Groop Internet Platform Inc. v. Psychotherapy Action Network ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GROOP INTERNET PLATFORM INC.,
d/b/a TALKSPACE,
Plaintiff, Civil Action No. 19-1854 (BAH)
v. Chief Judge Beryl A. Howell
PSYCHOTHERAPY ACTION NETWORK,
et al.,
Defendants.
MEMORANDUM OPINION
This case arises from a contentious debate over an alternative model for providing
psychotherapy services that, in comparison to the “traditional psychotherapy model [of]
expensive brick-and-mortar offices which come with a hefty price tag,” Compl. ¶ 18, ECF No. 1,
uses an online “proprietary platform to connect practitioners with clients in need of mental health
treatment,” id. ¶ 14. This online “business model” allegedly provides “more accessible,
affordable, and convenient” therapy. Id. ¶¶ 2, 25. The plaintiff, New York-based Talkspace, has
developed such a “virtual clinic,” id. ¶ 14, which allegedly “poses an economic and existential
threat to . . . slow-to-adapt, brick-and-mortar based providers,” id. ¶ 25.
The plaintiff claims that its entry as a “disruptive force in the mental health therapy
field,” id. ¶ 17, prompted a defamatory “smear campaign” against it, id. ¶ 1, by the four
defendants in this case: Chicago-based mental health practitioners Nancy Burke, PhD, Linda
Michaels, PsyD MBA, and Janice Muhr, PhD, who are co-chairs of the fourth defendant,
Chicago-based non-profit organization Psychotherapy Action Network (“PsiAN”). Specifically,
in June 2019, the defendants sent a letter to the Washington, D.C. office of the American
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Psychological Association (“APA”), expressing their “heightened” concerns about “treatment
integrity, patient safety and therapist ethical obligations” due to the potential “alliance” between
the plaintiff and a major health insurer. Decl. of Nancy Burke (“Burke Decl.”), ECF No. 14-1,
Ex. D (“2019 APA Letter”) at 1, ECF No. 13-5. Less than three weeks after that letter was sent,
plaintiff filed the instant action claiming the 2019 APA Letter constituted “libel per se” and
demanding at least $40 million in damages. Compl. at 14–17.
The defendants have moved to dismiss the complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(2) and 12(b)(6), asserting that personal jurisdiction is lacking over each of the
defendants and, alternatively, that the complaint fails to state a claim on which relief may be
granted. Defs. PsiAN, Burke, and Michaels’ Mot. to Dismiss the Compl. (“Defs.’ Mot.”), ECF
No. 13; Def. Muhr’s Mot. to Dismiss the Compl. (“Muhr Mot.”), ECF No. 15.1 Personal
jurisdiction is indeed lacking, so the defendants’ motions to dismiss are granted.
I. BACKGROUND
In 2012, plaintiff set out to “[r]evolutionize[]” the world of mental health treatment by
providing its clients with “affordable, online therapy.” Compl. at 4 & ¶ 10. Since its founding
plaintiff has built a network of “approximately 5,000 practitioners [who] use Talkspace’s mobile
and internet technology to diagnose and treat clients.” Id. ¶ 14. Its online-therapy model has
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Defendant Muhr filed a separate motion to dismiss and supporting memoranda that are nearly identical to
the motion and memoranda submitted by the other three defendants. Compare Muhr Mot. with Defs.’ Mot.;
compare Mem. of Points and Authorities in Support of Muhr Mot. (“Muhr Mem.”), ECF No. 15, with Mem. of
Points and Authorities in Support of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 13; compare Reply Mem. of Points and
Authorities in Further Support of Muhr Mot. (“Muhr Reply”), ECF No. 27 with Reply Mem. of Points and
Authorities in Further Support of Defs.’ Mot. (“Defs.’ Reply”), ECF No. 26. For ease of reference, the memoranda
filed by Burke, Michaels, and PsiAN, will be cited, except where salient differences necessitate separate reference to
memoranda filed by Muhr. Although Muhr’s motion seeks dismissal “for lack of subject matter jurisdiction,” Muhr
Mot. (emphasis added), this is treated as an apparent typographical error since the motion refers to Federal Rule of
Civil Procedure 12(b)(2), which addresses the “lack of personal jurisdiction,” and Muhr’s other filings make clear
that is her concern. See, e.g., Muhr Mem. at 10 (“The complaint should be dismissed because this court lacks
personal jurisdiction over Dr. Muhr.” (capitalization altered)).
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been used by “over five million individuals” and plaintiff has even enlisted Olympian Michael
Phelps as its spokesperson. Id. ¶¶ 14, 31. The company’s move away from the traditional in-
person model of therapy, however, is not without its critics, members of PsiAN among them.
Plaintiff asserts that “PsiAN has opposed Talkspace since its inception.” Compl. ¶ 24.
The aspect of that opposition relevant to the instant action began in 2018 when Burke, Michaels,
and Muhr, as co-chairs of PsiAN, sent two letters, one to Michael Phelps and another to the
APA. In their letter to Phelps, they expressed “dismay and concern” that he had signed on as
spokesperson for a “problematic treatment provider who aggressively sells an untested, risky
treatment.” Burke Decl., Ex. B (“Phelps Letter”) at 1, ECF No. 13-3. They urged him to
reconsider promoting text-based therapy because he “know[s] what works in real
psychotherapy,” which, according to defendants, is the kind of “intensive, inpatient, in-person
treatment” that Phelps himself had undergone. Id.
Similarly, in their 2018 letter to the APA, the defendants expressed “dismay[] that the
APA [had] chosen to promote so-called ‘therapy’ texting services like Talkspace in its
publications.” Burke Decl., Ex. A. (“2018 APA Letter”) at 1, ECF No. 13-2. Among their
concerns was a belief that “Talkspace ‘therapies’ are completely without a legitimate evidence
base.” Id. Moreover, the defendants claimed that “Talkspace demonstrates a clear intent to
deceive the general public” by using Michael Phelps, who underwent in-person treatment, to
push Talkspace’s text-based therapy product. Id. The defendants also insisted that “ethical
violations are systemically written into the very procedures [plaintiff] offers and advertises” and
that plaintiff’s “business model literally demands the violation of ‘patient’ protection[]” by
allowing plaintiff’s non-therapist employees to review patients’ conversations for quality control.
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Id. at 1–2. They asked the APA to ensure that “any future advertisements it accepts from
Talkspace not include false and deceptive statements.” Id. at 2.
What plaintiff characterizes as PsiAN’s “smear campaign” did not end there. Compl. ¶ 1.
The plaintiff alleges that a New-York-based psychologist, Todd Essig, who is described as
“[o]ne of PsiAn’s primary advisors,” Compl. ¶ 26, “sen[t] a letter with false and defamatory
statements about Talkspace” to the “Society for Psychoanalysis and Psychoanalytic Psychology
Division (‘Division 39’) Listserv,” which is maintained by the APA and “has more than 5,000
members,” id. ¶ 31, many of whom are allegedly “based in Washington, D.C.,” id. ¶ 41.2 The
complaint does not specify which of the 2018 letters was sent to the Division 39 listserv, though
it may have been the Phelps Letter, which Burke, Michaels, and Muhr say they sent to the
listserv. Burke Decl. ¶ 10; Decl. of Linda Michaels (“Michaels Decl.”) ¶ 10, ECF No. 13-20;
Decl. of Dr. Janice Muhr (“Muhr Decl.”) ¶ 10, ECF No. 15-1. Essig’s involvement vel non
aside, the message encouraged members of the listserv to use the letter as a template to contact
plaintiff’s advertisers and the APA to encourage them to cease their relationships with plaintiff.
Compl. ¶¶ 31, 33. According to plaintiff, PsiAN’s efforts were successful to the extent that “the
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Plaintiff alleges that Todd Essig “provided material support and assistance” to PsiAN’s “smear campaign,”
Compl. ¶¶ 1, 30, but despite complaining of his “repeated[] attack[s]” in five paragraphs of its complaint, id. ¶¶ 26,
27, 30, 31, 34, 35, fails to name Essig as a defendant for the obvious reason that to do so would defeat diversity
jurisdiction, since plaintiff is a New York company, and thereby prevent the filing of this action in this Court. This
may be part of a fruitless attempt to seek application of D.C. law, notwithstanding that, under applicable choice of
law principles, New York law would likely apply to the plaintiff’s defamation claim. See Weyrich v. New Republic
Inc., 235 F.3d 617, 626 (D.C. Cir. 2001) (noting that, in defamation cases the “weight of authority” counsels in favor
of applying the law of “the place where the plaintiff suffered injury by reason of his loss of reputation” (internal
quotation marks omitted)); see also Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 457 (D.C. Cir. 1990) (“Quite
clearly, economic loss resulting from defamation is most likely to be felt in one’s place of business whatever the
locus of its publication.”); accord Kamelgard v. Macura, 585 F.3d 334, 341-42 (7th Cir. 2009) (explaining that
under Illinois choice of law principles, “the law of the plaintiff's domicile” usually applies in defamation cases).
Indeed, plaintiff makes no attempt to argue that New York law should not apply. See generally Pl.’s Mem. in Opp’n
to Defs.’ Mot. (“Pl.’s Opp’n”), ECF No. 23. As the defendants point out, without much contest from plaintiff, New
York law is unfavorable to the merits of the plaintiff’s defamation claim. See, e.g., Defs.’ Mem. at 36 (citing
Chandok v. Klessig, 632 F.3d 803, 815 (2d Cir. 2011) (noting that New York law provides a privilege to
“defamatory communication[s] on any subject matter in which the party communicating has an interest” that is
“made to a person having a corresponding interest” (internal quotation marks omitted))).
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APA canceled its partnership with Talkspace and prohibited it from advertising at one of the
APA’s largest national conferences.” Id. ¶ 35.
News then broke in May 2019 that plaintiff was on the brink of entering into a
partnership with Optum, a health insurer. Id. ¶ 37. The agreement “would make the Talkspace
application available to approximately two million Optum customers.” Id. PsiAN responded by
sending the 2019 APA Letter to the APA’s Washington, D.C. office. Id. ¶ 39. In it, the
defendants reiterated the concerns expressed in the 2018 APA Letter, namely that plaintiff’s
“business and professional practices” were “unethical.” 2019 APA Letter at 1. Those concerns,
they maintained, “ar[ose] from the business models and marketing messages” used by both
plaintiff and Optum “that have been found to be examples of consumer fraud.” Id. Plaintiff’s
business model, they said, “virtually demands the violation of ‘patient’ protections, including
those of confidentiality, dual relationship and safety.” Id. at 2. Given that the APA had
responded to their last letter by cutting off its relationship with plaintiff, the defendants believed
that the APA would “share [their] alarm at the news of [the] collaborative agreement” between
plaintiff and Optum as posing “a threat to the ‘therapists’ and ‘patients’ who are directly
involved” along with “the ethical principles for psychologists for which APA is the standard-
bearer.” Id. at 1. Michaels sent a copy of the letter to the District 39 Listserv, adding that
members should “[f]eel free to use [the letter] as a template and write a letter, too!” Compl. ¶ 41
(internal quotation marks omitted).
Not long after, plaintiff filed this action, asserting that the statements in the defendants’
“June 2019 Letter are demonstrably false,” id. ¶ 42, because plaintiff “does not engage in
consumer fraud,” “does not disregard relevant ethical standards,” and its “practices comport with
all applicable state laws and ethical regulations related to client confidentiality and standards of
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care,” id. ¶¶ 43–46. Indeed, plaintiff contends that “PsiAN either willfully and recklessly
avoided conducting the basic research on Talkspace’s client confidentiality procedures or chose
to ignore Talkspace’s policies” and publish the letter anyway. Id. ¶ 57. Consequently, plaintiff
seeks $10 million in compensatory damages and $30 million in punitive damages to repair the
“extreme[] damage[e]” the letter has done to “Talkspace’s reputation and business.” Id. ¶ 61.
II. LEGAL STANDARD
Although the defendants assert that this case should be dismissed either for lack of
personal jurisdiction under Federal Rule of Procedure 12(b)(2) or for the plaintiff’s failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6), see Defs.’ Mot., because personal
jurisdiction is lacking, only the legal standard for motions under Rule 12(b)(2) need be
discussed.3 To survive a motion to dismiss under Rule 12(b)(2), the plaintiff must “‘make a
prima facie showing of the pertinent jurisdictional facts.’” Livnat v. Palestinian Auth., 851 F.3d
45, 56–57 (D.C. Cir. 2017) (quoting First Chicago Int’l v. United Exch. Co., 836 F.2d 1375,
1378 (D.C. Cir. 1988)). The prima facie showing requires specific factual allegations connecting
each defendant to the forum. First Chicago Int’l, 836 F.2d at 1378. Conclusory statements and
bare allegations are insufficient. Livnat, 851 F.3d at 57. Unlike a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), the court “may consider materials outside the
pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome
Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat’l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). Indeed, jurisdictional arguments may be
3
Absent personal jurisdiction, consideration of the Rule 12(b)(6) motion would be improper. See Kaplan v.
Cent. Bank of the Islamic Republic of Iran, 896 F.3d 501, 510 (D.C. Cir. 2018) (“[I]t is clear that, when personal
jurisdiction is in question, a court must first determine that it possesses personal jurisdiction over the defendants
before it can address the merits of a claim.”); Forras v. Rauf, 812 F.3d 1102, 1105 (D.C. Cir. 2016) (“Ordinarily,
determining jurisdiction is a federal court's first order of business” since “‘[w]ithout jurisdiction the court cannot
proceed at all in any cause.’” (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).
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premised on the “pleadings, bolstered by such affidavits and other written materials as [the
parties] can otherwise obtain.” Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). “When
deciding personal jurisdiction without an evidentiary hearing—as here—the ‘court must resolve
factual disputes in favor of the plaintiff.’” Livnat, 851 F.3d at 57 (quoting Helmer v. Doletskaya,
393 F.3d 201, 209 (D.C. Cir. 2004)). The Court, however, “‘need not accept inferences drawn
by plaintiffs if such inferences are unsupported by the facts.’” Id. (quoting Helmer, 393 F.3d at
209).
III. DISCUSSION
Determining whether personal jurisdiction exists over any defendant in this case is a
“two-part inquiry.” GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.
Cir. 2000). First, a statutory basis for personal jurisdiction must be located. Forras v. Rauf, 812
F.3d 1102, 1105–06 (D.C. Cir. 2016). Second, if a statutory basis is found then the Court must
“determine whether an exercise of jurisdiction would comport with constitutional limitations.”
Id. at 1106 (citing GTE New Media Servs., Inc., 199 F.3d at 1347). Federal courts sitting in
diversity jurisdiction look to state statutes in undertaking the first step. FED. R. CIV. P.
4(k)(1)(A) (explaining that service of legal process “establishes 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”); see also Gorman v. Ameritrade Holding Corp., 293 F.3d
506, 509 (D.C. Cir. 2002) (“[P]ersonal jurisdiction over nonresident defendants depends upon
state law.”).
The laws of the District of Columbia provide for two types of personal jurisdiction:
general, see D.C. CODE § 13-422, and specific, see id. § 13-423, but only the latter is at issue in
this case. See Compl. ¶ 11 (relying entirely on D.C. CODE § 13-423 for the propriety of personal
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jurisdiction). The D.C. “long-arm” statute, section 13-423, describes several circumstances in
which personal jurisdiction is proper. The plaintiff asserts that personal jurisdiction may be
exercised over each defendant pursuant to subsection 13-423(a)(4).4 That subsection provides:
(a) 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 . . .
(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, engages
in any other persistent course of conduct, or derives substantial revenue from
goods used or consumed, or services rendered, in the District of Columbia.
D.C. CODE § 13-423(a)(4).
This statute sets out two requirements for the exercise of specific jurisdiction “as to a
claim for relief.” Id. § 13-423(a). First, a plaintiff must allege that the defendant “caus[ed]
tortious injury in the District of Columbia by an act or omission outside the District,” id. § 13-
423(a)(4) (emphasis added), hence its occasional nickname, the “act out/impact in” subsection.
See Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987) (Ginsburg, J.). Second, recognizing that
allowing for personal jurisdiction any time an act outside of the District caused an injury within
the District might open the courthouse doors too wide, Congress insisted that plaintiffs show
“something more” before haling a defendant into this Court. Id. at 761. Specifically, to invoke
subsection (a)(4) the plaintiff must demonstrate that each defendant (1) “regularly does or
solicits business” here, (2) “engages in any other persistent course of conduct” here, or
(3) “derives substantial revenue from goods used or consumed, or services rendered” here. D.C.
4
The complaint alleges that the exercise of jurisdiction is appropriate under four subsections of the long-arm
statute, Compl. ¶ 11 (asserting jurisdiction is proper under D.C. CODE § 13-423(a)(1), (3)–(5)), prompting the
defendants to resist personal jurisdiction under all four bases, see Defs.’ Mem. at 12–18. In opposition, however,
plaintiff retreats from all but one basis by addressing only whether jurisdiction is proper under D.C. Code § 13-
423(a)(4). Pl.’s Opp’n at 8–20. Thus, plaintiff has conceded that jurisdiction is proper, if at all, only under
subsection (a)(4). Hopkins v. Women’s Div., General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C.
2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed
to address as conceded.”).
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CODE § 13-423(a)(4). These plus factors aid in weeding out cases in which the in-District injury
“is an isolated event and the defendant otherwise has no, or scant, affiliations with the forum.”
Steinberg v. Int’l Crim. Police Org., 672 F.2d 927, 931 (D.C. Cir. 1981) (Ginsburg, J.). Each
requirement is addressed below.
A. The Complaint Adequately Alleges, as to Each Defendant, an Out-of-District
Act that Caused an In-District Injury
The first requirement—an out-of-District act that caused an in-District injury—is easily
met in this case. The allegedly defamatory 2019 APA Letter was authored and signed by the
three individual defendants on behalf of PsiAN while they were in Illinois, constituting the
requisite out-of-District act. 2019 APA Letter at 2; Burke Decl. ¶ 12; Michaels Decl. ¶ 11; Muhr
Decl. ¶ 11; see also Forras, 812 F.3d at 1107 (explaining that, pursuant to “extensive” and
“controlling” caselaw “author[ing] . . . an allegedly defamatory article” outside the District is not
an act “in the District” (quoting McFarlane v. Esquire Magazine, 74 F.3d 1296, 1300 (D.C. Cir.
1996))); Crane, 814 F.2d at 761 (finding that a libelous letter authored in and sent from New
York “was not an act in the District” (emphasis in original)).
The plaintiff also alleged that the letter was “mailed . . . to the APA’s Washington, D.C.,
headquarters,” constituting the requisite in-District injury. Compl. ¶ 39. As the Supreme Court
has noted, “[t]he tort of libel is generally held to occur wherever the offending material is
circulated.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777 (1984). Even where a plaintiff
is relatively unknown, “the libel may create a negative reputation among the residents of a
jurisdiction where the plaintiff’s previous reputation was, however small, at least unblemished.”
Id. The defendants’ suggestion that “the brunt of the alleged harm to [the plaintiff’s] economic
interest was surely felt” in New York or Delaware—where the plaintiff has its principal place of
business and is incorporated, respectively—changes nothing. Defs.’ Reply at 9. For decades in
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this Circuit, cases like this one have been found to meet the act out/impact in subsection’s
threshold requirement. See, e.g., Steinberg, 672 F.2d at 928, 931 (holding the first requirement
met when a message was sent from France to Washington, D.C., allegedly defaming a Florida
man).
B. No Plus-Factor Justifies Personal Jurisdiction over Any Defendant
Determining if the second statutory requirement is met calls for a defendant-by-defendant
review of whether each “regularly does or solicits business, engages in any other persistent
course of conduct, or derives substantial revenue from goods used or consumed, or services
rendered, in the District of Columbia.” D.C. CODE § 13-423(a)(4). The thrust of plaintiff’s
argument is that each defendant has “engaged in a persistent course of conduct” in this District.
Pl.’s Opp’n at 10 (capitalization altered). The jurisdictional allegations asserted as to PsiAN and
the individual defendants are addressed separately in turn.
1. PsiAN
As to PsiAN, the plaintiff marshals a laundry list of facts that it says establish the
propriety of personal jurisdiction over the Chicago non-profit organization, but none of these
alleged facts either individually or taken altogether suffice. The plaintiff’s jurisdictional
allegations can be grouped into three categories: (1) conduct related to PsiAN’s website, Pl.’s
Opp’n at 12 (noting that PsiAN maintains an “interactive website” that is available “24 hours
each day to residents of the District of Columbia,” encourages visitors to sign up for PsiAN’s
emails, to sign a “PTSD Petition,” and has a “Donate” button to solicit donations to the
organization); (2) communications with Washington, D.C. residents, id. at 13 (noting PsiAN
“regularly transmits” communications to members, including those in D.C., as well as to the
D.C.-based Division 39 Listserv, and sends letters to the APA, the Secretary of Education, U.S.
Representative Donald Norcross, who is the Vice-Chair of a bipartisan task force on addiction,
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and other Washington, D.C. entities, “with the hope of influencing their action in the District on
a bevy of issues”); and (3) D.C.-based trade association membership, id. at 13 (noting that PsiAN
is a member of the D.C.-based Mental Health Liaison Group (“MHLG”)).
The third category of allegations, as the simplest, will be resolved first. D.C.’s unique
role as the seat of the federal government means that countless trade associations are located
here. They serve as the collective voices of their respective industries, ensuring those industries’
interests are accounted for in the design of and debates over laws and policies that might affect
the associations’ members across the country. Subjecting a party to the jurisdiction of this Court
by dint of its membership in an organization whose purpose is communicating with lawmakers
and other government officials would come perilously close to subjecting that same organization
to personal jurisdiction for contacting the lawmakers itself, something which D.C. courts have
understandably been loath to do. Companhia Brasileira Carbureto De Calcio v. Applied Indus.
Materials Corp., 35 A.3d 1127, 1133 (D.C. 2012) (explaining that “entry into the District of
Columbia by nonresidents for the purpose of contacting federal governmental agencies is not,”
except in limited circumstances, “a basis for the assertion of in personam jurisdiction” (quoting
Envtl. Research Int’l, Inc. v. Lockwood Greene Eng’rs, Inc., 355 A.2d 808, 813 (D.C. 1976) (en
banc))). For that reason, courts in this District have flatly refused to consider trade association
membership in the jurisdictional inquiry. See Jung v. Ass’n of Am. Med. Colls., 300 F. Supp. 2d
119, 139 (D.D.C. 2004) (“[I]t is established that the ‘government contacts’ exception [to the D.C.
long-arm statute] extends ‘to non-resident contact with trade associations located [within] the
District of Columbia.’” (quoting World Wide Minerals Ltd. v. Republic of Kazakhstahn, 116 F.
Supp. 2d 98, 105–06 (D.D.C. 2000))). PsiAN’s membership in the D.C.-based MHLG, a
“coalition of national organizations focused on mental health advocacy,” Reply Decl. of Linda
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Michaels (“Michaels Reply Decl.”) ¶ 3, ECF No. 26-1, cannot play a role in determining this
Court’s jurisdiction over PsiAN.
The other facts put forth by Plaintiff in its attempt to establish a plus factor are likewise
unavailing. To begin, “personal jurisdiction surely cannot be based solely on the ability of
District residents to access the defendants’ website[], for this does not by itself show any
persistent course of conduct by the defendants in the District.” GTE New Media Servs. Inc., 199
F.3d at 1349. Before a website may be considered part of a defendant’s course of conduct in the
District, courts have required “a certain level of interactivity by the user.” Parisi v. Sinclair, 806
F. Supp. 2d 93, 97 (D.D.C. 2011) (citing Blumenthal v. Drudge, 992 F. Supp. 44, 56 (D.D.C.
1998)). The requisite level of interactivity is far from clear, but the interactive features must, in
some way, connect the website to the District. See Parisi, 806 F. Supp. 2d at 97 (finding no
persistent course of conduct in the District when there was no showing that the “website
somehow targets D.C. residents and/or has interactive forums that allow . . . visitors to interact
with [the defendant] or with one another”); see also Sweetgreen, Inc. v. Sweet Leaf, Inc., 882 F.
Supp. 2d 1, 6 (D.D.C. 2012) (finding subsection (a)(4) was not satisfied when the content of a
website “was not purposely directed toward the District of Columbia” (internal quotation marks
omitted)). Mere interactivity, moreover, is not sufficient—“at least some other non-internet
related contacts between the defendant and the forum” are required. Parisi, 806 F. Supp. 2d at
97.
Plaintiff calls PsiAN’s website “interactive” because it encourages visitors to “subscribe
to PsiAN’s daily emails,” sign a “PTSD Petition,” and donate to the organization. Pl.’s Opp’n at
12. It also notes that the website is accessible “24 hours each day,” which it says “is akin to a
24-hour a day news radio or television station broadcasting in the District of Columbia.” Id.
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The ubiquity of websites like PsiAN’s that contain these basic interactive features lays bare why,
without more, such websites cannot properly be thought to create a “persistent course of
conduct” in the District, lest long-arm statutes like D.C.’s are to award plaintiffs a jurisdictional
windfall. Cf. Doe I v. State of Israel, 400 F. Supp. 2d 86, 121 (D.D.C. 2005) (finding that a
“website [that] accepts donations, facilitates communication, and supports the exchange of
contact information . . . is no more ‘interactive’ than any basic website,” especially when that
website targeted an audience outside the District).
Plaintiff’s reliance on two cases as support for the proposition that PsiAN’s website
establishes the organization’s alleged persistent course of conduct in the District, is misplaced for
several reasons. Pl.’s Opp’n at 10–12 (citing Blumenthal, 992 F. Supp. 44 and Lewy v. S.
Poverty Law Ctr., Inc., 723 F. Supp. 2d 116 (D.D.C. 2010). First, the websites addressed in
those cases each had a level of interactivity with the District that far outstrips that presented by
PsiAN’s website. In Blumenthal, a case concerning a defamatory article posted to the “Drudge
Report,” the court determined that, while the defendant’s website did allow for subscription to
and receipt of a newsletter and solicited donations like PsiAN’s does, it also allowed visitors “to
directly e-mail defendant Drudge.” Blumenthal, 992 F. Supp. at 56. Moreover, that website was
devoted to “‘inside the Beltway’ gossip and rumor,” and the defendant knew that D.C. residents
represented a substantial portion of his website’s devotees because the goings-on in this District
were its near-exclusive focus. Id. at 57. Similarly, in Lewy, the defendant’s website was used to
“create[] a network of contacts in the District” to facilitate the distribution of “thousands of
copies of its magazines and solicit millions of dollars in donations.” Lewy, 723 F. Supp. 2d at
126. By contrast, the evidence presented thus far shows that PsiAN has collected two donations
for a total of $350 from D.C. residents, Michaels Reply Decl. ¶ 2, and not even plaintiff suggests
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that the website’s content is aimed at this District any more than at any district where there are
psychotherapists.
Second, and more importantly, both Blumenthal and Lewy make crystal clear that, even if
PsiAN’s website were sufficiently interactive with D.C. residents, plaintiff would also need to
show “substantial” non-internet contacts. Lewy, 723 F. Supp. 2d at 124; Blumenthal, 992 F.
Supp. at 56 (“[T]here must also be some other non-Internet related contacts between the
defendant and the forum.”). In Blumenthal such contacts included an interview the defendant
conducted on C-SPAN to promote his website and numerous “contacts with District residents”
who provided the defendant with “gossip for the Drudge Report.” Blumenthal, 992 F. Supp. at
57. In Lewy, the defendant mailed thousands of magazines into the District, sent its employees
here “for training programs and conferences,” “collected information on hate groups in the
District” and “collect[ed] information in the District for its website and national publications.”
Lewy, 723 F. Supp. 2d at 126–28. Apart from its website and its membership in a trade
association, the only non-internet contacts Plaintiff alleges PsiAN has with the District are a
string of letters and emails sent to District residents.
Those letters are not properly considered as part of PsiAN’s alleged persistent course of
conduct in D.C. As an initial matter, the handful of communications between PsiAN and District
residents identified by the plaintiff can hardly be described as “persistent.” D.C. CODE § 13-
423(a)(4). Indeed, two of those communications were sent to the Secretary of Education and a
United States Representative and must be ignored, winnowing the list of potential jurisdictional
hooks even further. Companhia Brasileira Carbureto De Calcio, 35 A.3d at 1133 (explaining
that contacts with government officials cannot be considered in determining personal
jurisdiction). More to the point, however, letters and e-mails written in Illinois and sent into the
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District, like all of the communications plaintiff attempts to leverage to create jurisdiction, are
not conduct “in the District.” Crane, 814 F.2d at 761 (emphasis in original). It would be passing
strange to call a defamatory letter written outside the District an out-of-District act for purposes
of subsection (a)(4)’s threshold requirement, see supra Part III.A, only to turn around and
characterize other letters written outside and sent to the district as part of a “persistent course of
conduct . . . in the District.” D.C. CODE § 13-423(a)(4) (emphasis added). Cf. Tavoulareas v.
Comnas, 720 F.2d 192, 194 (D.C. Cir. 1983) (Scalia, J.) (finding that defamatory telephone calls
made outside the District to District residents could not constitute “a persistent course of conduct
in the District” (emphasis in original)); see also Nuevos Destinos, LLC v. Peck, No. 15-cv-1846,
2019 WL 78780, at *11 (D.D.C. Jan. 2, 2019) (“Sending emails . . . to District residents does not
constitute conducting ‘regular business’ or engaging in a ‘persistent course of conduct’ in the
District of Columbia.”).
None of the three categories of alleged in-District conduct, on their own or taken
together, is sufficient to establish that PsiAN has engaged in a “persistent course of conduct . . .
in the District of Columbia.” D.C. CODE § 13-423(a)(4). Personal jurisdiction over PsiAN in
this Court is therefore lacking.
2. Individual Defendants
Plaintiff’s argument for personal jurisdiction over the individual defendants fares no
better. Of the six facts plaintiff brings forth to connect the Chicago therapists to the District of
Columbia, three concern letters and emails sent from Illinois to District residents. Pl.’s Opp’n at
14. As discussed above, this cannot be considered conduct in the District, let alone persistent
conduct. All that remains are allegations that “Defendant Burke has attended at least one
academic conference in the District” and has visited “multiple times in the last several years,”
15
allegations that “Defendant Muhr has admitted that she travels to Washington, D.C., with some
regularity” and has done so “repeatedly since 2016,” and finally an allegation that “Defendant
Muhr possessed a property interest in the District when this lawsuit was filed.” Id.
Without the allegations concerning communications with D.C. residents, there is thus
nothing to suggest that defendant Michaels has engaged in regular business or a persistent course
of conduct here. Nor do the other allegations related to Burke and Muhr provide a basis for
jurisdiction. Burke “attended an academic conference in the District of Columbia approximately
15-20 years ago,” and was a guest at a wedding here “17 years ago.” Burke Decl. ¶ 7. She has
also come to the district “twice in recent years for personal trips.” Id. If “persistent” is to have
any meaning, four trips over twenty years falls far short of coming within the long-arm statute’s
ambit. Cf. Lewy, 723 F. Supp. 2d at 124 (“Occasional travel to the District is . . . insufficient” to
“establish a ‘persistent course of conduct’ in the District.”). Likewise, Muhr’s spring break trip
to the District 24 years ago and her four visits to her daughter, who was attending school here,
are woefully inadequate. Muhr Decl. ¶ 7. Plaintiff’s assertion that Muhr possessed a property
interest in the District is a reference to the fact that Muhr acted as guarantor on her daughter’s
D.C. lease. Id. This apparent attempt to create jurisdiction under another subsection of the long-
arm statute, see D.C. CODE § 13-423(a)(5) (allowing for personal jurisdiction over a defendant
who has “an interest in . . . real property in the District”), also fails. See Scahill v. District of
Columbia, 909 F.3d 1177, 1186 (D.C. Cir. 2018) (explaining that status as a guarantor for a lease
does not, on its own, create a property interest in the leased property).
With in-District conduct thinner even than PsiAN’s, the exercise of personal jurisdiction
over the individual defendants is improper.
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C. Jurisdictional Discovery is Not Warranted
Plaintiff urges that in the event the current record is found to be insufficient to support
personal jurisdiction—as it is—discovery should be permitted “tailored to address matters
relating to personal jurisdiction.” Pl.’s Opp’n at 18. Jurisdictional discovery “is appropriate
where the existing record is ‘inadequate’ to support personal jurisdiction and ‘a party
demonstrates that it can supplement its jurisdictional allegations through discovery.’” Trintec
Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1283 (D.C. Cir. 2005) (quoting
GTE New Media Servs., Inc., 199 F.3d at 1351–52). That demonstration need not be substantial,
and discovery may be warranted so long as the plaintiff “provide[s] just enough of a good faith
basis to raise the specter of jurisdiction.” Delta Sigma Theta Sorority, Inc. v. Bivins, 215 F.
Supp. 3d 12, 15 (D.D.C. 2013). All the same, whether to award jurisdictional discovery is a
choice left to this Court’s discretion and need not be permitted if such an award “would amount
to nothing more than a fishing expedition.” FC Inc. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087,
1094 (D.C. Cir. 2008) (quoting Bastin v. Fed. Nat’l Mortg. Ass’n, 104 F.3d 1392, 1396 (D.C.
Cir. 1997)).
Plaintiff proposes several avenues for potential jurisdictional discovery. If allowed,
plaintiff intends to 1) ascertain who controls PsiAN’s website, 2) “[i]dentify the individual
Defendants’ contacts with the forum” other than those already alleged and admitted;
3) determine whether PsiAN has made any attempts to solicit D.C.-based mental health
professionals to join the organization; 4) “[d]iscover all efforts to solicit . . . donations” from
D.C. residents,” 5) ascertain “the extent to which PsiAN obtains revenue from this District,”
6) determine whether the defendants have disseminated any publications, letters, or “other
communications” in the District, 7) “[i]dentify the trade groups and professional associations”
17
with which the Defendants are associated, and 8) “[a]scertain the full extent of the business
PsiAN transacts in the District.” Pl.’s Opp’n at 20.
As the discussion above demonstrates, several of these proposed routes for discovery will
lead nowhere. First, PsiAN’s website is only minimally interactive, so determining who controls
that website will not substantiate the claim that the defendants have engaged in a persistent
course of conduct in this District. In any case, the individual defendants have admitted that they
“operate [the] website from Illinois.” Michaels Reply Decl. ¶ 1. With respect to PsiAN’s
potential efforts to recruit D.C. members, plaintiff has made no allegation that those attempts
occurred in D.C., nor provided any good faith reason to believe they did. To the contrary,
PsiAN’s website, as alleged by plaintiff, solicits members broadly from any reader without any
targeted focus on D.C. As to PsiAN’s attempts to solicit donations or otherwise “obtain[]
revenue” here, Pl.’s Opp’n at 20, there has been no indication, either in the complaint or in the
declarations filed by the parties, that PsiAN or the individual defendants have tried to collect
donations from D.C. residents in any manner apart from the “Donate” button on their website’s
homepage, id. at 12. The defendants have also admitted that “[s]ince PsiAN’s inception, it has
received only two donations” from D.C. residents, one for $100 and another for $250. Michaels
Reply Decl. ¶ 2. They have even gone so far as to admit that, after this case was filed, the APA
awarded PsiAN a $6,000 grant. Id. ¶ 4. This admission, no matter how fulsome, is likely
jurisdictionally irrelevant. See, e.g., Steel v. United States, 813 F.2d 1545, 1549 (9th Cir. 1987)
(suggesting that “[w]hen a court is exercising specific jurisdiction over a defendant . . . the fair
warning that due process requires arises not at the time of the suit, but when the events that gave
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rise to the suit occurred”).5 Moreover, a single $6,000 grant from a D.C.-based organization for
a project that “does not anticipate any future activity in Washington, D.C.” cannot be considered
persistent in-District conduct. Michaels Reply Decl. ¶ 4. Defendants’ memberships in trade or
professional associations located in D.C. and their communications with D.C. residents made
from outside the District are also irrelevant to the jurisdictional inquiry. See supra Part III.B.1.
The remaining questions plaintiff intends to pose if jurisdictional discovery is allowed are
so broad as to be barely distinguishable from the kind of “fishing expedition” courts should
endeavor to forestall. FC Inc. Grp. LC, 529 F.3d at 1094. The proposed expeditions into “the
individual Defendants’ contacts with the forum” and the “extent of the business PsiAN transacts
in the District” are founded on little more than speculation. Pl.’s Opp’n at 20. Jurisdictional
discovery may be warranted on a slim record when an obstructionist defendant has hamstrung a
plaintiff’s efforts to adequately allege personal jurisdiction. See, e.g., Rundquist v. Vapiano SE,
798 F. Supp. 2d 102, 120–21 (D.D.C. 2011) (allowing a plaintiff discovery when the defendants
appeared to use a multi-layered corporate structure to avoid jurisdiction despite the fact “there
[was] evidence of a cross-over of senior management” between the defendant and other related
corporate entities). Here though, the defendants have been forthright, going so far as to alert the
plaintiff and the Court to post-suit contacts with the forum. Michaels Reply Decl. ¶ 4.
Plaintiff has pointed to no good faith reason to believe jurisdictional discovery will
achieve anything other than prolonging the pendency of this lawsuit and concomitant annoyance
to the defendants. The plaintiff’s request for jurisdictional discovery is therefore denied.
5
At what point in time a defendant’s contacts with a forum are considered in the personal jurisdiction
inquiry has not, however, been conclusively settled by the Supreme Court. See Todd David Peterson, The Timing of
Minimum Contacts After Goodyear and McIntyre, 80 GEO. WASH. L. REV. ARGUENDO 1, 35–37 (2011).
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IV. CONCLUSION
Although D.C. law contemplates the exercise of personal jurisdiction over defendants
whose out-of-District acts cause in-District injuries, because the plaintiff has failed to show any
necessary plus factor, the defendants remain outside the reach of D.C.’s long-arm statute. The
complaint must therefore be dismissed.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: January 21, 2020
__________________________
BERYL A. HOWELL
Chief Judge
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