Doe v. City of Boston ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE,
Plaintiff,
v. Civil Action No. 20-2948 (CKK)
CITY OF BOSTON, et al.,
Defendants.
MEMORANDUM OPINION
(June 16, 2021)
In this civil action, Plaintiff Jane Doe alleges that her former employer, the Boston Police
Department, retaliated against her by providing falsified and negative employment references to
prospective employers with whom Plaintiff applied for a job. Plaintiff now sues the Boston Police
Department, the City of Boston, and a group of unnamed Boston police officers (collectively,
“Defendants”), asserting claims under Title VII, the First Amendment, and the common law
doctrine of intentional infliction of emotional distress. In turn, Defendants have filed a [14] Motion
to Dismiss, arguing that this Court should dismiss Plaintiff’s complaint for lack of personal
jurisdiction and because venue is improper. Alternatively, Defendants request the transfer of this
case to the District of Massachusetts. Upon consideration of the briefing, the relevant authorities,
and the record as a whole, 1 the Court will GRANT IN PART Defendants’ [14] Motion.
Specifically, the Court concludes that it lacks personal jurisdiction over the Boston-based
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The Court’s consideration focuses on the following documents:
• Compl., ECF No. 3;
• Defs.’ Stmt. of P. & A. in Supp. of Mot. to Dismiss (“Defs. Mot.”), ECF No. 14-1;
• Pl.’s Stmt. of P. & A. in Opp’n to Defs.’ Mot. (Pl.’s Opp’n”), ECF No. 18; and,
• Defs.’ Reply to Pl.’s Opp’n, ECF No. 19.
In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of
assistance in rendering a decision. See LCvR 7(f).
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Defendants and will, accordingly, TRANSFER this action to the District of Massachusetts, in the
“interest of justice,” pursuant to 28 U.S.C. § 1406(a).
I. BACKGROUND
Plaintiff Jane Doe began her career at the Boston Police Department (the “Department”) in
2007. Compl. ¶ 16. At the outset of her tenure, Plaintiff was one of only “a few women of Asian
descent” within the Department. Id. But according to Plaintiff, the Department harbored a
“pervasive culture of sexism.” Id. ¶ 18. For example, Plaintiff was allegedly told that she “must
be either a bitch or a lesbian” given her interest in police work and was advised to “be careful with
her male colleagues.” Id. ¶ 17. Notwithstanding this adversity, Plaintiff “worked hard and did
well” as a young officer, ultimately receiving a promotion to the Department’s “Special Operations
Division” in 2009. Id. ¶ 18.
While awaiting transfer into the Special Operations Division, Plaintiff “attended a firearms
competition” with her fellow Special Operations officers in August of 2009. Id. ¶ 20. During the
competition, another officer from the Department “violently and repeatedly raped” Plaintiff. Id. ¶
21. “After returning to Boston” from the firearms competition, Plaintiff “reported the assaults” to
her union representative. Id. ¶ 22. Then, in September 2009, Plaintiff’s union representative
notified Plaintiff’s Department supervisors of Plaintiff’s sexual assault allegations. Id.Immediately thereafter, Plaintiff’s supervisors instructed her to “stay home” and take “paid
vacation” and “sick leave.” Id. ¶ 24.
Following Plaintiff’s report of sexual assault, investigators from the Department’s Sexual
Assault Unit reviewed Plaintiff’s allegations and “found no evidence contradicting” her claim. Id.
¶ 32. The Department, however, still suggested that Plaintiff’s assault claim was merely an
“opinion,” id., and the Department’s investigators allegedly advised Plaintiff “not to continue to
seek justice,” id. ¶ 26. Thereafter, the Department also required Plaintiff to visit a Department-
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employed psychiatrist, who allegedly asked Plaintiff inappropriate questions about Plaintiff’s
motives as a police officer and her ethnic heritage. See id. ¶ 27. Nonetheless, Plaintiff attended
six required sessions with this appointed psychiatrist, see id., and, three different medical
professionals subsequently cleared Plaintiff for a return to work, id. ¶ 29. Yet despite this
clearance, the Department refused to allow Plaintiff to return to work for almost a year. See id. ¶
27. Conversely, the Department permitted Plaintiff’s alleged rapist to return to service “less than
three months” after the alleged assault. Id. ¶ 28. In the following months, Plaintiff’s alleged rapist
“frequently drove his vehicle to [Plaintiff’s] street and parked outside her residence,” in an attempt
to intimidate Plaintiff and her family. Id. ¶ 30.
Plaintiff began to apply for new law enforcement jobs, outside of the Boston Police
Department, in 2010. See id. ¶ 33–34. Plaintiff explains that she “was motivated to apply for other
employment” because the Department had transferred her from the Special Operations team and
precluded her from participating in the “type of law enforcement work that she had trained for.”
Id. ¶ 35. Plaintiff was similarly “motivated to find employment outside of Boston because her
assailant continued to physically threaten her.” Id. To date, Plaintiff asserts that she has submitted
135 total job applications, including 111 applications sent specifically to law enforcement
agencies. Id. ¶ 37. Plaintiff finally left the Boston Police Department in 2014 and moved to
Northern Virginia, where she began employment in “the Washington, D.C., metropolitan area.”
Id. ¶ 7. In August 2020, Plaintiff moved to Rhode Island, where she continues to reside today. Id.
¶ 1.
Plaintiff alleges that since 2010, the Boston Police Department has purposefully thwarted
her efforts to secure a new law enforcement job in retaliation for her rape allegations. Specifically,
Plaintiff contends that the Department has either failed to respond to reference requests from
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potential employers or, alternatively, provided falsified information that deliberately casts Plaintiff
in a negative light. See id. ¶¶ 38–39. This includes the Department’s decision to provide “negative
statements in writing or otherwise about the Plaintiff leading to the denial of her applications,”
with a number of “D.C. employers.” Id. ¶ 11. In particular, Plaintiff alleges that she has applied
to “over twenty” positions with such D.C. employers, see id., although her complaint only
identifies one specific interaction between the Boston Police Department and a District of
Columbia employer, see id. In that interaction, the Boston Police Department allegedly provided
false background information about Plaintiff to the Department of Homeland Security (“DHS”),
causing DHS to rescind the tentative job offer it had extended to Plaintiff in 2017. Id. ¶ 41. Finally,
Plaintiff alleges that after she had finally “obtained employment in D.C.,” the Boston Police
Department “falsely informed a Washington Post reporter that [Plaintiff] had essentially been
terminated from [the Department], which led the reporter to alert [Plaintiff’s] D.C. employer” of
this allegation. Id. ¶ 43. Overall, Plaintiff alleges that the Boston Police Department’s conduct
has impeded her search for “subsequent long-term law enforcement work,” causing damage to
Plaintiff’s “professional and personal life.” Id. ¶ 46.
On January 11, 2018, Plaintiff filed an administrative complaint against the Boston Police
Department and the City of Boston, before the Massachusetts Commission Against Discrimination
(the “MCAD”). See MCAD Ruling, ECF No. 14-2, at 4. Therein, Plaintiff alleged that the Boston
Police Department and the City of Boston provided “deleterious and false employment history
information to prospective employers and journalists,” in retaliation for Plaintiff’s prior reports of
sexual assault. Id. at 8. On July 16, 2020, Plaintiff received a letter from the MCAD affirming
the dismissal of her administrative claim before the agency. Compl. ¶ 12. Within ninety days of
her MCAD dismissal, Plaintiff filed this present civil action against the Boston Police Department,
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the City of Boston, and various unnamed Boston police officers (collectively, “Defendants”). See
id. ¶¶ 5–9.
In her complaint, Plaintiff asserts three claims against Defendants. In Count I, Plaintiff
asserts a retaliation claim under Title VII, alleging that in retaliation for her prior sexual assault
complaints, Defendants withheld background information from Plaintiff’s prospective employers
or, alternatively, provided them with “negative, false information.” Id. ¶¶ 54–55. In Count II,
Plaintiff asserts a constitutional tort claim under 42 U.S.C. § 1983, alleging that Defendants
deprived Plaintiff of her First Amendment “right to be free from retaliation.” Id. ¶ 58. Finally, in
Count III, Plaintiff raises a common law claim for the intentional infliction of emotional distress,
also predicated upon Defendants allegedly intentional dissemination of falsified employment
information to Plaintiff’s prospective employers. See id. ¶¶ 76–82. Plaintiff elected to file her
present lawsuit in the District of Columbia because “Defendants’ actions, which form the basis of
this claim, were directed at D.C. employers and prevented [Plaintiff] from filling positions with
agencies that are based in D.C.” Id. ¶ 13.
On February 25, 2021, Defendants filed the pending motion, seeking the dismissal of
Plaintiff’s complaint for lack of personal jurisdiction, for improper venue, or, alternatively, to
transfer this action to the District of Massachusetts under 28 U.S.C. § 1404(a). See Defs.’ Mot. at
1; Fed. R. Civ. P. 12(b)(2), (3). Plaintiff opposes Defendants’ motion in every respect and filed
her opposition brief on May 3, 2021. Defendants filed their reply brief on May 24, 2021.
Accordingly, Defendants’ motion is now fully briefed and ripe for this Court’s review.
II. LEGAL STANDARD
When personal jurisdiction is challenged, the plaintiff bears “the burden of establishing a
factual basis for the exercise of personal jurisdiction over the defendant.” Crane v. N.Y. Zoological
Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990). At the pleading stage, the plaintiff “can satisfy that
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burden with a prima facie showing.” Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005) (quoting
Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C. Cir. 1991)). “To
make such a showing, the plaintiff is not required to adduce evidence that meets the standards of
admissibility reserved for summary judgment and trial;” but rather, the plaintiff may “rest her
arguments on the pleadings, ‘bolstered by such affidavits and other written materials as she can
otherwise obtain.’” Urban Inst. v. FINCON Servs., 681 F. Supp. 2d 41, 44 (D.D.C. 2010) (quoting
Mwani, 417 F.3d at 7). The plaintiff, however, cannot rely on bare allegations or conclusory
statements but “must allege specific acts connecting [the] defendant with the forum.” Second
Amendment Found. v. United States Conf. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)
(quotation omitted). “And unlike a motion to dismiss for failure to state a claim, the Court need
not confine itself to only the allegations in the complaint, but ‘may consider materials outside the
pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.’” Frost v.
Catholic Univ. of Am., 960 F. Supp. 2d 226, 231 (D.D.C. 2013) (quoting Jerome Stevens Pharm.,
Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005)).
III. DISCUSSION
For the reasons provided herein, the Court finds that Plaintiff has not met her burden of
establishing the existence of personal jurisdiction over Defendants. Rather than dismissing this
action, however, the Court will transfer Plaintiff’s case to the District of Massachusetts, in an
exercise of discretion pursuant to 28 U.S.C. § 1406(a).
A. Personal Jurisdiction
Defendants move this Court to dismiss Plaintiff’s complaint for lack of personal
jurisdiction. Personal jurisdiction concerns the Court’s power over the parties before it, and such
jurisdiction “can either be general or specific.” Adler v. Loyd, 496 F. Supp. 3d 269, 276 (D.D.C.
2020); see also Erwin-Simpson v. AirAsia Berhad, 985 F.3d 883, 888 (D.C. Cir. 2021). General
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jurisdiction arises “only when a defendant is ‘essentially at home’” in a particular forum. Ford
Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021) (quoting Goodyear
Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915, 919 (2011)). In the “paradigmatic” case,
“an individual is subject to general jurisdiction in her place of domicile” and a corporation in its
“place of incorporation” or “principal place of business.” Ford Motor Co., 141 S. Ct. at 1024.
Because Plaintiff does not contend that any Defendant is “at home” in the District of Columbia,
the doctrine of general jurisdiction is inapplicable here. 2
The jurisdictional analysis in this case, therefore, turns on the doctrine of specific
jurisdiction. Unlike its general jurisdiction counterpart, specific jurisdiction “covers defendants
less intimately connected with a [forum], but only as to a narrower class of claims.” Id. The
existence of specific jurisdiction requires that the defendant “take ‘some act by which [it]
purposefully avails itself of the privilege of conducting activities within the forum[.]’” Id. at 1024–
25 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). “The contacts must be the defendant’s
own choice and not ‘random, isolated, or fortuitous.’” Id. at 1025 (quoting Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 774 (1984)); see also Walden v. Fiore, 571 U.S. 277, 285 (2014).
And importantly, the exercise of specific jurisdiction is appropriate only as to those claims that
“arise out of or relate to the defendant’s contacts with the forum.” Bristol-Myers Squibb Co. v.
Superior Court of Cal., San Francisco Cty., 137 S.Ct. 1773, 1780 (2017) (quotation omitted).
“With respect to specific jurisdiction, the Court ‘must engage in a two-part inquiry: first
examine whether jurisdiction is applicable under the [D.C.] long-arm statute and then determine
whether a finding of jurisdiction satisfies the constitutional requirements of due process.” Trump
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Independently, the Court finds no basis for the proposition that the City of Boston, the Boston Police
Department, or the unnamed Boston Police Department officers are “at home” in the District of Columbia.
See Forras v. Rauf, 812 F.3d 1102, 1106 (D.C. Cir. 2016) (summarily rejecting the existence general
jurisdiction absent any supporting jurisdictional allegations).
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v. Comm. on Ways & Means, United States House of Representatives, 415 F. Supp. 3d 98, 105
(D.D.C. 2019) (quoting GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.
Cir. 2000)). For the reasons set forth below, the Court concludes that Plaintiff has not satisfied
her burden of establishing specific personal jurisdiction over Defendants within this framework.
1. D.C. Long-Arm Statute
The Court must first determine “whether jurisdiction is applicable under the [D.C.] long-
arm statute.” Trump, 415 F. Supp. 3d at 105. “The D.C. long-arm statute authorizes specific
jurisdiction ‘over a person, who acts directly or by an agent, as to a claim for relief arising from’
certain contacts that person may have with” the District of Columbia. Id. (quoting D.C. Code §
13-423(a)). For qualifying “persons” thereunder, the long-arm statute enumerates seven types of
contact with the District of Columbia that support the existence of personal jurisdiction against a
defendant. See D.C. Code § 13-423(a)(1)–(7). In this case, Plaintiff rests her jurisdictional
argument on the contacts described in subsections (a)(3) and (a)(4). See D.C. Code § 13-423(a)(3),
(4); Pl.’s Opp’n at 17–25.
As a threshold matter, the parties dispute whether the City of Boston, and therefore the
Boston Police Department, is a “person” within the meaning of the D.C. long-arm statute. See
Defs.’ Mot. at 7; Pl.’s Opp’n at 14. Neither party cites to controlling authority on this question,
and the persuasive authority from this jurisdiction is mixed. See Fay v. Humane Soc’y of United
States, No. 20-CV-1893 (RCL), 2021 WL 184396, at *4 (D.D.C. Jan. 19, 2021) (finding that the
Town of Wolfeboro, New Hampshire is a “person” under the D.C. long-arm statute); Black v. City
of Newark, 535 F. Supp. 2d 163, 166 (D.D.C. 2008) (finding that, “as a matter of law, Newark is
not a ‘person’ under” the D.C. long-arm statute.). As relevant here, however, the Massachusetts
statutory code stipulates that “[c]ities and towns shall be bodies corporate,” Mass. Gen. Laws Ann.
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ch. 40, § 1, and, accordingly, “[t]he city of Boston is a municipal corporation,” Mallory v. White,
8 F. Supp. 989, 990 (D. Mass. 1934). Given this designation of Boston as a corporate entity, the
city appears to fall within the D.C. long-arm statute’s definition of a “person,” which “includes . .
. a corporation, partnership, association, or any other legal or commercial entity.” D.C. Code §
13-421 (emphasis added). Regardless, the Court ultimately need not decide this question. Even
assuming arguendo that each Defendant does qualify as a “person” under the D.C. long-arm
statute, Plaintiff has not demonstrated that either subsection (a)(3) or (a)(4) supports jurisdiction
over those Defendants, as described in detail below. See disc. infra at § III.A.1.a–b.
a. Subsection (a)(3)
D.C. Code § 13-423(a)(3) provides for specific jurisdiction over a defendant who “caus[es]
tortious injury in the District of Columbia by an act or omission in the District of Columbia.”
“Subsection (a)(3) ‘is a precise and intentionally restricted tort section, which stops short of the
outer limits of due process, and which confers jurisdiction only over a defendant who commits an
act in the District which causes an injury in the District, without regard to any other contacts.’”
Forras v. Rauf, 812 F.3d 1102, 1107 (D.C. Cir. 2016) (quoting Moncrief v. Lexington Herald–
Leader Co., 807 F.2d 217, 221 (D.C. Cir. 1986)). Accordingly, an essential requirement of any
exercise of jurisdiction under subsection (a)(3) is a tortious act committed by the defendant within
the District of Columbia.
Plaintiff has failed to plausibly allege any such intra-forum act carried out by Defendants
in this case. In her pleadings, Plaintiff relies exclusively on the allegedly negative employment
references Defendants made to Plaintiff’s prospective employers within the District of Columbia.
See Pl.’s Opp’n at 19; Compl. ¶ 11. But Plaintiff does not allege in her complaint nor does she
argue in her opposition brief that the Boston-based Defendants provided these allegedly negative
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references while located within the District of Columbia. Instead, Plaintiff theorizes that
Defendants’ negative job referrals took place in the District of Columbia because, according to
Plaintiff, the “act” of a retaliatory employment reference “occurs where the prospective employer
receives that reference.” Pl.’s Opp’n at 20.
The Court rejects Plaintiff’s position. To begin, Plaintiff impermissibly characterizes the
“act” of a retaliatory job reference by relying on the “injury” it causes. Specifically, Plaintiff
contends that the act of a negative job reference only occurs at the point it “incur[s] the capacity
to facilitate employment related harm.” Id. But this focus on the “harm” caused by a negative
employment reference conflates the location of the injury-causing act with the injury itself. Such
an approach directly contravenes the focus of subsection (a)(3), which intentionally distinguishes
between the situs of a tortious injury and the situs of the corresponding tortious conduct. See
Forras, 812 F.3d at 1107 (“[S]ubsection (a)(3) draws a sharp line between the act of the defendant
and the injury it causes.”) (quotation omitted).
Furthermore, the most applicable line of precedent on this issue cuts decidedly against
Plaintiff’s reading of subsection (a)(3). In the context of defamation, the D.C. Circuit has
consistently found that subsection (a)(3) does not support the exercise of jurisdiction over a non-
resident defendant who publishes a defamatory statement in another forum, even if that defendant
subsequently directs the statement into the District of Columbia. See, e.g., Moncrief, 807 F.2d at218–21; McFarlane v. Esquire Magazine, 74 F.3d 1296, 1300 (D.C. Cir. 1996); Forras, 812 F.3d
at 1107. While a plaintiff may suffer reputational injury within the District, the act of the
defamation itself still occurs where the defendant made the defamatory statements. See Moncrief,
807 F.2d at 221. Despite Plaintiff’s gamely attempts to distinguish such case law, see Pl.’s Opp’n
at 19–22, the Court finds this defamation precedent to be applicable and highly persuasive.
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Applying a plain reading of this case law here, the “act” of Defendants’ negative employment
references occurred in the place where those references were rendered (i.e., Boston), not where
they happened to be received or where they might have caused Plaintiff’s alleged injury.
By way of example, this Court’s jurisdictional analysis in National Bank of Washington v.
Mallery, 669 F. Supp. 22 (D.D.C. 1987), is illustrative. There, the plaintiff sued an accounting
firm for damages caused by the firm’s misleading financial report, which convinced the plaintiff
to fund a $9.5 million promissory note. Id. at 24. To establish personal jurisdiction over the
accounting firm in the District of Columbia, the plaintiff relied, in part, on subsection (a)(3) of the
D.C. long-arm statute, which requires some intra-forum conduct. Id. at 26. The relevant tortious
conduct in Mallery turned on the accounting firm’s “report containing the alleged
misrepresentation,” which “was written in Maryland” but then “sent to [the] plaintiff in the District
of Columbia for its lending decisions.” Id. For the purposes of subsection (a)(3), therefore, the
Mallery Court considered “where the ‘act’ of misrepresentation [wa]s committed when the
misrepresentation [wa]s made outside the District of Columbia but communicated inside the
District’s bounds.” Id. Relying on defamation case law as “a useful parallel,” the Mallery Court
noted that “District of Columbia law defines the ‘act’ of [a defamatory] statement as occurring
where the statement was written or spoken, not where it was understood by the third party.” Id. at
27 (citing Moncrief v. Lexington Herald–Leader Co., 807 F.2d 217 (D.C. Cir. 1986)). The Mallery
Court “appl[ied] the logic that guided these [defamation] decisions” and found that subsection
(a)(3) did not supply jurisdiction over the accounting firm, because the firm’s “act of
[misrepresentation] occurred in Maryland, where the report was written,” not in the District of
Columbia where the plaintiff was allegedly deceived. Id. This persuasive reasoning in Mallery
further demonstrates that the “act” of Defendants’ allegedly falsified job references occurred in
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the place those references were made (Boston), not where they were received (District of
Columbia).
Finally, as a matter of common sense, Plaintiff’s theory contradicts a straightforward
understanding of when and where an “act” occurs. Again, Plaintiff argues that the “act” of a
negative employment reference only occurs in the place where the reference is received, because
such an “act” does not take place unless and until it creates “the possibility of [a] tangible,
employment-related injury.” Pl.’s Opp’n at 21. Under this interpretation, however, sending a
negative employment reference would not constitute an “act” at all, if the reference was never
received. This defies common sense. For example, a former employer who sends a falsified
voicemail about a former employee has certainly carried out an “act,” in the plainest sense of the
word. See Black’s Law Dictionary (9th ed. 2009) (defining “act” as “[s]omething done or
performed”). But what if the malevolent employer happened to dial the wrong telephone number,
such that his falsified message never reached its intended recipient? This error would prevent the
impending injury, but it would not negate the fact the employer’s misguided telephone call still
constituted an independent act. Plaintiff’s proposed jurisdictional theory does not clearly account
for this logical inconsistency, and its adoption would, therefore, undermine the specific focus
subsection (a)(3) places on the location of a tortious act, separate and apart from the injury it
causes.
For these various reasons, the Court rejects Plaintiff’s assertion that Defendants caused a
“tortious injury in the District of Columbia by an act or omission in the District of Columbia.”
D.C. Code § 13-423(a)(3) (emphasis added). Absent such an intra-forum “act,” this Court cannot
exercise specific jurisdiction over Defendants under subsection (a)(3) of the D.C. long-arm statute.
See Forras, 812 F.3d at 1107.
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b. Subsection (a)(4)
Alternatively, Plaintiff contends that Defendants are subject to personal jurisdiction under
subsection (a)(4) of the D.C. long-arm statute. See Pl.’s Opp’n at 23–25. Unlike its statutory
neighbor, subsection (a)(3), subsection (a)(4) provides for jurisdiction over a defendant who
“caus[es] tortious injury in the District of Columbia by an act or omission outside the District of
Columbia.” D.C. Code § 13-423(a)(4). But because subsection (a)(4) reaches tortious conduct
beyond the territorial limits of the District of Columbia, an exercise of jurisdiction thereunder
requires “something more.” Crane v. Carr, 814 F.2d 758, 763 (D.C. Cir. 1987). Specifically,
subsection (a)(4) applies if, and only if, the defendant (1) “regularly does or solicits business” in
the District of Columbia, (2) “engages in any other persistent course of conduct” in the District of
Columbia, or (3) “derives substantial revenue from goods used or consumed, or services rendered,
in the District of Columbia.” D.C. Code § 13-423(a)(4). Additionally, the defendant’s “plus
factor” conduct supporting jurisdiction under subsection (a)(4) must be “separate from and in
addition to the in-state injury” the defendant allegedly caused. Carr, 814 F.2d at 762. This
requirement serves to “filter out cases in which the in-forum impact is an isolated event and the
defendant otherwise has no, or scant, affiliations with the [District of Columbia].” Id. at 763.
To satisfy the “plus factor” requirement here, Plaintiff argues that Defendants have
engaged in a “persistent course of conduct” within the District of Columbia. Specifically, Plaintiff
contends that officers from the Boston Police Department attend National Police Week, an annual,
week-long event organized by “non-governmental sponsors” and held within the District of
Columbia. Pl.’s Opp’n at 24; see also https://nleomf.org/programs-events/national-police-week
(last visited June 14, 2021). Plaintiff alleges that unnamed Boston Police officers “routinely
attend” National Police Week, and to support this proposition, Plaintiff cites two specific examples
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of Boston police officers traveling into the District of Columbia for National Police Week events.
See id. First, Plaintiff indicates that in 2015, three Boston police officers received honorary awards
during National Police Week within the District of Columbia. See id. And second, Plaintiff notes
that in 2019, two officers from the Boston Police Department “sang the National Anthem at Police
Week’s Peace Officers’ Memorial Service.” Id. According to Plaintiff, such conduct demonstrates
the Boston Police Department’s “routine participation” in National Police Week, which is
sufficient to show a “persistent course of conduct” within the District of Columbia, for the purposes
of subsection (a)(4). Id. at 25.
The Court disagrees. To begin, Plaintiff’s allegations regarding the Boston Police
Department’s persistent course of D.C.-based conduct are notably vague. Plaintiff contends that
the Department “routinely participates” in National Police Week, but she makes no mention of this
point anywhere in her complaint, nor has she provided any supporting affidavits or record evidence
to bolster this otherwise conclusory assertion. Instead, Plaintiff references public source material
showing that in 2015 and 2019, respectively, a handful of Boston police officers joined National
Police Week to receive awards and sing the national anthem. See id. at 24. This type of sporadic
conduct, which rests on only two identified trips into the District of Columbia, does not show a
persistent course of intra-forum conduct under subsection (a)(4). See, e.g., The Urban Institute v.
FINCON Servs., 681 F. Supp. 2d 41, 47–48 (D.D.C. 2010) (finding three trips to solicit business
in the District did not create a persistent course of conduct); Bauman v. Butowsky, 377 F. Supp. 3d
1, 9 (D.D.C. 2019) (“As to Heavin’s alleged [two] visits to D.C. – neither of which relates to this
case – there is ample authority rejecting such limited and extraneous contacts under § (a)(4)”).
Relatedly, Plaintiff’s vague assertions of D.C.-based conduct rely entirely on the unilateral
actions of unidentified Boston police officers. See Pl.’s Opp’n at 24–25. As noted above,
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Plaintiff’s jurisdictional allegations focus on the actions of Boston police officers who individually
traveled to the District of Columbia to receive National Police Week awards in 2015 and to sing
the national anthem in 2019. See id. at 24. Yet, Plaintiff does not even allege, let alone
demonstrate, that the Boston Police Department itself was involved in any decision by an
individual Boston police officer to travel to the District of Columbia for National Police Week.
For example, Plaintiff nowhere alleges that the Department sends or even encourages its officers
to attend National Police Week. Put otherwise, Plaintiff has offered no evidence to suggest that
Boston police officers who travel to National Police Week do so in their official capacities, as
“agents” of the Boston Police Department or the City of Boston. See D.C. Code § 13-423(a)
(allowing for “personal jurisdiction over a person, who acts directly or by an agent”) (emphasis
added); cf. Daughtry v. Arlington Cty., Va., 490 F. Supp. 307, 313 (D.D.C. 1980) (finding personal
jurisdiction over municipality under § 13-423(a) based upon the conduct of its officer while
“acting as an official of the County” and “serv[ing] as an agent of the County”). As such, the
jurisdictional conduct Plaintiff relies upon to meet the “plus factor” requirement under subsection
(a)(4) is not clearly attributable to the actual defendants in this case.
As a final matter, the jurisdictional significance of the intermittent trips cited by Plaintiff
is further reduced by the relationship between National Police Week and the District of Columbia.
“District of Columbia courts have . . . recognized that certain activities which occur in this
jurisdiction due to its status as the nation’s capital should not be considered in the jurisdictional
analysis.” Lewy v. S. Poverty L. Ctr., Inc., 723 F. Supp. 2d 116, 125 (D.D.C. 2010). For example,
under the so-called “government contacts” exception, courts exclude from their jurisdictional
analyses “any contacts due to a nonresident’s entry into the District of Columbia for the purpose
of contacting federal governmental agencies.” Toumazou v. Turkish Republic of N. Cyprus, 71 F.
15Supp. 3d 7, 16 (D.D.C. 2014) (quotation omitted). Although trips to the District of Columbia for
National Police Week do not fit squarely within the “government contacts” exception, the logic
behind this doctrine is still germane. Namely, police officers who participate in National Police
Week travel first and foremost to the event itself, which just so happens to occur in the District of
Columbia, in no small part “due its status as the nation’s capital.” Lewy, 723 F. Supp. 2d at 125;
see also https://nleomf.org/memorial (last visited June 14, 2021) (explaining that the National Law
Enforcement Officers Memorial is in Washington, D.C.). While the Court does not exclude
Plaintiff’s National Police Week allegations from its jurisdictional analysis altogether, the clear
connection between National Police Week and the District of Columbia, as the nation’s capital,
minimizes the weight of Plaintiff’s National Police Week allegations in the jurisdictional context
of subsection (a)(4).
For these reasons, the Court concludes that Plaintiff has not met her burden of
demonstrating that Defendants engaged in a “persistent course of conduct” within the District of
Columbia. Absent such a showing or any other applicable “plus factor,” the Court finds no basis
for the exercise of jurisdiction over Defendants under subsection (a)(4) of the D.C. long-arm
statute.
****
In sum, Plaintiff has attempted to establish personal jurisdiction over Defendants under
either subsection (a)(3) or (a)(4) of the D.C. long-arm statute. See Pl.’s Opp’n at 17–25. But, as
explained above, Plaintiff has not provided sufficient material to establish the applicability of
either subsection in this case. Accordingly, Plaintiff has failed to carry her burden of plausibly
establishing the existence of personal jurisdiction in the face of Defendants’ Rule 12(b)(2) motion
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for dismissal. See Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990) (explaining
that the plaintiff bears the burden of establishing personal jurisdiction).
2. Constitutional Due Process
Even if Plaintiff had established jurisdiction under the D.C. long-arm statute, Plaintiff
would still need to show that such an exercise of jurisdiction over Defendants “satisfies the
constitutional requirements of due process.” Trump, 415 F. Supp. 3d at 105. To satisfy this
burden, “a plaintiff must show ‘minimum contacts’ between the defendant and the forum
establishing that ‘the maintenance of the suit does not offend traditional notions of fair play and
substantial justice.’” GTE New Media, 199 F.3d at 1347 (quoting Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)). “If the plaintiff relies on a theory of specific jurisdiction, this minimum
contacts analysis focuses on the relationship among the defendant, the forum, and the litigation.”
IMAPizza, LLC v. At Pizza Ltd., 334 F. Supp. 3d 95, 113 (D.D.C. 2018) (quotation omitted).
Importantly, this analysis “looks to the defendant’s contacts with the forum State itself, not
[simply] the defendant’s contacts with persons who reside there.” Walden v. Fiore, 571 U.S. 277,
285 (2014).
Plaintiff has not demonstrated that the exercise of personal jurisdiction over Defendants in
this case would be fair and reasonable, as due process requires. In her opposition brief, Plaintiff
focuses exclusively on the “contacts” Defendants supposedly established with the District of
Columbia when they “continued to provide false, negative job referrals to [her] prospective
employers in D.C.” Pl.’s Opp’n at 26. For example, Plaintiff broadly asserts that her “complaint
identifies . . . multiple instances in which Defendants’ acts or omissions resulted in the loss of an
employment opportunity for [Plaintiff] in the District.” Id. But the “minimum contacts” analysis
for personal jurisdiction focuses expressly on the specific actions of the defendant and how those
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actions connect him with the relevant forum. See Walden, 571 U.S. at 285. Through this lens, the
relevant jurisdictional conduct in Plaintiff’s pleadings is, in fact, quite narrow. While Plaintiff
allegedly applied to over twenty jobs in the District of Columbia herself, she identifies only one
occasion on which Defendants contacted a prospective D.C. employer, DHS, to provide allegedly
false reference information. See Compl. ¶ 41. Otherwise, Plaintiff points to no other direct contact
between Defendants and the District of Columbia.
This job-reference related contact is insufficient to show that Defendants should have
“reasonably anticipate[d] being haled into” a District of Columbia court. World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297–98 (1980). As noted, Plaintiff has only alleged one formal
contact between Defendants and persons based in the District of Columbia. See Compl. ¶ 41; Pl.’s
Opp’n at 25–27. And importantly, this contact with DHS did not occur because of Defendants’
independent efforts to reach into the District of Columbia, but rather because of Plaintiff’s decision
to apply for a D.C.-based job. Put otherwise, Defendants’ principal D.C.-based contact is directly
antecedent to Plaintiff’s unilateral decision to move away from Boston and seek employment in
the District of Columbia. Had Plaintiff not done so, Defendants would have had no cause to
contact D.C.-based employers about Plaintiff. The Supreme Court has expressly counseled against
predicating specific jurisdiction on such forum-contacts that are so closely tied to the conduct of
the plaintiff. See Walden, 571 U.S. at 285; Fiorentine v. Sarton Puerto Rico, LLC, 486 F. Supp.
3d 377, 386 (D.D.C. 2020) (“Plaintiffs’ jurisdictional theory relies entirely on Mr. Fiorentine’s
unilateral decision to ‘bring’ the text messages at issue into this district. Substantiating an exercise
of personal jurisdiction on such an unpredictable connection with the District of Columbia is far
too attenuated to satisfy the ‘notions of fair play and substantial justice’ underwriting constitutional
due process.”).
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Plaintiff’s remaining allegations are simply too vague and conclusory to demonstrate
sufficient “minimum contacts” between Defendants and the District of Columbia. Apart from her
application with DHS, Plaintiff vaguely alleges that Defendants “purposefully engaged in contact
with the [other] D.C. employers” with whom she applied, Compl. ¶ 11, but offers no factual
allegations or record evidence explaining who these employers were, or when and how Defendants
contacted them. When evaluating personal jurisdiction, the Court need not accept such
unsubstantiated and ambiguous allegations as true. See Frost v. Cath. Univ. of Am., 960 F. Supp.
2d 226, 231 (D.D.C. 2013), aff’d, 555 F. App’x 6 (D.C. Cir. 2014). Relatedly, Plaintiff’s claims
rely, in part, on the allegation that Defendants were “nonresponsive when . . . potential [D.C.]
employers reached out for reference information regarding [Plaintiff].” Compl. ¶ 38. Plaintiff,
however, does not rely on this allegation in her opposition brief to support jurisdiction, and for
good reason. The Court finds no basis to conclude that Defendants established “minimum
contacts” with the District of Columbia by remaining in Boston and failing to contact D.C.-based
employers.
Finally, Plaintiff’s complaint includes a singular allegation that on “another occasion,” the
Boston Police Department “falsely informed a Washington Post reporter that [Plaintiff] had
essentially been terminated from [the Boston Police Department] . . . ” Compl. ¶ 43. Unlike the
allegations of Defendants passively responding to D.C.-based job-reference queries, Plaintiff’s
allegation regarding Defendants’ contact with the Post shows more affirmative jurisdictional
conduct. Nonetheless, this allegation alone does not render jurisdiction constitutionally
permissible in this case. As a threshold matter, Plaintiff abandoned this allegation in her opposition
brief, making no mention of Defendants’ alleged contacts with the Post and excluding this alleged
conduct from her jurisdictional argument altogether. See Pl.’s Opp’n at 12–28. The Court,
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therefore, will not grant relief in Plaintiff’s favor based upon a jurisdictional argument she has not
asserted herself. See Golden v. Mgmt. & Training Corp., 319 F. Supp. 3d 358, 385 n.8 (D.D.C.
2018) (“[T]he Court will not confer on CGSI the benefits of an argument it did not itself raise.”).
Regardless, Defendants’ alleged contact with the Post is simply too ambiguous to establish
“minimum contacts” with the District of Columbia. For example, Plaintiff does not allege where
the anonymous Post reporter was when he or she talked with Defendants. Relatedly, Plaintiff does
not explain how this contact originated, i.e., whether the reporter solicited a comment from
Defendants or whether Defendants themselves sought out the reporter. Instead, Plaintiff merely
alleges that Defendants provided false information to a Post reporter on a single occasion. See
Compl. ¶ 41. This open-ended allegation, standing on its own, does not show a “substantial
connection” between Defendants and the District of Columbia. Cf. Calder v. Jones, 465 U.S. 783,
788–89 (1984) (finding sufficient contacts with California where the defendants themselves wrote
a libelous article, researched using California-based sources).
In sum, Plaintiff has not carried her burden of showing that the Boston-based Defendants
in this action have sufficient “minimum contacts” with the District of Columbia. Exercising
specific personal jurisdiction over Defendants, therefore, would not comport with the requirements
of constitutional due process. See Int’l Shoe Co., 326 U.S. at 316.
3. Jurisdictional Discovery
As a final matter, Plaintiff requests contingently that the Court allow her to conduct limited
jurisdictional discovery. See Pl.’s Opp’n at 27. “The D.C. Circuit has consistently held that district
courts exercise broad discretion in resolving jurisdictional discovery disputes.” Cockrum v.
Donald J. Trump for President, Inc., 319 F. Supp. 3d 158, 187 (D.D.C. 2018) (citing Naartex
Consulting Corp. v. Watt, 722 F.2d 779, 788 (D.C. Cir. 1983)). “[I]n order to get jurisdictional
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discovery a plaintiff must have at least a good faith belief that such discovery will enable it to
show that the court has personal jurisdiction over the defendant.” Caribbean Broad. Sys. Ltd. v.
Cable & Wireless, PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998). Furthermore, “a plaintiff must
make a ‘detailed showing of what discovery it wishes to conduct or what results it thinks such
discovery would produce.’” Williams v. ROMARM, 187 F. Supp. 3d 63, 72 (D.D.C. 2013) (quoting
Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 53 (D.D.C. 2003)).
The Court will exercise its discretion and deny Plaintiff’s request for jurisdictional
discovery. The full scope of Plaintiff’s argument for jurisdictional discovery provides:
“[Plaintiff’s] well-pleaded complaint and [her] detailed opposition motion enumerate several
meaningful contacts between the defendants and the forum and demonstrate why personal
jurisdiction over defendants is both legally sound and fair, raising more than the mere ‘specter of
jurisdiction’ required for jurisdictional discovery to be granted.” Pl.’s Opp’n at 27. The Court
finds this assertion to be insufficiently detailed to warrant jurisdictional discovery, as it does not
clearly direct the Court to any particular source or material Plaintiff would like to review. See
Trump v. Comm. on Ways & Means, United States House of Representatives, 415 F. Supp. 3d 98,
112 (D.D.C. 2019) (explaining that “generalized requests and predictions are not enough to justify
jurisdictional discovery”) (quotation omitted).
Finally, the Court notes the apparent inefficiencies attendant to the prospect of
jurisdictional discovery in this case. As explained below, the Court will transfer this case to the
District of Massachusetts, a court that both parties agree possesses personal jurisdiction over the
Boston-based Defendants in this action. See disc. infra at § III.B. It would seem both improvident
and wasteful to permit a round of discovery to test the questionable bounds of this Court’s
jurisdiction over a set of non-resident defendants, where another federal tribunal with jurisdiction
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over those same parties is so readily accessible. For these reasons, the Court will deny Plaintiff’s
request for jurisdictional discovery.
B. Section 1406(a) Transfer
In their motion, Defendants alternatively request that the Court transfer this action under
28 U.S.C. § 1404(a) to the District of Massachusetts. See Defs.’ Mot. at 16. Because the Court
lacks personal jurisdiction over Defendants, § 1404(a) is not the proper procedural vehicle for such
a transfer. See Caluyo v. DaVita, Inc., 938 F. Supp. 2d 67, 69 (D.D.C. 2013). Instead, the Court
looks to 28 U.S.C. § 1406(a), which allows it, “in the interest of justice,” to transfer a “case to any
district or division in which it could have been brought,” even where that case was originally filed
in the “wrong” judicial district. Of note, § 1406(a) is applicable where, as here, a court lacks
personal jurisdiction over the defendants. Sinclair v. Kleindienst, 711 F.2d 291, 294 (D.C. Cir.
1983) (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466–67 (1962)). Ultimately, the decision
of whether to dismiss or transfer a case “in the interest of justice” is committed to the sound
discretion of the district court. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir.
1983). But “[g]enerally, the interest of justice requires transferring such cases to the appropriate
judicial district rather than dismissing them.” Sanchez ex rel. Rivera-Sanchez v. United States,
600 F. Supp. 2d 19, 22 (D.D.C. 2009).
Here, the Court will exercise its discretion and transfer this action to the District of
Massachusetts under § 1406(a), as opposed to dismissing the case outright. Defendants
acknowledge that “[t]his action might have been brought originally in Massachusetts because” the
Boston-based Defendants “are residents thereof.” Defs.’ Mot. at 17. Plaintiff similarly concedes
that the District of Massachusetts is a suitable forum for this action. See Pl.’s Opp’n at 11.
Furthermore, Defendants have not, at least at this time, raised any merits-based defenses that would
render this action clearly futile in a court possessing jurisdiction over the parties. Finally, the Court
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notes that prosecuting this action in the District of Massachusetts appears both logical and
convenient. The case itself implicates the relationship between the Boston Police Department and
one of its former employees. Relatedly, the defendants in this action are the Boston Police
Department, the City of Boston, and a group of unnamed Boston police officers. In fact, even
Plaintiff herself has resided in Rhode Island since the time she filed her present complaint, see
Compl. ¶ 1, and is, therefore, more proximate to the District of Massachusetts than to this judicial
district. For these reasons, transfer of this action to the District of Massachusetts is appropriate
and furthers “the interest of justice.” 28 U.S.C. § 1406(a).
IV. CONCLUSION
For the foregoing reasons set forth in this Memorandum Opinion, the Court will GRANT
IN PART Defendants’ [14] Motion. Specifically, the Court concludes that it lacks personal
jurisdiction over the Boston-based Defendants and DENIES Plaintiff’s corresponding request for
limited jurisdiction discovery. Instead, the Court will TRANSFER this action to the District of
Massachusetts, in the “interest of justice,” pursuant to 28 U.S.C. § 1406(a). An appropriate Order
accompanies this Memorandum Opinion.
Date: June 16, 2021
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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