Appeal from the United States District Court for the District of Columbia (No. 02cv00460)
Before: Rogers, Tatel and Garland, Circuit Judges.
The opinion of the court was delivered by: Rogers, Circuit Judge
This appeal involves personal jurisdiction under the District of Columbia long-arm statute, D.C. Code § 13-423 (2001). John Helmer, a United States citizen, sued his former girlfriend Elena Doletskaya, a Russian citizen, for fraud and breach of contract when she refused to repay him for real and personal property acquired while they lived together in Moscow. The district court dismissed the complaint for lack of personal jurisdiction. Helmer v. Doletskaya, 290 F. Supp. 2d. 61 (D.D.C. 2003). We reverse the dismissal of Helmer's contract claim for repayment of credit card charges because the parties formed the contract in the District of Columbia and contemplated future repeated contacts with the District of Columbia as a condition of performance. Otherwise we affirm, as the other contracts had no substantial connection with the District of Columbia, and the fraud did not cause injury in the District of Columbia. In light of our partial reversal, however, the district court may have discretion to exercise pendent personal jurisdiction over the dismissed claims, an issue that was not briefed on appeal, or to dismiss the complaint on other grounds raised in Doletskaya's motion to dismiss, such as forum non conveniens.
The facts, based on the pleadings and affidavits construed in the light most favorable to Helmer, are as follows. John Helmer is a citizen of the United States and a resident of the District of Columbia by virtue of his ownership of a home in the District of Columbia, his payment of D.C. taxes, and his possession of a D.C. driver's license. However, he has lived and worked in Moscow as an independent business journalist since 1990. Elena Doletskaya is a citizen of the Russian Federation and a resident of Moscow. In 1993, Helmer and Doletskaya commenced a romantic relationship and lived together in a rented apartment in Moscow. They also began negotiations with a Russian seller to purchase an apartment in Moscow. That summer, the couple visited Helmer's home in the District of Columbia. While there, Doletskaya agreed to arrange for the purchase of the Moscow apartment in Helmer's name, as Helmer did not speak or read Russian. Doletskaya also agreed to repay Helmer for financially supporting her until her career was established. Such financial support included her use of Helmer's credit cards, on the condition that the monthly billing statements would be sent to Helmer's home address in the District of Columbia.
On November 19, 1993, after the couple returned to Moscow, Doletskaya arranged for the purchase of the Moscow apartment and registered it in her own name. Helmer paid cash for the apartment and received a receipt acknowledging the sale. The couple moved into the Moscow apartment in 1994. In 1996, their romantic relationship ended, and Helmer loaned Doletskaya $11,000 to purchase and renovate a dacha, or country house, in the outskirts of Moscow. Helmer continued to live in the Moscow apartment and to permit Doletskaya to use his credit cards until 2000, when Doletskaya established her financial independence as editor-in-chief of Vogue Russia. In 2000, after Doletskaya had moved into the dacha, Helmer discovered that the Moscow apartment was registered in Doletskaya's name. When Doletskaya refused to transfer the apartment to him, Helmer sued her in a Moscow court to recover title to the apartment; his complaint was dismissed on the merits. Doletskaya also refused to repay Helmer $68,000 for his financial support, including $57,000 in credit card charges and $11,000 for the dacha.
On March 15, 2002, Helmer sued Doletskaya in the United States District Court for the District of Columbia for fraud and breach of contract. Count One of the complaint alleged that Doletskaya fraudulently induced Helmer to entrust her with the purchase of the apartment and to lend her financial support by concealing material facts about her personal background. Count Two alleged that Doletskaya breached her agreement to register the Moscow apartment in Helmer's name and her agreement to repay Helmer for his financial support. Doletskaya moved to dismiss the complaint for lack of service and personal jurisdiction, improper venue, forum non conveniens, and failure to state a claim for fraud. The district court granted the motion to dismiss for lack of personal jurisdiction, finding that the contracts made during the couple's 1993 visit to the District of Columbia did not constitute "minimum contacts" with the District of Columbia, and that the fraud did not cause injury in the District of Columbia, as Helmer was not living there at the time. Helmer, 290 F. Supp. 2d at 68-69.
On appeal, Helmer contends that the district court erred in dismissing the complaint because Doletskaya had sufficient contacts with the District of Columbia to satisfy the requirements of the D.C. long-arm statute and due process. Our standard of review depends on "[t]he posture in which the motion [to dismiss was] presented to trial court." Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). Although the district court permitted jurisdictional discovery, it did not hold an evidentiary hearing and ruled only on the basis of the pleadings and the affidavits, construed in the light most favorable to Helmer. See Helmer, 290 F. Supp. 2d at 65 n.1. Accordingly, we review the dismissal of the complaint de novo. See Herbert, 974 F.2d at 197; 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1351, at 314 (3d ed. 2004).
In a diversity case, the federal district court's personal jurisdiction over the defendant is coextensive with that of a District of Columbia court. See Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987). The District of Columbia long-arm statute provides that a District of Columbia court can exercise personal jurisdiction over a defendant if the claim arises from the defendant's "transacting any business in the District of Columbia." D.C. Code § 13-423(a)(1). This provision is "given an expansive interpretation" that is "coextensive with the due process clause." Mouzavires v. Baxter, 434 A.2d 988, 992 (D.C. 1981); see United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995); Crane, 814 F.2d at 762. The issue here is whether Doletskaya purposefully established "minimum contacts with [the District of Columbia] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). A defendant has minimum contacts with a forum if she enters into a contract that has a "substantial connection" with the forum. McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223 (1957). Because a contract is "ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction," a court must evaluate the "prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing" to determine whether the defendant "purposefully established minimum contacts within the forum." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479 (1985) (quoting Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316 (1943)) (internal quotation marks omitted).
The district court ruled that even though the contract for repayment of the credit card charges was formed in the District of Columbia, it had no substantial connection with the District of Columbia because both the charges and the payments were made outside the District of Columbia. Helmer, 290 F. Supp. 2d at 68. Helmer attempts to demonstrate error by the district court based on his Sixth Declaration claiming that the credit card payments were made in the District of Columbia. However, he did not submit his Sixth Declaration until he sought reconsideration of the dismissal by the district court; hence, it was untimely, see United Mine Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469, 476 (D.C. Cir. 1993), and we do not consider it.
Helmer also contends that the contract for repayment of the credit card charges had a substantial connection with the District of Columbia because, as alleged in his complaint and his timely declarations, the credit cards were issued to Helmer in the District of Columbia, and the monthly billing statements were sent to Helmer's address in the District of Columbia for the purpose of arranging for Helmer's payment of Doletskaya's charges. According to the complaint, Doletskaya declared that, as a condition of her use of Helmer's credit cards, the monthly billing statements would be sent to Helmer's address in the District of Columbia. Even though the credit card charges were paid from Helmer's bank account located outside the District of Columbia, Doletskaya knew that her continued use of the credit cards depended on the receipt of the statements in the District of Columbia and the arrangement here for payment of the charges. Thus, Doletskaya accepted the credit cards knowing that repeated contacts with the District of Columbia would result from her continued use of the credit cards and Helmer's arrangements for payments of her charges in performance of the contract. Because the contract was formed in the District of Columbia, the corpus of the contract involved credit cards issued to a District of Columbia resident and registered with a District of Columbia address, and the parties contemplated future repeated contacts with the District of Columbia as a condition of performance, we hold that the contract had a substantial connection with the District of Columbia and that Doletskaya "purposefully avail[ed] [herself] of the... ...