UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RINAT AKHMETSHIN,

Plaintiff, No. 18-cv-1638 (EGS) v.

WILLIAM BROWDER,

Defendant.

MEMORANDUM OPINION I. Introduction

Plaintiff Rinat Akhmetshin (“Mr. Akhmetshin”), a dual

citizen of Russia and the United States, brings this defamation

action against Defendant William Browder (“Mr. Browder”), a

British foreign national. Mr. Akhmetshin alleges that Mr.

Browder defamed him by stating that Mr. Akhmetshin is a Russian

spy after identifying him as a threat to Mr. Browder’s lobbying

efforts. Mr. Akhmetshin asserts that Mr. Browder made that claim

in four defamatory and false statements—two statements on his

Twitter account, another statement during a televised interview,

and one quote in a news article.

This matter is before the Court on remand from the Court of

Appeals for the District of Columbia Circuit (“D.C. Circuit”)

with instructions to reassess whether—considering the District

of Columbia Court of Appeals’ (“D.C. Court of Appeals”) decision

1 in Akhmetshin v. Browder,

(D.C. 2022)—specific

personal jurisdiction comports with the District of Columbia’s

(the “District”) long-arm statute and, separately, the Due

Process Clause. Mr. Browder renewed his motions to dismiss, and

the parties fully briefed the motions. Upon careful

consideration of the motions, responses, replies thereto,

applicable law, and the entire record herein, Mr. Browder’s

Motion to Dismiss for lack of personal jurisdiction is GRANTED,

and Mr. Browder’s Motion to Dismiss under

is

DENIED.

II. Background

A. Factual Background

The following facts—drawn from the Complaint and documents

incorporated by reference therein—are assumed to be true. See

Banneker Ventures, LLC v. Graham,

(D.C. Cir.

2015). 1 Mr. Browder is a British citizen who renounced his U.S.

citizenship in 1998. Compl., ECF No. 1 ¶ 10. 2 At some point, Mr.

Browder moved to Russia where he founded Hermitage Capital

Management (“Hermitage”). See id. ¶ 18. Hermitage, one of the

1 These facts are restated from this Court’s September 16, 2019 Memorandum Opinion. See Akhmetshin v. Browder,

(D.D.C. 2019) (hereinafter Akhmetshin I), vacated and remanded, No. 19-7129,

(D.C. Cir. Dec. 19, 2022). 2 When citing electronic filings throughout this opinion, the

Court cites to the ECF header page number, not the original page number of the filed document.

2 largest Russian hedge funds, has amassed over $4 billion in

assets.

In 2008, Russian authorities detained an auditor for

Hermitage’s law firm, Sergei Magnitsky (“Mr. Magnitsky”), who,

in 2009, died in a Russian prison.

¶¶ 19–20. Mr. Browder

maintains that “Russian prison guards killed [Mr.] Magnitsky

because [Mr.] Magnitsky discovered that Russian government

officials and members of organized crime had perpetrated a tax

fraud scheme using the identities of several Hermitage portfolio

companies (the ‘Hermitage Tax Refund Scheme’).” Id. ¶ 21.

After Mr. Magnitsky’s death, Mr. Browder started a lobbying

campaign. See id. ¶¶ 22–24. Mr. Browder “engaged numerous

lobbying and public relations firms in Washington D.C.; met with

members of Congress and their staff, including Senators Benjamin

Cardin and John McCain in Washington D.C.; and testified in

congressional hearings to advance his narrative about [Mr.]

Magnitsky and the Hermitage Tax Refund Scheme.” Id. ¶ 23. Mr.

Browder eventually wrote a book, Red Notice, “purport[ing] to

tell the truth about the Hermitage Tax Refund Scheme and the

Magnitsky affair.” Id. ¶ 60. On December 14, 2012, Congress

passed the Magnitsky Act, id. ¶ 24, authorizing the President to

impose sanctions against certain individuals who committed human

rights violations, including those individuals responsible for

3 the detention, abuse, or death of Mr. Magnitsky, id. ¶ 26. 3 In

response, Russia implemented a ban on U.S. citizens adopting

Russian orphans. Id. ¶ 27.

Mr. Akhmetshin, a District of Columbia resident, is “an

expert on the legal political, social, and economic

characteristics of many of the countries that formerly comprised

the Soviet Union.” Id. ¶ 16. His work includes “offer[ing]

strategic communications advice, and more recently lobbying

services.” Id. In August 2015, Mr. Akhmetshin was retained as a

consultant in an ongoing lawsuit in the United States District

Court for the Southern District of New York (the “Prevezon

Case”). 4 While reviewing documents in connection with the

3 Congress made the following factual findings related to Mr. Magnitsky’s death: On July 6, 2011, Russian President Dimitry Medvedev’s Human Rights Council announced the results of its independent investigation into the death of [Mr.] Magnitsky. The Human Rights Council concluded that [Mr.] Magnitsky’s arrest and detention was illegal; he was denied access to justice by the courts and prosecutors of the Russian Federation; he was investigated by the same law enforcement officers whom he had accused of stealing Hermitage Fund companies and illegally obtaining a fraudulent $230,000,000 tax refund; he was denied necessary medical care in custody; he was beaten by [eight] guards with rubber batons on the last day of his life; and the ambulance crew that was called to treat him as he was dying was deliberately kept outside of his cell for one hour and [eighteen] minutes until he was dead. Magnitsky Act,

(a)(8),

, 1503. 4 The Court takes judicial notice of the proceedings in United

States v. Prevezon Holdings Ltd., et al., Civil Action No. 13-

4 Prevezon Case, Mr. Akhmetshin began to “question [Mr.] Browder’s

version of events concerning the Hermitage Tax Refund Scheme and

[Mr.] Magnitsky’s death.” Id. ¶ 31. Mr. Akhmetshin became

convinced that Congress enacted the Magnitsky Act based on

falsehoods, which “had the tragic side-effect of halting

American adoptions of Russian orphans.” Id. ¶ 32.

Soon thereafter, Mr. Akhmetshin began working for a newly

formed lobbying organization, the Human Rights Accountability

Global Initiative (“HRAGI”), aimed to restart “Russian adoptions

in America by, among other things, removing [Mr.] Magnitsky’s

name from the Magnitsky Act.” Id. ¶ 34. The lobbying

organization was formed based on Mr. Akhmetshin’s interest in

educating the public and government officials about “[Mr.]

Browder’s version of [the] events” regarding the passage of the

Magnitsky Act. Id. ¶ 33.

In April 2016, Mr. Akhmetshin became a “registered

lobbyist” for HRAGI, crafting a counternarrative to the factual

findings set forth in the Magnitsky Act. Id. ¶¶ 35–37. In June

6326-WHP (S.D.N.Y.) and the subsequent appeal. See Pearson v. District of Columbia,

, 45 n.19 (D.D.C. 2009), aff’d,

(D.C. Cir. 2010). In that case, the government alleged that “Prevezon Holdings Ltd. and related entities (‘Prevezon’) . . . laundered a portion of the purportedly ill-gotten gains from the Hermitage Tax Refund Scheme through certain New York real estate.” Id. at 5 ¶ 28; see also United States v. Prevezon Holdings Ltd.,

(2d Cir. 2016).

5 2016, Mr. Akhmetshin organized a screening in the District for a

documentary that challenged the accuracy of the Magnitsky Act’s

findings. Id. ¶ 37. Mr. Akhmetshin’s other acts included

“attend[ing] meetings with and distribut[ing] certain documents

to members of Congress . . . assert[ing] that [Mr.] Browder’s

story concerning the Hermitage Tax Refund Scheme and [Mr.]

Magnitsky’s death were false, and that [Mr.] Browder had

committed tax fraud with [Mr.] Magnitsky’s assistance.” Id. ¶

36.

In July 2016, after becoming aware of Mr. Akhmetshin’s

lobbying efforts, Mr. Browder “caused Hermitage to submit a

letter to the Department of Justice . . . alleging that [Mr.]

Akhmetshin and others had violated the Foreign Agent

Registration Act.” Id. ¶ 39. To undermine Mr. Akhmetshin, who he

“identified . . . as a rival and a threat to his lobbying

efforts,” Mr. Browder “defamed [Mr.] Akhmetshin by falsely

stating to reporters and others that [Mr.] Akhmetshin is a

Russian spy.” Id. ¶ 43.

1. The Four Alleged Defamatory Statements

According to Mr. Akhmetshin, “[Mr.] Browder directed [four]

defamatory statements about [Mr.] Akhmetshin at [sic] the

District of Columbia.” Id. ¶ 63. In July 2017, news media

outlets widely reported that Mr. Akhmetshin and others met with

Donald Trump, Jr., at Trump Tower in New York on June 9, 2016.

6 Id. ¶ 45. On July 14, 2017, Mr. Browder posted two tweets on his

personal Twitter account, which has over 100,000 followers. Id.

¶¶ 48–49, 68. First, Mr. Browder tweeted: “Huge development in

the Veselnitskaya/Trump Jr story. Russian GRU officer Rinat

Akhmetshin was also present.” Id. ¶ 48; see also Ex. A, Decl. of

Michael Gottlieb (“Gottlieb Decl.”), ECF No. 20-5 at 2–7. 5 In

that tweet, Mr. Browder shared a hyperlink to the NBC News

article entitled, “Former Soviet counterintelligence officer at

meeting With Donald Trump Jr. and Russian lawyer.” Ex. A, ECF

No. 20-5 at 2. More than one hour later, Mr. Browder issued a

second statement, tweeting, “Russian intelligence asset Rinat

Akhmetshin confirms he was in the meeting with Trump Jr[,]” and

sharing a hyperlink to an Associated Press (“AP”) article in

that Twitter post. Compl., ECF No. 1 ¶ 49 (emphasis added); see

also Ex. B, Gottlieb Decl., ECF No. 20-6 at 2–12.

On the same day, Business Insider published an article on

its website entitled, “A Soviet military officer turned lobbyist

attended the Trump Jr. meeting – and there may have been a 6th

person, too.” Ex. C, Gottlieb Decl., ECF No. 20-7 at 2. That

article included a quote from Mr. Browder: “So in my opinion you

5 The Gottlieb Declaration, ECF No. 55-1, re-submits the exhibits attached to the Declaration of Melissa Shube, ECF No. 20-2, filed with the original motions to dismiss. For ease of locating the exhibits, the Court refers to the original ECF number that corresponds with the exhibit.

7 had a member of Putin’s secret police directly meeting with the

son of the future next president of the United States asking to

change US sanctions policy crucial to Putin.” Id. According to

Mr. Akhmetshin, “[Mr.] Browder intended his [third] statement to

be interpreted as a statement of fact that [Mr.] Akhmetshin was

‘a member of Putin’s secret police.’” Compl., ECF No. 1 ¶ 50.

Finally, Mr. Browder made the fourth statement in an

interview on CBS This Morning on July 18, 2017. Id. ¶ 51. Mr.

Browder stated that “[Natalia Veselnitskaya] then hires this guy

Rinat Akhmetshin, who is a – by all accounts, some kind of shady

former Soviet spy, current spy operator in Washington.” Id.

(emphasis added). Mr. Browder also stated that “[Mr. Akhmetshin]

then organizes a full-on lobbying campaign hiring the top

lobbyists, the top law firms, the top PR firms, to try to get

rid of this Magnitsky Act.” Def.’s Mot. to Dismiss Pursuant to

Rule 12(b) (“Def.’s 12(b) Mot. to Dismiss”), ECF No. 55 at 17

(quoting Ex. D, Gottlieb Decl., ECF No. 20-8 at 1).

B. Procedural Background

After Mr. Akhmetshin filed this lawsuit on July 12, 2018, Mr.

Browder filed two motions to dismiss, one pursuant to Rules

12(b)(2) and 12(b)(6), see Def.’s Mot. to Dismiss, ECF No. 20,

and the other pursuant to the District of Columbia Anti-SLAPP

Act,

(a) (“Anti-SLAPP Act”), see Def.’s

Special Mot. to Dismiss, ECF No. 19. The Court granted Mr.

8 Browder’s Motion to Dismiss for lack of personal jurisdiction

under Rule 12(b)(2), concluding that Mr. Browder’s contacts with

the District of Columbia did not constitute a “persistent course

of conduct” under the District’s long-arm statute. Akhmetshin I,

407 F. Supp. 3d at 24–25. In its analysis, the Court determined

that “Mr. Browder’s contacts with government agencies do not

enter the jurisdictional calculus.” Id. at 24 (internal

quotations and citation omitted). The Court denied Mr. Browder’s

Special Motion to Dismiss pursuant to the Anti-SLAPP Act because

“controlling precedent [in this Circuit] precludes the

application of D.C.’s Anti-SLAPP Act in federal court.” Id. at

17 n.9.

Mr. Akhmetshin appealed. The D.C. Circuit vacated this

Court’s judgment and ordered jurisdictional discovery prior to

determining whether Mr. Browder engaged in a persistent course

of conduct under the District’s long-arm statute. See Akhmetshin

v. Browder,

(D.C. Cir. 2020), vacated by

Akhmetshin v. Browder, No. 19-7129,

(D.C. Cir.

Dec. 19, 2022). Thereafter, Mr. Akhmetshin filed a petition for

rehearing and rehearing en banc. See Akhmetshin, No. 19-7129,

, at *1. Denying Mr. Akhmetshin’s request for

rehearing, the D.C. Circuit certified questions of law regarding

the government contacts exception’s applicability to the

District’s long-arm statute to the D.C. Court of Appeals. See

9 Akhmetshin v. Browder,

, 929 (D.C. Cir. 2021). The

D.C. Court of Appeals issued its decision on May 26, 2022, see

Akhmetshin, 275 A.3d at 290; and the D.C. Circuit remanded the

case to this Court for “further consideration of the entire case

in light of the D.C. Court of Appeals’ decision.” Akhmetshin,

, at *1. Mr. Browder filed renewed motions to

dismiss. See Def.’s 12(b) Mot. to Dismiss, ECF No. 55; Def.’s

Mot. to Dismiss Compl. Under

(“Def.’s

Special Mot. to Dismiss”), ECF No. 56. These issues are fully

briefed and ready for the Court’s adjudication.

III. Standard of Review

A. Motion to Dismiss for Lack of Personal Jurisdiction

Under Rule 12(b)(2), a defendant may move to dismiss an

action when the court lacks personal jurisdiction. Fed. R. Civ.

P. 12(b)(2). On such a motion, the plaintiff bears the burden of

establishing a factual basis for the exercise of personal

jurisdiction over each defendant. Crane v. N.Y. Zoological

Soc'y.,

(D.C. Cir. 1990). To meet this burden,

the plaintiff must allege specific facts that connect the

defendant with the forum. Second Amend. Found. v. U.S. Conf. of

Mayors,

(D.C. Cir. 2001). The plaintiff cannot

rely merely on conclusory allegations. Atlantigas Corp. v.

Nisource, Inc.,

(D.D.C. 2003). The court

may consider, receive, and weigh affidavits and other relevant

10 materials outside of the pleadings to assist it in determining

the pertinent jurisdictional facts. United States v. Philip

Morris Inc.,

, 120 n.4 (D.D.C. 2000).

“Specific jurisdiction is confined to adjudication of

issues deriving from, or connected with, the very controversy

that establishes jurisdiction.” Molock v. Whole Foods Mkt.,

Inc.,

(D.D.C. 2018) (quoting Goodyear

Dunlop Tires Operations v. Brown,

, 919 (2011)). 6

“[S]pecific jurisdiction exists if a claim is related to or

arises out of the non-resident defendant's contacts with the

forum.” Id. A plaintiff must demonstrate “that specific

jurisdiction comports with the forum[’]s long-arm statute,

(a), and does not violate due process.”

(citing

FC Inv. Grp. v. IFX Mkts. Ltd.,

, 1094–65 (D.C.

Cir. 2008)). 7 To satisfy due process requirements, “a plaintiff

6 At this juncture, Mr. Akhmetshin does not assert that the Court has general personal jurisdiction over Mr. Browder. See Pl.’s 12(b) Opp’n, ECF No. 58. Accordingly, the Court only examines whether it can exercise specific personal jurisdiction. 7 Mr. Browder’s renewed motion to dismiss also requests that the

Court dismiss Mr. Akhmetshin’s complaint for failure to state a claim pursuant to Rule 12(b)(6). See Def.’s 12(b) Mot. to Dismiss, ECF No. 55 at 36. The Court does not reach Mr. Browder’s Rule 12(b)(6) arguments after addressing the issue of personal jurisdiction. See App Dynamic ehf v. Vignisson,

(D.D.C. 2015) (“Defendant raises three different grounds for jettisoning the case: [1] lack of personal jurisdiction, [2] lack of subject-matter jurisdiction, and [3] failure to state a claim. The Court need look no farther than the first to grant the Motion.”).

11 must demonstrate that there are ‘minimum contacts between the

defendant and the forum establishing that the maintenance of the

suit does not offend traditional notions of fair play and

substantial justice.’” Swecker v. Midland Power Coop.,

(D.D.C. 2017) (citation omitted). D.C.’s long-

arm statute authorizes the exercise of specific jurisdiction

under certain enumerated circumstances, including when an entity

transacts any business in the District; contracts to supply

services in the District; causes tortious injury in the

District; or has an interest in, uses, or possesses real

property in the District.

(a)(1)-(5).

For the reasons explained below, the Court concludes that

although Mr. Browder’s contacts with the District constitute a

“persistent course of conduct” under

(a)(4),

exercising specific personal jurisdiction over him does not

comport with due process.

B. District of Columbia Anti-SLAPP Act

“The D.C. Anti-SLAPP Act provides a party defending against

a SLAPP with procedural tools to protect themselves from

‘meritless’ litigation.” Am. Studies Ass’n v. Bronner,

, 738–39 (D.C. 2021). 8 The Act allows a party to file a

8 “[T]he term SLAPP is used to refer to ‘an action filed by one side of a political or public policy debate aimed to punish or prevent opposing points of view.’”

at 733 (quoting

12 special motion to dismiss “any claim arising from an act in

furtherance of the right of advocacy on issues of public

interest.”

(a). Once the moving party shows

that the claim is one “aris[ing] from an act in furtherance of

the right of advocacy on issues of public interest,” the burden

shifts to the non-moving party to show that the claim is “likely

to succeed on the merits.”

§ 16-5502(b). If a court

concludes that a claim is not “likely to succeed on the merits,”

the special motion should be granted. Id. “The Court may award a

moving party who prevails, in whole or in part, on a motion

brought under § 16-5502 [ ] the costs of litigation, including

reasonable attorney fees.”

(a).

IV. Analysis

A. Personal Jurisdiction

The Court begins by re-assessing whether Mr. Browder’s

contacts—with the inclusion of his government contacts pursuant

to Akhmetshin, 275 A.3d at 290—establish a “persistent course of

conduct” under section (a)(4) of the D.C. long-arm statute. The

Court then turns to whether the exercise of specific personal

jurisdiction would violate due process.

Competitive Enter. Inst. v. Mann,

(D.C. 2016)).

13 1. Mr. Browder’s Contacts with the District Constitute a “Persistent Course of Conduct” Under D.C. Code § 13–423(a)(4)

Subsection (a)(4) of 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 for relief arising from the person’s . . . causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he [1] regularly does or solicits business, [2] engages in any other persistent course of conduct, or [3] derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia[.]

D.C. Code § 13–423(a)(4). This subsection “provides specific

jurisdiction over non-resident defendants whose tortious acts

outside the District of Columbia cause injury within the

District if defendant[] satisf[ies] one of the three enumerated

‘plus factors.’” Lewy v. S. Poverty Law Ctr., Inc.,

(D.D.C. 2010). The only “plus factor” at issue here

is the second prong: “engages in any other persistent course of

conduct.” 9

9 Previously, this Court concluded that Mr. Akhmetshin failed to demonstrate that Mr. Browder’s contacts with the District met two of the three “plus factors” listed in subsection (a)(4). Akhmetshin I, 407 F. Supp. 3d at 21–22. The final plus factor, “engages in any other persistent course of conduct” is the only ground of personal jurisdiction under D.C.’s long-arm statute asserted in Mr. Akhmetshin’s renewed briefing. See Pl.’s 12(b) Opp’n, ECF No. 58. Accordingly, the Court only addresses the “persistent course of conduct” plus factor to subsection (a)(4).

14 There is no cut and dry test for what constitutes a

“persistent course of conduct,” but what is clear is that the

contacts required for this plus factor are “considerably less

substantial than those it takes to establish general, all-

purpose . . . jurisdiction.” Lewy,

(quoting Crane v. Carr,

(D.C. Cir. 1987))

(internal quotations omitted). Mr. Akhmetshin relies on a

variety of contacts Mr. Browder has with the District,

including: (1) Mr. Browder’s meetings with government officials

in the District and testimony before Congress in support of the

Magnitsky Act; (2) Mr. Browder’s visits to promote his book in

2015; (3) eight media appearances in the District between 2012

and when the Complaint was filed in 2017; (4) Mr. Browder’s

retention of a D.C. law firm for an unrelated matter; (5) Mr.

Browder’s threats to sue the Newseum, which at the time was

located in the District; (6) Mr. Browder’s position on the

Advisory Council of the Kleptocracy Initiative of the Hudson

Institute based in the District; and (7) other meetings and

events with individuals in the District. See Pl.’s Opp’n to

See Int’l Union, United Gov’t Sec. Officers of Am. v. Clark,

(D.D.C. 2010) (“It is a long-established policy that when a party’s opposition to a motion fails to respond to arguments raised by the opposing party, a court may treat those unopposed arguments as conceded.”).

15 Def.’s Mot. to Dismiss Under Rule 12(b) (“Pl.’s 12(b) Opp’n”),

ECF No. 58 at 26–30.

Mr. Browder argues that many of these contacts should be

excluded from the jurisdictional calculus because they post-date

the alleged defamatory statements, are entirely unrelated to Mr.

Akhmetshin’s claims, or the contacts were for the purpose of

influencing federal policy. First, the Court agrees that any

contacts with the District after Mr. Akhmetshin filed his

Complaint cannot form the basis for jurisdiction. See Gather

Workspaces LLC v. Gathering Spot, LLC, No. 19-2669,

, at *4 (D.D.C. Oct. 16, 2020) (“[P]ost-complaint

contacts are not relevant to the personal jurisdiction

analysis.”). Next, for the contacts establishing one of the plus

factors in (a)(4), the defendant’s contacts with the District

“need not be related to the tortious act outside the forum that

causes the injury.” Lewy,

(citing Crane,

); see Etchebarne-Bourdin v. Radice,

(D.C. 2009) (holding that the claim must not arise out of

the “plus factors” in subsection (a)(4)). Finally, the D.C.

Court of Appeals, in the question certified to it, held that

government contacts are not excluded when determining whether a

defendant engages in a “persistent course of conduct” in the

District under subsection (a)(4). See Akhmetshin, 275 A.3d at

296. The court reasoned that nothing in the text of subsection

16 (a)(4) “suggests that ‘persistent course of conduct’ refers only

to conduct not associated with the government” and the concerns

underly the government contacts exception in other subsections—

i.e., a defendant engaging with the federal government in D.C.

have not “purposefully avail[ed] themselves of the privilege of

conducting activities within D.C.”—are sufficiently protected by

the “constitutional prerequisite” of purposeful availment. Id.

at 295 (internal citations omitted).

Examining Mr. Browder’s pre-Complaint contacts with the

District, the Court concludes that his contacts exceed

“sporadic” visits to the District. Unlike in Parsons v. Main,

(D.C. 1990), where the court held that a

defendant’s two or three visits to the forum state over a ten-

year period could not establish a “persistent course of

conduct,” Mr. Browder visited the District multiple times per

year in the years leading up to this lawsuit. See Pl.’s 12(b)

Opp’n, ECF No. 58 at 26–30. While the number of Mr. Browder’s

contacts with the District fall somewhere between the cases

where courts have found a persistent course of conduct versus

those that did not, most of Mr. Browder’s contacts center around

his work in foreign policy, establishing a connection with the

District that surpasses isolated visits. Compare Blumenthal v.

Drudge,

(D.D.C. 1998) (exercising personal

jurisdiction under (a)(4) where defendant traveled to the

17 District to promote his gossip website, the website had

significant interaction with District residents, and District

residents provided the gossip for the website), with McFarlane

v. Esquire Mag.,

, 1300–01 (D.C. Cir. 1996) (“If

‘regularly’ and ‘persistent’ are to have any meaning, sale of

two articles to District-based publications over a career in

journalism cannot amount to . . . a ‘persistent’ course of

conduct.”).

For these reasons, the Court concludes that subsection

(a)(4)’s “persistent course of conduct” requirement is met, and

personal jurisdiction comports with D.C.’s long-arm statute. 10

2. Exercising Specific Personal Jurisdiction Over Mr. Browder Does Not Comport with Due Process

Due Process is satisfied “when there are ‘minimum contacts’

between the defendant and the forum ‘such that the maintenance

of the suit does not offend the traditional notions of fair play

and substantial justice.’” United States v. Ferrara,

(D.C. Cir. 1995) (quoting Int’l Shoe Co. v. Washington,

(1945)). Plaintiff bears the burden of

establishing a factual basis for personal jurisdiction over a

defendant. See N.Y. Zoological Soc'y,

.

10In view of this conclusion, Mr. Akhmetshin’s request for jurisdictional discovery is DENIED.

18 Plaintiffs must allege specific acts connecting the defendant

with the forum. See Second Amend. Found,

.

a. Minimum Contacts

A defendant’s “minimum contacts” with the forum state must

be “such that he should reasonably anticipate being haled into

court there.” World–Wide Volkswagen Corp. v. Woodson,

(1980). This inquiry “focuses on the relationship among

the defendant, the forum, and the litigation.” Keeton v. Hustler

Mag., Inc.,

(1984) (internal quotations

omitted); see also Walden v. Fiore,

(2014)

(“[T]he defendant’s suit-related conduct must create a

substantial connection with the forum State.”). When asserting

specific personal jurisdiction, it is not enough that the

defendant has contacts with the forum state—the plaintiff’s

claims must “arise out of or relate to the defendant’s contacts

with the form.” Bristol-Myers Squibb Co. v. Superior Ct of Ca.,

(2017) (“When there is no such

connection, specific jurisdiction is lacking regardless of the

extent of a defendant’s unconnected activities in the State.”).

Mr. Akhmetshin alleges that Mr. Browder has had multiple

contacts with the District beginning in 2009, including

providing fact testimony to the U.S. government, engaging

lobbying and public relations firms, meeting with members of

Congress and their staff, and attending NGO gatherings. See

19 Compl., ECF No. 1 ¶¶ 23, 59, 61. In response, Mr. Browder argues

that these contacts are insufficient for the Court to assert

personal jurisdiction over him because Mr. Akhmetshin’s claims

in this suit do not arise out of or relate to the alleged

contacts. See Def.’s 12(b) Mot. to Dismiss, ECF No. 55 at 30–32.

Mr. Akhmetshin does not contest that Mr. Browder made the

allegedly defamatory statements outside the District. See Pl.’s

12(b) Opp’n, ECF No. 58 at 16–18. Instead, Mr. Akhmetshin puts

forward two theories for why the Court has personal

jurisdiction: (1) Under Calder v. Jones,

(1984),

the Court has jurisdiction because Mr. Browder’s intentional

tortious conduct caused him harm in the District, Pl.’s 12(b)

Opp’n, ECF No. 58 at 22–25; or, in the alternative, (2) Mr.

Akhmetshin’s claims sufficiently relate to Mr. Browder’s

contacts with the District because “the motivation behind [Mr.]

Browder’s campaign of defamation was to defend [his previous]

lobbying efforts [in the District].” Id. at 26.

i. Calder’s “Effects Test”

First, Mr. Akhmetshin argues that under Calder, Mr.

Browder’s “knowing and purposeful infliction of reputational

injury” on him, as a District of Columbia resident, sufficiently

“connects the defendant, the forum, and the litigation,” id. at

22–23. In response, Mr. Browder contends that Calder is

distinguishable because his Tweets and statements were aimed at

20 a general audience, not the District. See Def.’s Reply Br. in

Support of Mot. to Dismiss Under Rule 12(b) (“Def.’s 12(b)

Reply”), ECF No. 61 at 11–12. In Calder, the Supreme Court held

that a California court had jurisdiction over out-of-state

defendants in a libel suit “because [] their intentional conduct

in Florida [was] calculated to cause injury to [the plaintiff]

in California.” Calder,

. The Court’s analysis

focused on the facts surrounding the allegedly libelous news

story—the story was about a California resident whose television

career was centered in California, the defendants relied on

sources, including the plaintiff, located in California to write

the story, the newspaper was circulated in California more than

any other state, and the emotional distress and reputational

injuries were suffered in California.

at 788–89 (deducing

that California was “the focal point of both the story and of

the harm suffered”). The Court concluded the defendants’

allegedly tortious conduct was “expressly aimed” at California,

thus, defendants should have “reasonably anticipate[d] being

haled into court there to answer for the truth of the statements

made in their article.”

at 789–90 (quoting World-Wide

Volkswagen,

) (internal quotations omitted).

Thirty years after Calder, the Supreme Court emphasized

that “an injury is jurisdictionally relevant only insofar as it

shows that the defendant has formed a contact with the forum

21 state.” Walden,

(highlighting that “Calder made

clear that mere injury to a forum resident is not a sufficient

connection to the forum”). Ultimately, to exercise personal

jurisdiction under the Calder “effects test,” courts have

required a plaintiff to show: “(1) intentional actions (2)

expressly aimed at the forum state (3) causing harm, the brunt

of which is suffered-and the defendant knows is likely to be

suffered-in the forum state.” Kline v. Williams, No. 05-01102,

, *5 (D.D.C. Mar. 23, 2006) (quoting Panavision

Int’l v. Toeppen,

(9th Cir. 1998)) (internal

quotations omitted).

Assuming arguendo that the first and third prongs of this

test are met, Mr. Akhmetshin has failed to meet his burden of

establishing that Mr. Browder’s tortious conduct was “expressly

aimed” at the District. The allegedly defamatory statements were

made outside of the District, and they predominately concern Mr.

Akhmetshin’s alleged attendance at a meeting that took place in

New York City. See Ex. A, ECF No. 20-5; Ex. B, ECF No. 20-6; see

also Pl.’s 12(b) Opp’n, ECF No. 58 at 22. Neither of the Tweets,

nor the news articles attached to them, concern any conduct that

took place in the District. See Ex. A, ECF No. 20-5; Ex. B, ECF

No. 20-6. The same is true for Mr. Browder’s quoted statements

in Natasha Bertrand’s Business Insider Article. See Ex. C, ECF

No. 20-7. Moreover, unlike the defendants in Calder who reached

22 out to California sources for information to use in their

article, there is no evidence that Mr. Browder, who lives in the

United Kingdom, made any contact with the District in

cultivating, drafting, or being interviewed for the statements.

Calder,

. The only hint at the District in any

of these statements is during Mr. Browder’s CBS This Morning

interview, which occurred live in New York, where he states,

“[Natalia Veselnitskaya] then hires this guy Rinat Akhmetshin,

who is a—by all accounts, some kind of shady former Soviet spy,

current spy operator in Washington.” Ex. D, Gottlieb Decl., ECF

No. 20-8. However, without more, the Court concludes that this

mention of the District merely connects the Plaintiff with the

District, which is not enough to exercise personal jurisdiction.

See Walden,

(“[I]t is insufficient to rely on .

. . the ‘unilateral activity’ of a plaintiff.”)

Even if Mr. Browder’s motivation in making the statements

was to harm Mr. Akhmetshin’s ability to work as a lobbyist in

the District, “the jurisdictional inquiry requires tangible

allegations relating [the claims] to defendant[’]s[] contacts

with the forum.” Cengiz v. Salman, No. 20-3009,

, at *12 (D.D.C. Dec. 6, 2022) (internal quotation marks

omitted). Those tangible facts connecting Mr. Browder to the

forum, rather than just the Plaintiff, are precisely what is

missing here. The allegedly defamatory statements were posted to

23 online platforms, all with general audiences. See Pl.’s 12(b)

Opp’n, ECF No. 58 at 16–18. None of the alleged facts suggest

that the audience of the statements would be greater in the

District than any other location. Rather, the alleged facts

establish that each platform—Mr. Browder’s Twitter account,

Business Insider, and CBS This Morning—have an enormous, global

audience. Compl., ECF No. 1 ¶¶ 68–70.

To the extent the allegedly defamatory statements are of

more interest to individuals in the District, that is a

reflection on individuals in the District and not an indication

that Mr. Browder intentionally made contacts with the District

such that he should expect to be haled into court here. See

Kline,

, at *5 (“Mere accessibility of a web site

posting from the District does not establish ‘minimum contacts’

with the forum.”). Accordingly, the Court concludes that Mr.

Akhmetshin’s alleged injury in the District alone does not meet

the due process clause’s minimum contacts requirement.

ii. Arise Out Of or Relate To

Next, Mr. Akhmetshin argues that his claims sufficiently

relate to Mr. Browder’s other contacts with the District for the

Court to exercise specific jurisdiction because Mr. Browder only

defamed Mr. Akhmetshin since he “represented a threat to the

achievements that [Mr.] Browder had made through his contacts

with the District.” Pl.’s 12(b) Opp’n, ECF No. 58 at 26. Mr.

24 Browder challenges the use of these contacts, see supra at 10;

to exercise personal jurisdiction over him, arguing that Mr.

Akhmetshin’s claims are unrelated to those contacts and thus

could not have provided him with fair warning of a lawsuit.

Def.’s 12(b) Reply, ECF No. 61 at 10.

The “arise out of or relate to” requirement for specific

personal jurisdiction “ensures that a district court exercises

specific personal jurisdiction only over those foreign

defendants who had ‘fair warning that a particular activity may

subject them’” to jurisdiction. Bernhardt v. Islamic Republic of

Iran,

(D.C. Cir. 2022) (quoting Mwani v. bin

Laden,

(D.C. Cir. 2005)). While the four

allegedly defamatory statements might be similar in subject

matter to issues Mr. Browder previously promoted while in the

District, the relevant question is whether he made sufficient

contacts with the District in making the four statements at

issue. As the Court has emphasized throughout this Memorandum

Opinion, the statements at issue were made outside of the

District, about conduct outside of the District. There is no

evidence that Mr. Browder contacted anyone in the District

regarding his making these statements. To the extent Mr.

Akhmetshin is urging the Court to exercise specific personal

jurisdiction based on Mr. Browder’s motive to save his own

reputation in the District, the Court rejects this argument. Not

25 only does Mr. Akhmetshin fail to cite to any authority where a

court exercises specific personal jurisdiction based on a

defendant’s reputation in that place, but as stated above, there

are no tangible facts that Mr. Browder, or his statements, made

actual contacts with the District to reach this goal. While

“some relationships will support jurisdiction without a causal

showing,” Bernhardt,

(quoting Ford Motor Co. v.

Mont. Eighth Jud. Dist. Ct.,

(2021), the

Court concludes that Mr. Browder’s other contacts with the

District could not have given Mr. Browder fair warning that he

could be haled into court here. 11

b. Fair Play or Substantial Justice

Even if there were the minimum contacts required by due

process, exercising jurisdiction here would offend “our

traditional conception of fair play and substantial justice.”

World–Wide Volkswagen,

. When determining whether

personal jurisdiction comports with fair play and substantial

11Mr. Browder also argues that his visits to the District for the purpose of influencing the federal government—his “government contacts”—should be exempt from the due process minimum contacts calculus. See Def.’s 12(b) Mot. to Dismiss, ECF No. 55 at 30–32. The Court must not determine whether it is appropriate to consider government contacts for due process because it concluded that Mr. Akhmetshin’s claims do not arise from any of Mr. Browder’s former government contacts, including his advocacy for the Magnitsky Act. Rather, Mr. Akhmetshin’s claims arise out of Tweets that Mr. Browder sent from outside of the District that were about Mr. Akhmetshin’s activity in New York. See Ex. A, ECF No. 20-5; Ex. B, ECF No. 20-6.

26 justice, courts consider five factors: (1) “the burden on the

defendant”; (2) “the forum State’s interest in adjudicating the

dispute”; (3) “the plaintiff’s interest in obtaining convenient

and effective relief”; (4) “the interstate judicial system’s

interest in obtaining the most efficient resolution of

controversies”; and (5) the “shared interest of the several

states in furthering fundamental substantive social policies.”

World–Wide Volkswagen,

. 12 First, adjudication of

these claims in the District of Columbia would impose a

significant burden on Mr. Browder, who is a citizen and resident

of the United Kingdom. Moreover, he does not own any property or

businesses in the District, and his statements giving rise to

this action are wholly unrelated to the District. See Manifold

v. Wolf Coach, Inc.,

, 62–63 (D.D.C. 2002)

(finding jurisdiction did not offend fair play and substantial

justice where the defendant should have anticipated vans being

used around the District where it negotiated contract directly

with District-based news organization). Aside from his residence

12In briefing this issue, neither party addressed the application of these five factors. Arguing that he previously was able to expect that his District contacts would be exempt from a jurisdictional analysis, Mr. Browder focused on the D.C. Court of Appeals new holding regarding the government contacts exception and the “plus factors” under subsection (a)(4) of the D.C. long-arm statute. See Def.’s 12(b) Mot. to Dismiss, ECF No. 55 at 34–35. The Court concludes that this argument is misplaced and addresses the five factors established in World-Wide Volkswagen.

27 and reputational harm in the District, Mr. Akhmetshin points to

no specific social policies or interstate judicial system that

would implicate the remaining factors and weigh in favor of

having his case heard here in the District.

B. Anti-SLAPP Act

Mr. Browder also filed a renewed Motion to Dismiss pursuant

to the Anti-SLAPP Act. See Def.’s Special Mot. to Dismiss, ECF

No. 56. Relying on D.C. Circuit precedent that a federal court

must apply the Federal Rules [governing pre-trial dismissal]

instead of the D.C. Anti-SLAPP Act’s special motion to dismiss

provision,” Abbas v. Foreign Policy Grp.,

(D.C. Cir. 2015); the Court previously denied this motion. See

Akhmetshin I, 407 F. Supp. 3d at 18 n.9 (citing Abbas,

). Mr. Browder’s renewed motion contends that the D.C.

Court of Appeals’ holding in American Studies, 259 A.3d at 750,

undermines this Circuit’s precedent and requires the Court to

grant his § 16-5502 motion. Def.’s Special Mot. to Dismiss, ECF

No. 56 at 9–14.

In Abbas, the D.C. Circuit reviewed the D.C. Anti-SLAPP Act

under the standard from Shady Grove Orthopedic Associates, P.A.

v. Allstate Insurance Co.,

, 398–99 (2010), to

determine whether a federal court exercising diversity

jurisdiction should apply this state rule. Abbas, 783 F.3d at

1333–34. The court concluded: “Federal Rules of Civil Procedure

28 12 and 56 ‘answer the same question’ about the circumstances

under which a court must dismiss a case before trial. And those

Federal Rules answer that question differently: They do not

require a plaintiff to show a likelihood of success on the

merits.”

Given the conflicting standards, the court held

that a federal court exercising diversity jurisdiction may not

apply the D.C. Anti-SLAPP Act’s special motion to dismiss

provision. Id. at 1333, 1337. After the D.C. Court of Appeals

defined the “likelihood of success” standard—likening it to the

standard for a motion for summary judgment standard in Federal

Rule 56, see Competitive Enterprise Institute, 150 A.3d at 1238—

the D.C. Circuit re-affirmed Abbas. See Tah v. Glob. Witness

Publ’g,

(D.C. Cir. 2021).

Mr. Browder argues that American Studies abrogates the D.C.

Circuit’s precedent that D.C.’s Anti-SLAPP Act may not be

applied in federal court. See Def.’s Special Mot. to Dismiss,

ECF No. 56 at 9–14. According to Mr. Browder, American Studies

held that § 16-5502 applies to motions to dismiss under Federal

Rule of Civil Procedure 12, and therefore, the “dismissal of a

‘claim arising from an act in furtherance of the right of

advocacy on issues of public interest’ is [ ] ‘under’ § 16-5502

as a matter of D.C. law regardless of the pleading standard that

resulted in that dismissal.” Def.’s Reply Br. in Support of

Special Mot. to Dismiss (“Def.’s Special Mot. Reply Br.”), ECF

29 No. 62 at 11. Mr. Browder asserts that this holding separates

the fee-shifting provision in § 16-5504 from § 16-5502(b)-(c)’s

heightened procedural requirements, allowing federal courts

sitting in diversity jurisdiction to apply § 16-5502 and the

fee-shifting provision in § 16-5504. 13 See Def.’s Special Mot. to

Dismiss, ECF No. 56 at 6–7, 10.

In response, Mr. Akhmetshin argues that Abbas and Tah

continue to be binding precedent because the Federal Rules and

the special motion to dismiss provision in § 16-5502 continue to

answer the same question—when a case can be dismissed before

trial—in conflicting ways. See Pl.’s Opp’n to Def.’s Mot. to

Dismiss Compl. Under

(“Pl.’s Opp’n to Def.’s

Special Mot. to Dismiss”), ECF No. 59 at 10-11. The Court agrees

and concludes that Mr. Browder’s interpretation of American

Studies is mistaken.

In American Studies, the D.C. Court of Appeals held that

“where the court grants a 12(b)(6) motion because no relief can

be granted on a claim as a matter of law, the plaintiff cannot

show a likelihood of success on the merits of that claim for the

13Mr. Browder’s arguments contain several layers, all of which are only relevant if the Court determines that American Studies abrogates Abbas and Tah. Because the Court concludes that it does not, the Court does not reach the issues of whether § 16- 5502 would still conflict with a Federal Rule if the fee shifting provision was independent or whether a Rule 12(b)(2) dismissal is a dismissal “on the merits.” See Def.’s Special Mot. to Dismiss, ECF No. 56 at 14–19.

30 purposes of the anti-SLAPP motion.” Am. Studies, 259 A.3d at

740–41 (acknowledging the additional hurdle that § 16-5502

places on plaintiffs to get to trial). Unlike Mr. Browder

suggests, American Studies does not rid § 16-5502 of its

heightened procedural requirement nor does it allow a court to

award attorney’s fees under § 16-5504 without finding that a

plaintiff has failed to establish that his claims are “likely to

succeed on the merits.” Id. 14 Rather, it advises courts handling

12(b)(6) motions and special motions under § 16-5502 that a

plaintiff who failed to state a claim for relief under the

12(b)(6) standard clearly could not meet the more stringent

requirement of demonstrating that his claim is likely to succeed

on the merits. Id. Both requirements under § 16-5502 must still

be met for the special motion to be granted. Id.

American Studies does not change the fact that the Anti-

SLAPP Act “conflicts with the Federal Rules by setting up an

additional hurdle a plaintiff must jump over to get to trial.”

Abbas,

. Accordingly, in contrast to Mr.

Browder’s contention, the Court concludes that American Studies

14To further support his position, Mr. Browder points to the D.C. Circuit’s commentary in Abbas: “The [D.C. Anti-SLAPP] Act does not purport to make attorney’s fees available to parties who obtain dismissal by other means, such as under Federal Rule 12(b)(6).” To the extent Mr. Browder is arguing that American Studies does make attorney’s fees available to parties who obtain dismissal under the Federal Rules, the Court concludes there is no such holding in American Studies.

31 does not render Abbas and Tah abrogated law and declines to

stray from the precedent they set. Mr. Browder’s special motion

to dismiss is denied.

V. Conclusion

For the foregoing reasons, the Court GRANTS Mr. Browder’s

Motion to Dismiss for Lack of Personal Jurisdiction Under Rule

12(b)(2), ECF No. 55; DENIES Mr. Browder’s Motion to Dismiss

Under the Anti-SLAPP Act, ECF No. 56; and DENIES Mr.

Akhmetshin’s request for jurisdictional discovery. The Court

DISMISSES this case WITHOUT PREJUDICE. A separate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge December 23, 2024

32