UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________ ) LAWRENCE D. CALDWELL, ) ) Plaintiff, ) ) Civil Action No. 11-1304 (EGS) v. ) ) ANTHONY D. ROMERO, JO-ANNA ) JOSEPH, and other employees and ) agents unknown to Plaintiff of ) the American Civil Liberties ) Union Foundation National ) Office, in their personal and ) individual capacities as, ) ) Defendants. ) )

MEMORANDUM OPINION

This case is before the Court on defendants’ Motion to

Dismiss. Plaintiff Lawrence D. Caldwell, proceeding pro se,

filed a complaint on July 19, 2011, pursuing claims under the

Age Discrimination in Employment Act (“ADEA”),

,

et seq., Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e, et seq., and the District of Columbia

Human Rights Act (“DCHRA”),

, et seq.

Defendants moved to dismiss, citing insufficient service of

process, 1 lack of personal jurisdiction, and failure to state a

1 In his Opposition, plaintiff conceded that service of process had been insufficient. Plaintiff’s Opposition to Motion to Dismiss (“Pl.’s Opp.”) at 2. In their Reply, however, defendants agreed to accept service while preserving their arguments related to personal jurisdiction, rendering the claim. Upon consideration of defendants’ motion, the response

and reply thereto, the applicable law, the entire record, and

for the reasons set forth below, the Court hereby GRANTS

defendants’ motion to dismiss.

I. BACKGROUND

Plaintiff is a resident of the District of Columbia and a

former employee of the National Prison Project (“NPP”) of the

American Civil Liberties Union Foundation (“ACLU”). Compl. ¶ 3.

Plaintiff began working as an unpaid volunteer at the NPP in

April 2004, and was offered and accepted a part-time paid

position as a paralegal several weeks later.

. In April

2005, plaintiff was offered and accepted a full-time paid

position as a paralegal.

Defendant Anthony Romero is the current Director of the

ACLU and works in its National Office, located at 125 Broad

Street, New York, New York. Compl. ¶ 4. He is being sued in

his individual capacity.

Romero reports to, and is a

member of, the ACLU’s 83-member Board of Directors. Defendants’

Mot. to Dismiss, Exhibit 1, Declaration of Anthony D. Romero

(“Romero Decl.”) ¶ 7. Romero’s personal residence is in New

Jersey,

, and he does not own or rent property in the

District of Columbia.

. Romero states that his travel

service issue moot. Defendants’ Reply in Further Support (“Defs.’ Reply”) at 1.

2 to the District of Columbia is limited to official ACLU

purposes, with the exception of two personal trips made in the

last ten years.

. Plaintiff alleges that Romero

visited the NPP offices located in the District of Columbia

three times while plaintiff was employed at the NPP, and that

Romero spoke to plaintiff on one of those occasions. Pl.’s Opp.

at 3-4.

Defendant Jo-Anna Joseph is the Director of Human Resources

of the ACLU and also works in its National Office, located at

125 Broad Street, New York, New York. Compl. ¶ 5. She is being

sued in her individual capacity.

Joseph’s personal

residence is in New Jersey, and she does not own or rent

property in the District of Columbia. Defendants’ Mot. to

Dismiss, Exhibit 2, Declaration of Jo-Anna Joseph (“Joseph

Decl.”) ¶¶ 8-9. Joseph does not transact or solicit any

business in the District of Columbia, and her travel is limited

to official trips related to her ACLU employment and three

personal trips in the last four years.

. In his

opposition, plaintiff states that Joseph met with “the entire

administrative staff of the NPP, including plaintiff” in 2008 to

discuss the “efficiency” of the NPP, among other topics. Pl.’s

Opp. at 4.

On January 22, 2009, plaintiff received a letter signed by

defendant Joseph and another ACLU employee, Elizabeth Alexander,

3 informing plaintiff that his paralegal position had been

eliminated, effective immediately, “due to the economic crisis.”

Compl. ¶ 8. Plaintiff was also informed of the layoff verbally

by Ms. Alexander.

Despite the effective date of his

termination letter, plaintiff remained at the NPP and received a

regular salary through February 1, 2009.

On January 26, 2009, the ACLU held a national conference

call with all projects and regional offices to discuss the

layoffs. Compl. ¶ 9. Plaintiff participated in this call,

which was chaired by Steven R. Shapiro, Legal Director of the

ACLU.

During the call, Mr. Shapiro stated that the ACLU

would lay off 10 percent of its staff, institute a hiring

freeze, and suspend regular cost-of-living salary increases.

Mr. Shapiro stated that all final decisions as to layoffs

had been decided by defendant Romero.

According to

plaintiff, his position was the only position eliminated at the

NPP, and all administrative staff who retained their positions

were younger than plaintiff. Compl. ¶ 8.

On June 5, 2009, the ACLU listed a job opening for a

“Legislative & Policy Counsel Assistant” on its national

website. Defendants’ Mot. to Dismiss, Margolis Aff., Ex. B. 2

2 Plaintiff incorporates the job posting by reference in his complaint (Compl. ¶ 11) but does not attach it and improperly cites the title of the posting. The Court may properly refer to the copy of the job posting attached to defendants’ Motion to 4 The posting stated that paralegal experience was “a plus.”

Compl. ¶ 11. Plaintiff submitted his resume for consideration

to defendant Joseph and received an email from another ACLU

employee several weeks later confirming that his resume had been

received.

Plaintiff states, without providing further

detail, that he “subsequently learned a much younger individual

had been hired.”

On September 24, 2009, plaintiff filed a complaint against

the defendants with the Equal Employment Opportunity Commission

(“EEOC”), charging age discrimination in employment. 3 The EEOC

ultimately dismissed plaintiff’s charges and closed its

investigation on April 29, 2011, finding no information

sufficient to establish a statutory violation. Compl. ¶ 11, Ex.

1. Plaintiff filed his complaint on July 19, 2011. At the time

the complaint was filed, plaintiff was sixty-five years old.

Compl. ¶ 7.

Dismiss without converting the motion to one for summary judgment. Hinton v. Corrections Corp. of Am.,

(D.D.C. 2009). 3 Plaintiff did not include any documents regarding his EEOC claim other than the April 29, 2011 Dismissal and Notice of Rights. Because the issue of exhaustion of remedies is not before the Court, the Court assumes that the EEOC complaint was filed against the same parties and included the same allegations as this action. Compl. ¶ 11, Ex. 1.

5 II. LEGAL STANDARD

A plaintiff bears the burden of making a prima facie

showing that the Court has personal jurisdiction over a

defendant. Kurtz v. United States,

(D.D.C. 2011) (citing Ballard v. Holinka,

(D.D.C. 2009)). A plaintiff must plead specific facts

providing a basis for personal jurisdiction, id. at 51, and a

plaintiff cannot rely on merely conclusory allegations.

Buesgens v. Brown,

(D.D.C. 2008).

Accordingly, to establish personal jurisdiction over a

defendant, the plaintiff must allege specific acts connecting

the defendant with the forum.

(citing Second Amend. Found.

v. U.S. Conf. of Mayors,

(D.C. Cir. 2001)).

Although complaints filed by pro se plaintiffs are to be

liberally construed, see Erickson v. Pardus,

(2007), “[p]ro se plaintiffs are not freed from the requirement

to plead an adequate jurisdictional basis for their claims.”

Kurtz,

(quoting Gomez v. Aragon,

(D.D.C. 2010)).

On a motion to dismiss for lack of personal jurisdiction, a

Court may consider material outside of the pleadings. Thompson

Hine LLP v. Smoking Everywhere Inc., --- F. Supp. 2d ----,

(D.D.C. Jan. 6, 2012); Artis v. Greenspan,

(D.D.C. 2002). When considering whether

6 personal jurisdiction exists, the Court need not treat all of

plaintiff’s jurisdictional allegations as true. Buesgens,

. Instead, the court may receive and weigh

affidavits and any other relevant matter to assist it in

determining the jurisdictional facts.

Any factual

discrepancies should be resolved in favor of the plaintiff.

In the D.C. Circuit, personal jurisdiction must be

determined by reference to District of Columbia law. United

States v. Ferrara,

(D.C. Cir. 1995). To

establish personal jurisdiction over a nonresident of the

District of Columbia, a court must engage in a two-part inquiry:

1) whether jurisdiction is applicable under the District of

Columbia’s long-arm statute, and 2) whether a finding of

jurisdiction satisfies the constitutional requirements of due

process.

The District of Columbia’s long-arm statute

provides:

A District of Columbia Court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim 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

7 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.

(a)(1)-(4). The “transacting any business”

prong of subsection (1) has been interpreted to be coextensive

with the Constitution’s due process requirements and thus the

two merge into a single inquiry. GTE New Media Servs. Inc. v.

BellSouth Corp.,

(D.C. Cir. 2000).

When seeking to exercise personal jurisdiction under

subsection (a)(1) of the D.C. long-arm statute over an employee

or officer of a company who is being sued in his individual

capacity, a plaintiff must establish that the employee’s

personal contacts with the forum are sufficient to establish

personal jurisdiction, in contrast to acts or contacts carried

out solely in the course of employment. D’Onforio v. SFX Sports

Group, Inc.,

(D.D.C. 2008) (dismissing

claims for lack of personal jurisdiction over defendants sued in

personal capacity, where allegations were based on acts within

the scope of defendants’ employment); Wiggins v. Equifax,

(D.D.C. 1994). Thus, “plaintiff bears the burden

of demonstrating that the individual defendants are subject to

personal jurisdiction in their own right apart from any

jurisdiction that may exist over their corporate-entity

8 employers.” D’Onforio,

-91 (citing Keeton

v. Hustler Magazine, Inc.,

, 781 n.13 (1984)).

Allegations that fall squarely within the defendant’s scope of

employment will not create sufficient contacts to establish

personal jurisdiction. Id. at 91. 4

III. DISCUSSION

Although not pled by the plaintiff, the Court will construe

the complaint liberally as including the allegation that

personal jurisdiction over defendants is proper under subsection

(a)(1) of the District of Columbia’s long-arm statute. 5

Subsection (a)(1) provides that a Court may exercise

4 A limited exception has been recognized by this Court where a defendant is “more than an employee of the corporation” and exerts a significant degree of control over the company as a whole. Compare Azmar v. Stern,

(D.D.C. 2009) (personal jurisdiction over employee in his personal capacity was appropriate where employee was “sole owner and officer” who “controls the management and policies of his corporation”) with D’Onforio, F. Supp. 2d at 93 n.6 (declining to find that officers were subject to personal jurisdiction in their individual capacities where they were “not the only corporate officers of their respective companies and plaintiff does not suggest that those two individuals control all aspects of the relevant corporations”). Plaintiff does not allege that Romero or Joseph control all aspects of the NPP or ACLU, nor does it appear from Romero and Joseph’s declarations and the nature of their roles within the ACLU that plaintiff would have a basis for any such allegations. 5 The Court finds subsection (a)(2) to be inapplicable because the complaint does not allege the existence of a contract to supply goods and services in the District of Columbia. Similarly, the Court finds subsections (a)(3) and (4) to be inapplicable because the complaint does not allege the commission of a tort.

9 jurisdiction over a person as to a claim arising from the

person’s “transacting any business in the District of Columbia.”

As discussed below, however, plaintiff fails to establish a

basis for the court to exercise personal jurisdiction over

either defendant.

Plaintiff’s complaint and his opposition to defendants’

Motion to Dismiss fail to set forth any facts that would permit

this court to exercise long-arm jurisdiction over defendants

Romero and Joseph. With respect to Romero, the Director of the

ACLU, plaintiff’s allegations include only Romero’s approval of

a nationwide 10 percent reduction in workforce (Compl. ¶ 9),

Romero’s three visits to the NPP’s office during the five years

plaintiff worked there (Pl.’s Opp. at 4), and an unspecified

conversation plaintiff had with Romero, apparently unrelated to

plaintiff’s termination, during one of those visits.

With

respect to Joseph, the Director of Human Resources, plaintiff

alleges only that Joseph was a signatory of plaintiff’s January

2009 termination letter (Compl. ¶ 8), that she was the recipient

of plaintiff’s June 2009 job application, (Compl. ¶ 11), and

that she traveled to the NPP office once in 2008 to meet with

the administrative staff regarding the general “efficiency” of

the office. Pl.’s Opp. at 4. These facts fall squarely within

the scope of Romero’s and Joseph’s employment with the ACLU, and

do not involve either defendant doing business in a personal

10 capacity in the District of Columbia. They are therefore

insufficient to support personal jurisdiction over either

defendant. See D’Onforio,

.

The facts set forth in the defendants’ declarations further

undermine a finding of personal jurisdiction. Romero states

that he lives in New Jersey, that he does not rent or own

property in the District of Columbia, and that he does not

conduct personal business within the District. Romero Decl. ¶¶

7-12. Similarly, Joseph states that she lives in New Jersey,

that she does not rent or own property in the District of

Columbia, and that she does not conduct personal business within

the District. Joseph Decl. ¶¶ 8-13. Though these facts are

outside the pleadings, the Court may consider them on a motion

to dismiss under Federal Rule of Civil Procedure 12(b)(2). See

Thompson Hine LLP, --- F. Supp. 2d ----,

;

Artis,

.

Although not raised by the plaintiff, the Court has

considered whether the exception for defendants who are “more

than an employee” would provide a basis for the Court to

exercise personal jurisdiction over the defendants in this case.

Because the complaint and the parties’ briefing on the motion to

dismiss are devoid of any facts suggesting that either defendant

exercised control over the ACLU or NPP as a whole, the Court

11 finds the exception to be inapplicable. See D’Onforio, F. Supp.

2d at 93, n.6.

As explained above, it is plaintiff’s burden to prove that

there is an adequate basis to assert personal jurisdiction over

the defendants and he has failed to carry that burden here.

Accordingly, for the foregoing reasons, the Court must GRANT

defendants’ motion to dismiss plaintiff’s complaint for lack of

personal jurisdiction. Having found sufficient grounds to grant

defendants’ motion, the Court does not reach defendants’

arguments regarding plaintiff’s failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6).

IV. CONCLUSION

Defendants’ Motion to Dismiss Plaintiff’s Complaint is

hereby GRANTED. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 2, 2012

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