United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANTS' RENEWED MOTION TO DISMISS
RUDOLPH CONTRERAS United States District Judge
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.
the Court finds that it possesses jurisdiction and it would
not violate the 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.
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.
The American Studies Association
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. 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 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.
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.
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.
ASA's Boycott Resolution
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.
¶ 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 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 the course of the
discussion, Compl. ¶ 47, and that Defendants
“actively prevented an informed and methodical
discussion of the Boycott resolution” in part by
actively preventing opponents of the measure from being
heard. Compl. ¶ 46.
Defendants were involved with the boycott resolution in
varying degrees. Defendants Marez and Gordon co-hosted the
discussion of the resolution. Compl. ¶ 16-17. Defendant
Tadiar is alleged to have helped plan the 2013 convention.
Compl. ¶ 18. Defendants Maira, Duggan, and Reddy are
alleged to have been members of the 2013 National Council and
Executive Committee. Compl. ¶¶ 19-21. Plaintiffs
allege that Individual Defendants each engaged in actions
that were intended to, and did in fact, alter the nature and
purpose of the ASA. Compl. ¶ 30. Individual Defendants
are alleged to have jointly led the campaign for the ASA to
adopt the boycott resolution. Compl. ¶ 2. Plaintiffs
further allege that a majority of the current National
Council members are supporters of the boycott resolution, but
do not specifically plead facts showing that a majority
actually participated in the adoption of the resolution.
Compl. ¶ 74.
to the Amended Complaint, the ASA National Committee allowed
ASA members to vote at any time during a ten-day period in
December, the month following the 2013 convention. Compl.
¶ 33. Plaintiffs allege that, although around 5, 000
people were members of the ASA at the time of the conference,
Compl. ¶ 33, only 1, 252 voted on the proposal, with 828
voting in favor of the resolution. Compl. ¶ 33. So,
according to Plaintiffs, of the members who voted on the
resolution, just under two-thirds voted in favor. Compl.
also suggest that Defendants manipulated the vote. According
to the complaint, members of the ASA who supported the
resolution encouraged their students to join the ASA because
they knew the students would vote in favor of the resolution.
Compl. ¶ 40. Around the same time, at least one
Individual Plaintiff attempted to vote but was told by ASA
leadership that he could not vote on the resolution
“ostensibly because he renewed [his ASA membership] too
late to vote.” Compl. ¶ 35. Plaintiffs allege that
at least one other person who renewed his membership just
before the vote was allowed to vote despite the individual
plaintiff being barred from doing so under similar
circumstances. Compl. ¶ 38. At the end of voting, the
ASA asserted that the resolution passed. Compl. ¶ 33.
allege that since the boycott, several members of the ASA
have resigned in protest of the boycott, financially
depriving the ASA of membership dues for years to come.
Compl. ¶ 60. Moreover, Plaintiffs allege that the ASA
has experienced a significant decline in reputation because
of the boycott. The ASA is alleged to have suffered financial
harm as a result of the boycott because of an alleged
decrease in donations and an increase in public-relations
spending required by the need to deal with the public
backlash resulting from the boycott. Compl. ¶ 61.
Although Plaintiffs do not allege any specific amounts of
damages in their complaint, they do, in their
“Jurisdiction and Venue” section, assert that
“the amount in controversy exceeds $75, 000.”
Compl. ¶ 9.
ASA, through its Executive Director, has countered that the
ASA's membership dues actually increased in the year
following the boycott and have not significantly changed
since then. See Decl. of John Stephens
(“Stephens Decl.”) ¶¶ 5-8, ECF No.
21-2. The ASA also claims that it received an increase in
grants and contributions following the boycott. This increase
is alleged to have amounted to almost $40, 000 in the first
year, with a total of $49, 000 specifically designated by
donors for support of the boycott resolution. Stephens Decl.
¶ 9. However, the ASA acknowledges that it spent $20,
000 of the funds received in support of the boycott
resolution on a media strategist, and spent over $15, 000 on
boycott-related expenses during annual meetings. Stephens
Decl. ¶¶ 10-14. All said, according to the
Executive Director of the ASA, “there has been no
financial loss on ASA's part as a result of the
Resolution[, and] [i]f anything, there has been a net gain of
at least $11, 770.” Stephens Decl. ¶ 16.
to filing this suit, some Individual Plaintiffs allege that
they attempted to get the ASA to rescind the resolution and
reorient its focus away from Israel. Compl. ¶ 8.
According to the complaint, two Individual Plaintiffs, one of
whom was an officer and member of the ASA governing council,
“repeatedly attempted to have the Defendant ASA
usurpers abide by the rules and procedures set forth in [the]
ASA's [c]onstitution.” Compl. ¶ 8.
complaint does not further specify what actions Plaintiffs
took to resolve these issues short of filing this suit.
According to the Complaint, “Plaintiff Bronner has
issued a written Demand to the Council that it investigate
these claims and that it cause the ASA to prosecute such
claims.” Compl. ¶ 75. Although the complaint does
not indicate when this demand was made, Defendants attach the
demand letter as an exhibit to their motion to dismiss.
Defs.' Mot. Dismiss Ex. 2, ECF No. 21-4. It is dated
April 18, 2016, two days before Plaintiffs filed their
complaint in this case, and apparently attached a copy of the
original complaint. Defs.' Mot. Dismiss Ex. 2, ECF No.
21-4. Plaintiffs do not contest the authenticity of the
demand document. Pls.' Mem. Opp'n Defs.' Renewed
Partial Mot. Dismiss (“Pls.' Opp'n”) at
19-25, ECF No. 23.
allege that, despite their pre-suit efforts to resolve these
issues and their written demand, Defendants have allegedly
“made clear that they will not voluntarily redress
Plaintiffs' concerns.” Compl. ¶ 8. Plaintiffs
support this contention by citing the ASA's expenditures
on public relations, continued efforts to turn the ASA into a
“social justice” organization, and their
publicly-stated positions in favor of the boycott and efforts
to defend the boycott in publications. Pls.' Opp'n at
have the burden of showing subject-matter jurisdiction, and
their allegations are not presumed to be truthful.
Carmona v. Snow, 2007 WL 915220, at *2 (D.D.C. Mar.
26, 2007) (quoting Mortensen v. First Fed. Sav. &
Loan Ass'n, 549 F.2d 884, 891 n.16 (3d Cir. 1977)).
Indeed, the Court must give the plaintiff's allegations
“closer scrutiny when resolving a Rule 12(b)(1) motion
than would be required for a Rule 12(b)(6) motion for failure
to state a claim.” Ludvigson v. United States,
525 F.Supp.2d 55, 56-57 (D.D.C. 2007). In doing so, the Court
may consider evidence outside of the pleadings. Herbert
v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.
Cir. 1992); Al-Owhali v. Ashcroft, 279 F.Supp.2d 13,
21 (D.D.C. 2003).
plaintiff bears the burden of establishing personal
jurisdiction over each defendant. Crane v. N.Y.
Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir.
1990). And, although the court must resolve any factual
discrepancies in favor of the plaintiff, Crane, 894
F.2d at 456, “[b]are allegations and conclusory
statements are insufficient, ” Johns v. Newsmax
Media, Inc., 887 F.Supp.2d 90, 95 (D.D.C. 2012). See
also Second Amendment Found. v. U.S. Conference of
Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001). A court may
consider evidence outside of the pleadings to resolve
questions of personal jurisdiction. See Mwani v. bin
Laden, 417 F.3d 1, 7 (D.C. Cir. 2005).
survive a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), a complaint
must contain sufficient factual allegations that, if accepted
as true, would state a plausible claim to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. Instead, plaintiffs must
“nudge their claims across the line from conceivable
to plausible.” See Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “In evaluating a Rule
12(b)(6) motion to dismiss, a court may consider the facts
alleged in the complaint, documents attached as exhibits or
incorporated by reference in the complaint, or documents upon
which the plaintiff's complaint necessarily relies even
if the document is produced not by [the parties].”
Busby v. Capital One, N.A., 932 F.Supp.2d 114,
133-34 (D.D.C. 2013) (alteration in original) (internal
citations and quotation marks omitted).
move to dismiss on several grounds. First, they contend that
the Court lacks subject-matter jurisdiction because
Plaintiffs do not meet the amount-in-controversy requirement
to maintain this diversity suit. Second, they argue that the
Court lacks personal jurisdiction over Individual Defendants
because their only alleged connection with the District of
Columbia was the fortuitous location of the ASA's annual
meeting. Third, Defendants argue that a ruling in favor of
Plaintiffs-and thus against the boycott resolution-would
constitute state action infringing on their First Amendment
rights. As their fourth grounds for dismissal, Defendants
argue that Plaintiffs failed to make an adequate pre-suit
demand on the ASA because the demand was made only two days
prior to the commencement of this lawsuit, and that the
demand would not have been futile. Fifth, Defendants contend
that, because the ASA had the authority to pass the boycott
resolution, it did not act ultra vires. Sixth,
Defendants argue that they did not breach any contractual
obligations owed to the ASA membership-in other words, that
they did not violate the bylaws. Finally, Defendants argue
that the D.C. Nonprofit Corporation Act does not allow
Plaintiffs' claims to proceed against Individual
reasons set forth below, the Court grants Defendants'
Motion to Dismiss in part and denies it in part. The Court
concludes that it has both subject-matter and personal
jurisdiction. It has subject-matter jurisdiction because
Plaintiffs have shown, beyond the low standard of legal
possibility, that they could recover more than $75, 000 if
they prevailed. The Court has personal jurisdiction over the
Individual Defendants because they voluntarily served as
directors of a nonprofit registered in D.C. and attended an
annual meeting in D.C. and, thus, have purposefully availed
themselves of the laws and protections of the District of
because a judgment against Defendants would be based on
generally-applicable laws with only incidental effects on
expression, it would not violate the First Amendment. But
Plaintiffs' claims begin to falter when the Court moves
to their substantive claims. Because Plaintiffs bring a
derivative claim, they were required to make a demand of the
ASA before bringing suit. But Plaintiffs failed to wait the
required time after making their demand-which would not
necessarily have been futile-to maintain their derivative
claims. Plaintiffs also fail to show that Defendants acted
contrary to any express prohibitions in the bylaws, and thus
do not state an ultra vires claim. Plaintiffs do,
however, state a cognizable claim for breach of contract and
Defendants do not move to dismiss their claim for waste.
Accordingly, the Court will dismiss Counts I and II in their
entirety, and Count III insofar as it seeks derivative relief
on behalf of the ASA.
The Court Has Subject-Matter Jurisdiction, Because It is Not
Legally Impossible for ...