Bronner v. Duggan, Civil Action No.: 16-0740 (RC).

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRUDOLPH CONTRERAS, United States District Judge
Citation249 F.Supp.3d 27
Parties Simon BRONNER, et al., Plaintiffs, v. Lisa DUGGAN, et al., Defendants.
Docket NumberCivil Action No.: 16-0740 (RC).
Decision Date31 March 2017

249 F.Supp.3d 27

Simon BRONNER, et al., Plaintiffs,
v.
Lisa DUGGAN, et al., Defendants.

Civil Action No.: 16-0740 (RC).

United States District Court, District of Columbia.

Signed March 31, 2017


249 F.Supp.3d 31

Jerome M. Marcus, Jonathan Auerbach, Marcus & Auerbach LLC, Spring House, PA, Scott Neal Godes, Devin J. Stone, Barnes & Thornburg LLP, Kenneth Lawrence Marcus, Washington, DC, L. Rachel Lerman, Barnes & Thornburg, LLP, Los Angeles, CA, for Plaintiffs.

John J. Hathway, Whiteford, Taylor & Preston LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS' RENEWED MOTION TO DISMISS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiffs bring this suit in their individual capacities and derivatively on behalf of the American Studies Association, alleging that a group of academic leaders improperly introduced and implemented an academic boycott of Israel. Plaintiffs seek injunctive relief and damages from the American Studies Association for alleged breach of fiduciary duty, ultra vires acts, breach of contract, and violation of the D.C. Nonprofit Corporation Act. They seek recovery for alleged ultra vires acts and waste against the pro-boycott leaders directly. Defendants move to dismiss on several grounds, including lack of subject-matter jurisdiction, lack of personal jurisdiction, the First Amendment, and failure to state a claim. With respect to their contention that Plaintiffs do not state cognizable claims, Defendants' argument does not extend to Plaintiffs' claims for waste or violation of the D.C. Nonprofit Corporation Act.

Although the Court finds that it possesses jurisdiction and it would not violate the

249 F.Supp.3d 32

First Amendment to rule against Defendants in this case, it also finds that Plaintiffs, in part, failed to state cognizable claims. Although Plaintiffs allege plausible direct claims for breach of contract and waste, their failure to adequately demand that the nonprofit corporation remedy the situation internally makes them ineligible to proceed derivatively under District of Columbia law. Additionally, because Plaintiffs do not allege facts suggesting that Defendants acted in violation of an express prohibition in the bylaws, they fail to state cognizable ultra vires claims. Accordingly, the Court will dismiss Plaintiffs' derivative claims and ultra vires claim. The case will proceed, however, with Plaintiffs' direct claims for waste, breach of contract, and violation of the D.C. Nonprofit Corporation Act, which survive dismissal.

II. FACTUAL BACKGROUND

Plaintiff Simon Bronner brings this action derivatively on behalf of the American Studies Association ("ASA") against Defendants Lisa Duggan, Curtis Marez, Avery Gordon, Neferti Tadiar, Sunaina Maira, and Chandan Reddy (collectively "Individual Defendants") for breach of fiduciary duty, ultra vires acts, and waste. See Am. & Verified Compl. for Derivative and Direct Claims ("Compl.") at 1, ECF No. 19. Plaintiffs Bronner, Michael Rockland, Michael Barton, and Charles Kupfer (collectively "Individual Plaintiffs") bring this action directly against the ASA for breach of contract and violation of the D.C. Nonprofit Corporation Act, and against all Defendants for ultra vires acts and waste. Compl. at 1–2. Individual Plaintiffs are or were members of the ASA during the time period at issue. See Compl. ¶¶ 11–14. Individual Defendants were involved with the ASA in different capacities during the relevant time period. See Compl. ¶¶ 16–21. Individual Plaintiffs are citizens of Pennsylvania and New Jersey. Compl. ¶¶ 11–14. Individual Defendants are citizens of California, New York, and Washington. Compl. ¶¶ 16–21. The ASA is organized under the District of Columbia's nonprofit laws and maintains its corporate headquarters there. Compl. ¶ 15.

A. The American Studies Association

The ASA is a nonprofit organization whose object is "the promotion of the study of American culture through the encouragement of research, teaching, publication, the strengthening of relations among persons and institutions in this country and abroad devoted to such studies, and the broadening of knowledge among the general public about American culture in all its diversity and complexity." See Const. & Bylaws of the Am. Studies Ass'n ("ASA Const. & Bylaws"), Const., Art. I § 2, Defs.' Ex. 1, ECF No. 21–3.1 Founding documents of the ASA provide that the society was "organized exclusively for education and academic purposes." Compl. ¶ 24. The president of the ASA presides over the National Council and has a duty to "fulfill the chartered obligations and purposes of the [ASA]." ASA Const. & Bylaws, Const., Art. IV § 2. The National Council is charged with "conduct[ing] the business, set[ting] fiscal policy, ... and oversee[ing] the general interests of the [ASA]." ASA Const. & Bylaws Const. Art. V § 2. There are 23 voting members of the National Council. Compl. ¶ 74; ASA Const. & Bylaws, Const., Art. V § 1. Under the ASA's bylaws, "[n]o substantial part of the

249 F.Supp.3d 33

activities of the [ASA] shall be the carrying on of propaganda, or otherwise attempting, to influence legislation, and the corporation shall nor participate in, or intervene in ... any political campaign on behalf of any candidate for public office." Compl. ¶ 25. According to the complaint, the ASA has conformed to these rules for decades and has established a "uniform practice" that prevents the ASA from advocating for particular positions on U.S. government policy. Compl. ¶ 25. Based "solely on the condition and understanding that this practice would be followed," Individual Plaintiffs donated time and money to the ASA. Compl. ¶ 26.

The ASA bylaws provide that "[t]he Executive Committee [may] speak for the [ASA] on public issues [that] directly affect" the scholarly work of the ASA's members. See ASA Const. & Bylaws, Bylaws, Art. XI § 1. These bylaws also provide that if "an issue arise[s] which, in the opinion of the Executive Committee or Council, seems to require public action, speech[,] or demonstration by the association at a particular annual meeting, ... [t]he Council shall convene an emergency meeting of the membership on the first full day of the annual meeting[ ] to recommend a course of action [and] conduct a public discussion of the issue." See ASA Const. & Bylaws, Bylaws, Art. XI § 3. The votes of two-thirds of the members in attendance at the emergency meeting are required for such a proposition to pass. See ASA Const. & Bylaws, Bylaws, Art. XI § 3.

In 2013, the ASA elected Defendant Marez to be its president. Compl. ¶ 28. Mr. Marez ran on a platform of campus openness and "making knowledge less privatized and more equally distributed." Compl. ¶ 28. He did not mention Israel or the concept of an academic boycott during his campaign. See Compl. ¶ 28. According to the complaint, after he was elected, Mr. Marez made Israel the "central focus" of the ASA under his leadership, and generally began turning the ASA into a "social justice" organization. Compl. ¶ 29.

B. ASA's Boycott Resolution

At the ASA's annual meeting in November 2013, ASA leadership introduced a resolution advocating for the boycott of Israeli academic institutions on the grounds that Israel restricted academic activity in formerly Jordanian-occupied territory that came under Israeli control after the Six Day War in 1967. See Compl. ¶ 41. The boycott resolution's preambulatory clauses stated that the ASA is devoted to "the struggle against all forms of racism," that the United States helps enable Israel to illegally occupy Palestine, that there is "no effective or substantive academic freedom for Palestinian students and scholars under conditions of Israeli occupation," and that the ASA is dedicated to the rights of students and scholars in Israeli institutions. Compl. ¶ 31. The operative clause of the resolution read as follows:

It is resolved that the American Studies Association (ASA) endorses and will honor the call of the Palestinian civil society for a boycott of Israeli academic institutions. It is also resolved that the ASA supports the protected rights of students and scholars everywhere to engage in research and public speaking about Israel—Palestine and in support of the boycott, divestment, and sanctions (BDS) movement.

Compl. ¶ 31. During the presentations in support of the resolution, the proponents allegedly did not present any data or research, did not address how the affected institutions were founded, and did not specifically address "any ... aspect of the actual state of academic freedom in the [t]erritories at any time." Compl. ¶ 45. Instead, the speakers' "principal focus" was on an alleged apartheid state in the territories

249 F.Supp.3d 34

at issue, and the need for the ASA to support the ending of "the so-called settler-colonialist Zionist project" and America's support for these policies. Compl. ¶ 48. Plaintiffs allege that no speakers in opposition to the resolution were invited to speak during...

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14 practice notes
  • Sharp Corp. v. Hisense USA Corp., Civil Action No. 17–1648 (JEB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 13 Noviembre 2017
    ...the infringement upon speech or petition rights must have "arisen from state action of some kind." Bronner v. Duggan, 249 F.Supp.3d 27, 41 (D.D.C. 2017). As another district court noted last year, there is simply "no authority holding that judicial enforcement ... of an arbit......
  • Cumis Ins. Soc'y, Inc. v. Clark, Civil Action No. 05-1277 (PLF)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 19 Julio 2018
    ...it "appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount." See Bronner v. Duggan, 249 F.Supp.3d 27, 37 (D.D.C. 2017) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ). In short, &q......
  • Freedom Watch, Inc. v. McAleenan, Civil Action No. 19-cv-1374 (RC)
    • United States
    • U.S. District Court — District of Columbia
    • 26 Febrero 2020
    ...of a membership organization, the Court expresses no opinion on Freedom Watch's standing under such a theory. See Bronner v. Duggan , 249 F. Supp. 3d 27, 41 (D.D.C. 2017) (declining to consider argument raised for first time in reply); United States ex rel. Morsell v. Symantec Corp. , 130 F......
  • Bronner v. Duggan, Civil Action No.: 16-0740 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 4 Febrero 2019
    ...(D.D.C. 2018) ; Bronner v. Duggan ("Bronner II") , 324 F.R.D. 285 (D.D.C. 2018) ; Bronner v. Duggan ("Bronner I") , 249 F.Supp.3d 27 (D.D.C. 2017).3 To the extent the Court considers the merits of these claims, it must apply District of Columbia law. See A.I. Trade Fin. ......
  • Request a trial to view additional results
14 cases
  • Sharp Corp. v. Hisense USA Corp., Civil Action No. 17–1648 (JEB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 13 Noviembre 2017
    ...protection, the infringement upon speech or petition rights must have "arisen from state action of some kind." Bronner v. Duggan, 249 F.Supp.3d 27, 41 (D.D.C. 2017). As another district court noted last year, there is simply "no authority holding that judicial enforcement ... of an arbitrat......
  • Cumis Ins. Soc'y, Inc. v. Clark, Civil Action No. 05-1277 (PLF)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 19 Julio 2018
    ...only if it "appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount." See Bronner v. Duggan, 249 F.Supp.3d 27, 37 (D.D.C. 2017) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ). In short, "the......
  • Freedom Watch, Inc. v. McAleenan, Civil Action No. 19-cv-1374 (RC)
    • United States
    • U.S. District Court — District of Columbia
    • 26 Febrero 2020
    ...of a membership organization, the Court expresses no opinion on Freedom Watch's standing under such a theory. See Bronner v. Duggan , 249 F. Supp. 3d 27, 41 (D.D.C. 2017) (declining to consider argument raised for first time in reply); United States ex rel. Morsell v. Symantec Corp. , 130 F......
  • Bronner v. Duggan, Civil Action No.: 16-0740 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 4 Febrero 2019
    ..., 317 F.Supp.3d 284 (D.D.C. 2018) ; Bronner v. Duggan ("Bronner II") , 324 F.R.D. 285 (D.D.C. 2018) ; Bronner v. Duggan ("Bronner I") , 249 F.Supp.3d 27 (D.D.C. 2017).3 To the extent the Court considers the merits of these claims, it must apply District of Columbia law. See A.I. Trade Fin. ......
  • Request a trial to view additional results

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