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Thomas v. Disabled American Veterans Association

August 23, 2007


Appeals from the Superior Court of the District of Columbia (CA-2159-05) (Hon. Mary A. Gooden Terrell, Trial Judge).

The opinion of the court was delivered by: Fisher, Associate Judge

Submitted June 20, 2006

Before GLICKMAN, KRAMER, and FISHER, Associate Judges.

Oscar L. Thomas filed a civil complaint in the Superior Court against the Disabled American Veterans ("DAV") and the Non-Commissioned Officers Association of the United States of America ("NCOA"). That action arose from the alleged shortcomings of both organizations in representing Thomas before the United States Department of Veterans Affairs. The Superior Court dismissed Thomas's complaint against DAV, presumably because substantially identical claims were still pending in federal court. The court later dismissed Thomas's remaining claims, concluding that it lacked personal jurisdiction over NCOA. We reverse and remand for further proceedings.

I. Factual and Procedural Background

When he retired from the U.S. Army in 1989, Mr. Thomas*fn1 designated NCOA (a veterans service organization) as his representativeto present claims for benefits to the Veterans Administration.*fn2 In 1997 he designated DAV to take over that function. Thomas was given a comprehensive medical evaluation by the Department of Veterans Affairs in 1991, and a VA doctor reached a "working diagnosis" that Thomas had schizophrenia.*fn3 Thomas complains that he has suffered injury because DAV and NCOA (as well as the VA) failed to inform him of this tentative diagnosis. Thomas also alleges that both organizations failed properly to represent his interests before the Department of Veterans Affairs.

Thomas brought an action against DAV and NCOA in the United States District Court alleging, among other claims, gross negligence, fraudulent concealment, and legal malpractice. On January 21, 2005, the District Court dismissed Thomas's action for lack of subject matter jurisdiction;*fn4 he appealed that decision to the United States Court of Appeals.

On March 21, 2005, Thomas filed this action in Superior Court, essentially restating the common law claims against DAV and NCOA which had been dismissed by the District Court.*fn5 On September 29, 2005, the D.C. Circuit affirmed the judgment dismissing the federal complaint.*fn6

Meanwhile, on June 14, 2005, the Superior Court granted DAV's motion to dismiss, without prejudice.On October 11, 2005, the court granted NCOA's motion to dismiss for lack of personal jurisdiction. Thomas timely appealed both orders, and we consolidated the appeals.

II. Dismissal of Thomas's Claims Against DAV

DAV moved the trial court to dismiss Thomas's complaint on a single ground -- that "[a]s this case is presently ongoing before another court, the Court of Appeals for the District of Columbia Circuit, it would be inappropriate for this matter to go forward before this Court at this time." Because the trial court granted the motion without explanation, we assume it accepted DAV's argument. The trial court erred in doing so.

DAV argues that the trial court was "plainly correct" to dismiss Thomas's complaint but cites only a single case to support the trial court's order: Jones v. John W. Glen, Inc., 130 U.S. App. D.C. 153, 397 F.2d 714 (1968). Jones does not support DAV's argument or the trial court's dismissal, however. In Jones, the United States District Court for the District of Columbia dismissed an action on the ground that a civil complaint based on the same claims had been filed and was pending in the District of Columbia Court of General Sessions. Id. at 154, 397 F.2d at 715. The Circuit Court of Appeals reversed the dismissal and remanded the case because it could not determine whether the District Court's dismissal "rested entirely on the pendency of two actions . . . ." Id. at 155, 397 F.2d at 716. The court in Jones explained that it was "not unaware of the problems of the two trial courts here involved and the burdens that these proceedings entail in having two courts be concerned over a single case." Id. Notwithstanding that burden, the court concluded that "it is clear that the proper procedure is for the District Court to enjoin the prosecution of the case in the Court of General Sessions." Id. at 155 n.1, 397 F.2d at 716 n.1, citing Smith v. Leigh, 101 U.S. App. D.C. 225, 248 F.2d 85 (1957). Thus, Jones in no way supports dismissal of the underlying complaint in this case. If anything, it stands for the proposition that one suit should be stayed while the other proceeds.*fn7

In a case postured procedurally like this one, this court held that the Municipal Court erred in dismissing a civil action on the ground that a similar action had been previously filed, and was still pending, in District Court. In Coates v. Ellis, 61 A.2d 28 (D.C. 1948), the parties were involved in an automobile collision and Mrs. Ellis brought a personal injury action in District Court. Id. at 29. Before service of process was completed, Mr. Coates filed in the Municipal Court a suit for damages arising out of the same collision. Mrs. Ellis moved to dismiss the Municipal Court action based on the prior filing and pendency of her District Court action, and the trial judge dismissed "without prejudice." Id. We reversed, explaining that the Municipal Court "had no right to dismiss the case." Id. at 31.

The dismissal, though stated to be "without prejudice," would almost certainly result in confusion and in prejudice to plaintiff if the District Court action did not proceed to final determination. Comity, as we have previously pointed out, can best be maintained in such a situation, not by dismissing the action, but by staying proceedings therein. That course has been prescribed in several other cases. We therefore order the judgment below reversed, with instructions to vacate the ...

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