Defense Distributed v. Grewal, 1:18-CV-637-RP

• Decision Date: 30 January 2019
• Docket Number: 1:18-CV-637-RP
• Citation: 364 F.Supp.3d 681
• Parties: DEFENSE DISTRIBUTED and Second Amendment Foundation, Inc., Plaintiffs, v. Gurbir S. GREWAL, in His Official Capacity as New Jersey Attorney General, Michael Feuer, in His Official Capacity as Los Angeles City Attorney, Andrew Cuomo, in His Official Capacity as New York Governor, Matthew Denn, in His Official Capacity as Attorney General of the State of Delaware, Josh Shapiro, in His Official Capacity as Attorney General of Pennsylvania, and Thomas Wolf, in His Official Capacity as Pennsylvania Governor, Defendants.
• Court: U.S. District Court — Western District of Texas

364 F.Supp.3d 681

DEFENSE DISTRIBUTED and Second Amendment Foundation, Inc., Plaintiffs,

v.Gurbir S. GREWAL, in His Official Capacity as New Jersey Attorney General, Michael Feuer, in His Official Capacity as Los Angeles City Attorney, Andrew Cuomo, in His Official Capacity as New York Governor, Matthew Denn, in His Official Capacity as Attorney General of the State of Delaware, Josh Shapiro, in His Official Capacity as Attorney General of Pennsylvania, and Thomas Wolf, in His Official Capacity as Pennsylvania Governor, Defendants.

1:18-CV-637-RP

United States District Court, W.D. Texas, Austin Division.

Signed January 30, 2019

Charles R. Flores, Daniel N. Hammond, Mary Kathryn Raffetto, Beck Redden LLP, Joshua Michael Blackman, Josh Blackman LLC, Houston, TX, Jonathan F. Mitchell, Mitchell Law PLLC, Austin, TX, Matthew A. Goldstein, Farhang & Medcoff, Tucson, AZ, for Plaintiffs.

Alexander D. Hardiman, Benjamin D. Tievsky, Kenneth W. Taber, Pillsbury Winthrop Shaw Pittman, LLP, John D. Kimball, Blank Rome LLP, New York, NY, Ronald Casey Low, Shelbi Flood, Pillsbury Winthrop Shaw Pittman LLP, Austin, TX, Connie K. Chan, James P. Clark, Michael M. Walsh, Office of the Los Angeles City Attorney, Los Angeles, CA, Jason P. Steed, Kilpatrick Townsend & Stockton LLP, Peter D. Marketos, Tyler James Bexley, Reese Marketos LLP, Dallas, TX, J. David Cabello, Joshua A. Huber, Blank Rome LLP, Houston, TX, for Defendants.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Before the Court are Defendant Feuer's Motion to Dismiss, (Feuer Mot., Dkt. 50), Defendant Cuomo's Motion to Dismiss, (Cuomo Mot., Dkt. 55), Defendants Grewal and Denn's Motion to Dismiss, (Grewal & Denn Mot., Dkt. 57), Defendants Wolf and Shapiro's Motion to Dismiss, (Wolf & Shapiro Mot., Dkt. 75), Plaintiffs' responses to each motion, (Dkts. 59, 73, 86),¹ and Defendants' respective replies, (Dkts. 76, 79, 82, 90). Having considered the parties' briefs, the record, and relevant law, the Court finds that it lacks personal jurisdiction over each Defendant. Accordingly, the Court will grant the Defendants' motions to dismiss.

I. BACKGROUND

Plaintiff Defense Distributed is a Texas corporation whose mission is to "defend[ ] the American civil liberty of popular access to arms," a mission it furthers by "publishing information regarding the production of arms to the general public." (Am. Compl., Dkt. 23 ¶ 10). Part of what Defense Distributed has published includes "computer-aided design (CAD) data files that can be used to manufacture a virtually undetectable, untraceable gun with a 3D printer." (Feuer Mot., Dkt. 50, at 3). Defense Distributed's primary method of distributing these files is by hosting them on its website, DEFCAD, for visitors to download. (Am. Compl., Dkt. 23 ¶ 11; Heindorff Decl., Dkt. 65-26 ¶ 8). Plaintiff Second Amendment Foundation, Inc. ("Second Amendment Foundation") is a non-profit organization whose members seek to obtain the information published by Defense Distributed. (Am. Compl., Dkt. 23 ¶¶ 12–13).

Defense Distributed began publishing CAD files related to the 3D printing of firearms in December 2012. (Wilson Decl., Dkt. 65-23 ¶ 3; Heindorff Decl., Dkt. 65-26 ¶ 8). In May 2013, the Directorate of Defense Trade Controls ("DDTC"), part of the U.S. State Department, sent a letter to Defense Distributed instructing them to remove certain CAD files from the DEFCAD website. (See State Dept. Letter, Heindorff Decl., Dkt. 65-26, at 19–21). The letter stated that Defense Distributed was required to seek prior authorization before publishing these files because they may have contained information subject to the Arms Export Control Act ("AECA") and the AECA's implementing regulations, the International Traffic in Arms Regulations ("ITAR"). (See id. at 19). Defense Distributed complied with the DDTC's instructions and sought authorization to publish the specified CAD files. (Req. Jud. Not., Dkt. 77, at 7). The DDTC failed to timely rule on Defense Distributed's request, and the matter of Defense Distributed, et al., v. U.S. Dept. of State, et al. , 1:15-CV-372-RP (W.D. Tex) (Defense Distributed I ) followed. In that case, Plaintiffs challenged the ITAR provisions regulating the publication of the CAD files (hereafter, the "Defense Distributed I files") on the Internet. (Id. ).

Ultimately, the parties settled. The parties' Settlement Agreement provided that the State Department would issue a license permitting the plaintiffs to publish the Defense Distributed I files on the Internet. (See Settlement Agreement, Heindorff Decl., Dkt. 65-26, at 23–25). This license issued on July 27, 2018. (Id. ¶ 18). Three days later, this Court dismissed the Defense Distributed I action pursuant to the parties' stipulated dismissal with prejudice. (See Req. Jud. Not., Dkt. 77, at 40). That same day, however, nine Attorneys General from eight States and the District of Columbia filed suit in the United States District Court for the Western District of Washington to enjoin the State Department from performing the terms of the Settlement Agreement (the "Washington Action").² (Am. Compl., Dkt. 23 ¶¶ 59–60). The Washington Court issued a temporary restraining order on July 31, and a nationwide preliminary injunction on August 27, enjoining the State Department from modifying the ITAR regulations to allow Defense Distributed to publish the Defense Distributed I files. (Id. ¶¶ 62–63). The preliminary injunction remains in effect, the Washington Action is currently pending, and Defense Distributed has ceased publishing CAD files on the Internet.

The instant action concerns several civil and criminal enforcement actions taken by the Defendant state officials in the wake of the Defense Distributed I Settlement Agreement. These actions include:

(1) sending cease-and-desist letters threatening legal action if Defense Distributed does not cease publishing the Defense Distributed I files;

(2) sending letters to third-party companies that provide internet security services to Defense Distributed;

(3) initiating civil lawsuits against Defense Distributed;

(4) threatening to enforce a criminal law against Defense Distributed;

(5) issuing press releases regarding commitments and efforts to prevent Defense Distributed from publishing the Defense Distributed I files;

(6) placing a telephone call with Defense Distributed to demand that Defense Distributed stop publishing the Defense Distributed I files; and

(7) filing a letter with this Court in support of a motion to intervene in Defense Distributed I.

(See id. ¶¶ 75–115; Mot. Prelim. Inj., Dkt. 67, at 30).

Plaintiffs allege that these actions are part of a "coordinated and politically-fueled campaign to censor Defense Distributed." (Am. Compl., Dkt. 23 ¶ 5). As explained below, the Court finds that none of the above actions establish minimum contacts between any of the Defendants and Texas.

II. LEGAL STANDARD AND DISCUSSION

Each Defendant to this action challenges this Court's exercise of personal jurisdiction over him. "Requiring a court to have personal jurisdiction over a party [is] a matter of constitutional due process" designed to "protect[ ] an individual's liberty interest in not being subject to the binding judgment of a forum with which he has established no meaningful contacts, ties, or relations." First Inv. Corp. v. Fujian Mawei Shipbuilding, Ltd. , 703 F.3d 742, 749 (5th Cir. 2012) (citation and quotation marks omitted). Under Federal Rule of Civil Procedure 12(b)(2), the party invoking the power of the court (here, Plaintiffs) bears the burden of making a prima facie showing that personal jurisdiction is proper.

Monkton Ins. Servs. v. Ritter , 768 F.3d 429, 431 (5th Cir. 2014). To make this showing, "the plaintiff must show that the nonresident defendant purposefully availed itself of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the forum state." Id. (citation omitted) (cleaned up). "Sufficient minimum contacts will give rise to either specific or general jurisdiction." Id. (citation omitted). All Defendants argue, and Plaintiffs do not dispute, that this Court does not have general jurisdiction over them.³ Accordingly, Plaintiffs must show that the exercise of specific jurisdiction over each Defendant is proper.

With respect to specific jurisdiction, the Fifth Circuit applies a three-step analysis: "(1) whether the defendant has minimum contacts with the forum state, i.e. , whether it purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there; (2) whether the plaintiff's cause of action arises out of or results from the defendant's forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable." Monkton , 768 F.3d at 433 (citation omitted). Specific jurisdiction "focuses on the relationship among the defendant, the forum, and the litigation." Monkton , 768 F.3d at 432–33 (5th Cir. 2014) (quoting Walden v. Fiore , 571 U.S. 277, 134 S.Ct. 1115, 1121, 188 L.Ed.2d 12 (2014) ). Plaintiffs bear the burden of establishing the first two prongs; only if they are successful in doing so does the burden shift to the Defendants to establish the third prong. Id.

A. Threshold Issues

Plaintiffs raise two threshold issues pertinent to the Court's minimum contacts analysis. The Court addresses each in turn before turning to the merits of the parties' personal jurisdiction dispute.

1. Judicial Estoppel

Plaintiffs argue that Defendants Cuomo, Grewal, Denn, Wolf, and Shapiro are judicially estopped from challenging personal jurisdiction in Texas because of the position they took in the Washington Action. The judicial estoppel doctrine "prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding." New Hampshire v. Maine , 532 U.S. 742, 742–43, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). Plaintiffs assert that these...