UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) PLASTICS INDUSTRY ASSOCIATION, ) ) Plaintiff, ) ) v. ) Civil No. 24-cv-1542 (APM) ) ROB BONTA, ) Attorney General of the State of California, ) ) Defendant. ) _________________________________________ )
MEMORANDUM OPINION AND ORDER
I.
Before the court is Plaintiff Plastics Industry Association’s (“Plastics”) Renewed Motion
for Preliminary Injunction and Temporary Restraining Order against Defendant Rob Bonta, the
Attorney General of California. See ECF No. 25 [hereinafter Renewed Mot.]. This is the second
time that Plastics, a resident of the District of Columbia, has asked the court to enjoin enforcement
of a subpoena issued by Bonta in connection with his investigation into potential
misrepresentations about the viability of plastics recycling. On September 11, 2024, this court
denied Plastics’ initial Motion for Preliminary Injunction and Temporary Restraining Order on the
grounds that Plastics had failed to show a substantial likelihood of success in establishing that
Bonta is subject to personal jurisdiction in this court. See Mem. Op. & Order Denying Pl.’s Mot.
for T.R.O. & Prelim. Inj., ECF No. 21 [hereinafter Mem. Op.]. Plastics then filed an amended
complaint, see Am. Compl., ECF No. 22, and filed the instant motion on September 23, 2024. 1
1 The original opinion also denied on the same grounds a Motion for a Temporary Restraining Order and Preliminary Injunction filed by the American Chemistry Council (“ACC”) in a related case. See Mem. Op. at 3. ACC, too, Plastics largely renews its jurisdictional and merits arguments from its first motion. It has,
however, revised them in three important respects. First, Plastics now explicitly alleges that, on
April 28, 2022, months before issuing the subpoena, Bonta served a document “Preservation
Notice” on Plastics in the District of Columbia via a hired process server. Second, Plastics asserts
a new subsection of the D.C. long-arm statute, D.C. Code § 13-423(a)(4), as a basis for personal
jurisdiction. Third, it has supplemented the record to establish the merits of its claims.
The court denies Plastics’ renewed motion because it has not demonstrated a substantial
likelihood of success in both establishing personal jurisdiction over Bonta and on the merits of its
claims. As to personal jurisdiction, the court’s reasoning for its denial of Plastics’ initial motion
continues to apply, the fact of personal service of the Preservation Notice does not change the
result, and Plastics has not established jurisdiction under § 13-423(a)(4). On the merits, Plastics
has not shown that it retains a First Amendment privilege in the subpoenaed records, which until
recently were housed at the Hagley Library in Delaware. By making those records available to
researchers and others without meaningful restrictions, Plastics has not preserved the privilege it
now asserts.
II.
To succeed on a motion for a preliminary injunction, Plastics must show that (1) it is “likely
to succeed on the merits”; (2) it is “likely to suffer irreparable harm in the absence of preliminary
relief”; (3) “the balance of equities tips in [its] favor”; and (4) “an injunction is in the public
interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). As part
of the first factor, Plastics must demonstrate a likelihood of success in establishing personal
amended its complaint and filed a Renewed Motion for Temporary Restraining Order and Preliminary Injunction but has since withdrawn it. See Withdrawal of Mot. for T.R.O. & Prelim. Inj., American Chemistry Council v. Bonta, No. 24-cv-1533 (APM) (D.D.C. Oct. 17, 2024), ECF No. 37. Accordingly, this opinion focuses solely on Plastics’ motion.
2 jurisdiction over the defendant. See Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C.
Cir. 2015).
III.
A.
Plastics’ renewed motion focuses on the fact that Bonta hired a process server to personally
deliver the Preservation Notice on Plastics within the District of Columbia nearly three months
before issuing the subpoena. See Renewed Mot., Mem. in Supp., ECF No. 25-1 [hereinafter
Renewed Mot. Mem.], at 14–15; Renewed Mot., Decl. of Matt Seaholm, ECF No. 25-2
[hereinafter Seaholm Decl.], ¶¶ 13–14 (asserting that Bonta served the Preservation Notice on
April 28, 2022, and that Plastics received the subpoena on July 27, 2022). 2 The Preservation
Notice referenced Bonta’s investigation of potential California law violations in connection with
the production and marketing of plastics and plastics recycling, and directed Plastics to preserve
certain categories of records relevant to the investigation Seaholm Decl., Ex. 1, ECF No. 25-3, at
2–3. 3 According to Plastics, Bonta’s service of the Preservation Notice suffices to establish
jurisdiction under subsections (a)(1) and (a)(3) of the D.C. long-arm statute. See Renewed Mot.
Mem. at 14–15; D.C. Code § 13-423(a)(1) (providing for jurisdiction over any person who
“transact[s] any business in the District of Columbia”); id. § (a)(3) (providing for jurisdiction over
any person who “caus[es] tortious injury in the District of Columbia by an act or omission in the
District of Columbia”).
But Plastics overlooks an additional crucial element to long-arm jurisdiction under those
provisions: the plaintiff’s suit must “aris[e] from” the jurisdiction-conferring contacts. See D.C.
2 Having summarized the pertinent background facts in its earlier decision, Mem. Op. at 6–8, the court assumes the reader’s familiarity with those facts and does not repeat them here. 3 Because the parties have collected and filed the exhibits attached to their declarations in a single .pdf file, page citations to exhibits are to the CM/ECF page number.
3 Code § 13-423(b) (“When jurisdiction over a person is based solely upon [one of the ways to
establish jurisdiction in subsection a], only a claim for relief arising from acts enumerated in this
section may be asserted against him”); Willis v. Willis, 655 F.2d 1333, 1336 (D.C. Cir. 1981)
(noting that “District of Columbia courts have interpreted section 13-423(b) as a bar to claims
unrelated to the acts forming the basis of personal jurisdiction” (citations omitted)); see also World
Wide Mins., Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1168 (D.C. Cir. 2002) (jurisdiction
under subsection (a)(1) “is limited to claims arising from the particular transaction of business in
the District” (internal quotation marks and citation omitted)).
Plastics’ suit does not “aris[e] from” the Preservation Notice. Rather, as the amended
complaint makes clear, it arises from “Bonta’s issuance of the subpoena[.]” Am. Compl. ¶ 72
(Count I) (alleging that “Bonta’s issuance of the subpoena” violates Plastics’ and its members’
associational rights under the First Amendment); id. ¶ 90 (Count II) (alleging that Bonta’s
“issuance of the subpoena violates” Plastics’ and its members’ free speech rights under the First
Amendment); id. ¶ 92 (Count III) (alleging that “Bonta’s issuance of the subpoena violates”
Plastics’ right to petition under the First Amendment); see also id. ¶ 98 (Count IV) (alleging that
Bonta’s threat to seize documents without permission from the Hagley Library constitutes an
unlawful “seizure under the Fourth Amendment”).
In terms of its actual claims, Plastics acknowledges that “[t]he party asserting the privilege
must first demonstrate a prima facie showing of arguable [F]irst [A]mendment infringement . . .
by establishing a reasonable probability . . . that enforcement of the discovery requests will result
in . . . consequences which objectively suggest an impact on, or chilling of, First Amendment
rights.” Id. at 25 (quoting Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010), and
Buckley v. Valeo, 424 U.S. 1, 74 (1976)) (internal citations, quotation marks, and alterations
4 omitted) (emphasis added). Plastics’ evidence does not make any showing that the Preservation
Notice burdened its First Amendment rights, or continues to do so.
The declaration that Plastics presents from its CEO expressly ties the organization’s and
its members’ claimed constitutional injuries to issuance of the subpoena. See Seaholm Decl. ¶ 30
(“Responding to the subpoena by producing privileged documents would result in disclosure of
statements by PLASTICS . . . .”), id. ¶ 38 (“[M]any members would have chosen not to speak or
become involved in . . . PLASTICS if they had known that the California Attorney General would
take the position that their internal privileged communications should be produced under its
subpoena.”); id. ¶ 44 (“The issuance of the California Attorney General subpoena . . . has chilled
my ability to publish communications on behalf of PLASTICS regarding recycling.”); see also id.
¶¶ 39–40, 42–43, 45–51. So, too, does the anonymous declaration from one of Plastics’ member-
companies. See Mot. to Seal Supporting Decl., ECF No. 26, Anonymous Decl., ECF No. 26-1,
¶ 4 (“Because of the California Attorney General’s subpoena, the Company has modified how it
is communicating concerning PLASTICS’ and other associations’ activities.”); id. ¶ 8 (“If
PLASTICS is forced to produce non-public documents in response to the subpoena . . . , the
Company or its representatives will be less willing to communicate with PLASTICS and its
associated members . . . .”); see also id. ¶¶ 7, 10–11. Neither declaration describes any chilling
effect arising out of the Preservation Notice whatsoever. The fact that Bonta personally served the
Preservation Notice in the District of Columbia through an agent therefore cannot form the basis
of exercising long-arm jurisdiction over him.
Plastics counters that because the Preservation Notice was a precursor to the subpoena, its
personal service is a relevant contact from which its suit arises. It argues that the “Document
Preservation Letter—which announced the investigation of PLASTICS and initiated the chilling
5 of PLASTICS’ First Amendment rights—is plainly related to the subpoena, which is a central part
of the very same investigation against PLASTICS and also concerns the disputed documents at
issue here.” Pl.’s Reply in Supp. of Pl.’s Renewed Mot., ECF No. 31, at 7. The D.C. Circuit,
however, has emphasized that jurisdiction under § 13-423(a)(1) “is limited to claims arising from
the particular transaction of business in the District.” World Wide Mins., 296 F.3d at 1168
(emphasis added) (internal quotation marks and citation omitted); accord Li v. Li, No. 23-7052,
2024 WL 4601521, at *2 (D.C. Cir. Oct. 29, 2024) (quoting World Wide Mins.). And, contrary to
what it says in its reply brief, Plastics has failed altogether to present any evidence that the
Preservation Notice “initiated” any chilling effect on its or its members’ exercise of constitutional
rights. That Bonta followed the Preservation Notice with a subpoena that, according to Plastics,
did have the requisite chilling effect does not transform service of the Preservation Notice into a
relevant in-forum contact.
The court has previously determined that Bonta’s mailing of the subpoena to Plastics’ D.C.-
based counsel and subsequent communications with counsel about compliance, productions, and
objections were insufficient to establish personal jurisdiction. See Mem. Op. at 13–20. Nothing
in the renewed motion warrants revisiting that conclusion. Nor do the new allegations as to
Bonta’s post-filing conduct. 4 Bonta attempted to personally serve Plastics with process as to an
enforcement action he filed in California state court but failed in that effort, and Plastics ultimately
accepted service by email. Seaholm Decl. ¶ 33. Plastics’ claims do not arise out of Bonta’s failed
attempt at in-person service, and its acceptance of process by email is not a meaningful
4 In its previous memorandum opinion, the court had left open whether Plastics and ACC could amend their complaints to include Bonta’s post-filing conduct for purposes of assessing personal jurisdiction. Mem. Op. at 20–21. Plastics argues that personal jurisdiction must be assessed as of the filing of the amended complaint, not at the time of suit. See Renewed Mot. Mem. at 19 (citing Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473–74 (2007)). The court has not decided this issue. Instead, it has assumed that it can consider post-filing contacts, but Plastics still falls short of establishing personal jurisdiction over Bonta.
6 jurisdictional contact with the District. Accordingly, the court cannot find that Plastics has
demonstrated a likelihood of success in establishing personal jurisdiction over Bonta under
subsections (a)(1) or (a)(3) of D.C.’s long-arm statute.
B.
Plastics also asserts that jurisdiction is proper under subsection (a)(4) of the D.C. long-arm
statute. See Renewed Mot. Mem. at 20–21. Under that subsection, jurisdiction may lie against
non-resident defendants who “caus[e] tortious injury in the District of Columbia by an act or
omission outside of the District of Columbia if [they] . . . engage[] in any other persistent course
of conduct . . . in the District of Columbia.” D.C. Code § 13-423(a)(4). This provision does “not
occupy all of the constitutionally available space” and “require[es] a plus factor,” meaning there
must be “some other reasonable connection between the state and the defendant separate from and
in addition to the in-state injury” for jurisdiction to attach. Crane v. Carr, 814 F.2d 758, 762 (D.C.
Cir. 1987) (internal quotation marks and citation omitted).
Plastics asserts that “Bonta’s contacts with the District far exceed th[e] modest showing
required” under subsection (a)(4). Renewed Mot. Mem. at 21. The court disagrees. Plastics only
directs the court’s attention to Bonta’s public-facing Instagram page, which makes no obvious
reference to him in the District, and webpages that reference, in passing, (1) Bonta signing onto an
amicus brief that was filed in the D.C. Circuit, (2) his potential receipt of an award in the District,
and (3) a one-day trip to the District for an event promoting Asian Americans and Pacific Islanders,
id. at 21 n.5. These scant contacts fall well short of those required to show a persistent course of
conduct in the District of Columba for purposes of § 13-423(a)(4). Compare Doe v. Roman Cath.
Diocese of Greensburg, 581 F. Supp. 3d 176, 194–95 (D.D.C. 2022) (persistent course of conduct
where the defendant participated in an annual “pilgrimage” trip to Washington, D.C. in addition
7 to several other trips to D.C.), with Dean v. Walker, 756 F. Supp. 2d 100, 103–04 (D.D.C. 2010)
(no persistent course of conduct where the defendant had a four-day trip with his family to
Washington, D.C. and separately attended two conferences on behalf of his employer).
IV.
Even if the court could exercise jurisdiction over Bonta, Plastics has not established a
likelihood of success on the merits of its claims. See Winter, 555 U.S. at 20. Specifically, Plastics
has failed to demonstrate that it or its members have a protected First Amendment interest in the
disputed documents. The present record establishes that Plastics has neither formally nor as a
matter of practice sufficiently shielded the records from public access so as to preserve the claimed
First Amendment interest.
Until recently, Plastics has maintained the disputed records pursuant to a Memorandum of
Understanding (“MOU”), signed in 1988, at the Hagley Library and Museum (“Hagley”) in
Delaware. See Seaholm Decl. ¶ 18; id., Ex. 12, ECF No. 25-3 [hereinafter MOU], at 82–83.
According to the MOU, Plastics’ purpose in depositing records at Hagley was “to facilitate the use
of records for scholarly purposes.” MOU at 82. The public’s access to the records was mostly
unfettered. The MOU provides that:
• Records older than 25 years were “open to research,” but records younger than 25 years
would be reviewed by Plastics so it could determine access provisions;
• Researchers could photocopy materials if, in Hagley’s determination, the documents
could physically withstand copying;
• Researchers could quote briefly for the purpose of scholarly analysis, but extensive
quoting required the prior consent of Plastics.
8 See id. The only other restriction on access was imposed by Hagley itself—that “[v]isitors
involved in research for current or potential litigation must contact the library in advance to obtain
permission to access.” See Seaholm Decl., Ex. 3, ECF No. 25-3, at 18; see also id., Ex. 4,
ECF No. 25-3, at 20. Plastics has identified no other condition on access or use. Therefore, for
decades, the records at issue were generally available to the public.
Nor did Plastics keep tight control over the records in practice. As an initial matter, because
the documents over which Plastics asserts privilege are dated 1990 or earlier, they are “open to
research” under the MOU. See Def.’s Opp’n to Mot. for Prelim. Inj. & T.R.O., ECF No. 15, Decl.
of Katherine Schoon, ECF No. 15-1 [hereinafter Schoon Decl.], Ex. B, at 8–21 (Plastics’ privilege
log). 5 In an email to Bonta’s office, Hagley’s Director of Library Services, Dr. Erik Rau, explained
that the “25-year embargo on materials . . . no longer applie[d]” to documents in the collection,
meaning that they were fully open to research under the MOU. See Schoon Decl., Ex C at 27; see
also Seaholm Decl., Ex. 8, ECF No. 25-3, at 60 (notation on Hagley’s website indicating “[n]o
restrictions on use” for the Plastics’ collection). Further, Plastics has not rebutted Bonta’s proof
that someone has copied some of Plastics’ records stored at Hagley and has made them available
on a publicly accessible website. See Schoon Decl. ¶¶ 7–8 (referencing documents available on
toxicdocs.org). And though Plastics asserts that access to the collection is limited solely to
researchers, the record before this court is that at least one journalist had broad access to the
collection and released a story unfavorable to Plastics’ viewpoint. Compare Seaholm Decl. ¶ 28
(“It is PLASTICS’ understanding that members of the media are not engaged in scholarship, but
rather in journalism, and therefore should not have been permitted to view PLASTICS’ documents
at the Hagley.”), with Schoon Decl. ¶ 9 (discussing NPR’s story entitled “Wasteland,” in which
5 Bonta has incorporated by reference the merits arguments he made in response to the first motion for injunctive relief. Def.’s Opp’n to Renewed Mot. for T.R.O. & Prelim Inj., ECF No. 29, at 3 n.1.
9 one of its reporters went to Hagley and viewed the Plastics’ collection); id., Ex. D at 33–46
(transcript of the story). This undermines Plastics’ assertion that the access restrictions were
sufficient to keep its documents out of unfriendly hands. See Renewed Mot. Mem. at 29. Finally,
the record shows that at least 19 members of the public accessed Plastics’ collection between 2018
and 2023. Schoon Decl. ¶ 6(e); id., Ex. E at 27. Plastics has not offered any evidence that it
limited access or the records’ use to any of those 19 visitors.
Notwithstanding the public availability of the contested records, Plastics argues that
making them accessible for scholarly research at Hagley was not inconsistent with preserving its
claimed First Amendment interests. See Renewed Mot. Mem. at 28–32. It looks to “closely
analogous privileges,” and cites cases holding that a limited disclosure of privileged materials does
not necessarily result in waiver. Id. at 30–32.
But none of those cases help Plastics. In Rockwell International Corp. v. U.S. Department
of Justice, the D.C. Circuit held that the Department of Justice’s limited disclosure of an internal
report had not waived any applicable privileges where “the Justice Department gave the documents
to [a congressional] Subcommittee only after the Subcommittee expressly agreed not to make them
public.” 235 F.3d 598, 604 (D.C. Cir. 2001); see also United States v. Deloitte LLP, 610 F.3d 129,
142 (D.C. Cir. 2010) (no waiver of attorney work-product privilege where agreement allowed
Deloitte to disclose certain documents only with its client’s “specific consent”). Here, of course,
the opposite is true: Plastics handed over records to Hagley without a comparably stringent
restriction on public access. Neither can an “expectation of confidentiality . . . be assumed” based
on the nature of the documents at issue. Murphy v. Dep’t of Army, 613 F.2d 1151, 1159 (D.C. Cir.
1979). The express terms of the MOU made the collection presumptively available, with only
limited restrictions on access and use. See MOU at 82–83. Indeed, the public-facing Hagley
10 website stated that there were “no restriction[s] on use” of the collection. Seaholm Decl., Ex. 8,
ECF No. 25-3, at 60.
The other privileges discussed do not map neatly on to this case. The bank examination
privilege grows out of the “more or less continuous . . . flow of communication between [a] bank
and [its] regulatory agency.” In re Subpoena Served Upon Comptroller of Currency, & Sec'y of
Bd. of Governors of Fed. Rsrv. Sys., 967 F.2d 630, 634 (D.C. Cir. 1992). There plainly is no
similar relationship at issue here. Moreover, there are no “shared common interests” that would
permit a limited disclosure as in attorney work-product cases. United States v. AT&T, 642 F.2d
1285, 1300 (D.C. Cir. 1980).
Plastics also asserts that its First Amendment interests are heightened here because a
political adversary is seeking privileged materials. See Renewed Mot. Mem. at 26–27. It points
out, for instance, that Hagley’s policy was not to allow research for litigation purposes without
Plastics’ prior consent. Seaholm Decl. ¶ 27. Even accepting Plastics’ premise, Plastics cites to no
case in which a court has recognized a First Amendment privilege in records that the privilege
holder generally made available to the public. Its lax access rules were “inconsistent with the
maintenance of secrecy from the disclosing party’s adversary.” Rockwell Int’l Corp. v. U.S. Dep’t
of Justice, 235 F.3d at 605 (work-product privilege) (internal quotation marks and citation
omitted). By way of example, a journalist was given access to records at Hagley. She used the
records she reviewed to develop a story about what she termed the “great plastic lie,” that is, the
plastic industry’s alleged creation of the public’s erroneous perceptions about plastics recycling.
Schoon Decl., Ex. D, at 33–46 (transcript of NPR’s publication of “Wasteland”). That is the very
subject of Bonta’s investigation. On the present record, the court cannot find that Plastics
adequately preserved the confidentiality of the contested records.
11 Finally, since filing this suit, Plastics has retrieved the collection from Hagley. Seaholm
Decl. ¶ 35. But this recall comes too late, as Plastics’ decades-long allowance of public access to
the records is at odds with its assertion of privilege. Cf. Perry, 591 F.3d at 1165 n.12 (noting that
the associational privilege at issue was “limited to communications among the core group of
persons engaged in the formulation of campaign strategy and messages” and “certainly does not
apply to documents or messages conveyed to the electorate at large” (emphasis omitted)).
In sum, the court cannot find that Plastics has established a likelihood of success on the
merits of its First Amendment claims.
V.
Accordingly, Plastics’ Renewed Motion for a Preliminary Injunction and Temporary
Restraining Order, ECF No. 25, is denied. Plastics’ Motion to Partially Seal Supporting
Declaration, ECF No. 26, is granted. To be clear, nothing in this Memorandum Opinion should
be read to pass on the scope of Bonta’s subpoena to Plastics or whether the subpoena actually
seeks records relevant to his investigation. The court only holds that, based on a likelihood-of-
success standard, Plastics has not established personal jurisdiction over Bonta in this court or the
merits of its claims that rest on First Amendment rights and privileges.
Dated: November 6, 2024 Amit P. Mehta United States District Court Judge