The opinion of the court was delivered by: Stanley S. Harris, District Judge.
Plaintiff, a Washington, D.C., law firm, filed this lawsuit to
recover unpaid attorney's fees from several California
defendants.*fn1 Two of the defendants — Colleen Coffman
("Colleen") and Coffman Specialties, Inc. ("Specialties") —
moved to dismiss for lack of personal jurisdiction. On September
30, 1998, the Court deferred consideration of that motion
pending an evidentiary hearing. The Court held an evidentiary
hearing on February 12, 1999. Before the Court are four matters:
(1) Colleen's and Specialities' motion to dismiss for lack of
personal jurisdiction; (2) plaintiffs motion to strike the
affidavit of Carol L. O'Riordan ("O'Riordan"); (3) plaintiffs
motion to supplement the evidentiary record with documents
produced by defendants on February 12, 1999; and (4) Colleen's
and Specialties' request, in their opposition to plaintiffs
motion to supplement the evidentiary record, to supplement the
record with additional documents that they produced on February
18, 1999.*fn2 Upon consideration of the entire record, the
Court grants defendants' motion to dismiss for lack of personal
jurisdiction as to Colleen, but denies it as to Specialties. The
Court also grants plaintiffs motion to strike O'Riordan's
affidavit, grants plaintiffs motion to supplement the
evidentiary record, and denies defendants' request to supplement
the evidentiary record. "Findings of fact and conclusions of law
are unnecessary on decisions of motions under Rule 12 or 56."
Fed.R.Civ.P. 52(a); Summers v. Department of Justice,
140 F.3d 1077, 1079-80 (D.C.Cir. 1998). Nonetheless, the Court sets forth
I. Motion To Strike O'Riordan Affidavit
Plaintiff moves to strike the O'Riordan affidavit, which was
appended to Colleen's and Specialties' Post-Hearing Statement.
O'Riordan is one of plaintiffs former employees who testified at
the February 12, 1999, hearing. Plaintiff contends that
O'Riordan's affidavit contains alleged conversations she had
with Colleen, additional details on some topics addressed in her
testimony, and information on entirely new topics. Plaintiff
submits that the affidavit should be stricken for two
independent reasons: that the affidavit (1) is inadmissible
under the hearsay rule, and (2) constitutes an impermissible and
unfair effort to supplement the evidentiary record developed at
the hearing. Colleen and Specialties argue that the affidavit is
not hearsay and that it does not offer any new material facts.
The Court need not rely on either of plaintiffs arguments but
will strike the affidavit for being untimely.*fn3 The Court
expected that in holding an evidentiary hearing, the parties
would present all their evidence at the hearing because such a
forum provides a fair opportunity for the parties to present
their evidence and cross-examine opposing witnesses.
Furthermore, when a motion is supported by affidavit, the
affidavit should be served with the motion, and opposing
affidavits should be served "not later than 1 day before the
hearing, unless the court permits them to be served at some
other time." Fed.R.Civ.P. 6(d); see Lujan v. National Wildlife
Federation, 497 U.S. 871, 894-96, 110 S.Ct. 3177, 111 L.Ed.2d
695 (1990) (affirming district court's rejection as untimely of
additional affidavits submitted after oral argument on summary
judgment motion and in purported response to the district
court's post-argument request for additional briefing). As the
Court did not permit affidavits to be submitted after the
hearing, the Court strikes the O'Riordan affidavit.
II. Motion To Supplement Evidentiary Record
Plaintiff moves to supplement the evidentiary record with
documents that Colleen and Specialties untimely provided on
February 12, 1999, the day of the hearing, and thus, those
documents were not admitted into evidence at the hearing.
Colleen and Specialties do not object. The Court grants
plaintiffs motion to supplement the evidentiary record with
respect to the corporate records appended to plaintiffs Motion
To Supplement Evidentiary Record.
In their opposition, Colleen and Specialties request that the
record also be supplemented with corporate records dating from
March 1993 onward.*fn4 Colleen and Specialties explain that
these documents were inadvertently omitted from the document
production on February 12, 1999, and were produced on February
18, 1999, via Federal Express after plaintiff informed Colleen
and Specialties that it planned to supplement the record with
only the corporate records it had received at that point.
Plaintiff opposes the request because Colleen and Specialties
are untimely in their production, and because such a production
would be unfair since plaintiff did not address those corporate
documents at the hearing or in its post-hearing statement.
The Court declines to admit the additional documents.
Defendants originally agreed to produce all the documents
responsive to plaintiffs Fourth Request for Production of
Documents by February 9, 1999, as the Court had scheduled the
evidentiary hearing for February 12, 1999. On February 8, 1999,
however, defendants objected to producing the documents, citing
plaintiffs failure to allow 30 days to respond to the document
request. The dispute was submitted to United States Magistrate
Judge Alan Kay, who on February 10, 1999, promptly compelled
defendants to "produce all documents responsive to Plaintiffs
Fourth Request for Production of Documents to Plaintiffs
attorney no later than close of business on February 11, 1999."
Defendants, however, did not produce the documents until
February 12, 1999, the day of the Court's evidentiary hearing,
allowing plaintiff no time to inspect and use those documents at
the evidentiary hearing. The Court has already showed leniency
in allowing the admission of the documents that arrived on
February 12, 1999. Even if defendants' omission was inadvertent,
defendants' behavior generally in responding to plaintiffs
document request has required extra court time and hindered
plaintiffs presentation of its case at the evidentiary hearing.
Admitting the additional documents that were submitted on
February 18, 1999, would prejudice plaintiff who should have had
all the requested
documents in advance of the evidentiary hearing to present its
case for the Court. Furthermore, plaintiff would have to revisit
its arguments in light of defendants' late submissions. See
Labadie Coal Co. v. Black, 672 F.2d 92, 95 (D.C.Cir. 1982)
(reversing district court's decision to admit corporate
documents produced in the last hours of trial where "plaintiff
was caught having rested its case when the documents were
finally produced, and had little, if any, time effectively to
inspect the documents and meaningfully to cross-examine
[defendant] as to their content and relevance.") The Court
declines to delay the briefing of this issue further.
Accordingly, the Court denies defendants' request to admit
documents that were produced after February 12, 1999.
III. Motion To Dismiss for Lack of Personal Jurisdiction
The Court now considers whether it has personal jurisdiction
over Colleen and Specialties. Colleen is the President and
Responsible Managing Owner of Specialties, a concrete paving
subcontractor incorporated in 1991. She is also the wife of
James Coffman (James), another defendant who is the president of
Coffman Construction. The contract at issue in this lawsuit was
signed by James, Coffman Construction, and R.E. Hazard, Jr.,
(the three other named defendants in this action) regarding a
California state lawsuit over school construction ("school
litigation"). The parties agree that neither Colleen nor
Specialties was a party to this contract.
Because Colleen and Specialties did not contract for the legal
services, and because they are not residents of the District of
Columbia, they assert that they do not maintain sufficient
contacts with the District of Columbia to support personal
jurisdiction. Plaintiff argues that personal jurisdiction exists
over Colleen because she established minimum contacts with the
District of Columbia. Plaintiff argues that personal
jurisdiction is obtained over Specialties because it functioned
as an alter ego of Coffman Construction, over which the Court
does have personal jurisdiction, from the period of September
1994 through March 1996. (Plaintiff provided legal services to
Coffman Construction from October 24, 1994, until September
1995, and filed this lawsuit in May 1996.) See Labadie, 672
F.2d at 96 (the relevant time period for examining whether two
entities are alter egos is the time during which a business
relationship existed between plaintiff and defendant).
On September 10, 1998, the Court granted plaintiffs request to
engage in jurisdictional discovery, after plaintiff indicated
that discovery had revealed additional facts supporting its
alter ego theory. The parties presented their evidence at the
hearing on February 12, 1999. Based on the entire record, the
Court finds that personal jurisdiction exists over Specialties
on the alter ego theory, but not over Colleen.
District of Columbia law controls the extent to which the
Court may exercise personal jurisdiction over a nonresident
defendant. See Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.
1987). D.C.Code § 13-423(a)(1) provides that the Court "may
exercise personal jurisdiction over a person, who acts directly
or by an agent, as to a claim for relief arising from the
person's . . . transacting any business in the District of
Columbia." This provision allows for jurisdiction to the fullest
extent permissible under the due process clause of the United
States Constitution, and "its construction is subsumed by a due
process analysis." Fisher v. Bander, 519 A.2d 162, 163 (D.C.
1986); see Schwartz v. CDI Japan, Ltd., 938 F. Supp. 1, 4 (D.C.
1996). Exercising personal jurisdiction over a nonresident
defendant will not violate the due process clause if the
defendant has "minimum contacts" with the District of Columbia
such that the exercise of personal jurisdiction will not offend
"traditional notions of fair play and substantial justice." See
International Shoe Co. v. Washington, 326 U.S. 310, 316, 66
S.Ct. 154, 90 L.Ed. 95 (1945). This "minimum contacts"
requirement must be met with respect to each defendant. See
Rush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571, 62 L.Ed.2d
516 (1980); First Chicago Int'l v. United Exchange Co.,
836 F.2d 1375, 1378 (D.C.Cir. 1988).
Ordinarily a plaintiff need only establish a prima facie case
that personal jurisdiction exists in order to survive a motion
to dismiss. See Crane v. New York Zoological Soc'y,
894 F.2d 454, 458 (D.C.Cir. 1990). However, where the parties are
permitted to conduct discovery on the jurisdictional issue, a
plaintiff must prove that personal jurisdiction exists by a
preponderance of the evidence. Landoil Resources Corp. v.
Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d
B. Personal Jurisdiction Over Colleen
Plaintiff argues that personal jurisdiction exists over
Colleen because she maintained minimum contacts with the
District of Columbia. Plaintiff notes that persons who seek
legal counsel within a forum "may be subject to personal
jurisdiction in that forum for failure to pay legal fees." Law
Offices of Jerris Leonard v. Mideast Systems, Ltd., 630 F. Supp. 1311,
1313 (D.C. 1986). While Colleen did not sign the retainer
agreement at issue, plaintiff argues that Colleen effectively
sought legal services for two reasons: (1) her husband James
made an oral, and later written, representation that he and
Colleen gave "a personal guarantee" to pay the legal fees, and
(2) Colleen gave a credit card (either a personal card or a
Specialties corporate card) that bore her name to one of
plaintiffs attorneys to cover travel expenses incurred during
the litigation for which plaintiff was retained.
The Court finds that these alleged contacts do not meet the
preponderance of the evidence standard. First, the "personal
guarantee" was given by James, not Colleen. Furthermore, nothing
in the record establishes that James was authorized to give
Colleen's personal guarantee. The Court ...