D.C. law firm to do an internal audit of Xanalex, (2) the third party defendants forwarded work papers to Mr. Richter's law firm in the District of Columbia and engaged in correspondence with the firm, (3) Duvall & Associates prepared Xanalex's District of Columbia tax returns, (4) Duvall & Associates prepared auditor reports that it knew people in the District of Columbia, particularly Mr. Richter, would rely on, and (5) Mr. Duvall visited Washington, D.C. twice and Mr. Kinney visited once in order to discuss their work for Xanalex and to meet with Xanalex's law firm, Howrey & Simon. With the exception of this last point, none of these sources of contact provides long-arm jurisdiction under District of Columbia law.
In order to establish personal jurisdiction under the "transacting business" provision of the District of Columbia long-arm statute, plaintiff must prove that (1) defendant transacted business in the District, (2) the claim arose from the business transacted in the District, and (3) the defendant purposely established minimum contacts with the District such that the Court's exercise of personal jurisdiction would not offend "traditional notions of fair play and substantial justice." Cellutech, Inc. v. Centennial Cellular Corp., 871 F. Supp. 46, 48 (D.D.C. 1994); Mitchell Energy Corp. v. Mary Helen Coal Co., 524 F. Supp. 558, 563-64 (D.D.C. 1981); see Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 108-09, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987). Plaintiff bears the burden of establishing the factual basis for the exercise of personal jurisdiction. Edmond v. United States Postal Service General Counsel, 292 U.S. App. D.C. 240, 949 F.2d 415, 424 (D.C. Cir. 1991); First Chicago International v. United Exchange Co., Ltd., 267 U.S. App. D.C. 27, 836 F.2d 1375, 1378-79 (D.C. Cir. 1988).
With respect to the requirement of minimum contacts, it is established that plaintiff's conduct alone, or that of his agents, cannot establish jurisdiction. As the Supreme Court has held, "the unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958)). Rather, a defendant or its agents must "purposefully avail" itself of the forum in order to satisfy due process concerns. 471 U.S. at 475. "A plaintiff may not . . . depend upon his own activity to establish the existence of minimum contacts; the defendant must in some way have voluntarily and purposefully availed himself of the protection of the forum state's laws." Reiman v. First Union Real Estate Equity & Mortgage Investments, 614 F. Supp. 255, 257 (D.D.C. 1985).
Since plaintiff's activities cannot bring defendant within the Court's jurisdiction, Burger King Corp. v. Rudzewicz, 471 U.S. at 474, the fact that his District of Columbia law firm hired Duvall & Associates on behalf of Xanalex, see Letter from Paul S. Richter to Alan Duvall (Nov. 24, 1986), Pl.'s Opp'n, Ex. Al, and may have relied on the firm's work does not establish that Duvall & Associates itself transacted business in the District. Nor do the facts that Duvall & Associates forwarded work papers to Mr. Richter's law firm in the District and engaged in correspondence with the firm establish a "substantial connection" with the District; these mailings were incidental to Duvall & Associates' primary relationship with Xanalex's Ohio office. See Burger King Corp. v. Rudzewicz, 471 U.S. at 475; Health Communications, Inc. v. Mariner Corp., 860 F.2d 460, 461 (D.C. Cir. 1988). Furthermore, since there are no allegations that Duvall & Associates' preparation of Xanalex's tax returns was relevant in any way to this action, the legal malpractice claim could not have "arisen from" those transactions. See D.C. Code § 13-423(b); Novak-Canzeri v. Saud, 864 F. Supp. 203, 206 (D.D.C. 1994). Finally, Mr. Kinney visited the District of Columbia only once, in 1993, after the bonuses were paid and the consulting agreements were formed; therefore the malpractice claim could not have arisen out of that transaction either. Since Mr. Kinney had no other contacts with the District, the Court lacks personal jurisdiction over him and he will be dismissed. See Wiggins v. Equifax Inc., 853 F. Supp. 500, 503 (D.D.C. 1994).
On the other hand, Mr. Duvall visited the District of Columbia twice, once in 1988 and once in 1993, in order to discuss his and his firm's work for Xanalex and to meet with lawyers at Howrey & Simon. Although he denies that he discussed the bonuses and consulting agreements in 1988, his notes taken during that meeting refer to "agreements" and "certain bonuses" which might well refer to the consulting agreements and bonuses at issue. Pl.'s Opp'n, Ex. 12. If Mr. Duvall advised Xanalex on the consulting agreements and bonuses that gave rise to this action during that 1988 meeting in the District, that would establish sufficient minimum contacts and constitute transacting business under the long-arm statute. See Mitchell Energy Corp. v. Mary Helen Coal Co., 524 F. Supp. at 563-64.
Since Mr. Duvall was the agent of Duvall & Associates at the time, Duvall & Associates also may have transacted business in the District of Columbia. Accordingly, the Court cannot find at this stage of the litigation that it lacks personal jurisdiction over Mr. Duvall and Duvall & Associates.
Defendants argue that at the very least the Court should transfer this case to Ohio under 28 U.S.C. § 1404 for the convenience of the parties because all the relevant documents and witnesses, except for Mr. Richter, are there.
The original complaint, however, describes a claim by a Washington, D.C. attorney against a Washington, D.C. corporation. For this reason, the action properly belongs here, even though third party defendants have identified some important documents and witnesses located in Ohio and seek to characterize the entire action as a dispute between "an Ohio accounting firm [that] provided legal [sic] services for the Ohio headquarters of Xanalex, with the work being performed and paid for in Ohio." Third Party Defs.' Mot. at 26.
The Court is convinced that the original claims should be litigated in this Court and, accordingly, will not transfer this case to Ohio.
C. The Legal Malpractice Claim
The third party defendants argue that even if the Court has jurisdiction they cannot be joint tortfeasors with plaintiff in a legal malpractice action because they provided no legal advice to Xanalex. Plaintiff replies that the precise nature of the conduct of joint tortfeasors in an action for contribution is irrelevant so long as they contributed to the same injury. Since the injury to Xanalex asserted by the counterclaim is broad, Mr. Duvall and Duvall & Associates could well have contributed to that injury. See R&G Orthopedic Appliances v. Curtin, 596 A.2d 530 (D.C. 1991) (permitting joint claims to proceed against manufacturer for negligence and a hospital for medical malpractice). Accordingly the third party defendants' motion to dismiss on this basis also fails.
Indemnification is available under two theories: contract (or implied contract) and equitable where "required to prevent injustice." R&G Orthopedic Appliances v. Curtin, 596 A.2d 530, 544 (D.C. 1991). Since there was no contract, actual or implied, between the third party defendants and plaintiff, plaintiff relies mainly on an equitable indemnification theory.
Indemnity is a shifting of responsibility from the shoulders of one person to another; and the duty to indemnify has been recognized where the equities have supported it. A court's view of the equities may have been based upon the relation of the parties to one another, and the consequent duty owed; or it may be because of a significant difference in the kind of quality or their conduct.
Id. at 545 (quoting PROSSER & KEETON, THE LAW OF TORTS § 51) (1984). Although conceivably facts could be developed that would show that Duvall & Associates worsened Xanalex's situation, it was plaintiff's conduct in giving legal advice, rather than the conduct of Mr. Duvall and Duvall & Associates in failing to spot it or report it, that drives the counterclaim. Taking all of plaintiff's allegations as true, it cannot fairly be said that the third party defendants' conduct so worsened Xanalex's injury that they became responsible for it. For this reason, plaintiff's claim for indemnification will be dismissed.
An Order consistent with this Opinion shall be entered this same day.
PAUL L. FRIEDMAN
United States District Judge
For the reasons stated in the Opinion issued this same day, it is hereby
ORDERED that Plaintiff's Motion to Dismiss the Counterclaim is DENIED; it is
FURTHER ORDERED that Third Party Defendants' Motion to Dismiss the Third Party Complaint is GRANTED in part and DENIED in part. The claim for indemnification against all third party defendants is DISMISSED. Third party defendant Raymond Kinney is DISMISSED from this case.
PAUL L. FRIEDMAN
United States District Judge