Liu v. Hopkins County Sulphur Springs, Texas ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
HAO LIU, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-cv-1762 (TSC)
)
HOPKINS COUNTY, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Pro se Plaintiff Hao Liu filed a complaint against the City of Sulphur Springs and
Hopkins County, both in Texas. 1 The Complaint is barely comprehensible, but as best the court
can discern, Liu alleges that he lost a homestead tax exemption under Texas state law as a result
of malfeasance and/or nonfeasance by city and county authorities. (Compl. ¶¶ 12–15, 18–19).
His suit alleges violations of the Racketeer Influenced and Corrupt Organizations Act. After
delays in service, the Defendants appeared and moved to dismiss for lack of personal jurisdiction
and improper venue. (City Mot., ECF No. 12; County Mot., ECF No. 16). Alternatively, the
Defendants moved for a transfer of venue to the U.S. District Court for the Eastern District of
1
The Complaint also names as defendants “Individual or Entities in the Association Engaged Activities Affecting an
Interstate Commerce Property Located at 203 & 205 Bellview Street Sulphur Springs, Texas 75482.” Plaintiff did
not identify or serve any such “individual or entities,” even though the court’s Order of May 7, 2015 informed the
Plaintiff that Rule 4 “requires service upon each defendant within 120 days after filing the complaint” and ordered
Plaintiff to serve the Defendants and file proof of service by June 1, 2015. (Order at 1–2, ECF No. 6 (emphasis
added)). Failure to effect service on these Defendants, after receiving notice of the requirements for serving process,
cf. Angellino v. Royal Family Al-Saud, 688 F.3d 771, 778 (D.C. Cir. 2012), warrants dismissal of the case against
those Defendants. In addition, as discussed below, there are virtually no allegations that any “individual or entities”
have any connection to the District of Columbia and no allegations that any “individual or entities” interacted in any
way with the named Defendants regarding the purported criminal acts taken against Plaintiff’s property. Dismissal
would therefore be appropriate on the grounds discussed below.
1
Texas, and consented to both jurisdiction and venue in that district. (City Mot. at 4; County Mot.
at 4–5).
I. PLAINTIFF’S “RESPONSIVE” FILINGS
The court advised Plaintiff of his obligation to respond to the motions to dismiss by July
7, 2015 (ECF No. 13 at 2 (as to the City’s motion)) and by July 16, 2015 (ECF No. 17 at 2 (as to
the County’s motion)). Each notice advised the Plaintiff that the court could treat as conceded
any motion not opposed within the proper time frame.
Between July 6 and 7, 2015 the court received six separate filings (ECF Nos. 20–25)
from the Plaintiff, all of which appear to reflect his (mistaken) belief that the Defendants
improperly responded to his Complaint, but none of which address the questions presented by
the Defendants’ motions: whether the court has personal jurisdiction over the Defendants,
whether venue is proper in this district, and, if not, whether this case ought to be dismissed
outright or transferred to the Eastern District of Texas. In August Plaintiff submitted two
additional filings, (ECF Nos. 26–27) which again failed to address the Defendants’ motions. 2
The court finds that Plaintiff has therefore conceded Defendants’ motions.
Even if Plaintiff had responded to the Defendants’ personal jurisdiction and venue
arguments however, his arguments would have been unavailing. Plaintiff bears the burden of
establishing a basis for the exercise of personal jurisdiction, Crane v. N.Y. Zoological Soc., 894
2
Plaintiff’s “Probable Conveyance of Support Preliminary Proceedings” (ECF No. 26) references the constitutional
requirements for the exercise of personal jurisdiction over an out-of-state defendant and also references D.C.’s long-
arm statute, which permits the exercise of out-of-state jurisdiction in certain circumstances. Factually this document
appears to contend that 1) vandalism of Plaintiff’s mailbox (which is located in Texas), and 2) the fact that this case
is already pending in the District of Columbia, suffice to meet that standard. Even if the court considers this
untimely addendum, which indirectly addresses some of the issues presented by Defendants’ motion, as a response
to those motions, Defendants still prevail. Plaintiff’s “Amendment Complaint” (ECF No. 27) does not allege any
new conduct—it merely attempts to characterize the conduct already alleged as being criminal terrorism. This filing
also does not change the outcome of Defendants’ motions.
2
F.2d 454, 456 (D.C. Cir. 1990) by alleging “specific facts connecting [the] defendant with the
forum.” Second Amend. Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir.
2001) (alteration in original) (internal quotation marks omitted). The court is not limited to the
allegations in the Complaint and need not accept them as true; rather the court may accept
affidavits and other relevant material in making a jurisdictional determination. NBC-USA
Housing, Inc., Twenty-Six v. Donovan, 741 F. Supp. 2d 55, 58 (D.D.C. 2010). Courts in this
district exercise jurisdiction under the following standard:
In this Circuit, courts determine whether personal jurisdiction may be exercised
by reference to District of Columbia law. A District of Columbia court may
exercise personal jurisdiction over a person domiciled in, organized under the
laws of, or maintaining his or its principal place of business in, the District of
Columbia as to any claim for relief. D.C. Code § 13–422. Exercise of this so-
called “general jurisdiction” requires that the defendant's contacts within the
forum be “continuous and systematic” in order for the defendant to be forced to
defend a suit arising out of any subject matter unrelated to the defendant's
activities within the forum.
Alternatively, the District Court for the District of Columbia may exercise
“specific jurisdiction” to entertain controversies based on acts of a defendant that
touch and concern the forum. To determine whether it may exercise specific
jurisdiction over a particular defendant, a court must engage in a two-part inquiry.
First, the Court must determine that the District of Columbia's long arm statute,
D.C.Code § 13–423, authorizes jurisdiction. In relevant part, the D.C. long-arm
statute provides that a District of Columbia court may exercise personal
jurisdiction over a person 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 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;
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(5) having an interest in, using, or possessing real property in the
District of Columbia . . .
D.C.Code § 13–423. Importantly, where jurisdiction is based solely on the D.C.
long-arm statute, only a claim for relief arising from acts enumerated in this
section may be asserted against the defendants.
Halim v. Donovan, No. 12-cv-00384, 2013 WL 595891, at *4 (D.D.C. Feb. 15, 2013), (emphasis
in original) (internal citations and quotations omitted), reconsideration denied 951 F. Supp. 2d
201 (2013).
Plaintiff’s Complaint does not contain a single allegation suggesting any actions by any
Defendant taken in or directed at the District of Columbia. To the contrary, all of the
Defendants’ alleged acts were directed at property located in Sulphur Springs, Texas and at the
Plaintiff, who resides in Sulphur Springs. Plaintiff has therefore failed to meet his burden of
alleging a factual basis for asserting jurisdiction over either Defendant. Id. The fact that a
mailbox is used for interstate communications, as Plaintiff appears to note in his “Probable
Conveyance of Support Preliminary Proceedings,” (ECF No. 26 at 2) does not change the fact
that no conduct within the scope of D.C.’s long-arm statute is alleged. In the absence of specific
factual allegations and in light of undisputed evidence showing no connection between the
Defendants and the District of Columbia, Plaintiff has failed to meet his burden to establish that
the court has personal jurisdiction over the Defendants.
For similar reasons, if the court were to consider the merits of Defendants’ venue
challenge rather than deem the motion conceded by the Plaintiff, Defendants would prevail.
Venue in a RICO action is proper in “any district in which [the defendant] resides, is found, has
an agent, or transacts his affairs.” 18 U.S.C. § 1965(a). The uncontroverted evidence submitted
by the Defendants establishes that the District of Columbia is not such a district. Accordingly,
venue is improper.
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Having concluded that personal jurisdiction is lacking and venue is improper, the court
must still determine which of the alternate forms of relief sought by the Defendants is proper for
this case: dismissal or transfer to a district where personal jurisdiction and venue are proper.
II. TRANSFER IS NOT IN THE INTEREST OF JUSTICE
Transfer for lack of jurisdiction or improper venue is authorized by 28 U.S.C. § 1631
(jurisdiction) and 28 U.S.C. § 1406(a) (venue). The court may transfer if it is in the “interest of
justice” to do so, instead of dismissing the case. Id. This Circuit has an expressed preference for
transfer over dismissal. James v. Verizon Servs. Corp., 639 F. Supp. 2d 9, 15 (D.D.C. 2009);
McQueen v. Harvey, 567 F. Supp. 2d 184, 188 (D.D.C. 2008). In deciding whether to transfer a
case, the court may consider whether transfer would prejudice the defendants’ position on the
merits, whether it would save the plaintiff the time and expense of refiling in a new district, and
the plaintiff’s pro se status. McQueen, 567 F. Supp. 2d at 188. The court may also conduct a
“limited review of the merits of a case.” Boultinghouse v. Lappin, 816 F. Supp. 2d 107, 113
(D.D.C. 2011). If plaintiff’s success on the merits appears unlikely, transfer is not in the interest
of justice. Id.; see also Buchanan v. Manley, 145 F.3d 386, 389 n.6 (D.C. Cir. 1998).
In this case, while it appears that transfer would not prejudice any of the parties, who are
all located in the Eastern District of Texas, the court’s limited review of the merits leads it to
conclude that success appears highly unlikely, and dismissal is proper. First, to the extent
Plaintiff believes he is asserting claims on behalf of the United States, he may not do so as a non-
lawyer proceeding pro se—a rule with which Mr. Liu is well-acquainted, having previously been
admonished for violating it by the Fifth Circuit. See United States ex rel. Fisher v. Network
Software Assocs., 377 F. Supp. 2d 195, 196 (D.D.C. 2005) (pro se plaintiffs may not bring
claims on behalf of the United States); Liu v. Plano Med. Cntr., 328 Fed. Appx. 904, 904–05 (5th
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Cir. 2009) (admonishing and sanctioning Plaintiff for holding himself out as an attorney).
Second, and more to the point, Plaintiff has not pled a viable RICO claim.
A § 1962(c) claim has five elements: “(1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity.” Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114,
1116 (D.C. Cir. 1991). An “enterprise” can be alleged to be an “association-in-fact,” composed
of “some number of the distinct individual defendants or defendant corporations.” Yellow Bus
Lines, Inc. v. Drivers, Chauffeurs & Helpers Local Union 639, 883 F.2d 132, 140–41 (D.C. Cir.
1989), rev’d en banc on other grounds 913 F.2d 948 (D.C. Cir. 1990). An association-in-fact
claim is adequately pled when plaintiff alleges that the defendants “conducted or participated in
the enterprise’s affairs, not just their own affairs.” Feld Entertainment Inc. v. Am. Soc. for the
Prevention of Cruelty to Animals, 873 F. Supp. 2d 288, 314 (D.D.C. 2012) (emphasis in original)
(quoting Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001)). Such an
enterprise is shown by “evidence of an ongoing organization, formal or informal, and by
evidence that the various associates function as a continuing unit.” Boyle v. United States, 556
U.S. 938, 944–45 (2009) (citing United States v. Turkette, 452 U.S. 576, 583 (1981)). Similarly,
to adequately plead a conspiracy claim under § 1962(d), a plaintiff “must allege facts from which
it can be inferred that there was an agreement involving each of the defendants to commit at least
two predicate acts.” Tuscano v. Tuscano, 403 F. Supp. 2d 214, 229 (E.D.N.Y. 2005) (citing
Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir. 1990)).
Liu’s Complaint fails on both claims. The Complaint contains only conclusory
allegations that the Defendants acted in concert. There are no facts to suggest that any single
Defendant ever communicated in any way with any other Defendant about Plaintiff. The
Complaint lacks any factual allegations suggesting that any Defendant was even aware of the
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purported racketeering activity directed at Plaintiff until he reported the individual predicate
crimes. In other words, there is no indication of any sort of agreement and coordination
necessary to state a claim for relief under §§ 1962(c) or (d). See, e.g., Prunte v. Universal Music
Grp., 484 F. Supp. 2d 32, 41–42 (D.D.C. 2007) (complaint dismissed for failing to distinguish
between defendants and a distinct enterprise). 3
III. CONCLUSION
The court lacks jurisdiction over the Defendants and Plaintiff filed this lawsuit in an
improper venue. Given that it appears the Complaint does not adequately allege any claims and
Plaintiff’s likelihood of success is very low, the court will exercise its discretion to dismiss,
rather than transfer, this case. Because the court is dismissing the case, it does not address
Plaintiff’s July and August 2015 motions, which are denied as moot.
A corresponding order will issue separately.
Dated: August 20, 2015
3
The court’s focus on the inadequacy of the pleadings as to this element should not be construed to suggest that the
remaining elements are adequately alleged.
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