Turner v. Abbott

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SCOTT TURNER
Plaintiff,
v. Civil Action No. 13-1613 (CKK)
GREG ABBOTT, et al,
Defendants.
MEMORANDUM OPINION
(July 1, 2014)
Plaintiff Scott Turner (“Plaintiff”), who is proceeding pro se, filed suit against Greg
Abbott, Texas Attorney General, and the Office of the Comptroller of Currency, requesting a
declaratory judgment that the Texas non-judicial foreclosure statute, TEX. PROP. CODE Ch. 51,
be declared unconstitutional as well as an injunction enjoining Defendants, theirs agents,
representatives, and employees from enforcing, threatening to enforce, or otherwise giving effect
to the Texas non-judicial foreclosure statute. Presently before the Court is Defendant Greg
Abbott’s (“Defendant”) [4] Motion to Dismiss. Upon consideration of the pleadings,1 the
relevant legal authorities, and the record as a whole, the Court finds that Plaintiff has failed to
establish that this Court has personal jurisdiction over Defendant Abbott. Accordingly,
Defendant’s Motion is GRANTED.
I. BACKGROUND
For the purposes of Defendant’s Motion to Dismiss, the Court presumes the following
facts pled in Plaintiff’s Complaint to be true, as required when considering a motion to dismiss.
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Def.’s Mot. to Dismiss, ECF No. [4]; Pl.’s Opp’n., ECF No. [6]; Def.’s Reply, ECF No.
[7].
See Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). Plaintiff alleges
that he is the owner of land located at 6802 Hot Springs Court in Dallas County, Texas. Compl.
¶ 10. Plaintiff contracted, via the U.S. Department of Housing and Urban Development, with
AmericaHomeKey, Inc., for the purchase of this property on or about September 24, 2004. Id. ¶
13. Shortly after the finalization of his loan, Plaintiff alleges that AmericaHomeKey, Inc.
securitized the mortgage and the note was transferred to Mortgage Electronic Registration
Systems, Inc., who scanned the promissory note and destroyed the original note, creating an
“eNote.” Id. Plaintiff alleges that an “unknown amount of transfers, sells, exchanges, etc.” took
place subsequently. Id. On or about July 12, 2013, US Bank, the last purchaser of Plaintiff’s
mortgage and note, initiated non-judicial foreclosure proceedings on Plaintiff’s property. Id. ¶¶
13, 15.
On October 18, 2013, Plaintiff filed suit against Greg Abbot and the OCC, alleging that
the Texas Non-Judicial foreclosure statute, TEX. PROP. CODE. Ch. 51, and forcible detainer
statutes, TEX. PROP. CODE. Ch. 24, TEX. R. CIV. P. 746, and TEX. GOV’T CODE § 27.031,
are unconstitutional violations of Plaintiff’s due process and equal protection rights. Id. ¶¶ 21-
25. Plaintiff alleges that, together, the statutes have “created an eviction system that is
inconsistent, unconstitutional and unfair to defendants in [Texas].” Id. ¶ 22. Plaintiff alleges
that this action “arises out of the implementation of unconstitutional policies and procedures of
Greg Abbott in his official capacity as Attorney General for the State of Texas and the failure of
responsible officials in the OCC to implement policies and procedures necessary to protect the
procedural due process rights of the Plaintiff.” Id. ¶ 3. Plaintiff alleges that, as a result of
Defendants’ “misconduct and failure to act,” he faced a “substantially greater risk of losing his
home by fraudulent foreclosure practices.” Id. Plaintiff seeks from this Court a declaratory
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judgment that the Texas non-judicial foreclosure statute be declared unconstitutional and an
injunction enjoining Defendants, theirs agents, representatives, and employees from enforcing,
threatening to enforce, or otherwise giving effect to the Texas non-judicial foreclosure statute.
Id. at 15.
On January 10, 2014, Defendant Abbott filed a Motion to Dismiss contending that (1) the
Court lacks personal jurisdiction over him; (2) Plaintiff lacks standing to bring claims against
him; (3) he is immune from suit under the Eleventh Amendment; and (4) Plaintiff failed to state
a cause of action upon which relief may be granted. On January 22, 2014, Plaintiff filed a
Memorandum in Opposition to Defendants’ Motion to Dismiss and on January 29, 2014,
Defendant filed a Reply. Accordingly, Defendant’s Motion is now ripe for review. As the Court
finds that Plaintiff has failed to establish that the Court has personal jurisdiction over Defendant
Abbott, the Court need not discuss Defendant’s remaining arguments for dismissal of this case,
but shall dismiss this matter on the basis of personal jurisdiction alone.
II. LEGAL STANDARD
Personal jurisdiction within the District of Columbia may be established under two different
provisions: (1) general jurisdiction under D.C. Code § 13-422 (2001); and (2) specific
jurisdiction under D.C. Code § 13-423 (2001). The general jurisdiction provision authorizes
courts in this jurisdiction to “exercise general personal jurisdiction over a person who is
‘domiciled in, organized under the laws of, or maintaining [a] principle place of business in, the
District of Columbia as to any claim for relief.’” Pease v. Burke, 535 F. Supp. 2d 150, 152
(D.D.C. 2008) (quoting D.C. Code § 13-422). “To establish personal jurisdiction over a non-
resident, a court must . . . first examine whether jurisdiction is applicable under the state's long-
arm statute and then determine whether a finding of jurisdiction satisfies the constitutional
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requirements of due process.” Thompson Hine, LLP v. Taieb, 734 F.3d 1187, 1189 (D.C. Cir.
2013) (quoting GTE New Media Services, Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.
Cir. 2000)). Pursuant to D.C. Code § 13-423, the District’s long-arm statute, a court is
authorized to exercise specific jurisdiction over a non-resident defendant who, among other
things, “acts directly or by an agent, as to a claim for relief arising from the person's . . .
transacting any business in the District of Columbia; . . . contracting to supply services in the
District of Columbia; . . . [or] causing tortious injury in the District of Columbia by an act or
omission in the District of Columbia.” While general personal jurisdiction permits a court to
hear “a suit . . . without regard to the underlying claim's relationship to the defendant's activity”
in the forum, specific personal jurisdiction allows only those claims “based on acts of a
defendant that touch and concern the forum.” Schwartz v. CDI Japan, Ltd., 938 F. Supp. 1, 5
(D.D.C. 1996) (citing Steinberg v. Int'l Criminal Police Org., 672 F.2d 927, 928 (D.C. Cir.
1981)); see also § 13–423(b) (“[w]hen jurisdiction over a person is based solely upon [§ 13–
423], only a claim for relief arising from acts enumerated in this section may be asserted against
him.”).
District of Columbia courts have interpreted the District of Columbia’s specific
jurisdiction provision “to provide jurisdiction to the full extent allowed by the Due Process
Clause.” United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995). Accordingly, “the
statutory and constitutional jurisdictional questions, which are usually distinct, merge into a
single inquiry”: would exercising personal jurisdiction accord with the demands of due process?
Ferrara, 54 F.3d at 828. A court's jurisdiction over a defendant satisfies due process when there
are “minimum contacts,” International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945), between the defendant and the forum “such that he should reasonably anticipate being
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haled into court there,” World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
Such minimum contacts must show that “the defendant purposefully avail[ed] [him]self of the
privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958).
In considering a Motion to Dismiss for lack of personal jurisdiction, pursuant to Rule
12(b)(2) of the Federal Rules of Civil Procedure, the plaintiff has the burden of establishing a
factual basis for the exercise of personal jurisdiction over the defendant. “[T]he general rule is
that a plaintiff must make a prima facie showing of the pertinent jurisdictional facts.” First Chi.
Int'l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988). “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; rather, [he] may rest [his] arguments on the pleadings, ‘bolstered by
such affidavits and other written materials as [he] can otherwise obtain.’” Urban Inst. v.
FINCON Servs., 681 F. Supp. 2d 41, 44 (D.D.C. 2010) (quoting Mwani v. bin Laden, 417 F.3d 1,
7 (D.C. Cir. 2005)) (alteration in original). Conclusory statements, however, “[do] not constitute
the prima facie showing necessary to carry the burden of establishing personal jurisdiction.”
Naartex Consulting Corp. v. Watt, 722 F.2d 779, 787-88 (D.C. Cir. 1983).
In order to successfully carry its burden, the plaintiff must allege “specific facts that
demonstrate purposeful activity by the defendant in the District of Columbia invoking the
benefits and protections of its laws.” Helmer v. Doletskaya, 290 F. Supp. 2d 61, 66 (D.D.C.
2003), rev'd on other grounds, 393 F.3d 201 (D.C. Cir. 2004). The Court need not treat all of a
plaintiff's allegations as true; rather, the Court “may receive and weigh affidavits and other
relevant matter to assist in determining the jurisdictional facts.” Exponential Biotherapies, Inc.
v. Houthoff Buruma N.V., 638 F. Supp. 2d 1, 6 (D.D.C. 2009) (citation omitted). “In determining
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whether such a basis exists, factual discrepancies appearing in the record must be resolved in
favor of the plaintiff.” Crane v. New York Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990)
(citing Reuber v. United States, 750 F.2d 1039, 1052 (D.C. Cir. 1984)).
III. DISCUSSION
In his Motion to Dismiss, Defendant argues that Plaintiff has not demonstrated to the
Court that it has personal jurisdiction over Defendant because Plaintiff does not make any
allegations about Defendant’s contacts with the District of Columbia in his Complaint. Def.’s
Mot. at 4. Defendant argues that Plaintiff alleged neither actual contact between Defendant and
the District of Columbia, nor any acts from which the Court could conclude Defendant initiated
contact with the District of Columbia, and thus has not established any minimum contacts
between Defendant and the forum district sufficient to establish personal jurisdiction. Id.
After reviewing the Complaint, the Court agrees that Plaintiff has not made any
allegations related to Defendant’s contacts with the District of Columbia. Plaintiff’s
Memorandum in Opposition to Defendant’s Motion to Dismiss contains one allegation relevant
to the Court’s exercise of personal jurisdiction over Defendant Abbott. Plaintiff asks the Court
to take judicial notice of the fact that Defendant Abbott was among the forty-nine state attorneys
general and the attorney general for the District of Columbia who filed suit against Wells Fargo
and other banks, in the District of Columbia District Court on March 12, 2012, alleging the
banks were engaged in misconduct in making Federal Housing Administration (“FHA”) insured
mortgage loans. See United States v. Bank of America, 922 F. Supp. 2d 1, 3 (D.D.C. 2013), aff’d,
2014 WL 2575426 (D.C. Cir. June 10, 2014). In that case, which settled on April 4, 2012, for
$25 billion, the United States and state attorneys general complained that some of the banks
conducted unfair and deceptive consumer practices and violated several federal laws including
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the False Claims Act, the Financial Institutions Reform, Recovery and Enforcement Act of 1989,
and the Servicemembers Civil Relief Act. Id. at 4. Plaintiff alleges that the Court has personal
jurisdiction over Defendant because, through this litigation, Defendant “conducted (and currently
conducts) contractual business with [the Court], concerning the unlawful fraudulent foreclosure
practices by the banks against, inter alia, Texas residents.” Pl.’s Opp’n. at 8. The Court finds
that the contacts alleged by Plaintiff do not satisfy the requirements of either general or specific
jurisdiction.
A. Lack of General Jurisdiction
In the District of Columbia, courts may exercise general personal jurisdiction over a
person who is “domiciled in, organized under the laws of, or maintaining [a] principal place of
business in, the District of Columbia as to any claim for relief.” D.C. Code § 13-422; see Pease,
535 F. Supp. 2d at 152.
Plaintiff does not allege, and this Court has no reason to believe, that Defendant is
domiciled in the District of Columbia. Furthermore, in his Complaint Plaintiff concedes that
Defendant maintains his office at 300 W. 15th Street Austin, TX 78701 and does not allege that
Defendant has a place of business in the District of Columbia, much less a “principal” place of
business in the District. See Compl. ¶ 11. Accordingly, there is no basis for the Court to
exercise general jurisdiction. Pease, 535 F. Supp. 2d at 152 n. 2 (holding that the court could not
exercise general jurisdiction where all defendants, including an Assistant Attorney General and
an attorney with the Office of Attorney General of Texas, were individuals domiciled in the state
of Texas or entities with their principal place of business in Texas).
B. Lack of Specific Jurisdiction
As Plaintiff predicates personal jurisdiction over Defendant based on his participation in
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litigation taking place in the District of Columbia, the only viable basis for specific personal
jurisdiction in the District is the “transacting any business” clause of the District of Columbia's
long-arm statute, D.C. Code § 13–423(a)(1), which provides that 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 . . . transacting any business in the District of Columbia.”
D.C. Code § 13–423(a)(1). To meet the requirements of personal jurisdiction under the
“transacting any business” prong of the long-arm statute, the plaintiff must prove “first, that the
defendant transacted business in the District of Columbia; second, that the claim arose from the
business transacted in D.C.; and third, that the defendant had minimum contacts with the District
of Columbia such that the Court's exercise of personal jurisdiction would not offend ‘traditional
notions of fair play and substantial justice.’” Dooley v. United Tech. Corp., 786 F. Supp. 65, 71
(D.D.C. 1992) (quoting Int'l Shoe, 326 U.S. at 316).
Although Defendant’s participation in litigation in the District of Columbia District Court
arguably constitutes “transacting business” in the District of Columbia, this Court does not have
specific jurisdiction over Defendant because Plaintiff’s claim did not arise from the business
Defendant transacted in the District. Plaintiff’s claims arose from the creation and enforcement
of Texas statutes in Texas that Plaintiff believes put him in a position of “substantially greater
risk of losing his home.” Compl. ¶ 3. The litigation in which Defendant is involved in the
District of Columbia District Court involves the alleged misconduct by mortgage lenders in
making Federal Housing Administration insured mortgage loans; it in no way involves the Texas
foreclosure statutes or their enforcement by the states of Texas presently at issue before this
Court. Accordingly, as Defendant’s involvement in litigation in the District of Columbia against
several major banks is not the action from which Plaintiff’s claim arose, Plaintiff has failed to
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allege any contacts with the District which could form the basis of this Court’s specific
jurisdiction over Defendant under § 13-423(a)(1).
In any event, Defendant’s alleged contacts with the District of Columbia do not meet the
“minimum contacts” requirements of constitutional due process. “The minimum contacts test
described by the Court in International Shoe Co. focuses on the reasonableness of pursuing the
litigation in the forum.” Dooley, 786 F. Supp. at 72. The Court “must insure that the defendant's
conduct and connection with the forum ‘are such that he should reasonably anticipate being
hauled into court there.’” Marshall v. Labor & Indus., State of Washington, 89 F. Supp. 2d 4, 9
(D.D.C. 2000) (citing World–Wide Volkswagen Corp., 444 U.S. at 297). In judging minimum
contacts, a court must consider “the relationship among the defendant, the forum, and the
litigation.” Mizlou Television Network, Inc. v. National Broadcasting Co., 603 F. Supp. 677, 581
(D.D.C 1984) (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984)). The Court does
not find it reasonable to assume that Defendant, by pursuing litigation in the District of Columbia
related to claims against a specific set of banks, anticipated, as a result, being pulled into this
forum to litigate entirely unrelated claims. Moreover, participating in one lawsuit is far from the
amount and frequency of contacts that the Supreme Court had in mind in developing the
minimum contacts test. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 480 (1985) (holding
that Michigan resident who had entered into a franchise agreement by mail with Burger King's
Florida headquarters, had accepted “the long-term and exacting regulation of his business from
Burger King's Miami headquarters” and that his breach of his contractual obligations to make
payments in Miami “caused foreseeable injuries to the corporation in Florida.”); Travelers
Health Ass’n v. Com. of Va. Ex rel. State Corp. Com’n, 339 U.S. 643, 648 (1950) (Travelers
Health had created continuing obligations with respect to Virginia residents whom it insured
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through mail order health insurance business and had availed itself of the Virginia courts to seek
their enforcement). Accordingly, the Court finds Plaintiff has failed to establish that this Court
has specific personal jurisdiction over Defendant Abbott in this matter.
IV. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has failed to carry his burden of
establishing that this Court can exercise personal jurisdiction over Defendant Abbott.
Accordingly, Defendant Abbott’s [4] Motion to Dismiss is GRANTED and Plaintiff’s claims
against Defendant Abbott are DISMISSED WITHOUT PREJUDICE.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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