# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2004 Decided December 21, 2004

No. 03-7179

J OHN H ELMER

, A PPELLANT

v.

E LENA D OLETSKAYA

, A PPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 02cv00460)

Bruce S. Marks argued the cause and filed the briefs for

appellant. John M. Mason entered an appearance.

Wi lliam M. Sullivan, Jr. argued the cause for appellee.

With him on the brief was Sarah M. Hall

.

Before: R

OGERS

, T

ATEL and G

ARLAND

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge R OGERS

.2

R OGERS

, Circ u it Judge :

This appeal involves personal

jurisdiction under the Distr ict of Columbia long-arm statute,

D.C. Code § 13-423 (2001) . John Helmer, a United States

citizen, sued his former girlfriend Elena Doletskay a, a Russian

citizen, for fraud and breach of contract when she refused to

repay him for real and personal property acquire d while they

lived together i

n Moscow. The district court dismissed the

complaint for l

ack of personal jurisdiction. H elmer v.

Doletskaya , 290 F. Supp. 2d. 61 (D.D.C. 2003). We reverse the

di smissal of Helmer’s contract claim for repayment of credit

card charges because the parti es formed the contract in the

District of Columbi

a and contemplated future repeated contacts

with the District of Columbia as a condition of performance.

Otherwise we affirm, as the other contracts had no subst antial

c onnection with the District of Columbia, and the fraud did not

cause injury in the District of Columbia. In light of our partial

reversal, h

owever, the district court may have discretion to

exercise pendent personal jurisdic tion 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.

I.

The facts, based on the pleadings and affidavits

construed in the light most favorable to Helme r, are as follows.

John Helmer is a citizen of the United States and a resident of

the District of Col

umbia by virtue of his ownership of a home in

the District of Columbia, his pay ment 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. That3

summer, the couple visi

ted 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 rep a y Helmer for financially supporting her until her career

was established. Such financial support included her use of

Helmer’s credit cards, on the condi tion that the monthly billing

state ments would be sent to Helmer’s home address in the

District of Columbia.

On November 19, 1993 , after the couple returned to

M o scow, Doletskaya arranged for the purchase of the Moscow

apartment and registered it in her ow n name. Helmer paid cash

for the apartment and received a rec eipt acknowledging the sale.

The couple moved into the Moscow apartment in 1994. In 1996,

their romantic relationship ended, a nd Helmer loaned

Doletskaya $11,0 0 0 to purchase and renovate a dacha, or

country house, in the outskir ts of Moscow. Helmer continued

to live in the Moscow apartment and to permit Doletskaya to use

his cr e dit cards until 2000, when Doletskaya established her

financial independence as editor-in-chief of V ogue Russia

. In

2000, after Doletskaya had moved into the dacha, Helmer

discovered that the Moscow apar tment 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 He lmer $68,000 for his

financial support, including $57,000 in credit card charges and

$11,000 for the dacha.

On March 15, 2002, Helmer su ed 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 financial4

support by concealing material facts about her personal

background. Count Two alleged that Doletskaya breached her

a greement to register the Moscow apartment in Helmer’s name

and her agre ement to repay Helmer for his financial support.

Doletskaya moved to di

smiss the complaint for lack of service

and pers onal 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. H elmer

, 290 F. Supp. 2d at 68-

69.

II.

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

standa rd of review depends on “[t]he posture in which the

motion [to dismis s was] presented to trial court.” H erbert v.

N at’l Acad. of Sciences , 974 F.2d 192, 197 (D.C. Cir. 1992).

Al t hough 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 He l mer. S ee Helmer

, 290 F. Supp. 2d at 65 n.1.

Acc ordingly, we review the dismissal of the complaint d e novo

. See Herbert

, 974 F.2d at 197; 5B C HARLES A LAN W RIGHT &

A RTHUR R. M ILLER

, F EDERAL P RACTICE AND P ROCEDURE

§ 1351, at 314 (3d ed. 2004).

In a diversity case, the federal distri ct court’s personal

jurisdi ction over the defendant is coextensive with that of a

District of Columbia cour t. See Crane v. Carr , 814 F.2d 758,5

762 (D.C. Cir. 1987). The District of Columbia long-arm statute

provide s that a District of Columbia court can exercise personal

jurisdict ion 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” tha t is “coextensive with the due

process clause.” M

ouzavires 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 mai ntenance of the suit

does not offend ‘traditional notions of fair play and substantial

justice. ’ ” I

nt’l Shoe Co. v. Washington

, 326 U.S. 310, 316

(1945 ) (quoting M

illiken 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. M cGee 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 bus iness negotiations with future

co nsequences which themselves are the real object of the

business transaction,” a court mus t evaluate the “prior

negotiations and contemplated future consequences, along with

the terms of th

e contract and the parties’ actual course of

dealing” to determine whether the defendant “purposefully

established minimum contacts within th e forum.” B urger 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).

A.

Th e district court ruled that even though the contract for

repayment of the credit card charges was formed in the District

of Columbia, it h

ad no substantial connection with the District

o f Columbia because both the charges and the payments were

made outside the District of Columbia. Helmer

, 290 F. Supp. 2d6

at 68. Helmer attempts to demonstrate error by the district court

based on his Sixth Declaration clai ming 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 compla int and his

timely declarations, the credit cards were issued to Helmer in the

Distr ict of Columbia, and the monthly billing statements were

sent to Helmer’s address in the Di strict of Columbia for the

purpose of arranging for Hel mer’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

b illing 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, Doletsk a ya knew that her continued use of the credit

cards depended on the receipt of the statements i n the District of

Columb i a 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 re s ult

from her continued use of the credi t 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 i ssued

to a District

of Columbia resident and registered with a District

of Columbia address, and the parties contemplated futur e

repeated contacts with the District of Columbia as a condition of

performance, we hold that the contra c t had a substantial

connection with the District of Columbia a nd that Doletskaya7

“purposefully avail[ed] [herself] of the . . . benefits and

protections of [D.C.] laws,” B urger King

, 471 U.S. at 47 5

( quoting H

anson v. Denckla

, 357 U.S. 235, 253 (1958)), such

that she “should reasonably anticipate being haled into court

[here],” id. at 474 (quoting World-Wid e Volkswagen Corp. v.

Woodson

, 444 U.S. 286, 297 (1980)). Accordingly, we reverse

the district court’ s dismissal of the contract claim for repayment

of $57,000 in credit card charges.

The contract to repay Helmer $11,000 for the dacha,

however, is a differ

ent matter. According to the complaint,

Helmer agreed to pay for the dacha in 1996, when both parties

were living in Ru ssia. Helmer does not allege that the payments

for t he dacha were made in the District of Columbia; nor does

he allege any other connection between the co ntract and the

District of Columbia, other than his residence here. The

Supreme Court has held that a contract with a resident of a

forum does not by itself esta blish minimum contacts with the

forum. B urger King

, 471 U.S. at 478 . As such, we affirm the

distri c t court’s dismissal of the contract claim for repayment of

$11,000 for the dacha.

B.

Whether the district court has personal jurisdiction over

the contract claim for repayment for t he Moscow apartment is

more problematic, as no relevant authority establishes whether

the formation of a contract in the District of Columbia with a

D.C. resident is alone sufficient to constitute minimum contacts

with the District of Columbia. The district court found that the

negotiation, performance, and breach of the contract all occ urred

outside the District of Columbia. H elmer

, 290 F. Supp. 2d at

68. The corpus of the contract involved an apartment located in

Moscow. And the formation of the contract in the District of

Columbi a was fortuitous rather than purposeful, as Doletskaya8

came with Helmer to the District of Columbia to spend a ho liday

with Helmer’s family, not to solicit business here.

Helmer contends that the contract had a substantial

connection wit

h the District of Columbia because it was formed

in the District of Columbia and he is a resident of the District of

Columbia. However, the cases on which he relies involve more

than just the formation of a contract in the District of Columbia.

In four of the cases, the contract was partially performed in the

District of Columbia, see Schwartz v. CDI Japan, Ltd. , 938 F.

Supp. 1, 6 (D.D.C. 1996); Abramson v. Wallace

, 706 F. Supp. 1,

2 (D.D.C. 1989); Clements Distrib. Co. v. Celebrity Prods., Inc.

, 699 F. Supp. 322, 323 (D.D.C. 1988); D orothy K. Winston &

Co. v. Town Heig hts Dev., Inc. , 376 F. Supp. 1214, 1219

(D.D.C. 1974), and in another case, the defendant traveled to the

District of Columbia on four occasions for the purpose of

negotiating the contract, see Unidex Sys. Corp. v. Butz Eng’ g

Corp. , 406 F. Supp. 899, 902 (D.D.C. 1976). Here, by contrast,

the contract to purchase the Moscow apartment wa s negotiated

and performed wholly outside the District of Columbia, and

involved only a single, fortuitous contact with the District of

Columbia.

Helmer’s att empt to distinguish F reiman v. Lazur

, 925

F. Supp. 1 4 (D.D.C. 1996), on which the district court relied,

Helmer , 290 F. Supp. 2d at 68, is unpersuasive. In F reiman , the

district court ruled that a single meeting in the District of

Colum bia to negotiate a contract was “insignificant in the

scheme of the parties’ dealings” because the contract was

e xecuted and performed outside the District of Columbia . 925

F. Supp. at 25 (quoting Mitchell Energy Corp . v. Mary Helen

Coal Co. , 524 F. Supp. 558, 564 (D.D.C. 1981)). In maintaining

that his case “differs significantly” from Freiman , Helmer relies

on the formation of

the contract in the District of Columbia and

his re sidence in the District of Columbia. Appellant’s Br. at 12.9

We are not persuaded, however, that the form a tion of the

contrac t here is more significant “in the scheme of the parties’

dealings” than the negotiation meeting in Frei man . Both were

“single contacts” in courses of deali ng that otherwise took place

outsid e the District of Columbia. Freiman

, 925 F. Supp. at 25;

cf. Burger King , 471 U.S. at 479; R eligious Tech. Ctr. v.

Liebreich , 339 F.3d 369, 375 (5th Cir. 2003). Indeed, in the

choice-of-law context, “the place of contracting standing alone

is typically viewed as rather insignificant, esp ecially when it was

fortuitous,” whereas the “place of negotiation and performance”

— in this case, Moscow — “should generally control.” S tephen

A. Goldberg Co. v. Remsen Partners, Ltd. , 170 F.3d 191, 194

(D.C. Cir. 1999) (citing R ESTATEMENT (S ECOND ) OF C ONFLICT

OF L A WS §§ 188(3), 188 cmt. e (1971)); s ee also Allstate Ins.

Co. v. Hague , 449 U.S. 302, 317 n.23 (1981).

Nor are we persua ded that Helmer’s maintenance of a

residence in the District of Columbia giv es the contract to

purchase the Moscow apartment a substantial connection with

the District of Columbia, as Helmer actually lived and worked

in Russia when the contract was negotiated, perfor med, and

breached. The cases Helmer cites, such as D orothy K. Winston

& Co.

, 376 F. Supp. at 1219, and Unidex Systems Corp. , 406 F.

Supp. at 900, involved corporations that were not only

incorporated in the District of C olumbia but actually had offices

and did business here, such that the contemplated future

consequences of the contracts took place in the District of

Colum b ia. Here, by contrast, although Helmer maintained a

home in the District of Columbia and happened to be visiting it

when the contract was formed, he actually lived and wor ked in

Russia when the contract was negotiated, performed, and

breached, such that the contemplated future consequences of the

contract took pla ce in Russia. For these reasons, we hold that

Helmer fails to demonstrate that the contract to purchase the10

M oscow apartment had a substantial connection with the Dis trict

of Columbia.

C.

Finally, we find no merit to Helmer’s contention that the

district court erred in dismissing his fraud claim. The District of

Columbia long-arm statute provides that a court may exercise

p ersonal jurisdiction over a defendant if the claim arises fr o m

t he defendant’s “causing tortious injury in the Distr ict of

Columbia by an act or omission in the District of Columbia.”

D.C. Code § 13-423(a)(3). This provision i s “a precise and

intentionally restricted tort section which stops short of the outer

limits of due process,” and requires that both act and injury

occur in the District of Columbia. M oncrief v. L exington

Herald-Leader Co.

, 807 F.2d 217, 221 (D.C. Cir. 1986) (quoting

Margoles v. Johns

, 483 F.2d 1212, 1219 (D.C. Cir. 1973); Davis

v. Costa-Gavras

, 580 F. Supp. 1082, 1087 (S.D.N .Y. 1984))

(internal citations and quotation marks omitted). The district

court ruled

that although Doletskaya fraudulently concealed her

person al background during her visit to the District of Columbia,

the fraud did not cause injury here because Helmer was not

“physically present” in the District of Columbia when

Doletskaya incurred the credit card charges, whe n Helmer paid

the cr edit card charges, when Helmer purchased the apartment,

or when Doletskaya registered the apar tment in her own name.

Helmer , 290 F. Supp. 2d at 69.

Helmer contends that “economic harm is suffered at the

claiman t’s home, meaning domicile,” and that the district court

was required to accept his allegation th at he was domiciled in

the District

of Columbia. Appellant’s Br. at 16. But Helmer

misreads the district court’s o pinion as ruling that economic

injury occurs at the plaintiff’s do micile. Noting that Helmer did

not “expressly allege emotional losses as a result of

Doletskaya’s alleged fraud,” the distr ict court stated only that11

“because Helmer was not actually living in the District [of

Columbia] in 2000 when he discovered Doletskaya’s alleged

fraud, he could not have sustained any emotional damage at his

home in the District [of Columbia].” H elmer

, 290 F. Supp. 2d

at 69 n.3 (emphasis added). Further, the cases that Helmer cites

do not establish that ec onomic injury occurs at the plaintiff’s

domicile, but only that emotional or reputa tional injury occurs

where the plaintiff lives or works. See Calder v. Jones , 465 U.S.

783, 785, 788-89 (1984); Masterson-Cook v. Criss Bros . Iron

Works, Inc.

, 722 F. Su

pp. 810, 813 (D.D.C. 1989); A iken v.

Lustine Chevrolet, Inc.

, 392 F. Supp. 883, 886 (D.D.C. 1975).

Because Helmer does not allege that the fraud caused emotional

injury, we have no occasion to address whether emotional injury

occurs at the plaintiff’s domicile.

Although District of Columbia law do es not establish

where economic injury occurs, the case law of other circuits is

instructive. For example, in Mareno v. Rowe , 910 F.2d 1043 (2d

Cir. 1990), a New York res ident sued his employer for

wrongfully terminat

ing his employment in New Jersey, i d. at

1045. In determining whether the employer caused tortious

injury in New York as required by the New York long-arm

statute, the Second Circuit held:

An injury

. . . does not occur w ithin the state

simply because the plainti

ff is a resident. “[T]he

s itus of the injury is the location of the or iginal

event which caused the injury, not the lo c ation

where the resultant damages are subsequently

felt by the plaintiff.”

Thus, despite the fact that

[the plaintiff] may suffer the economic

consequences of his firing in New York, the

location of the original event which ca used the

injury is New Jersey.12

Id. at 1046 (first alteration in original) (quoting Carte v. Parkoff

, 152 A.D.2d 615, 616 (N.Y. App. Div. 1989)) (internal citation

omitted). Likewise, in W

enz v. Memery Crystal

, 55 F. 3d 1503

(10th Cir. 1 995), a Colorado resident sued a London law firm

for wrongfully withdrawi ng funds from his London trust

account, id. at 1506. Noting that “the unauthorized disbursals

occurred in London and were from a London a ccount, not a

Colorado account,” the Tenth Circu it held that “the loss or

injury occurred i

n London where the account was located, not in

Colorado. That [the plaintiff] may be economically impacted in

Colorado, simply because he li ves there, is insufficient to

establish personal jurisdiction under

. . . the Colora do long-arm

statute.” I

d. at 1508. Similarly, in B everly Hills Fan Co. v.

Royal Sovereign Corp.

, 21 F.3d 1558 (Fed. Cir. 19 94), the

Federal Circ uit held that the economic injury caused by patent

infringement occurs not where the patent owner resides, i d. at

1570, but “where the infringing sale i s made because the patent

owner loses business there,” id. at 1571.

He re, the original events that caused the alleged injury

to Helmer were the ones identified by the district court as

occu r ring outside the District of Columbia: Doletskaya’s use of

the credit cards and Helmer’s payment of her cha rges on them,

and the purchase and registration of the Moscow apartment in

Doletskaya’s name. H

elmer

, 290 F. Sup p. 2d at 69. The fact

that Helmer

was living in Russia when these events occurred

makes his contention that the fraud caused injury to him in the

Distr ict of Columbia even more implausible. Moreover, t he

district court was not requi red to accept Helmer’s bare allegation

that he was domiciled in the District of Columbia, especially

because he first made this allegation in his motion for

reco nsideration. S ee United Mine Workers

, 984 F.2d at 476.

W hile a district court must resolve factual disputes in favor of

the plaintiff when dismissing a complaint for lack of jurisdiction

without an evidentiary hearing, Reuber v. United States , 75013

1 See FMC Corp. v. Varonos , 892 F.2d 1308, 1311 (7th Cir.

1990); Murphy v. Erwin-Wasey, Inc.

, 460 F.2d 6 61, 663 (1st Cir.

1972).

2 S ee Neal v. Janssen

, 270 F.3d 328, 331 (6th Cir

. 2001);

Re mick v. Manfredy , 238 F.3d 248, 255 (3d Cir. 2001); O riental

Tradin g Co. v. Firetti , 236 F.3d 938, 943 (8th Cir. 2 001); Wien Air

Alaska, Inc. v. Brandt , 195 F.3d 208, 211 (5th Cir. 1999) ; Brainerd v.

Governors of the Univ . of Alberta , 873 F.2d 1257, 1258 (9th Cir.

1989); Vishay Intertechnology, Inc. v. Delta Int’l Corp. , 696 F.2d

1062, 1066 (4th Cir. 1982). F.2d 1039, 1052 (D.C. Cir. 1984), “the court need not accept

inferences drawn by plaintiffs if such inferences are unsupported

by the facts set o ut in the complaint. Nor must the court accept

legal conclusions cast in the form of factual allegations.” K owal

v. MCI Communications Corp. , 16 F.3d 1271, 1276 (D.C. Cir.

1994). Helmer’s contention that “merely the intentional

direction of tortio us conduct into a state is sufficient to confer

personal jurisdiction without other contacts” is lik e wise

unpersuasive, Appellant’s Br. at 17, as it is based on cases that

involve long-arm statutes broader than D.C. Code § 13-

423(a)(3), either because they require only the torti ous act to

occur in the forum state, 1 or because they are coextensive with

the Due Process Clause. 2 Because Helmer fails to demonstrate

that Doletskaya’s fraud caused injury to him i n the District of

Columbia, we hold that the district court lacked personal

jurisdiction over Doletskaya with respect to the fraud claim

under D.C. Code § 13-423(a)(3).

Accordingly, we affirm the dismissal of the complaint

except with respect to Helmer’ s contract claim for repayment of

credit card charges. Although we do not address the issue of

pendent personal jurisdiction because it was not briefed on

appeal, on rema nd the district court may have discretion to

exercise such jurisdiction over the dismissed claims, see Oetiker14

v. Jurid Werke, G.m.b.h. , 556 F.2d 1, 4-5 (D.C. Cir. 1977), or it

may dismiss the complaint on other grou nds raised in

Doletskaya’s motion to dismiss, such as forum non conveniens.

So ordered.