Houlahan v. Brown

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

_______________________________________________

THOMAS HOULAHAN,

Plaintiff,

v. 1:11-CV-1240

(FJS/AK)

MAUREEN BROWN and TERRANCE

HOULAHAN,

Defendants.

_______________________________________________

APPEARANCES

THOMAS HOULAHAN

Washington, D.C.

Plaintiff pro se

MAUREEN BROWN

Cape Coral, Florida

Defendant pro se

TERRANCE HOULAHAN

Bishops Stortford, UK

Defendant pro se

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are Magistrate Judge Kay's August 12, 2013 Report and

Recommendation, see Dkt. No. 35, and Plaintiff's objections thereto, see Dkt. No. 39.1 The

1

The Court assumes the parties' familiarity with the facts underlying this action as well as

with Magistrate Judge Kay's recommendations and Plaintiff's objections thereto. Therefore, the

Court will not repeat them here.

Court heard oral argument regarding these objections on September 30, 2013.2 At the end of the

argument, the Court advised the parties that it would issue a written decision resolving Plaintiff's

objections to Magistrate Judge Kay's recommendations. The following constitutes the Court's

resolution of Plaintiff's objections.

II. BACKGROUND

On January 16, 2013, Defendant Terrance Houlahan moved to dismiss Plaintiff's

amended complaint. See Dkt. No. 17, Defendant Terrance Houlahan's Motion to Dismiss.

Among other things, he sought dismissal on the grounds of judicial estoppel, collateral estoppel,

res judicata, and lack of jurisdiction. See id. On February 25, 2013, Defendant Brown moved to

dismiss Plaintiff's amended complaint on the grounds of lack of personal jurisdiction and failure

to state a claim on which the Court could grant relief. See Dkt. No. 21, Defendant Brown's

Motion to Dismiss.

In a Report and Recommendation dated August 12, 2013, Magistrate Judge Kay found

that (1) the Court lacked personal jurisdiction over Defendants; (2) the District of Columbia was

the wrong venue for this action; and (3) Plaintiff had failed to state a plausible claim against

either Defendant. See generally Dkt. No. 35.

Plaintiff filed objections to Magistrate Judge Kay's recommendations. See Dkt. No. 39.

Specifically, Plaintiff contended that Magistrate Judge Kay had erred in the following ways: (1)

by refusing him an opportunity to amend his complaint, (2) by applying New Hampshire's statute

of limitations and misinterpreting the District of Columbia's statute of limitations, (3) by

2

Plaintiff appeared in person for argument. Both Defendants appeared by telephone.

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recommending dismissal on venue grounds, which the court raised sua sponte, (4) by

misinterpreting 28 U.S.C. § 1391, (5) by holding that the allegations in his complaint did not

meet the Twombly/Iqbal standard, and (6) by finding that he had sustained harm from the

defamation-related torts in New Hampshire, rather than in the District of Columbia.

Furthermore, Plaintiff asserted that, to the extent there was any doubt about the "persistent course

of conduct" requirement of § 13-423(4), the Court should afford him limited discovery on this

issue. See generally Dkt. No. 39.

III. DISCUSSION

A. Standard of review

In reviewing a magistrate judge's report and recommendation, the district court may

decide to accept, reject or modify the recommendations therein. See 28 U.S.C. § 636(b)(1). The

court conducts a de novo review of the magistrate judge's recommendations to which a party

objects. See Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). ""If, however, the party

makes only conclusory or general objections, or simply reiterates his original arguments, the

Court reviews the Report and Recommendation only for clear error."'" Salmini v. Astrue, No.

3:06-CV-458, 2009 WL 1794741, *1 (N.D.N.Y. June 23, 2009) (quoting [Farid v. Bouey, 554 F.

Supp. 2d 301] at 306 [(N.D.N.Y. 2008)] (quoting McAllan v. Bon Essen, 517 F. Supp. 2d 672,

679 (S.D.N.Y. 2007)). In this case, although many of Plaintiff's objections are conclusory or

merely repeat his original arguments, because of his pro se status, the Court has conducted a de

novo review of Magistrate Judge Kay's Report and Recommendation in light of Plaintiff's

objections.

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B. Personal jurisdiction

"In a diversity case, the federal district court's personal jurisdiction over the defendant is

coextensive with that of a District of Columbia court." Helmer v. Doletskaya, 393 F.3d 201, 205

(D.C. Cir. 2004) (citing Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987)). On a motion to

dismiss based on lack of personal jurisdiction, the plaintiff bears the burden of proving that the

court has personal jurisdiction over the defendant. See Frost v. Catholic Univ. of Am., No. 12-

1460, 2013 WL 4129129, *2 (D.D.C. Aug. 15, 2013) (citation omitted). To meet his burden, a

plaintiff must assert "'specific facts on which personal jurisdiction can be based; [he] cannot rely

on conclusory allegations.'" Id. (quoting Moore v. Motz, 437 F. Supp. 2d 88, 90-91 (D.D.C.

2006)). Moreover, unlike a motion to dismiss for failure to state a claim, the court "'may

consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack

of jurisdiction.'" Id. (quoting Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.

Cir. 2005)). A court also does not need to treat as true all of the plaintiff's allegations when

determining whether personal jurisdiction exists. See id. (citing Fuentes-Fernandez & Co. v.

Caballero & Castellanos, PL, 770 F. Supp. 2d 277, 279 (D.D.C. 2011)).

"To assert personal jurisdiction over a non-resident defendant, service of process must be

authorized by statute and must comport with the Due Process Clause of the Fourteenth

Amendment." Frost, 2013 WL 4129129, at *3 (citing Cohane v. Arpeja-California, Inc., 385

A.2d 153, 158 (D.C. 1978), cert. denied 439 U.S. 980, 99 S. Ct. 567, 58 L. Ed. 2d 651). Courts

have held that the District of Columbia's long-arm statute extends as far as the Due Process

Clause allows. See id. (citing Mouzavires v. Baxter, 434 A.2d 988 (D.C. 1981) (en banc), cert.

denied, 455 U.S. 1006, 102 S. Ct. 1643, 71 L. Ed. 2d 875). Thus, "personal jurisdiction exists

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when the defendant has purposely established minimum contacts with the forum state and when

the exercise of jurisdiction comports with 'traditional notions of fair play and substantial justice.'"

Id. (quoting Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 107 S. Ct. 1026, 94

L. Ed. 2d 92 (1987)).

The District of Columbia's long-arm statute provides, in relevant part, that

(a) A District of Columbia court may exercise personal jurisdiction

over a person, who acts directly or through 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 of the District of Columbia if he regularly does or

solicits business, engages in any other persistent course of conduct,

or derives substantial revenue from goods used or consumed, or

services rendered, in the District of Columbia. . . .

D.C. Code § 13-423(a).

Jurisdiction based solely on this provision is specific, i.e., "only a claim for relief arising from

acts enumerated in this section may be asserted against [the defendant]." D.C. Code § 13-423(b).

However, for purposes of subsection (a)(4), although personal jurisdiction can be exercised for

"'a claim for relief [that] aris[es] from the person's . . . causing tortious injury in the District of

Columbia by an act or omission outside the District of Columbia . . . .'", Etchebarne-Bourdin v.

Radice, 982 A.2d 752, 761 (D.C. 2009) (quoting [D.C. Code § 13-423](a)(4)), "[s]ubsection

(a)(4) further requires that jurisdiction can be exercised over [a defendant] only if [he] also [has]

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an additional contact with the District, in this case, if [he] 'engages in any other persistent [course

of] conduct . . . in the District of Columbia[,]'" id. (quoting [D.C. Code § 13-423(a)(4)]).

The only possible subsection on which Plaintiff can rely in this case to establish that this

Court has personal jurisdiction over Defendants is subsection (a)(4). Therefore, he must

establish that Defendants committed a tortious act outside the District of Columbia, which

caused him injury in the District of Columbia and, additionally, that they "engage[d] in any other

persistent course of conduct . . . in the District of Columbia." D.C. Code § 13-423(a)(4). At oral

argument, Plaintiff reiterated that he was basing his argument that the Court had personal

jurisdiction over Defendant Brown, at least in part, on the email that Defendant Brown had sent

him on July 8, 2010. However, despite the Court's repeated questioning at oral argument,

Plaintiff was unable to identify any facts to support his conclusory assertion that Defendants had

engaged in a persistent course of conduct in the District of Columbia.3

Having reviewed all of the parties' submissions and their oral arguments, the Court

concludes that Plaintiff has alleged no facts that would support even an inference, let alone a

finding, that this Court has personal jurisdiction over Defendants.

III. CONCLUSION

Accordingly, for the above-stated reasons, the Court hereby

ORDERS that Magistrate Judge Kay's August 12, 2013 Report and Recommendation is

3

The Court notes that, when it asked Defendants about the websites/businesses that

Plaintiff alleged they owned and through which they might have had some connection to the

District of Columbia, Defendant Terrance Houlahan responded that he did no business in the

United States and Defendant Brown responded that, although she had planned to do some

business through a website at one time, she had never completed or activated the website.

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ACCEPTED insofar as Magistrate Judge Kay recommended that this Court dismiss the case for

lack of personal jurisdiction;4 and the Court further

ORDERS that Defendant Brown's motion to dismiss is GRANTED without prejudice5

on the ground that this Court lacks personal jurisdiction over her; and the Court further

ORDERS that Defendant Terrance Houlahan's motion to dismiss is GRANTED without

prejudice on the ground that this Court lacks personal jurisdiction over him; and the Court

further

ORDERS that Defendant Terrance Houlahan's motion for sanctions is DENIED; and the

Court further

ORDERS that the Clerk of the Court shall close this case.

IT IS SO ORDERED.

Dated: October 8, 2013

Syracuse, New York

4

The Court also agrees with Magistrate Judge Kay's conclusion that the District of

Columbia is not the proper venue for this action.

5

Dismissal is without prejudice because the Court did not reach the merits of Plaintiff's

claims. See Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1091 (D.C.

Cir. 1998) (citing Wright & Miller, § 2373 at 406 (1995) (noting that "dismissals that do not

reach the merits because of a lack of jurisdiction . . . must be considered to be without

prejudice")) (other citations omitted).

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