Scott TURNER, Plaintiff, v. Greg ABBOTT, et al, Defendants.
Civil Action No. 13-1613 (CKK)
United States District Court, District of Columbia.
Signed July 1, 2014
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
C. The Court Intentionally Did Not Apply the Statutory Fee Cap
To clarify, the Court‘s award does not factor in the statutory fee cap imposed by Section 814 of the Omnibus Appropriations Act, 2009,
D. The Plaintiffs Should Have Been Awarded Total Fees and Costs of $171,103.70
After reviewing its calculations, this Court determined it had in fact miscalculated the correct attorneys’ fee award. Due to the exclusion of fees owed for representation of plaintiff M.D.(l); an accidental two-thirds fee reduction, instead of one-half, for plaintiffs N.M. and S.S.; and inadvertently applying the next year‘s Laffey rates starting January 1st, instead of June 1st; the amount awarded to the plaintiffs in our previous opinion is inaccurate. After making the appropriate changes, this Court will alter its previous judgment and award the plaintiffs $171,103.70 in attorneys’ fees.
V. CONCLUSION
For the foregoing reasons, the Plaintiffs’ Motion for Reconsideration of Order and Alteration of Judgment shall be granted in part and denied in part. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Susan Marie Watson, Office of the Attorney General of Texas, Austin, TX, for Defendants.
MEMORANDUM OPINION
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,
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. 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, U.S. 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,
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
II. LEGAL STANDARD
Personal jurisdiction within the District of Columbia may be established under two different provisions: (1) general jurisdiction under
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 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
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 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, 753 F.3d 1335 (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 con-
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.”
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 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,
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
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) (quoting 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, 681 (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 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.
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE