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01/17/80 J. Willard Nalls, Jr., As v. Rolls-Royce (1971) Limited

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


January 17, 1980

JOHN C. ABRAHAM, DECEASED

v.

ROLLS-ROYCE (1971) LIMITED, AEROSPATIALE (SOCIETE NATIONAL INDUSTRIELLE AEROSPATIALE), ET AL.; CAROL E.

CHINNIP. RAMAMURTI

v.

ROLLS-ROYCE LIMITED, AEROSPATIALE

Before BAZELON, Senior Circuit Judge, and McGOWAN and ROBB, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1980.CDC.7

J. WILLARD NALLS, JR., as Administrator for the Estate of

RAMAMURTI, as Administratrix for the Estate of

(SOCIETE NATIONAL INDUSTRIELLE

AEROSPATIALE), ET

AL.

Petition for Rehearing En Banc Denied March 8, 1983

MEMORANDUM

An Indian Airlines commercial flight from Bombay to Madras crashed shortly after takeoff on October 12, 1976. The plane was manufactured by the French corporation Societe National Industrielle Aerospatiale (Aerospatiale). It was powered by Avon RA.29 MK 531 engines, designed and manufactured by Rolls-Royce, Ltd. (Rolls-Royce), a British corporation based in London.

Plaintiffs-appellees are administrators of the estates of two persons killed in the crash. One of the administrators lives in the State of Washington; and the other, in Maryland. Defendants are Air India, Inc. (an Indian corporation alleged to be responsible for the maintenance of the plane that crashed), Aerospatiale, Indian Airlines, and Rolls-Royce. Appellees alleged various causes of action based on negligence and breach of express and implied warranties.

The sole issue now before this court, in an interlocutory appeal under 28 U.S.C. ยง 1292(b) from the District Court's denial of a motion to dismiss, is whether Rolls-Royce is subject to suit in the District of Columbia. Rolls-Royce itself has no offices or facilities in the District. It is not authorized to do business here, and it neither advertises nor maintains a telephone listing here. Appellees did not serve process directly on Rolls-Royce, but rather on Rolls-Royce, Inc. . RRI is a subsidiary of Rolls-Royce Holdings North America, Ltd., which in turn is a subsidiary of Rolls-Royce. RRI maintains an office, staffed by six employees, in the District of Columbia.

The principal theory *fn1 under which Rolls-Royce seeks dismissal is that RRI's presence here is protected by the "government contacts" exception to the jurisdictional statute. RRI's Washington, D.C., employees spend much of their time providing "technical information" to users of Rolls-Royce engines. We shall refer to these activities as "customer assistance" work. The remainder of their time is devoted to obtaining information from, and providing information to, regulatory agencies. This aspect of the work we shall call "regulatory liaison."

Customer assistance work in Washington primarily assists branches of the United States military. The Navy and Air Force use the "A-7" aircraft, which is powered by Rolls-Royce's "TF-41" engine; the Marine Corps uses the Rolls-Royce "Pegasus" engine in its "Harrier" aircraft; and the Coast Guard uses Rolls-Royce engines in its Grumman "Gulf Stream One." RRI's Washington employees answer inquiries from the armed services to promote the proper use of the Rolls-Royce engines in these aircraft. Such customer assistance frequently is done by the District of Columbia RRI employees on business trips to military bases. Much of it also occurs by telephone from Washington, D.C. A small amount of customer assistance by RRI's District of Columbia employees is provided to non-governmental users of the Rolls-Royce RB-211 engine, that is used in the Lockheed 1011 (Tri-Star) airplane.

RRI's District of Columbia employees spend the remainder of their time performing regulatory liaison. For example, the office provided the FAA with statistics about noise levels of the Rolls-Royce engines used by the Concorde airplane. RRI also supplied data to the Environmental Protection Agency about engine emissions. RRI's Washington office further serves an information-gathering function. At least one of the employees was expected to obtain, and report to other RRI employees about, news concerning government budget plans and proposed government regulations.

Regulatory liaison is conduct clearly protected by the government contacts exception. What is at issue is the customer assistance work done for users of Rolls-Royce engines. Rolls-Royce contends that even these activities are insufficient to establish jurisdiction. Examination of our decisions and those of the District of Columbia courts do not support RollsRoyce's position.

A quasi-first amendment policy favoring unburdened access to government policymakers underlies the government contacts exception. See Rose v. Silver, No. 12555, slip op. at 14 (D.C. Ct. App. October 30, 1978);2 Environmental Research International, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 813 (D.C. Ct. App. 1976).3 The government contacts principle

finds its source in the unique character of the District as the seat of national government and in the correlative need for unfettered access to federal departments and agencies for the entire national citizenry.

Id.

Cases that have applied the government contacts exception have done so where a company is present in the District of Columbia to deal with federal government qua regulator or policymaker, not with the government qua consumer. For example, Mueller Brass Co. v. Alexander Milburn Co., 152 F.2d 142 (D.C. Cir. 1945), involved the activities in Washington of an employee assigned to deal with the federal government with respect to wartime supply allocations. Because Mueller Brass involved dealings with the government in this quintessentially "governmental" role, the case does not support Rolls-Royce's argument that the exception applies also to contacts with the government qua purchaser of Rolls-Royce engines.

This distinction was made clear in Fandel v. Arabian American Oil Co., 345 F.2d 87 (D.C. Cir. 1965). In that case, we held that the activities of Aramco's corporate "state department" in Washington were protected by the government contacts exception. Id. at 88. Aramco was in Washington to "maintain continuing relationships with the State Department,... with diplomatic missions..., and with educational and international organizations... interested in, or informed about, the Middle East." Id. Critical to the analysis was that Aramco's representatives were present to "make their contribution... to the formulation of official policies." Id. In sum, we relied on the fact that these contacts with Washington "are not those customarily associated with strictly commercial operations. " Id. at 89 (emphasis added).

The point is not that regulatory liaison contacts are not intended to advance the corporation's financial interests. They are obviously intended to do so. The point is that an exception for contacts with the government qua regulatory/policymaker can be justified under the quasi-first amendment principle recognized by the cases. An exception for contacts with the federal government qua consumer cannot be similarly justified. Thus, while Rolls-Royce's regulatory liaison contacts with the federal government appear to be protected by the government contacts exception, its customers assistance operations appear not to be so protected. Rolls-Royce's activities in the latter category are not de minimis. Its invocation of the government contacts exception is therefore unavailing.4


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