West v. Holder , 60 F. Supp. 3d 190 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ARTHUR WEST,
Plaintiff,
v. Civil Action No. 14-98 (JDB)
ERIC HOLDER, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Arthur West brings this action against a group of United States government and
Washington state defendants: Eric Holder, Attorney General of the United States; the United
States Department of Justice; Jay Inslee, Governor of the State of Washington; and Sharon
Foster, Chair of the Washington State Liquor Control Board.1 West seeks “declaratory and
injunctive relief” for a “major federal action”: namely, that communications between state and
federal defendants concerning the Department of Justice’s policy towards Washington’s
marijuana legislation “[rose] to the level of substantial and expressive harm to the structure of
federalism in violation of the 9th and 10th Amendments and the common law Anti-
commandeering Doctrine.” 2d Am. Compl. [ECF No. 14] at 1. The state defendants have filed a
motion to dismiss for lack of personal jurisdiction under Federal Rule 12(b)(2). For the reasons
discussed below, the Court will grant the state defendants’ motion to dismiss.
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For ease of reference, defendants Holder and the United States Department of Justice will be referred to
collectively as “federal defendants.” Jay Inslee and Sharon Foster will be referred to collectively as “state
defendants.”
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BACKGROUND
Washington recently enacted an initiative measure (“I-502”) concerning the distribution
and possession of marijuana for recreational purposes, which included legislation providing that
marijuana use and possession do not constitute criminal or civil offenses under Washington state
law. Wash. Rev. Code § 69.50.360. Because possessing marijuana is still illegal under federal
law, I-502 raised the question of whether the Department of Justice would enforce the federal
marijuana prohibition within the state. As a result, federal and state officials began a series of
communications that culminated in a memorandum issued by the Department of Justice outlining
the federal government’s positions and priorities in regards to drug enforcement in the state of
Washington. Defs.’ Renewed Mot. to Dismiss [ECF No. 17] (“Defs.’ Mot.”) at 3.
West claims that the communications between federal and Washington state officials
violated the “anti-commandeering doctrine” and a number of constitutional amendments. 2d Am.
Compl. at 1. Although his allegations are not entirely clear, West appears to allege that when the
federal government issued its memorandum concerning I-502, it unconstitutionally
“commandeered” Washington’s control over marijuana policy within the state. Id. at 19. West
also claims that “defendants failed . . . to consider [any] reasonably foreseeable impacts to the
urban and natural environment under [the National Environmental Policy Act, 42 U.S.C. 4331],”
and requests a declaratory judgment and some unspecified injunctive relief. Id. at 2, 19. In
response, the state defendants have moved to dismiss for lack of personal jurisdiction.2
LEGAL STANDARD
A plaintiff bears the burden of establishing a court’s personal jurisdiction over a
defendant who moves to dismiss the claims against him under Rule 12(b)(2). See Mwani v. bin
Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). “Moreover, to establish a prima facie case, plaintiffs are
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Federal defendants only recently entered an appearance, through the filing of a motion to dismiss.
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not limited to evidence that meets the standards of admissibility required by the district court.
Rather, they may rest their argument on their pleadings, bolstered by such affidavits and other
written materials as they can otherwise obtain.” Id. at 7. Nevertheless, a plaintiff must allege
“specific facts upon which personal jurisdiction may be based,” Blumenthal v. Drudge, 992 F.
Supp. 44, 53 (D.D.C. 1998), and cannot rely on conclusory allegations, see Elemary v. Phillipp
Holzmann AG, 533 F. Supp. 2d 116, 121 (D.D.C. 2008).
DISCUSSION
Under Federal Rule 4(k), a federal court has personal jurisdiction over a defendant “who
is subject to the jurisdiction of a court of general jurisdiction in the state where the district court
is located.” Fed. R. Civ. P. 4(k)(1)(A). Thus, this Court has personal jurisdiction over the state
defendants if a District of Columbia court could exercise jurisdiction over them.
There are two distinct variants of personal jurisdiction: (1) general jurisdiction, which
allows a court to entertain a claim against a defendant “without regard to the claim’s relationship
vel non to the defendant’s forum-linked activity”; and (2) specific jurisdiction, for “controversies
based on acts of a defendant that touch and concern the forum.” See Kopff v. Battaglia, 425 F.
Supp. 2d 76, 81 (D.D.C. 2006) (citing Steinberg v. Int’l Criminal Police Org., 672 F.2d 927, 928
(D.C. Cir. 1981)). “For an individual, the paradigm forum for the exercise of general jurisdiction
is the individual’s domicile.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct.
2846, 2853 (2011). Specific jurisdiction requires a two-step inquiry: “first, jurisdiction over the
defendant must be authorized by the forum’s long-arm statute, here D.C. Code § 13-423”; and,
second, the “exercise of that jurisdiction must satisfy the federal requirement of constitutional
due process.” D’Onofrio v. SFX Sports Grp., Inc., 534 F. Supp. 2d 86, 90 (D.D.C. 2008) (citing
United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995)).
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I. Personal Jurisdiction Over Inslee
This Court may exercise personal jurisdiction over Inslee if it can establish
general or specific jurisdiction over him. Kopff, 425 F. Supp. 2d at 81. Inslee is not domiciled in
the District of Columbia, so the Court may not exercise general jurisdiction over him under the
relevant D.C. statute. See D.C. Code § 13-422. For this Court to exercise specific jurisdiction
over Inslee, his conduct must fall within the District’s long-arm statute. Ferrara, 54 F.3d at 828.
That statute provides, in part:
A District of Columbia court may exercise personal jurisdiction over a person, who acts
directly or by an agent, as to a claim for relief arising from the person’s—
(1) Transacting any business in the District of Columbia;
(2) Contracting to supply services in the District of Columbia;
(3) Causing tortious injury in the District of Columbia by an act or omission in the
District of Columbia;
(4) Causing tortious injury in the District of Columbia by an act or omission outside the
District of Columbia if he regularly does or solicits business . . . in the District of
Columbia;
(5) Having an interest in, using, or possessing real property in the District of Columbia;
(6) Contracting to insure or act as surety for . . . [a] contract . . . to be performed within
the District of Columbia…;
(7) Martial or parent and child relationship in the District of Columbia…
D.C. Code § 13-423(a).
As a preliminary matter, it is unclear whether West brings this action against Inslee
individually or in his capacity as a state official. If Inslee is sued in his individual capacity, the
Court must determine whether his conduct fits into one of the seven provisions of the long-arm
statute. If Inslee is sued in his official capacity, however, the inquiry is more complicated. A suit
brought against an official in his official capacity is generally considered to be a suit against the
state. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). D.C’s long-arm statute
does not apply to states, though, meaning that the Court would be unable to exercise personal
jurisdiction in this case. Ferrara, 54 F.3d at 828. An exception to this general rule may transform
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the suit against Inslee in his official capacity to one in his individual capacity for the purposes of
the long-arm statute. See Ex Parte Young, 209 U.S. 123 (1908). The Court will examine these
possibilities in turn.
a) Inslee Sued in His Individual Capacity
West does not argue that Inslee’s conduct as an individual falls under any of the
provisions of the long-arm statute, and it is not clear that any of the provisions apply. West does
not allege that Inslee caused “tortious injury” under subsections (a)(3) or (a)(4). See GTE Media
Servs., v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000) (noting that “tortious injury”
under subsection (a)(4) is narrowly construed). And even if West’s allegations did concern
“tortious injury,” that injury was not felt “in the District of Columbia” as the statute requires,
because any policies resulting from meetings between Inslee and federal officials affected
marijuana enforcement procedures in the state of Washington, not in the District. See D.C. Code
§§ 13-423(a)(3), (a)(4). West does not allege that Inslee’s communications with the federal
government resulted in any sort of contract—which might satisfy subsections (a)(2) or (a)(6)—
and although Inslee maintains a liaison office in the District, West’s claims do not arise from
Inslee’s property interest in that office, so subsection (a)(5) is not satisfied. The marital
relationship provision, section 13-423(a)(7), is plainly inapplicable here.
The only provision of the statute that could potentially be relevant to Inslee’s contacts
with the District is the “transacting any business” provision, subsection (a)(1). But contacts
falling under the “transacting any business provision” usually must be commercial. See, e.g.
Mouzavires v. Baxter, 434 A.2d 988, 992 (D.C. 1981) (“It is now well-settled that the
‘transacting any business’ provision embraces those contractual activities of a nonresident
defendant which cause a consequence here.”). Further, some courts have held that commercial
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activities do not satisfy the provision unless the activities were directly related to the transaction
of business within the District. See Brunson v. Kalil & Co., 404 F. Supp. 2d 221, 234 (D.D.C.
2005) (holding that defendant’s communications with a company in the District for the purpose
of receiving a commission did not constitute transacting any business under the statute, because
“[t]he contact arose out [of] a desire to be paid services rendered, not out of any desire to do
business in the District of Columbia”); see also Cellutech, Inc. v. Centennial Cellular Corp., 871
F. Supp. 46, 49-50 (D.D.C. 1994) (holding that negotiations conducted by mail and wire into the
District concerning a contract that would be performed outside of the District were insufficient to
establish jurisdiction under the long-arm statute).
West does not allege that Inslee’s coordination with federal officials constituted
commercial activity or that Inslee was transacting business within the District. West also does
not cite any cases supporting an interpretation of the “transacting any business” provision that
includes non-commercial activity. Because he has not pointed to any contacts between Inslee and
the District that fall under the provisions of the long-arm statute, this Court lacks specific
jurisdiction over Inslee to the extent he is being sued in his individual capacity.
b) Inslee Sued in His Official Capacity
A suit against a state official in his official capacity is usually treated as a suit against the
state. Will, 491 U.S. at 71. Whether that is true for the purposes of the personal jurisdiction
analysis is uncertain. See Ferrara, 54 F.3d at 831. One thing is certain: a state is not a “person”
under the Due Process clause, see South Carolina v. Katzenbach, 383 U.S. 301, 323-23 (1966),
so if the suit is considered to be against the state, the due-process prong of the personal
jurisdiction analysis is effectively satisfied. But that leaves the long-arm statute.
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States do not fall under D.C.’s long-arm statute, because the statute only allows the
District to “exercise personal jurisdiction over a person,” D.C. Code § 13-423(a) (emphasis
added), and “person” is defined in the D.C. Code as “an individual, his executor, administrator,
or other personal representative, or a corporation, partnership, association, or any other legal or
commercial entity.” D.C. Code § 13-421. States are not considered to be “legal or commercial
entit[ies],” meaning that they are not included under the long-arm statute. Ferrara, 54 F.3d at
832. In most instances, then, a suit against Inslee in his official capacity would operate as a suit
against the state of Washington, and the D.C. long-arm statute would not allow this Court to
exercise personal jurisdiction over the state of Washington.
There is a potential exception, however, to this general rule. In Ex Parte Young, the
Supreme Court held that a claim brought against a state officer for allegedly acting
unconstitutionally “[strips the official] of his official or representative character and [subjects
him] in his person to the consequences of his individual conduct.” 209 U.S. at 160; see also
Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002) (extending the exception to
include “ongoing violations of federal law”). The Ex Parte Young exception primarily operates
to prevent a state official from invoking sovereign immunity under the Eleventh Amendment
when she is sued in her official capacity for violating federal law. See Cnty. Bd. of Arlington VA
v. U.S. Dep’t of Transp., 705 F. Supp. 2d 25, 30 (D.D.C. 2010) (“[P]laintiffs name state officials
. . . in order to avoid the Eleventh Amendment bar to bringing a suit directly against a State.”).
It is an open question in this circuit whether, under the D.C. long-arm statute, a court may
exercise personal jurisdiction over an official sued under Ex Parte Young. The suit could still, for
example, be considered to be against the state for the purposes of personal jurisdiction. On the
other hand, an official who is “stripped of his official or representative character” might be
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viewed as an individual for the purposes of personal jurisdiction. Ex Parte Young, 209 U.S. at
160. But no matter: even if the suit falls under Ex Parte Young, and even if it is therefore
considered to be a suit against Inslee in his individual capacity for the purposes of personal
jurisdiction, the Court could not exercise jurisdiction over him for the reasons already discussed
above. Hence, regardless of whether West sues Inslee in his individual or official capacity (or
under Ex Parte Young), because Inslee’s conduct is not covered by D.C.’s long-arm statute this
Court may not exercise personal jurisdiction over him.
II. Personal Jurisdiction Over Foster
West also argues that this Court can exercise personal jurisdiction over Foster, but this
argument fails for the same reasons that the Court cannot exercise personal jurisdiction over
Inslee. Foster is not domiciled in the District of Columbia. If Foster is sued in her official
capacity, the Court lacks personal jurisdiction for the reasons discussed above. And if Foster is
sued in her individual capacity, West does not allege conduct that falls under the long-arm
statute. In fact, West alleges almost nothing to allow this Court to exercise personal jurisdiction
over Foster individually, save his allegations that “through her agents,” Foster “manifested a
presence in the D.C. forum.” 2d Am. Compl. at 10. This is insufficient for the D.C. long-arm
statute; moreover, such bare and conclusory allegations fail to satisfy the requirements of due
process. The Due Process Clause constrains this Court in its exercise of personal jurisdiction, see
Steinberg, 672 F.2d at 930, and requires that plaintiff s show sufficient “minimum contacts”
between “the defendant, the forum, and the litigation,” Shaffer v. Heitner, 433 U.S. 203-04
(1977). In establishing “minimum contacts,” a plaintiff must allege “specific facts upon which
personal jurisdiction may be based.” Blumenthal, 992 F. Supp. at 53. West has failed to do so
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here. Accordingly, the state defendants’ motion to dismiss with respect to Foster will be granted
as well.
CONCLUSION
For the foregoing reasons, the Court will grant the state defendants’ motion to dismiss for
lack of personal jurisdiction. A separate Order has issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: August 5, 2014
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