                                                     UNITED STATES DISTRICT COURT
                                                     FOR THE DISTRICT OF COLUMBIA



    ARTHUR WEST,
                Plaintiff,
                       v.                                                   Civil Action No. 14-98 (JDB)
    ERIC HOLDER, et al.,
                Defendants.


                                                               MEMORANDUM OPINION

              Plaintiff Arthur West brings this action against a group of United States government and

Washington state defendants: Eric Holder, Attorney General of the United States; the United

States Department of Justice; Jay Inslee, Governor of the State of Washington; and Sharon

Foster, Chair of the Washington State Liquor Control Board.1 West seeks “declaratory and

injunctive relief” for a “major federal action”: namely, that communications between state and

federal defendants concerning the Department of Justice’s policy towards Washington’s

marijuana legislation “[rose] to the level of substantial and expressive harm to the structure of

federalism in violation of the 9th and 10th Amendments and the common law Anti-

commandeering Doctrine.” 2d Am. Compl. [ECF No. 14] at 1. The state defendants have filed a

motion to dismiss for lack of personal jurisdiction under Federal Rule 12(b)(2). For the reasons

discussed below, the Court will grant the state defendants’ motion to dismiss.




                                                            
         1
           For ease of reference, defendants Holder and the United States Department of Justice will be referred to
collectively as “federal defendants.” Jay Inslee and Sharon Foster will be referred to collectively as “state
defendants.”

                                                                       1
 
                                                                BACKGROUND

              Washington recently enacted an initiative measure (“I-502”) concerning the distribution

and possession of marijuana for recreational purposes, which included legislation providing that

marijuana use and possession do not constitute criminal or civil offenses under Washington state

law. Wash. Rev. Code § 69.50.360. Because possessing marijuana is still illegal under federal

law, I-502 raised the question of whether the Department of Justice would enforce the federal

marijuana prohibition within the state. As a result, federal and state officials began a series of

communications that culminated in a memorandum issued by the Department of Justice outlining

the federal government’s positions and priorities in regards to drug enforcement in the state of

Washington. Defs.’ Renewed Mot. to Dismiss [ECF No. 17] (“Defs.’ Mot.”) at 3.

              West claims that the communications between federal and Washington state officials

violated the “anti-commandeering doctrine” and a number of constitutional amendments. 2d Am.

Compl. at 1. Although his allegations are not entirely clear, West appears to allege that when the

federal government issued its memorandum concerning I-502, it unconstitutionally

“commandeered” Washington’s control over marijuana policy within the state. Id. at 19. West

also claims that “defendants failed . . . to consider [any] reasonably foreseeable impacts to the

urban and natural environment under [the National Environmental Policy Act, 42 U.S.C. 4331],”

and requests a declaratory judgment and some unspecified injunctive relief. Id. at 2, 19. In

response, the state defendants have moved to dismiss for lack of personal jurisdiction.2

                                                               LEGAL STANDARD

              A plaintiff bears the burden of establishing a court’s personal jurisdiction over a

defendant who moves to dismiss the claims against him under Rule 12(b)(2). See Mwani v. bin

Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). “Moreover, to establish a prima facie case, plaintiffs are
                                                            
              2
                  Federal defendants only recently entered an appearance, through the filing of a motion to dismiss.

                                                                     2
 
not limited to evidence that meets the standards of admissibility required by the district court.

Rather, they may rest their argument on their pleadings, bolstered by such affidavits and other

written materials as they can otherwise obtain.” Id. at 7. Nevertheless, a plaintiff must allege

“specific facts upon which personal jurisdiction may be based,” Blumenthal v. Drudge, 992 F.

Supp. 44, 53 (D.D.C. 1998), and cannot rely on conclusory allegations, see Elemary v. Phillipp

Holzmann AG, 533 F. Supp. 2d 116, 121 (D.D.C. 2008).

                                           DISCUSSION

       Under Federal Rule 4(k), a federal court has 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.” Fed. R. Civ. P. 4(k)(1)(A). Thus, this Court has personal jurisdiction over the state

defendants if a District of Columbia court could exercise jurisdiction over them.

       There are two distinct variants of personal jurisdiction: (1) general jurisdiction, which

allows a court to entertain a claim against a defendant “without regard to the claim’s relationship

vel non to the defendant’s forum-linked activity”; and (2) specific jurisdiction, for “controversies

based on acts of a defendant that touch and concern the forum.” See Kopff v. Battaglia, 425 F.

Supp. 2d 76, 81 (D.D.C. 2006) (citing Steinberg v. Int’l Criminal Police Org., 672 F.2d 927, 928

(D.C. Cir. 1981)). “For an individual, the paradigm forum for the exercise of general jurisdiction

is the individual’s domicile.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct.

2846, 2853 (2011). Specific jurisdiction requires a two-step inquiry: “first, jurisdiction over the

defendant must be authorized by the forum’s long-arm statute, here D.C. Code § 13-423”; and,

second, the “exercise of that jurisdiction must satisfy the federal requirement of constitutional

due process.” D’Onofrio v. SFX Sports Grp., Inc., 534 F. Supp. 2d 86, 90 (D.D.C. 2008) (citing

United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995)).



                                                  3
 
I.     Personal Jurisdiction Over Inslee

               This Court may exercise personal jurisdiction over Inslee if it can establish

general or specific jurisdiction over him. Kopff, 425 F. Supp. 2d at 81. Inslee is not domiciled in

the District of Columbia, so the Court may not exercise general jurisdiction over him under the

relevant D.C. statute. See D.C. Code § 13-422. For this Court to exercise specific jurisdiction

over Inslee, his conduct must fall within the District’s long-arm statute. Ferrara, 54 F.3d at 828.

That statute provides, in part:

       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—

       (1) Transacting any business in the District of Columbia;
       (2) Contracting to supply services in the District of Columbia;
       (3) Causing tortious injury in the District of Columbia by an act or omission in the
           District of Columbia;
       (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 . . . in the District of
           Columbia;
       (5) Having an interest in, using, or possessing real property in the District of Columbia;
       (6) Contracting to insure or act as surety for . . . [a] contract . . . to be performed within
           the District of Columbia…;
       (7) Martial or parent and child relationship in the District of Columbia…

D.C. Code § 13-423(a).

        As a preliminary matter, it is unclear whether West brings this action against Inslee

individually or in his capacity as a state official. If Inslee is sued in his individual capacity, the

Court must determine whether his conduct fits into one of the seven provisions of the long-arm

statute. If Inslee is sued in his official capacity, however, the inquiry is more complicated. A suit

brought against an official in his official capacity is generally considered to be a suit against the

state. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). D.C’s long-arm statute

does not apply to states, though, meaning that the Court would be unable to exercise personal

jurisdiction in this case. Ferrara, 54 F.3d at 828. An exception to this general rule may transform

                                                  4
 
the suit against Inslee in his official capacity to one in his individual capacity for the purposes of

the long-arm statute. See Ex Parte Young, 209 U.S. 123 (1908). The Court will examine these

possibilities in turn.

        a)    Inslee Sued in His Individual Capacity

        West does not argue that Inslee’s conduct as an individual falls under any of the

provisions of the long-arm statute, and it is not clear that any of the provisions apply. West does

not allege that Inslee caused “tortious injury” under subsections (a)(3) or (a)(4). See GTE Media

Servs., v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000) (noting that “tortious injury”

under subsection (a)(4) is narrowly construed). And even if West’s allegations did concern

“tortious injury,” that injury was not felt “in the District of Columbia” as the statute requires,

because any policies resulting from meetings between Inslee and federal officials affected

marijuana enforcement procedures in the state of Washington, not in the District. See D.C. Code

§§ 13-423(a)(3), (a)(4). West does not allege that Inslee’s communications with the federal

government resulted in any sort of contract—which might satisfy subsections (a)(2) or (a)(6)—

and although Inslee maintains a liaison office in the District, West’s claims do not arise from

Inslee’s property interest in that office, so subsection (a)(5) is not satisfied. The marital

relationship provision, section 13-423(a)(7), is plainly inapplicable here.

        The only provision of the statute that could potentially be relevant to Inslee’s contacts

with the District is the “transacting any business” provision, subsection (a)(1). But contacts

falling under the “transacting any business provision” usually must be commercial. See, e.g.

Mouzavires v. Baxter, 434 A.2d 988, 992 (D.C. 1981) (“It is now well-settled that the

‘transacting any business’ provision embraces those contractual activities of a nonresident

defendant which cause a consequence here.”). Further, some courts have held that commercial



                                                  5
 
activities do not satisfy the provision unless the activities were directly related to the transaction

of business within the District. See Brunson v. Kalil & Co., 404 F. Supp. 2d 221, 234 (D.D.C.

2005) (holding that defendant’s communications with a company in the District for the purpose

of receiving a commission did not constitute transacting any business under the statute, because

“[t]he contact arose out [of] a desire to be paid services rendered, not out of any desire to do

business in the District of Columbia”); see also Cellutech, Inc. v. Centennial Cellular Corp., 871

F. Supp. 46, 49-50 (D.D.C. 1994) (holding that negotiations conducted by mail and wire into the

District concerning a contract that would be performed outside of the District were insufficient to

establish jurisdiction under the long-arm statute).

       West does not allege that Inslee’s coordination with federal officials constituted

commercial activity or that Inslee was transacting business within the District. West also does

not cite any cases supporting an interpretation of the “transacting any business” provision that

includes non-commercial activity. Because he has not pointed to any contacts between Inslee and

the District that fall under the provisions of the long-arm statute, this Court lacks specific

jurisdiction over Inslee to the extent he is being sued in his individual capacity.

       b)     Inslee Sued in His Official Capacity

       A suit against a state official in his official capacity is usually treated as a suit against the

state. Will, 491 U.S. at 71. Whether that is true for the purposes of the personal jurisdiction

analysis is uncertain. See Ferrara, 54 F.3d at 831. One thing is certain: a state is not a “person”

under the Due Process clause, see South Carolina v. Katzenbach, 383 U.S. 301, 323-23 (1966),

so if the suit is considered to be against the state, the due-process prong of the personal

jurisdiction analysis is effectively satisfied. But that leaves the long-arm statute.




                                                   6
 
       States do not fall under D.C.’s long-arm statute, because the statute only allows the

District to “exercise personal jurisdiction over a person,” D.C. Code § 13-423(a) (emphasis

added), and “person” is defined in the D.C. Code as “an individual, his executor, administrator,

or other personal representative, or a corporation, partnership, association, or any other legal or

commercial entity.” D.C. Code § 13-421. States are not considered to be “legal or commercial

entit[ies],” meaning that they are not included under the long-arm statute. Ferrara, 54 F.3d at

832. In most instances, then, a suit against Inslee in his official capacity would operate as a suit

against the state of Washington, and the D.C. long-arm statute would not allow this Court to

exercise personal jurisdiction over the state of Washington.

       There is a potential exception, however, to this general rule. In Ex Parte Young, the

Supreme Court held that a claim brought against a state officer for allegedly acting

unconstitutionally “[strips the official] of his official or representative character and [subjects

him] in his person to the consequences of his individual conduct.” 209 U.S. at 160; see also

Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002) (extending the exception to

include “ongoing violations of federal law”). The Ex Parte Young exception primarily operates

to prevent a state official from invoking sovereign immunity under the Eleventh Amendment

when she is sued in her official capacity for violating federal law. See Cnty. Bd. of Arlington VA

v. U.S. Dep’t of Transp., 705 F. Supp. 2d 25, 30 (D.D.C. 2010) (“[P]laintiffs name state officials

. . . in order to avoid the Eleventh Amendment bar to bringing a suit directly against a State.”).

       It is an open question in this circuit whether, under the D.C. long-arm statute, a court may

exercise personal jurisdiction over an official sued under Ex Parte Young. The suit could still, for

example, be considered to be against the state for the purposes of personal jurisdiction. On the

other hand, an official who is “stripped of his official or representative character” might be



                                                 7
 
viewed as an individual for the purposes of personal jurisdiction. Ex Parte Young, 209 U.S. at

160. But no matter: even if the suit falls under Ex Parte Young, and even if it is therefore

considered to be a suit against Inslee in his individual capacity for the purposes of personal

jurisdiction, the Court could not exercise jurisdiction over him for the reasons already discussed

above. Hence, regardless of whether West sues Inslee in his individual or official capacity (or

under Ex Parte Young), because Inslee’s conduct is not covered by D.C.’s long-arm statute this

Court may not exercise personal jurisdiction over him.

II.    Personal Jurisdiction Over Foster

       West also argues that this Court can exercise personal jurisdiction over Foster, but this

argument fails for the same reasons that the Court cannot exercise personal jurisdiction over

Inslee. Foster is not domiciled in the District of Columbia. If Foster is sued in her official

capacity, the Court lacks personal jurisdiction for the reasons discussed above. And if Foster is

sued in her individual capacity, West does not allege conduct that falls under the long-arm

statute. In fact, West alleges almost nothing to allow this Court to exercise personal jurisdiction

over Foster individually, save his allegations that “through her agents,” Foster “manifested a

presence in the D.C. forum.” 2d Am. Compl. at 10. This is insufficient for the D.C. long-arm

statute; moreover, such bare and conclusory allegations fail to satisfy the requirements of due

process. The Due Process Clause constrains this Court in its exercise of personal jurisdiction, see

Steinberg, 672 F.2d at 930, and requires that plaintiff s show sufficient “minimum contacts”

between “the defendant, the forum, and the litigation,” Shaffer v. Heitner, 433 U.S. 203-04

(1977). In establishing “minimum contacts,” a plaintiff must allege “specific facts upon which

personal jurisdiction may be based.” Blumenthal, 992 F. Supp. at 53. West has failed to do so




                                                8
 
here. Accordingly, the state defendants’ motion to dismiss with respect to Foster will be granted

as well.

                                         CONCLUSION

       For the foregoing reasons, the Court will grant the state defendants’ motion to dismiss for

lack of personal jurisdiction. A separate Order has issued on this date.



                                                                                /s/
                                                                            JOHN D. BATES
                                                                       United States District Judge
Dated: August 5, 2014




                                                 9
 
