.; third, Seel registered a copyright for INSITE at the U.S. Copyright Office in Washington, D.C.; and fourth, on March 25, 1994 Seel met with Lazur at Department headquarters in Washington, D.C. and telephoned H. Paul Douglas from the headquarters' lobby. See id, at 11, 8; Pls.' Reply at 27.
As a preliminary matter, the first two contacts cannot form the basis for asserting jurisdiction over defendants Seel and Prime Time. Under Section 423(b), plaintiffs' claims "must relate to the particular act or transaction forming the basis for personal jurisdiction." See Berwyn Fuel, Inc. v. Hogan, 399 A.2d 79, 80 (D.C. 1979). Plaintiffs do not allege any such relation between a "Best Speaker Award" and an October 1987 training session, which defendant Seel "sat in on," and their claims of copyright infringement.
The third contact is defendant Seel's registration of the copyright for INSITE at the U.S. Copyright Office in Washington, D.C. on June 2, 1994. Plaintiffs allege that this constitutes "transacting business" in the District under Section 423(a)(1) and that, in fact, "personal jurisdiction exists on these facts alone." See Pls.' Resp. at 9, 11. Defendants Seel and Prime Time respond that defendant Seel's registration of the copyright is protected by the government contacts principle and therefore cannot serve as a basis for personal jurisdiction. See Seel Reply at 8-9.
The government contacts principle establishes that entry into the District by nonresidents for the purpose of contacting federal governmental agencies cannot serve as a basis for personal jurisdiction. Environmental Research Int'l, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808 (D.C. 1976). Because the District is the seat of national government, there is a "correlative need for unfettered access to federal departments and agencies for the entire national citizenry." Id. at 813. To allow a defendant's contact with a federal instrumentality to serve as a contact for personal jurisdiction analysis "would threaten to convert the District of Columbia into a national judicial forum." Id. Applying this principle, this Court in Investment Co. Institute v. United States, 550 F. Supp. 1213, 1217 (D.D.C. 1982) (Jackson, J.), held that defendants' filings with the Securities and Exchange Commission and application for membership in the National Association of Securities Dealers were protected by the government contacts principle and therefore were excluded from any calculation in determining defendants' amenability to suit here.
Plaintiffs argue that the government contacts principle does not apply if the contacts are "fraudulent in and of themselves and are found to cause harm to the plaintiff" and cite the D.C. Court of Appeals' case, Lex Tex Ltd., Inc. v. Skillman, 579 A.2d 244 (D.C. 1990), to support this proposition. Id. Pls.' Resp. at 9. Lex Tex is easily distinguishable. There, a Pennsylvania lawyer retained by a Florida corporation to prosecute a patent application before the Patent and Trademark Office in the District engaged in inequitable conduct, and the patent was subsequently invalidated for that reason. Thereafter, the Florida corporation sued the lawyer for malpractice in the District and asserted personal jurisdiction on the basis of the lawyer's appearance before the Patent and Trademark Office. The defendant lawyer argued that this appearance was protected by the government contacts doctrine. The D.C. Court of Appeals disagreed, holding that the doctrine did not apply because the defendant lawyer contacted the Patent and Trademark Office as an agent for his client, the plaintiff, and not on his own behalf. Therefore, "to the extent, then, that any petitioning of the government was taking place, it was that of the [plaintiff], not [defendant]." Id. at 250. By contrast, defendant Seel contacted the U.S. Copyright Office on his own behalf, and not as an agent for any other party. Accordingly, the government contacts principle applies, and defendant Seel's application to the U.S. Copyright Office cannot serve as a basis for asserting personal jurisdiction over him.
Finally, the remaining contact on which plaintiffs assert jurisdiction based on defendants' "transacting business" in the District is a March 24, 1994 meeting between Seel and Lazur in the Department's headquarters in Washington, D.C. See Pls.' Reply at 27; Pls.' Resp., Ex. A (June 22, 1995 H. Paul Douglas Aff). The "transacting business" provision of the D.C. long-arm statute permits the exercise of personal jurisdiction to the full extent permitted by the Due Process Clause. United States v. Ferrara, 311 U.S. App. D.C. 421, 54 F.3d 825, 828 (D.C. Cir. 1995); First Chicago Int'l, 836 F.2d at 1377. The constitutional touchstone of the due process determination is "whether the defendant purposefully established minimum contacts in the forum state." Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 108-09, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987) (internal citations and emphasis omitted). Although "a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated' contacts," the Supreme Court has held that, consistent with due process and "so long as it creates a 'substantial connection' with the forum, even a single act can support jurisdiction." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 & n.18, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985) (citing, as support, McGee v. International Life Insurance Co., 355 U.S. 220, 223, 2 L. Ed. 2d 223, 78 S. Ct. 199 (1957)). The Supreme Court has cautioned, however, that
"some single or occasional acts" related to the forum may not be sufficient to establish jurisdiction if "their nature and quality and the circumstances of their commission" create only an "attenuated" affiliation with the forum. This distinction derives from the belief that, with respect to this category of "isolated" acts, the reasonable foreseeability of litigation in the forum is substantially diminished.