UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________ ) MWATA DYSON, ) ) Plaintiff, ) ) v. ) Case No. 21-cv-02280 (APM) ) DUTKO RAGEN HOMES & ) INVESTMENTS, KW UNITED, ) d/b/a KELLER WILLIAMS, et al. ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiff Mwata Dyson filed this action against multiple Defendants alleging violations of

the Fair Housing Act (“FHA”). Defendants Northern Virginia Property Management Pros Co.,

doing business as Real Property Management Pros (“RPMP”), and Marc Blackwood move to

dismiss the complaint for lack of personal jurisdiction. Defs.’ Mot. to Dismiss for Lack of Personal

Jurisdiction, ECF No. 4 [hereinafter RPMP’s Mot.]. Defendants Dutko | Ragen Homes &

Investments, KW, doing business as Keller Williams (“Keller Williams”), and Tasheika S. Penn

move to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6) and Rule 8 of the Federal Rules

of Civil Procedure. Defs.’ Mot. to Dismiss First Am. Compl., ECF No. 15 [hereinafter Keller

Williams Defs.’ Mot.]. For the reasons stated below, Defendants’ Motions are granted. Plaintiff’s

request for jurisdictional discovery in response to RPMP’s Motion is denied.

I.

A.

RPMP, led by its president Marc Blackwood, is a property management company licensed

and organized in Virginia, with its principal office in Gainesville, Virginia. See RPMP’s Mot., Defs.’ Mem. of P. & A., ECF No. 4-1 [hereinafter RPMP’s Mem.], at 2; Defs.’ Mot., Decl. of

Marc Blackwood, ECF No. 4-2, at 2; Compl., ECF No. 1 [hereinafter Compl.], ¶¶ 6, 11. RPMP

manages a property located at 7978 Vigne Court in Vienna, Virginia (the “Vienna Property”).

See RPMP’s Mem. at 2. Plaintiff retained the realty services of Keller Williams and its agent

Tasheika Penn to find a rental unit to rent for himself and his two young children. Penn brought

the Vienna Property to Plaintiff’s attention. See Defs. Keller Williams & Tasheika Penn’s Mem.

in Supp. of Mot. to Dismiss, ECF No. 16, at 1–2. RPMP received an application from Plaintiff on

July 19, 2021, to lease the Vienna Property. See Compl. ¶ 19. In the weeks that followed, RPMP

purportedly agreed to the lease terms with Plaintiff before reneging on the agreement prior to

Plaintiff’s move. See Compl. ¶¶ 19–26; RPMP’s Mem. at 2. Plaintiff claims that Defendants’

actions were motivated by racial animus in violation of the FHA. Compl. ¶¶ 6–8.

B.

Plaintiff filed his initial complaint against Defendants RPMP, Blackwood, Keller

Williams, and others on August 27, 2021. See Compl. at 1. RPMP and Blackwood moved to

dismiss the Complaint for lack of personal jurisdiction on October 5, 2021. See RPMP’s Mot. at

1. Keller Williams then moved to dismiss for failure to state a claim on October 12, 2021. Def.

Keller Williams’s Mot. to Dismiss Compl. Pursuant to Rule 12(B)(6), ECF No. 6. Plaintiff then

filed his First Amended Complaint (“FAC”) on October 27, 2021, which, among other things,

added Penn as a defendant. First Am. Compl., ECF No. 13 [hereinafter FAC]. The court treated

that pleading as an amendment as of right as to Keller Williams because Plaintiff filed the

amendment within 21 days of Keller Williams’s motion, thereby mooting the motion. Minute

Order, Oct. 27, 2021. The court did not, however, deem RPMP and Blackwood’s motion to be

moot because Plaintiff, without seeking leave of court, filed the amended complaint more than 21

2 days after those defendants had filed their motion. Id. Keller Williams and Penn then moved

jointly to dismiss the FAC pursuant to Rule 12(b)(6) and Rule 8. Keller Williams Defs.’ Mot. at

1.

Both motions are now ripe for consideration. The court begins with RPMP and

Blackwood’s jurisdictional challenge before turning to Keller Williams and Penn’s motion.

II.

On a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), the plaintiff

bears the burden of establishing the court’s personal jurisdiction over a defendant. See Crane v.

N.Y. Zoological Soc’y,

(D.C. Cir. 1990). The plaintiff must demonstrate the

defendant’s connection with the forum by alleging specific facts. Second Amend. Found. v. U.S.

Conf. of Mayors,

(D.C. Cir. 2001). Factual discrepancies in the record “must

be resolved in favor of the plaintiff.” Crane,

. The court, however, need not “treat

all of the plaintiff’s allegations as true” and may consider affidavits and other materials to

determine whether to exercise jurisdiction. Cap. Bank Int’l Ltd. v. Citigroup, Inc.,

(D.D.C. 2003).

A plaintiff can establish personal jurisdiction over a defendant in one of two ways: they

can either prove the court has “general (sometimes called all-purpose) jurisdiction [or] specific

(sometimes called case-linked) jurisdiction.” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,

(2021). Plaintiff invokes both as to RPMP and Blackwood but succeeds as to

neither.

A.

General jurisdiction “permits a court to assert jurisdiction over a defendant based on a

forum connection unrelated to the underlying suit.” Erwin-Simpson v. AirAsia Berhad,

3 883, 889 (D.C. Cir. 2021). A court may exercise such jurisdiction only when the defendant’s

“affiliations with the [forum] are so ‘continuous and systematic’ as to render [the defendant]

essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown,

(2011) (quoting Int’l Shoe Co. v. Washington,

(1945)).

Plaintiff relies on outdated D.C. Circuit precedent to make the case that RPMP’s website

satisfies the requirements of general jurisdiction. Pl.’s Opp’n to RPMP’s Mot., ECF No. 11, Pl.’s

Mem. of P. & A. in Supp. of Pl.’s Opp’n to RPMP’s Mot., ECF No. 11-1 [hereinafter Pl.’s RPMP

Opp’n], at 7–8. Plaintiff cites FC Investment Group LC v. IFX Markets, LTD.,

(D.C. Cir. 2008), for the proposition that the interactivity of a website combined with District

residents’ use of it in a “continuous and systematic” way is sufficient to confer general jurisdiction

over an out-of-District company. Pl.’s RPMP Opp’n at 8. But the D.C. Circuit expressly overruled

FC Investment Group LC last year in Erwin-Simpson. Erwin-Simpson, 985 F.3d at 891 (“[T]he

reasoning underlying our precedent has been eroded by intervening Supreme Court

decisions. . . . Because Gorman and FC Investment Group set a lower bar, we overrule our

precedent on that point as inconsistent with Daimler and Goodyear.”). Erwin-Simpson holds that,

for a foreign defendant corporation’s online contacts to establish general jurisdiction, they “would

need to render the corporation ‘essentially at home’ in the District.” Erwin-Simpson, 985 F.3d at

892 (quoting Goodyear,

). Here, Plaintiff points only to RPMP’s website’s

interactive pop-up prompt and a single statement on the website that Washington, D.C., is among

the company’s “Areas Served,” Pl.’s RPMP Opp’n at 8, but those attributes fall well short of

establishing RPMP to be “essentially at home” in the District. The court thus lacks general

jurisdiction over RPMP.

4 B.

That leaves specific jurisdiction. Specific jurisdiction “depends on an affiliation between

the forum and the underlying controversy.” Goodyear,

(cleaned up). While the

controversy must relate to the defendant’s forum connections, the defendant’s connections need

only be “some act by which [the defendant] purposefully avails itself of the privilege of conducting

activities within the forum State.” Ford, 141 S. Ct. at 1024–25 (quoting Hanson v. Denckla,

(1958)). For the court to satisfy itself that it has specific jurisdiction over a non-

resident defendant, the court must undertake two inquiries: first, whether the District of

Columbia’s long-arm statute authorizes the exercise of the court’s power; and second, whether a

finding of jurisdiction satisfies constitutional due process. GTE New Media Servs. Inc. v.

BellSouth Corp.,

(D.C. Cir. 2000).

Plaintiff cites three different subsections of the D.C. long-arm statute, and he makes two

cursory arguments to support personal jurisdiction under those subsections. Pl.’s RPMP Opp’n at

7 (citing

(a)(1), (3)–(4)). First, Plaintiff asserts that “Defendants’ regular and

systematic contacts with Plaintiff Dyson during the course of the transaction as stated above to

solicit his business . . . establish[] specific jurisdiction over these Defendants.”

. Second,

he maintains that “specific jurisdiction exists because these Defendants were co-conspirators with

other co-Defendants as pled in the Complaint.”

Plaintiff hardly elaborates as to either ground,

but in any event they fail.

Section 13-423(a).

(a)(1) permits exercise of personal jurisdiction over

a “person, who acts directly or by an agent, as to a claim of relief arising from the person’s

transacting any business in the District of Columbia.” This provision is “given an expansive

interpretation” that is “coextensive with the due process clause.” Mouzavirs v. Baxter,

(D.C. 1981). When, as here, the business transacted is contractual in nature, the question

is whether the contract has a “substantial connection” to the District of Columbia. Helmer v.

Doletskaya,

(D.C. Cir. 2004). “The mere fact that the other party to the contract

is a District of Columbia resident does not create a ‘substantial connection.’” Nat’l Resident

Matching Program v. Elec. Residency LLC,

(D.D.C. 2010). Instead,

courts “must evaluate the prior negotiations and contemplated future consequences, along with the

terms of the contract and the parties’ actual course of dealing.” Helmer,

(internal

quotation marks omitted).

The aborted lease agreement that Plaintiff signed for the Vienna Property lacks a

“substantial connection” to the District of Columbia. The “contemplated future consequences” of

the lease were for Plaintiff and his family to occupy real property in Virginia and pay rent to a

Virginia-based management company. Additionally, Plaintiff identifies no “terms of the contract”

that involve the District of Columbia.

And, importantly, the parties’ “actual course of dealing” at every step had no connection

to the District of Columbia other than Plaintiff’s presence in the forum.

• RPMP did not, contrary to Plaintiff’s characterization, directly “solicit his

business.” Pl.’s RPMP Opp’n at 8. Instead, Plaintiff initiated the contact with

RPMP, after Keller Williams had given Plaintiff a listing for the Vienna Property.

Compl. ¶ 15.

• Nor did the effort to lease the Vienna Property involve “prior negotiations.” In fact,

Plaintiff alleges no negotiations over the lease terms: Plaintiff applied to lease the

property and submitted his supporting documents via email, id ¶ 19, and

6 approximately two weeks later, he received an email from RPMP indicating that

the landlord had approved his application, id. ¶ 20.

• The post-approval communications with RPMP likewise involved no

“negotiations.” They concerned the terms of the lease, instructions for

electronically signing the lease, and timing for moving in. Id. ¶¶ 20–21. Plaintiff

then signed the lease through RPMP’s online portal. Id. ¶ 22.

• And RPMP’s ultimate refusal to lease to Plaintiff had no connection to the District

other than Plaintiff’s presence here. Five days after signing the lease, Plaintiff had

trouble accessing the online portal, prompting him to make multiple inquiries of

RPMP via email. Eventually, he was informed via email and a telephone phone

call, without any explanation, that RPMP had reneged on the lease of the Vienna

Property. Id. ¶¶ 23–27. Instead, according to Plaintiff, RPMP asked him for a copy

of his resume and a “letter to explain why he was worthy of living on the premises.”

Id. ¶ 26.

This “course of dealing” does not establish a “substantial connection” to the District of

Columbia, such that RPMP purposefully availed itself of the benefits and protections of District

of Columbia law and should have reasonably anticipated being haled into court here. See Helmer,

; see also Bueno v. La Compania Peruana de Radiodifusion, S.A.,

, 8–9

(D.C. 1977) (finding that the “transacting business” prong was not met when the defendant “did

not initiate or pursue contract negotiations in the District of Columbia,” “[n]o services were to be

provided by” the defendant in the District, and “all its duties under the contract were to be

performed” outside of the District).

7 Section 13-423(a)(3). Subsection (a)(3) permits the exercise of jurisdiction over a person

“causing tortious injury in the District of Columbia by an act or omission in the District of

Columbia” with respect to a claim for relief. “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,

(D.C. Cir. 2016) (cleaned up).

Plaintiff fails to allege any act committed by RPMP “in the District” that caused Plaintiff’s

injury. Plaintiff claims that RPMP caused his injury by reneging on the lease agreement for the

Vienna Property based on Plaintiff’s race. RPMP allegedly carried out that act by locking Plaintiff

out of its online portal, Compl. ¶ 23, and then communicating with him through one text message,

a single email, and two phone calls on one, or perhaps two, days,

¶¶ 25–26. Courts consistently

have held in comparable circumstances, however, that limited communications initiated from

outside the District of Columbia to a District resident do not qualify as an act “in the District” for

purposes of § 13-423(a)(3). The D.C. Circuit, for instance, has held that multiple phone calls made

into the District do not constitute an act within the forum for the purposes of bringing a defamation

claim. See Tavoulareas v. Comnas,

, 193–94 (D.C. Cir. 1983). Similarly, the court

in IMark Marketing Services, LLC v. Geoplast S.p.A. held that phone calls and emails originating

in Italy to a distributor’s employees in the District of Columbia do not constitute acts “in the

District” for a tortious interference claim.

(D.D.C. 2010). And the court

in Naegele v. Alberts held that a phone call and letter originating in California that were the basis

of various tort claims, including malicious prosecution and intentional infliction of emotional

distress, “cannot provide a basis for the exercise of personal jurisdiction in the District of Columbia

8 under section 13-423(a)(3).”

(D.D.C. 2015). The facts here compel the

same conclusion.

Section 13-423(a)(4). Subsection (a)(4) allows for the exercise of personal jurisdiction

over a person who “caus[es] tortious injury in the District of Columbia by an act or omission

outside the District of Columbia,” provided the person also “regularly does or solicits business,

engages in any other persistent course of conduct, or derives substantial revenue from” the District.

(a)(4). These latter criteria are commonly referred to as “plus factors.”

See Akhmetshin v. Browder,

, 925 (D.C. Cir. 2021). The closest Plaintiff comes to

addressing these factors is his contention that RPMP’s website is “interactive” and, according to

the website, “that Washington, D.C. is an ‘Area Served’ by [RPMP’s] operations.” Pl.’s RPMP

Opp’n at 8. But courts in this District have held that “[m]ere interactivity” of a website is not

enough to establish a “plus” factor. See Groop Internet Platform Inc. v. Psychotherapy Action

Network, No. 19-cv-1854 (BAH),

, at *6 (D.D.C. Jan. 21, 2020); Parisi v.

Sinclair,

(D.D.C. 2011). “[A]t least some other non-internet related

contacts between the defendant and the forum” are required. Parisi,

. The

mere fact that RPMP’s website identifies Washington, D.C., as an “Area Served” is not enough to

establish a non-internet related contact with this jurisdiction. Accordingly, Plaintiff has failed to

establish personal jurisdiction over RPMP under § 13-423(a)(4). 1

Conspiracy Jurisdiction under § 13-423(a)(1) and (a)(3). In addition to arguing that

RPMP and Blackwood directly transacted business in the District of Columbia by offering and

1 The above discussion has focused exclusively on RPMP, and has made no mention of Blackwood, because Plaintiff makes no argument as to Blackwood and the long-arm statute. Pl.’s RPMP Opp’n at 7–10. Additionally, the Complaint makes no specific allegation as to Blackwood’s role in the alleged discriminatory conduct. He merely identifies Blackwood as the President of RPMP, Compl. ¶ 11, and otherwise only makes conclusory assertions about his participation in the denial of his lease, see id. ¶ 31. The court cannot exercise jurisdiction over Blackwood based on such paltry allegations under any of the long-arm subsections.

9 then reneging on the lease for the Vienna Property, Plaintiff also asserts that “Section 13-423(a)(1)

authorizes the court to exercise personal jurisdiction over a defendant who, whether ‘directly or

by an agent’ (in this case, a co-conspirator), ‘transact[s] any business in the District of Columbia.’”

Pl.’s RPMP Opp’n at 9–10 (emphasis added). He makes a similar argument as to conspiracy

jurisdiction under § 13-423(a)(3). See id. at 10.

Under a conspiracy theory of jurisdiction, personal jurisdiction can be exercised over a

defendant who does not act in the District of Columbia if a co-conspirator does so. See Second

Amend. Found., 274 F.3d at 523–24. To prevail on such theory, a plaintiff must allege: “(1) the

existence of a civil conspiracy . . . , (2) the defendant’s participation in the conspiracy, and (3) an

overt act by a co-conspirator within the forum, subject to the long-arm statute, and in furtherance

of the conspiracy.” FC Inv. Grp. LC,

(alteration in original) (internal quotation

marks omitted).

There is a heightened standard for pleading conspiracy jurisdiction. A plaintiff must “plead

with particularity the conspiracy as well as the overt acts within the forum taken in furtherance of

the conspiracy” in order to establish conspiracy jurisdiction over a defendant. Companhia

Brasileira Carbureto de Calicio v. Applied Indus. Materials Corp.,

(D.C. Cir.

2011) (internal quotation marks and emphasis omitted). This particularity requirement is “strictly

enforced.” Jung v. Ass’n of Am. Med. Colls.,

(D.D.C. 2004).

To support his theory, Plaintiff points the court to paragraphs 7 and 12 of his Complaint.

Those paragraphs identify two possible co-conspirators: Defendant Frances Kang, who owned the

Vienna Property (paragraph 7) and Defendant Keller Williams (paragraph 12). For the reasons

explained below, Plaintiff has failed to state an FHA claim against Keller Williams, so its conduct

10 cannot supply the basis for conspiracy jurisdiction. So, the court here focuses on the allegations

against Kang.

Plaintiff has alleged no facts with particularity that plausibly establish Kang as a member

of any civil conspiracy or that Kang took any overt act within the District. Paragraph 7 states that

“[t]he intentional conduct and civil conspiracy with co-Defendant Kang Frances aka Frances Kang

left the Plaintiff without a residence.” That, however, is a legal conclusion that is not sufficient to

establish conspiracy jurisdiction. See Second Amend. Found.,

. Although Plaintiff

does not cite them, the Complaint’s factual assertions as to Kang are not enough either. Plaintiff

alleges Kang is a resident of California, who co-owns the Vienna Property with the Kang Frances

Living Trust. Compl. ¶¶ 9, 15. He also contends that Kang approved his application to lease the

property. Id. ¶ 20. But that is all. Those are the only allegations that Plaintiff pleads with

particularity as to Kang. Those allegations do not establish Kang as either a participant in an

unlawful conspiracy or a person who “enter[ed] the forum and engaged in conspiratorial acts.”

Second Amend. Found.,

. Plaintiff’s conspiracy theory of jurisdiction therefore

fails.

C.

Plaintiff requests jurisdictional discovery if the court concludes that personal jurisdiction

has not been established. Pl.’s RPMP Opp’n at 10. “[I]f a party demonstrates that it can

supplement its jurisdictional allegations through discovery, then jurisdictional discovery is

justified.” GTE New Media Servs. Inc. v. BellSouth Corp.,

(D.C. Cir. 2000).

The burden to make such a showing is not a heavy one. See Urquhart-Bradley v. Mobley,

(D.C. Cir. 2020) (deeming sufficient to secure jurisdictional discovery a plaintiff’s

request for discovery into the defendant’s “contacts with [the District of Columbia] through his

11 role in leading the Company’s business activities [there], and his involvement in the discriminatory

employment actions taken against [the plaintiff]”). Here, however, Plaintiff has made no effort

whatsoever to “demonstrate” how he would be aided by jurisdictional discovery. Indeed, he does

not devote even a single line in his opposition to identify what type of jurisdictional discovery he

would seek. See Pl.’s RPMP Opp’n at 10. The entirety of his request is that, as an alternative to

dismissal, the court “grant Plaintiff’s request for jurisdictional discovery if this Court for any

reason deems that jurisdiction has not been established.”

That is not enough to satisfy even

his light burden. Plaintiff’s request for jurisdictional discovery is denied.

III.

The court now turns to Defendants Keller Williams and Penn’s motion to dismiss the FAC

under Rule 12(b)(6). To overcome a motion to dismiss under Rule 12(b)(6), the complaint must

allege enough facts, accepted as true, to “state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly,

(2007). Facial plausibility is achieved when “the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009). The allegations

must be “more than . . . unadorned, the-defendant-unlawfully-harmed-me accusation[s].”

For a complaint to state a violation of the FHA, a plaintiff must “plead facts

establishing . . . that each defendant acted with discriminatory purpose, which requires more than

intent as volition or intent as awareness of consequences.” Karim-Panahi v. 4000 Mass.

Apartments,

(D.D.C. 2018) (internal quotation marks omitted).

Here, Plaintiff’s FAC fails to plead any facts that would allow the court to plausibly infer

that either Keller Williams or Penn violated the FHA. 2 FAC ¶¶ 7, 12, 32. The only specific

2 The FAC also makes stray references to Keller Williams and Penn engaging in a “civil conspiracy,” FAC ¶ 12, but Plaintiff fails to actually include either a standalone claim for conspiracy or otherwise meaningfully develop the theory

12 allegations made against them are that Plaintiff spoke to Penn after he was rejected from leasing

the Vienna Property; that during their conversation, he described the demands made of him and

expressed the belief he was the victim of race discrimination, and Penn agreed with that

assessment; and that Penn responded that she would advise her managers at Keller Williams of his

concerns, but Keller Williams “took no action.” Id. ¶¶ 4, 27, 32. In sum, Plaintiff’s allegations

against Keller Williams and Penn are that they “witnessed the violations occurring” and, despite

serving as the agent for Plaintiff, “took no action. . . . to protect his interest.” Id. ¶ 32. But merely

bearing witness to an alleged violation cannot create liability under the FHA. Nor will a defendant

be held liable for the failure to act by a person who does not control the harasser. See Francis v.

Kings Park Manor, Inc.,

, 72–81 (2d Cir. 2021) (en banc) (assuming, without deciding,

“that deliberate indifference may be used to establish liability under the FHA when a plaintiff

plausibly alleges that the defendant exercised substantial control over the context in which the

harassment occurs and over the harasser,” and affirming dismissal of FHA claim against a landlord

who was alerted to discrimination by a tenant and failed to respond or otherwise intervene).

With no facts pleaded to make out a cognizable claim of racial discrimination under the

FHA against Keller Williams and Penn, their Motion to Dismiss is granted.

of liability as to the other claims, so the court need not consider it here. See Karim-Panahi,

, 337– 38 (D.D.C. 2018) (“Plaintiff’s conspiracy claim is based on nothing more than vague and conclusory allegations about the defendants’ discrete decisions. . . . [T]he mere repetition of a conclusory statement that a conspiracy exists and that all the alleged events occurred as a result of a conspiracy are insufficient as a matter of law.” (internal quotation marks omitted)).

13 IV.

For the foregoing reasons, Defendants RPMP, Blackwood, Keller Williams, and Penn’s

respective Motions to Dismiss, ECF Nos. 4, 15, are granted.

Dated: April 27, 2022 Amit P. Mehta United States District Court Judge

14