Plastics Industry Association, Inc. v. Bonta

• Court: District Court, District of Columbia
• Decided: April 7, 2025
• Docket: Civil Action No. 2024-1542
• Status: Published

Opinion

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

This case arises out of an investigation by Defendant Rob Bonta, the Attorney General of

the State of California, into whether the fossil fuel and petrochemical industries made

representations about the viability of plastics recycling that violated California law. As part of his

investigation, Defendant served a documents preservation letter and a subpoena on Plaintiff

Plastics Industry Association (“Plastics”), an industry group based in Washington, D.C.

Plastics asserts that some of the documents sought by Defendant are privileged under the

First Amendment. Plastics filed the instant suit under 42 U.S.C. § 1983 to enjoin Defendant from

enforcing the subpoena and further pursuing his investigation to the extent it involves Plastics.

Plastics twice before moved for injunctive relief to prevent the compelled disclosure of the

allegedly privileged documents, but the court denied those motions because they failed to establish

a substantial likelihood of success as to personal jurisdiction and on the merits. See Mem. Op. &

Order Denying Pl.’s Mot. for Prelim. Injunct. & TRO, ECF No. 21 [hereinafter TRO Mem. Op.];

Mem. Op. & Order Denying Pl.’s Renewed Mot. for Prelim Injunct & TRO., ECF No. 35

[hereinafter Renewed TRO Mem. Op.]. Defendant now moves to dismiss this suit on those two grounds and others. For the reasons

stated below, the court grants the motion because it lacks personal jurisdiction over Defendant.

I. BACKGROUND

The court assumes the parties’ familiarity with the facts of this case, but briefly recounts

those most pertinent. On April 28, 2022, Defendant issued a press release announcing an

investigation into the “fossil fuel and petrochemical industries for their role in causing and

exacerbating the global pollution crisis.” Am. Compl., ECF No. 22 [hereinafter Am. Compl.],

¶ 25. The same day, Defendant served Plastics via a process server a “Preservation Notice” at its

Washington, D.C. headquarters. Id. ¶ 24.

Nearly three months later, on July 27, 2022, Defendant sent via Federal Express to Plastics’

counsel in the District of Columbia a subpoena requesting “all documents and communications

that were at any time housed at, on loan to, or in the possession of the Hagley Museum and Library,

located in Wilmington, Delaware.” Id. ¶¶ 27–28. 1 According to Plastics, the subpoena sought

documents that contained internal communications with its members, information about “the

identities of individual members and leadership,” the organization’s “lobbying strategy and

activities,” and its “political or policy views and perspectives on proposed or recently enacted

legislation.” Id. ¶¶ 29–33.

Over the next year, Plastics disclosed certain responsive documents but raised objections

as to others. Id. ¶¶ 34–40. In July 2023, Plastics delivered to Defendant a privilege log, asserting

a First Amendment privilege over withheld records. Id. ¶¶ 40–41. Eight months went by without

1 The complaint itself does not identify the specific means of serving the subpoena or its recipient and location. Nevertheless, to satisfy itself that it has personal jurisdiction, the court may look beyond the allegations of the complaint. See Triple Up Ltd. v. Youku Tudou Inc., 235 F. Supp. 3d 15, 20 (D.D.C. 2017). Plastics’ earlier-filed exhibits establish service of the subpoena via Federal Express upon Plastics’ counsel at its offices in the District. See Plastics’ Mot. for Prelim Injunct. & TRO, ECF No. 10 [hereinafter Plastics’ TRO Mot.], Ex. 8, ECF No. 10-3 [hereinafter “Ex. _”], at 46, 58 (CM/ECF pagination).

2 a response. Then, in April 2024, Defendant issued a demand letter to Plastics, rejecting its First

Amendment privilege claim and stating that his office would seek to enforce the subpoena. Id.

¶ 42. Defendant also asserted that his staff could view Plastics’ documents stored at the Hagley

without Plastics’ consent, so long as he provided “prior notice.” Id. ¶ 43.

To stave off compelled disclosure, Plastics filed suit before this court on May 24, 2024.

Id.; see also Compl., ECF No. 1. Four days later, Defendant filed a Petition to Enforce

Investigative Subpoena and an Ex Parte Application to Show Cause in California state court.

Am. Compl. ¶ 44. Defendant attempted to personally serve the Application on Plastics in the

District, but after multiple unsuccessful attempts, Plastics agreed to accept service through email.

Id. Plastics also retrieved its records stored at the Hagley due to Defendant’s threat to access them

unilaterally. Id. ¶ 61.

Six weeks after filing suit, Plastics moved to temporarily restrain and preliminarily enjoin

Defendant from enforcing the subpoena. See Plastics’ TRO Mot. The court denied the motion for

failure to establish a substantial likelihood of success as to personal jurisdiction over Defendant.

See generally TRO Mem. Op. Plastics then amended its complaint to add allegations regarding

Defendant’s contacts with the District, see, e.g., Am. Compl. ¶ 14, and it once more moved for

injunctive relief, see Pl.’s Renewed Mot. for Prelim. Injunct. & TRO, ECF No. 25. The court

again denied Plastics’ renewed motion, this time both for failure to establish personal jurisdiction

and on the merits. See generally Renewed TRO Mem. Op.

Days after opposing injunctive relief, Defendant moved to dismiss the complaint on

essentially the same grounds. See Def.’s Mot. to Dismiss, ECF No. 30 [hereinafter Def.’s Mot.].

3 II. LEGAL STANDARD

Because the absence of personal jurisdiction is dispositive, the court only addresses that

issue. On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff

bears the burden of “establishing a factual basis” for a court’s “exercise of personal jurisdiction

over the defendant.” Crane v. New York Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990);

Duarte v. Nolan, 190 F. Supp. 3d 8, 11 (D.D.C. 2016). A plaintiff meets this burden by “alleg[ing]

specific acts connecting the defendant with the forum.” Second Amend. Found. v. U.S. Conf. of

Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (cleaned up). Any “factual discrepancies appearing

in the record must be resolved in favor of the plaintiff.” Crane, 894 F.2d at 456; Capel v. Capel,

272 F. Supp. 3d 33, 38 (D.D.C. 2017). A plaintiff cannot, however, “rely on conclusory

allegations” to establish personal jurisdiction over the defendant. Duarte, 190 F. Supp. 3d at 11

(internal quotation marks omitted).

III. DISCUSSION

Plastics asserts that the court has personal jurisdiction over Defendant based on three

contacts with the District of Columbia. First, the court “has personal jurisdiction over [Defendant]

because [he] personally served via process server a ‘preservation notice’ regarding the disputed

documents” at Plastics’ headquarters in the District. Am. Compl. ¶ 14. Second, Defendant

“attempted to serve [Plastics] with notice of his California lawsuit similarly via process server in

the District . . . , and ultimately served [Plastics] via email in the District[.]” Id. And, third,

Defendant’s “subpoena seeks documents” from Plastics that it must review and produce “from its

offices” in the District. Id. According to Plastics, these contacts collectively establish that

Defendant “‘purposefully directed’ his investigation activity” to the District, and that Plastics’

“claims ‘arise’ from contacts with Defendant in the District . . . because compliance by [Plastics]

4 must occur in the District.” Id. Plastics argues that these contacts suffice to establish personal

jurisdiction under D.C. Code § 13-423(a)(1), (a)(3), and (a)(4). See Mem. of P&A in Opp’n to

Def.’s Mot., ECF No. 34 [hereinafter Pl.’s Opp’n], at 16–22.

The court previously rejected these very arguments in the context of Plastics’ motions for

injunctive relief. See TRO Mem. Op. at 12–20; Renewed TRO Mem. Op. at 3–8. Those decisions

are not dispositive, however, because the plausibility standard applicable on a motion to dismiss

is less stringent than the likelihood of success that Plastics was required to show to secure an

injunction. See In re Fed. Bureau of Prisons’ Execution Protocol Cases, 980 F.3d 123, 134 (D.C.

Cir. 2020); Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015). Still, even

applying the more relaxed Rule 12(b)(2) standard, the court finds that Plastics has failed to plead

a factual basis for personal jurisdiction over Defendant.

First, personal service of the Preservation Notice did not create the necessary contacts with

the District to establish personal jurisdiction under either subsection (a)(1) or (a)(3) of the

D.C. long-arm statute. Under both, a plaintiff’s suit must “aris[e] from” the jurisdiction-conferring

contacts. D.C. Code § 13-423(b). The D.C. Circuit has emphasized that, under subsection (a)(1),

jurisdiction “is limited to claims arising from the particular transaction of business in the District.”

World Wide Mins., Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1168 (D.C. Cir. 2002)

(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., 296 F.3d at 1168).

And subsection (a)(3) “is a precise and intentionally restricted tort section, . . . which stops short

of the outer limits of due process, . . . and which confers jurisdiction only over a defendant who

commits an act in the District which causes an injury in the District[.]” Forras v. Rauf, 812 F.3d

5 1102, 1107 (D.C. Cir. 2016) (emphasis in original) (quoting Moncrief v. Lexington Herald-Leader

Co., 807 F.2d 217, 221 (D.C. Cir. 1986)).

Here, Plastics alleges that each of its First Amendment claims arose from Defendant’s

“issuance of the subpoena” and demands for production, which occurred outside the District, not

from personal delivery of the Preservation Notice. Am. Compl. ¶ 72 (Count I) (alleging that

Defendant’s “issuance of the subpoena and subsequent demand for access to privileged documents

violates Plaintiff’s First Amendment rights and the rights of its current and former Members by

demanding that PLASTICS turn over confidential and privileged materials”); id. ¶ 90 (Count II)

(asserting that Defendant’s “issuance of the subpoena violates Plaintiff’s First Amendment rights

and the rights of its current and former members with respect to the freedom of speech by

demanding that PLASTICS turn over confidential and privileged materials”); id. ¶ 92 (Count III)

(claiming that Defendant’s “issuance of the subpoena violates Plaintiff’s First Amendment rights

and the rights of its current and former members by demanding that PLASTICS turn over

confidential and privileged materials, including those that are integral parts of the free exercise of

the right to petition the government for redress of grievances”). 2 Indeed, the complaint expressly

states that Plastics’ claimed First Amendment injuries resulted from the fear of compelled

disclosure of records subject to the privilege—a threat that materialized two years after service of

the Preservation Notice, when Defendant for the first time rejected Plastics’ asserted

First Amendment privilege claim. See id. ¶ 42; see also id. ¶ 51 (“Mr. Bonta’s demand is plain:

PLASTICS must relinquish its First Amendment rights and the rights of all of its current and

2 Plastics asserts an additional claim for violation of the Fourth Amendment based on Defendant’s threat to enter the Hagley to review records without Plastics’ consent. Am. Compl. ¶¶ 93–101. That claim arose from “correspondence,” dated April 29, 2024, from Defendant (in California) to Plastics (through its District-based counsel). Id. ¶ 43; Plastics’ TRO Mot., Ex. 6 (April 29, 2024 letter). Plastics does not assert that this communication is sufficient to establish personal jurisdiction for this fourth cause of action or any other.

6 former members, by producing all documents stored at the Hagley . . . .”); id. ¶ 65 (“PLASTICS

staff have stated that the act of disclosure of privileged documents will have an immediate and

dramatic chilling effect on PLASTICS.”); id. ¶ 68 (“The chilling effect that will result from forced

disclosure of privileged documents . . . compromises PLASTICS’ ability to function effectively”);

id. ¶ 70 (“PLASTICS has limited its own fully candid speech to its members, due to fear that the

California Attorney General will demand unlimited access to such communications[.]”).

Plastics makes no claim that it suffered any First Amendment harm from its mere receipt of the

Preservation Notice in the District. See generally Am. Compl. So, this suit did not “arise from”

that act for purposes of subsection (a)(1) or (a)(3).

Plastics’ attempt to analogize this case to this court’s decisions in Media Matters v. Paxton

and Media Matters v. Bailey is misplaced. See Pl.’s Opp’n at 2, 16–17. In both cases, the Attorneys

General’s in-forum contacts directly caused the media plaintiff’s First Amendment injuries.

Media Matters for Am. v. Paxton, 732 F. Supp. 3d 1, 18–20 & n.6 (D.D.C. 2024) (Defendant’s

hiring of a process server in the District of Columbia gave direct rise to claimed First Amendment

injuries); Media Matters for Am. v. Bailey, No. 24-cv-147 (APM), 2024 WL 3924573, at *7

(D.D.C. Aug. 23, 2024) (“Defendant Bailey’s contracting with an agent to cause personal service

of alleged retaliatory process established the requisite minimum contacts with the District.”). The

same cannot be said here.

Second, Defendant’s other alleged contacts do not establish long-arm jurisdiction under

§ 13-423(a)(1) or any other provision. In addition to the personally served Preservation Notice,

Plastics points to: (1) Defendant’s service of the subpoena via Federal Express at Plastics’

counsel’s office in the District, Am. Compl. ¶ 27; n. 1, supra; (2) the future course of conduct the

subpoena established with Plastics; (3) tortious injury caused in the District, i.e., the chilling of

7 Plastics’ First Amendment rights, see D.C. Code § 13-423(a)(3); and (4) Defendant’s “persistent

course of conduct” in the District, id. § 13-423(a)(4). Pl.’s Opp’n at 18–22. The court previously

held that Defendant’s express mailing of process to the District is insufficient to establish personal

jurisdiction. See TRO Mem. Op. at 14 (“The one-time mailing of a subpoena from California to

counsel in the District, seeking records that Plastics houses in Delaware and was required to

produce in California, does not rise to a purposeful availment of conducting activities within the

District of Columbia.”) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–76 (1985));

see generally id. at 13–20. Further, communications between Defendant in California and Plastics

in the District about the subpoena are not the type of contacts that establish purposeful availment

of the privileges of conducting activities here. Id. at 13. Plastics makes no arguments that would

cause the court to alter these rulings.

As for Plastics’ arguments that jurisdiction should lie under subsections (a)(3) and (a)(4),

Plastics has offered nothing new that would cause the court to think about these prongs differently.

Subsections (a)(3) and (a)(4), respectively, provide a court with personal jurisdiction over a non-

resident party “who caus[es] tortious injury” here “by an act or omission in the District[,]”

D.C. Code § 13-423(a)(3) (emphasis added), or “by an act or omission outside of the District . . .

if [they] . . . engage[] in any other persistent course of conduct” in the District, id. § 13-423(a)(4)

(emphasis added). The court reaffirms its prior holding that the exercise of jurisdiction under

subsection (a)(3) is not proper “based on [Defendant’s] limited mailings and communications from

outside the jurisdiction.” TRO Mem. Op. at 19–20; see also Moncrief, 807 F.2d at 220–21 (finding

that the mere mailing of a defamatory statement into the District does not satisfy subsection (a)(3)

because there must be some distinction between the “injury” and the “act”). And as to

subsection (a)(4), the Amended Complaint fails to any allege jurisdictional contacts with the

8 District other than those associated with the subpoena to establish a “persistent course of conduct.”

See generally Am. Compl. To the extent Plastics relies on evidence outside the complaint, Pl.’s

Opp’n at 22, it is the same as what that the court found previously lacking, see Renewed TRO

Mem. Op. at 7–8.

Third, Defendant’s post-suit contacts with the District do not make out a plausible basis

for exercising personal jurisdictional. Plastics cites Defendant’s attempt to personally serve his

California state court enforcement petition on Plastics in the District after this action commenced.

See Pl.’s Opp’n at 19–20. The court is skeptical that such post-suit conduct can count as relevant

jurisdictional contacts. See Renewed TRO Mem. Op. at 6 n.4; Allen v. Russian Fed’n,

522 F. Supp. 2d 167, 193–94 (D.D.C. 2007) (reasoning that “the filing of a ‘lawsuit’ (not a

complaint) determines the time in which personal jurisdiction contacts are considered” such that

“personal jurisdiction contacts are determined at the time the initial complaint is filed, and . . . [do]

not change even when an amended complaint is filed”). But even if they can, Defendant never

succeeded at in-person service of his enforcement petition and had to resort to service by email.

Am. Compl. ¶ 14. Plastics’ “acceptance of process by email is not a meaningful jurisdictional

contact with the District.” Renewed TRO Mem. Op. at 6–7.

IV. CONCLUSION

For the foregoing reasons, Plastics has failed to plausibly allege a factual basis for personal

jurisdiction in this case. Accordingly, Defendant’s Motion to Dismiss, ECF No. 30, is granted,

and this action is hereby dismissed. A final, appealable order accompanies this Memorandum

Opinion.

Dated: April 7, 2025 Amit P. Mehta United States District Court Judge