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.
1
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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