Scott v. J.P. Morgan Chase and Co.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_________________________________________
)
WILLIAM MARK SCOTT, et al., )
)
Plaintiffs, )
)
v. ) Case Nos. 17-cv-249, -387 (APM)
)
J.P. MORGAN CHASE & CO., )
)
Defendant. )
_________________________________________ )

MEMORANDUM OPINION AND ORDER

“I consider [trial by jury] as the only anchor, ever yet imagined by
man, by which a government can be held to the principles of its
constitution.” – Thomas Jefferson 1

Serving on a jury is among the most important responsibilities of an American citizen.

Undoubtedly, fulfilling that obligation interrupts day-to-day life, including taking time away from

work. To lessen the inconvenience and financial burden that jury service poses, the federal

government and the States compensate jurors for their service. In this modern era, the government

has the option of compensating jurors by cash, checks, or, as in the present case, debit cards. Often

times, the government partners with privately owned banks to distribute juror compensation.

Plaintiffs William Mark Scott and Ronald Morin allege that they served on juries in the

Superior Court of the District of Columbia and received debit cards containing their juror

compensation, but did not receive all the compensation to which they were entitled. Specifically,

Plaintiffs complain that Defendant J.P. Morgan Chase & Co. forced them to receive their

1
Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), in 15 THE PAPERS OF THOMAS JEFFERSON, 27 March
1789–30 November 1789, 266 (Julian P. Boyd ed., 1958), http://founders.archives.gov/documents/Jefferson/01-15-
02-0259.
compensation on debit cards, provided them with misleading information about those cards,

structured the debit card program so as to prevent them from receiving their full compensation,

and charged them outrageous fees for using that compensation. They filed this putative class action

against Defendant on behalf of themselves and all others similarly situated, demanding a jury trial

and seeking declarative, injunctive, and compensatory relief under state and federal law.

Before the court are Defendant’s Motion to Dismiss and Plaintiffs’ Motion to Strike.

Defendant asks the court to dismiss Plaintiffs’ Consolidated Complaint on the grounds that it fails

to name necessary and indispensable parties; it does not state a claim against Defendant; and

Defendant is otherwise immune from suit under the doctrine of derivative sovereign immunity.

Plaintiff not only opposes Defendant’s Motion but also moves to strike the documents Defendant

attached to that Motion.

For the reasons that follow, the court denies Plaintiffs’ Motion to Strike and Defendant’s

Motion to Dismiss with respect to Defendant’s claim of derivative sovereign immunity. The court

defers ruling on the remaining issues in Defendant’s Motion. Rather, the court will permit the

parties to conduct limited discovery concerning Defendant’s assertion that it is immune from suit

for its actions relating to the District of Columbia Courts’ juror compensation program.

I. BACKGROUND

The Secretary of the United States Department of the Treasury has authority to designate

and employ commercial national banks as its financial agents in order to efficiently distribute

public monies. 12 U.S.C. § 90; United States v. Citizens & S. Nat’l Bank, 889 F.2d 1067, 1069

(Fed. Cir. 1989). Money does not lose its public character merely by being held in the coffers of

commercial banks. See Citizens & S. Nat’l Bank, 889 F.2d at 1069 (referencing Branch v. United

2
States, 12 Ct. Cl. 281 (1876), aff’d, 100 U.S. 673 (1880)). Instead, the money continues to “be

regarded as in the public Treasury.” Id. (internal quotation marks omitted).

In September 2008, the Secretary of the Treasury, acting through the Department of the

Treasury’s Financial Management Service bureau (“the FMS”), designated Defendant J.P. Morgan

Chase & Co. as a federal financial agent and memorialized the relationship in a “Financial Agency

Agreement.” See Def.’s Mot. to Dismiss, ECF No. 18 [hereinafter Def.’s Mot.], Attach. 1, ECF

No. 18-1 [hereinafter Levine Decl.], ¶ 2; Def.’s Mot., Ex. 1, ECF No. 18-2 [hereinafter FAA]. The

agreement took effect on October 1, 2008, and remained in effect until June 30, 2017. See FAA

¶ 2.A; FAA, Amend. 3; Def.’s Reply in Supp. of Def.’s Mot. to Dismiss, ECF No. 22 [hereinafter

Def.’s Reply], Attach. 1, ECF No. 22-1 [hereinafter Second Levine Decl.], ¶ 3; Def.’s Reply, Ex.

1, ECF No. 22-2 [hereinafter FAA Ext.]. As the Department of the Treasury’s financial agent,

Defendant was responsible for executing the U.S. Debit Card Program for federal agencies. See

FAA, Ex. A. In the spring of 2012, the Department of the Treasury extended the U.S. Debit Card

Program to the District of Columbia government. Specifically, the FMS and “District of Columbia

Courts” executed a Memorandum of Understanding on April 18, 2012, to use the U.S. Debit Card

Program to compensate jurors who serve in the Superior Court of the District of Columbia (“D.C.

Superior Court”). See Def.’s Mot., Ex. 2, ECF No. 18-3 [hereinafter DTA], ¶ 1. 2 On that same

date, the FMS also executed a “Direction to Agent” order that instructed Defendant “to provide

U.S. Debit Card Program products and services to DC Courts,” effective April 18, 2012, until

March 14, 2013, unless extended. Id. ¶¶ 2–3.

Plaintiffs William Scott and Ronald Morin served on juries in D.C. Superior Court in July

2016 and January 2017, respectively. See Unopposed Mot. to Consolidate, ECF No. 14

2
The Memorandum of Understanding is not presently part of the record.

3
[hereinafter Mot. to Cons.], Consolidated Class Action Compl., ECF No. 14-2 [hereinafter Cons.

Compl.], ¶¶ 24–25. Jurors in D.C. Superior Court receive a “travel allowance” of $4 for each day

they travel to the courthouse in response to a jury summons and, if selected, they receive an

additional “attendance fee” of $30 for each day they serve on a jury. See D.C. CODE § 15-718(a),

(b), (e); About Jury Duty, D.C. COURTS, https://www.dccourts.gov/jurors/about-your-jury-duty

(“Subsidy” tab) (last visited Oct. 29, 2017). 3 As a result of Plaintiffs’ jury service, Plaintiffs each

received a debit card, issued by Defendant, that contained juror compensation, along with written

information and instructions about how to access the funds on the card. Cons. Compl. ¶¶ 24–25,

35.

The materials Plaintiffs received outlined the steps required to access their juror

compensation. Jurors must activate their debit cards prior to using them by visiting Defendant’s

website. See id. ¶¶ 43–44. The website requires the juror to accept the “Terms of Service” for use

of the website, although those Terms of Service do not contain information specific to debit cards

received in connection with jury duty. See id. ¶¶ 47–48. Jurors also must confirm that they are

the individual to whom the card was issued by providing personal information, such as their date

of birth and zip code, and then select a personal identification number. Id. ¶ 49. The information

Plaintiffs received also outlined certain fees attending the use of their cards. See id. ¶ 73; Def.’s

Mot., Ex. 3, ECF No. 18-4.

The money available on a card can either be withdrawn or used as a cash equivalent. When

a juror withdraws money, that transaction is subject to certain fees that are applied to the balance

on the card. If a juror elects to withdraw part of or all her juror compensation at one of Defendant’s

3
The D.C. Code does not extend its $30 daily compensation for jurors “employed by a federal, state, or local
government or by a private employer who pays regular compensation during the period of jury service.” D.C. CODE
§ 15-718(a).

4
branch locations or at a credit union, then Defendant charges her $7. Cons. Compl. ¶¶ 63, 73. 4

Alternatively, jurors can seek to have the money on their debit cards issued by check, but

Defendant charges a $15 check fee. Id. ¶¶ 64, 73. As a third option, jurors may use an automated

teller machine (“ATM”) to access their juror compensation, but certain ATMs charge fees. After

one free ATM withdrawal, a juror must use one of Defendant’s ATMs or an ATM of another bank

in Defendant’s network (“in-network ATM”) for subsequent withdrawals in order to avoid

incurring a fee. Id. ¶¶ 59, 73, 97. Defendant’s website, however, does not identify any Defendant

ATMs or in-network ATMs in the District of Columbia. Id. ¶ 60. If a juror chooses to use an out-

of-network ATM, then Defendant charges a $2 fee, and the out-of-network ATM’s bank charges

a separate fee. See id. ¶¶ 59, 73. Jurors cannot add money to their debit cards, and, typically, they

are only able to make ATMS withdrawals in increments of $20. See id. ¶¶ 61, 82.

The debit cards also can be used like cash, but a juror encounters certain fees if she does

not know her balance at the time she uses her card. As a general matter, there is no fee when a

juror uses her debit card to purchase an item. See id. ¶ 73. Defendant charges $0.25, however, for

a declined transaction. Id. ¶¶ 68, 73. That fee attaches each time a juror tries to make a purchase

for which there are insufficient funds. See id. ¶¶ 69, 73. A juror can avoid an insufficient funds

fee by knowing her precise balance on the card and asking the retailer to use a sum certain towards

a purchase, with the remainder of the purchase made by other means—a method of use known as

a “split transaction.” See Hr’g Tr. (draft), Sept. 29, 2017, at 27–28. A juror, therefore, can avoid

fees most easily if she knows the balance on the debit card. See id.

Determining the card’s balance, however, might itself involve a fee. There is no fee

associated with making an account balance inquiry through Defendant’s website. See Def.’s Mot.,

4
Defendant does not have any branches within 90 miles of the District of Columbia. Cons. Compl. ¶ 63.

5
Ex. 3, ECF No. 18-4; Hr’g Tr. (draft), Sept. 29, 2017, at 61. But if a juror checks her debit card’s

balance at an ATM, regardless of whether the ATM belongs to Defendant or another bank, then

Defendant charges $0.45. Cons. Compl. ¶¶ 67, 73.

Finally, a juror can incur fees by not using the debit card. If a juror does not use her debit

card for three consecutive months, then Defendant charges the juror $1.50 for each subsequent

month of non-use. Id. ¶¶ 71, 73.

Plaintiff Scott incurred several of the fees outlined above. He was selected to serve on a

jury for a four-day trial in D.C. Superior Court in July 2016. Id. ¶¶ 105–06. After receiving and

using the compensation on his debit card for several purchases, his card had a balance of $17. Id.

¶ 107. On September 20, 2016, he attempted to use his card and incurred a $0.25 fee for

insufficient funds. See id. ¶ 108. Later that same day, he attempted to use the card again and,

when it was declined for insufficient funds, incurred a second $0.25 fee. See id. Because Plaintiff

Scott did not use his card thereafter, he incurred a $1.50 inactivity fee on both January 1, 2017,

and February 1, 2017, which left a balance of $13. Id. ¶¶ 83, 109–11. Plaintiff is unable to retrieve

the remaining $13 owed to him because there is no ATM in the District of Columbia that dispenses

bills in increments of less than $20, Defendant has no branch locations in the District of Columbia,

and Defendant’s check fee ($15) exceeds the balance on his debit card. Id. ¶ 112. Further, even

if Plaintiff Scott traveled 90+ miles outside the District of Columbia to reach one of Defendant’s

branch locations, he would have to forfeit half the balance on his card in light of Defendant’s $7

in-person withdrawal fee. Id. ¶¶ 63, 90, 112.

Plaintiff Scott and Plaintiff Morin each filed a putative class-action lawsuit on behalf of

himself and others similarly situated to him, which the court consolidated into the present matter.5

5
See Order, ECF No. 15. Plaintiffs’ Consolidated Complaint names three separate classes of plaintiffs. The
“Nationwide Class” includes “all individuals in the United States who received compensation for jury service and

6
Boiled down to its essence, Plaintiffs’ Consolidated Complaint challenges three aspects of the juror

compensation program: (1) the fees Defendant charges a juror for using or failing to use in a

timely manner the money deposited on his or her debit card, see, e.g., id. ¶¶ 11, 20, 58–59, 68; (2)

the structure of the juror compensation debit card program, including the requirement that jurors

receive their compensation on debit cards and the limited means by which jurors can access their

compensation, if at all, see, e.g., id. ¶¶ 8, 17–18, 21–22, 60–61, 89–91; and (3) the misleading

nature of the paperwork jurors receive from Defendant concerning how to access their

compensation, see, e.g., id. ¶¶ 13, 69, 95–101.

Now before the court are Defendant’s Motion to Dismiss and Plaintiffs’ Motion to Strike.

Defendant asserts that Plaintiffs failed to join the United States Department of the Treasury and

District of Columbia Courts, each of which is a necessary and indispensable party to this litigation.

Additionally, Defendant contends that Plaintiffs have not pleaded any plausible claim for liability.

Lastly, Defendant believes that it cannot be held legally responsible for any action alleged in the

Consolidated Complaint because, as an agent of the government, the doctrine of derivative

sovereign immunity insulates it from liability. 6 To support its claims, Defendant filed with its

Motion and Reply several documents relating to the U.S. Debit Card Program, including the

Financial Agency Agreement, Direction to Agent, and the written information jurors receive in

conjunction with their debit cards. Plaintiffs oppose Defendant’s Motion and move to strike the

exhibits attached to Defendant’s Motion and Reply. See Pls.’ Opp’n to Def.’s Mot. to Dismiss,

were paid with a Chase Debit Card within the applicable statute of limitations.” Cons. Compl. ¶ 30. The “Multistate
Subclass” encompasses “[a]ll individuals in the United States, except for the state of Iowa, who received compensation
for jury service and were paid with a Chase Debit Card within the applicable statute of limitations.” Id. Lastly, the
“D.C. Subclass” covers “[a]ll individuals who received compensation for jury service for jury duty [sic] in the Superior
Court of the District of Columbia and were paid with a Chase Debit card within the applicable statute of limitations.”
Id. The court defers ruling on class certification at this time.
6
Defendant also raises the government contractor defense. See Def.’s Mot. at 22–23. For the reasons that follow, at
this juncture, the court addresses only Defendant’s invocation of derivative sovereign immunity.

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ECF No. 19; Pls.’ Mot. to Strike or Disregard Extraneous Materials, ECF No. 21 [hereinafter Pls.’

Mot. to Strike].

II. DISCUSSION

The court addresses Plaintiffs’ Motion to Strike the documents attached to Defendant’s

filings before turning to the merits of Defendant’s Motion to Dismiss.

A. Plaintiffs’ Motion to Strike

A district court may consider documents attached to a motion to dismiss, without

converting the motion into a motion for summary judgment, if those documents’ authenticity is

not disputed, they were referenced in the complaint, and they are “integral” to one or more of the

plaintiff’s claims. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015);

Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004). To determine how much of a document is

incorporated by reference into the plaintiff’s complaint, district courts must consider who authored

the document, whether the document is reliable, whether the document is necessary to the

plaintiff’s claims, and whether the plaintiff has adopted the document in full or in part. See

Banneker Ventures, 798 F.3d at 1133–34.

The court has no trouble concluding that it may review and consider in full the documents

Defendant attached to its Motion and Reply. Those documents include the agreement between

Defendant and the federal government to carry out the U.S. Debit Card Program; a directive

extending that agreement to the District of Columbia Courts; an addendum continuing Defendant’s

service as a financial agent of the government until June 30, 2017; the written information issued

with the juror debit cards and expressly referenced in Plaintiffs’ Consolidated Complaint; and two

affidavits swearing to the authenticity of the foregoing. See FAA; FAA Ext.; DTA; Def.’s Mot.,

Ex. 3, ECF No. 18-4; Def.’s Mot., Ex. 4, ECF No. 18-5; Def.’s Mot., Ex. 5, ECF No. 18-6; Levine

8
Decl.; Second Levine Decl. These documents are plainly “integral” and “necessary” to Plaintiffs’

claims. See Banneker Ventures, 798 F.3d at 1133; Kaempe, 367 F.3d at 965. Plaintiffs’

Consolidated Complaint alleges that Defendant is engaged in a “deceptive and unlawful

arrangement”; expressly references the terms of use of a debit card issued to compensate jurors for

jury service; and puts at issue the legality of the terms of use of that card. See, e.g., Cons. Compl.

¶¶ 6, 53–54, 59, 63–64, 67–71, 79, 95–103, 118, 127, 139, 144–45, 149, 161–62, 169. Indeed,

Plaintiffs’ Consolidated Complaint even includes a snapshot of a portion of one document that

Defendant attached in full to its Motion. See id. ¶ 73. In addition to being referenced in the

Consolidated Complaint and relevant to Plaintiffs’ claims, the documents do not contain any facts

or opinions concerning Defendant’s execution of the agreement, which limits any potential

prejudice to Plaintiffs. Cf. Banneker Ventures, 798 F.3d at 1134. Further, the court is not

suspicious of the documents’ authenticity. Defendant includes an affidavit representing the

authenticity of each document, see Levine Decl; Second Levine Decl., and Plaintiffs challenge

those documents only on other grounds; namely, that the documents are outdated or have been

selectively disclosed, see Pls.’ Mot. to Strike at 7–8. The additional document attached to

Defendant’s Reply—a letter from the Department of the Treasury to Defendant, extending

Defendant’s designation as a financial agent until June 30, 2017—appears to cure Plaintiffs’ first

concern, and Plaintiffs’ generic assertion that the documents have been selectively disclosed is

neither persuasive nor dispositive.

Accordingly, Plaintiffs’ Motion to Strike is denied.

B. Defendant’s Motion to Dismiss

1. Legal Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

9
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

facially plausible when “the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. The factual

allegations in the complaint need not be “detailed”; however, the Federal Rules demand more than

“an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

In evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court must accept a plaintiff’s factual allegations as true and “construe the

complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be

derived from the facts alleged.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)

(quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). The court need not accept

as true either “a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S.

265, 286 (1986), or “inferences . . . unsupported by the facts set out in the complaint,” Kowal v.

MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). If the facts as alleged fail to establish

that a plaintiff has stated a claim upon which relief can be granted, then a court must grant the

defendant’s Rule 12(b)(6) motion. See Am. Chemistry Council, Inc. v. U.S. Dep’t of Health &

Human Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013).

2. Whether Defendant May be Held Liable for the Claims Alleged

Defendant asserts that, under the doctrine of derivative sovereign immunity, it is immune

from liability for the acts alleged in the Consolidated Complaint, all of which it took pursuant to

the government’s Financial Agency Agreement or the extension of the U.S. Debit Card Program

to the District of Columbia Courts through the Direction to Agent. Defendant does not claim that

its immunity goes to the court’s jurisdiction and does not move for summary judgment based on

10
this defense. See Hr’g Tr. (draft), Sept. 29, 2017, at 21. Rather, Defendant asserts that its immunity

is an affirmative defense and that the court can find this defense precludes litigation beyond the

motion to dismiss stage because Plaintiffs have not alleged that the Financial Agency Agreement

is unlawful or that Defendant exceeded its authority under that agreement.

Derivative sovereign immunity refers to the principle that a private contractor who acts at

the behest of a sovereign entity becomes imbued with some of the sovereign’s immunity. To claim

this form of qualified immunity, the private contractor must assert “that (1) it was working pursuant

to the authorization and direction of the federal government, and (2) the acts of which the plaintiff

complained fell within the scope of those government directives.” In re Fort Totten Metrorail

Cases, 895 F. Supp. 2d 48, 73 (D.D.C. 2012) (internal quotation marks omitted); see In re U.S.

Office of Personnel Mgmt. Data Sec. Breach Litig., No. 15-1394, 2017 WL 4129193, at *34–35

(D.D.C. Sept. 19, 2017). The private contractor cannot claim immunity either when the contractor

“exceed[s] the authority” the government conferred on it or the authority itself “was not validly

conferred.” See Campbell-Ewald Co. v. Gomez, 577 U.S. ___, ___, 136 S. Ct. 663, 673 (2016)

(quoting Yearsley v. W.A. Ross Constr. Co., 209 U.S. 18, 21 (1940)). At the motion to dismiss

stage, when the validity of the contract between the private contractor and the government is not

in dispute, a complaint must contain plausible factual allegations that a private contractor acted

pursuant to invalidly conferred authority or exceeded its validly conferred authority in order to

survive a defendant’s assertion of derivative sovereign immunity. In re U.S. Office of Personnel

Mgmt. Data Sec. Breach Litig., 2017 WL 4129193, at *35; see Ackerson v. Bean Dredging LLC,

589 F.3d 196, 206–07 (5th Cir. 2009); cf. Iqbal, 556 U.S. at 682–83; Navab-Safavi v. Glassman,

637 F.3d 311, 317–18 (D.C. Cir. 2011).

Plaintiffs’ Consolidated Complaint contains no explicit allegations that Defendant acted

11
pursuant to invalidly conferred authority or that Defendant exceeded the bounds of authority that

was validly conveyed. Plaintiffs make no argument that the National Banking Act itself is

unconstitutional, that the existence or the terms of the U.S. Debit Card Program are contrary to the

Constitution, or that the Secretary of the Treasury lacks authority to designate Defendant as its

agent for the purpose of implementing the U.S. Debit Card Program. At most, Plaintiffs allege

that the District of Columbia has acted in violation of its own juror compensation statute. See

Cons. Compl. ¶¶ 53, 127. Plaintiffs also allege that Defendant “convinced” the District of

Columbia to participate in an illegal juror compensation-debit card program, see id. ¶ 6, but that

assertion is conclusory and, in any event, does not suggest that Defendant exceeded any authority

conferred on it by the federal government or the District of Columbia. Consequently, Plaintiffs’

Consolidated Complaint does not advance allegations that, on their own, at this juncture, would

defeat Defendant’s claim of derivative sovereign immunity.

At the same time, however, the documents attached to Defendant’s pleadings leave

unanswered key questions about Defendant’s entitlement to immunity. For starters, the court does

not have before it the Memorandum of Understanding between FMS and the District of Columbia

Courts which, according to the Financial Agency Agreement, should contain all the “terms and

conditions pursuant to which [the District of Columbia Courts’] program will operate and the fees

that [the District of Columbia Courts] and/or its cardholders will pay to FMS or [Defendant].” See

FAA, Ex. A, ¶ 4.b. Thus, the precise terms of the program Defendant operated on behalf of the

District of Columbia Courts are not presently known. The documents attached to Plaintiffs’

pleadings do not fill that yawning gap in the record. Additionally, it is unclear to the court whether

the terms contained in the Memorandum of Understanding, as executed in April 2012, remained

in place at the time Plaintiffs’ received their debit cards, given that the Direction to Agent may

12
have expired in 2013 and that Plaintiffs allege they served on juries in July 2016 and January 2017.

See DTA ¶ 2; Cons. Compl. ¶¶ 24–25. Absent knowing the precise terms in effect during the time

period when Plaintiffs received their debit cards, the court cannot determine, even at the motion to

dismiss stage, whether Defendant “exceeded [its] authority.” See Campbell-Ewald, 136 S. Ct. at

673.

Even were the court to assume that the terms contained in the Memorandum of

Understanding mirror those in the Financial Agency Agreement, certain questions concerning

Defendant’s claim of immunity would remain. On one hand, if the terms of the Financial Agency

Agreement govern the version of the U.S. Debit Card Program implemented in the D.C. Superior

Court, then Defendant arguably is immune from suit for any claim pertaining to the amount of fees

it charged for a particular transaction. The Financial Agency Agreement plainly dictates the fees

jurors are to be charged, and those are the same fees that the Consolidated Complaint alleges were

charged. Compare Cons. Compl. ¶¶ 63–64, 68, 71, 73, with FAA, Ex. C. On the other hand, the

documents set forth an ambiguous directive for Defendant, “[s]ubject to the approval of FMS,” to

supply jurors with “cardholder instruction information,” including “card carriers, informational

brochures, and Cardholder Terms of Use disclosures.” FAA, Ex. A ¶ 13.c (emphasis added). That

language does not make clear whether Defendant had to secure approval as to the specific words

it used to convey the terms of using the debit cards or the visual formatting of that information, or

both. If such approvals were required and obtained, then Defendant may be immunized from

claims alleging that its informational material was fraudulent or misleading. If, however, the

government never approved that information before Defendant gave it to jurors, then immunity

may prove elusive.

Thus, based on the Consolidated Complaint and the documents offered by Defendant, the

13
court cannot say whether Defendant is immune from suit and, accordingly, denies Defendant’s

Motion. Construing the allegations and documents in the light most favorable to Plaintiffs, as the

court must, the court concludes Plaintiffs have advanced plausible claims that are not defeated, on

the present limited record, by Defendant’s assertion of derivative sovereign immunity. As such,

Defendant’s Motion to Dismiss is denied insofar as it asks the court to dismiss the Consolidated

Complaint on the ground of derivative sovereign immunity. The parties will be permitted to take

limited discovery on that question. Because resolution of the immunity issue may resolve this

matter, the court defers ruling on all other aspects of Defendant’s Motion to Dismiss.

IV. CONCLUSION AND ORDER

In light of the foregoing, the court denies Plaintiffs’ Motion to Strike, denies in part

Defendant’s Motion to Dismiss, and defers ruling on the remainder of Defendant’s Motion.

The parties may engage in limited discovery on the question of Defendant’s entitlement to

derivative sovereign immunity. Discovery shall focus on (1) the terms of the juror compensation-

debit card program that the FMS and District of Columbia Courts agreed upon for the time period

relevant to this case, and (2) whether Defendant complied with those terms, including with respect

to the fees Defendant charged, the structure of the program Defendant implemented, and the

content of the instructional information Defendant issued in conjunction with the debit cards. Each

side shall be limited to 15 document requests, 15 interrogatories, and three depositions, unless the

court permits a greater amount.

The parties may not file a discovery motion without leave of court. In the event that a

discovery dispute arises, the parties shall make a good faith effort to resolve or narrow the areas

of disagreement. If the parties are unable to resolve the discovery dispute, then the parties shall

14
jointly call Chambers at (202) 354-3250, at which time the court will either rule on the issue or

determine the manner in which it will be handled.

Discovery will close on January 29, 2018, and the parties shall appear for a Post-Discovery

Conference on January 30, 2018, at 9:00 a.m. in Courtroom 10.

Dated: October 30, 2017 Amit P. Mehta
United States District Judge

15