UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

SIMON BRONNER, et al., : 

 : 

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

 : 

 v. : Re Document No.: 21 

 : 

LISA DUGGAN, et al., : 

 : 

 Defendants. : 

MEMORANDUM OPINION 

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

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 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 
2 

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. 
3 

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 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. 

 1

 Because Plaintiffs specifically reference the ASA Constitution and Bylaws in their 

complaint, see, e.g., Compl. ¶¶ 22, 32, the Court considers them in the context of this motion to 

dismiss without converting the motion to one for summary judgment. See Banneker Ventures, 

LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015) (citing 5A Charles Alan Wright & Arthur 

R. Miller, Federal Practice and Procedure § 1327 (4th ed. 2014)). 
4 

¶ 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 
5 

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 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. 

 Individual 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 
6 

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. 

 According 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. ¶ 33. 

Plaintiffs 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. 

 Plaintiffs 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. 
7 

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. 

The 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. 

 Prior 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. 
8 

But the 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. 

Plaintiffs 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 22. 

III. LEGAL STANDARDS 

A. 12(b)(1) 

Plaintiffs 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.” 
9 

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). 

B. 12(b)(2) 

The 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). 

C. 12(b)(6) 

To 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 
10 

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). 

IV. ANALYSIS 

Defendants 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 Defendants. 

For the 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 
11 

purposefully availed themselves of the laws and protections of the District of Columbia. 

Moreover, 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. 

A. The Court Has Subject-Matter Jurisdiction, Because It is Not 

Legally Impossible for Plaintiffs to Recover More than $75,000 

The court first addresses Defendants’ argument that Plaintiffs do not exceed the $75,000 

amount-in-controversy requirement to maintain this diversity suit. See Defs.’ Mem. Supp. 

Renewed Mot. Dismiss (“Defs.’ Mot. Dismiss”) at 8–11, ECF No. 21. Defendants contend that 

Plaintiffs do not allege any specific losses to the ASA as a result of the boycott, and thus have 

not adequately shown that the Court possesses subject-matter jurisdiction. The Court concludes 

that Plaintiffs have shown, beyond the low standard of legal possibility, that they could recover 

more than $75,000 if they were to prevail. 

“Federal courts are courts of limited jurisdiction. They possess only that power 

authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 

U.S. 375, 377 (1994). Congress has the “prerogative to restrict the subject-matter jurisdiction of 
12 

federal district courts” based on the types of claims brought by particular plaintiffs. Arbaugh v. 

Y & H Corp., 546 U.S. 500, 515 n.11 (2006). Congress has limited the Court’s Article III 

jurisdiction over diversity cases to matters where the amount in controversy exceeds $75,000. 

See 28 U.S.C. § 1332(a). The parties here do not dispute diversity of citizenship. 

In general, “the sum claimed by the plaintiff controls if the claim is apparently made in 

good faith.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938) (footnote 

omitted). For a court to reject the amount claimed by the plaintiff, “[i]t must appear to a legal 

certainty that the claim is really for less than the jurisdictional amount.” Id. at 289. This means 

that a court should find jurisdiction at this motion-to-dismiss stage of the proceedings even if it 

has serious doubts as to the bases for establishing the amount in controversy. See Compton v. 

Alpha Kappa Alpha Sorority, Inc., 64 F. Supp. 3d 1, 14 (D.D.C. 2014), aff’d, 639 F. App’x 3 

(D.C. Cir. 2016). Even a “cursory” allegation of the amount in controversy, if it exceeds the 

jurisdictional requirement, is sufficient to survive a motion to dismiss. 14AA C. Wright, A. 

Miller & E. Cooper, Federal Practice and Procedure § 3702, p. 314 (4th ed. 2011); see also

Rosenboro v. Kim, 994 F.2d 13, 17 (D.C. Cir.1993) (“[T]he Supreme Court’s yardstick demands 

that courts be very confident that a party cannot recover the jurisdictional amount before 

dismissing the case for want of jurisdiction.”); Martin v. Gibson, 723 F.2d 989, 991, 993 (D.C. 

Cir. 1983) (characterizing the St. Paul Mercury test as “exacting” and “stringent” in favor of the 

plaintiff). 

Plaintiffs’ claims plainly meet the low standard for establishing a sufficient amount in 

controversy. The complaint asserts that over $75,000 is in controversy in the case, albeit in a 

cursory fashion. See Compl. ¶ 9. It is far from legally certain that Plaintiffs could not recover 

over $75,000. The complaint seeks monetary, injunctive, and declarative relief for waste, breach 
13 

of contract, breach of fiduciary duties, ultra vires acts, and violation of the D.C. Nonprofit 

Corporation Act. See Compl. at 25–31. It specifically alleges that the ASA will lose 

membership dues from many former members for years to come. Compl. ¶ 60. The complaint 

also specifically states that the boycott resolution has “resulted in the improper expenditure of 

ASA funds related to membership dealings, public relations, legal matters, and . . . employee 

time and effort,” and that Individual Defendants are “consciously attempting to appropriate the 

assets and reputation of the ASA to achieve purposes . . . at odds with[] [the] purposes and 

mission . . . [of] the ASA.” Compl. ¶¶ 80, 84. 

Defendants’ evidence allegedly showing that the ASA has profited because of the boycott 

resolution is irrelevant at this stage. Even if the ASA has experienced a short-term increase in 

revenues, it is possible that the long-term losses could surpass the short-term financial benefits of 

the boycott resolution. At this stage of the litigation, before any discovery has been taken and 

Defendants’ rosy financial assertions have been tested, Plaintiffs’ allegations are sufficient to 

overcome the low bar of “legal impossibility.” The Court accordingly finds that the amount-incontroversy requirement is satisfied. 

B. The Court Has Personal Jurisdiction Over Individual Defendants Because They 

Voluntarily Assented to the Laws and Protections of the District of Columbia 

Defendants also move to dismiss the claims against Individual Defendants for lack of 

personal jurisdiction. See Defs.’ Mot. Dismiss at 11–14. Defendants argue that the only alleged 

connection between Individual Defendants and the District of Columbia is that they attended the 

ASA annual meeting in the District of Columbia, where the ASA debated and voted on the 

boycott resolution. The Court concludes that Individual Defendants have sufficient contacts with 

this jurisdiction related to the claims for this Court to assert personal jurisdiction against them. 
14 

“A personal jurisdiction analysis requires that a court determine whether jurisdiction over 

a party is proper under the applicable local long-arm statute and whether it accords with the 

demands of due process.” United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995); accord

GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). There are 

two distinct types of personal jurisdiction: general jurisdiction, whereby a court can entertain 

claims against the defendant regardless of the claim’s relationship to the forum, and specific 

jurisdiction, where jurisdiction is based on acts by the defendant that touch and concern the 

forum. See D’Onofrio v. SFX Sports Grp., Inc., 534 F. Supp. 2d 86, 90 (D.D.C. 2008). General 

jurisdiction “sets a high bar,” requiring that the defendant have “continuous and systematic” 

contacts with the forum state. Id. Specific jurisdiction, in comparison, requires only sufficient

“‘minimum contacts’ with [the forum],” but requires that the plaintiffs’ claims arise from those 

contacts. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984) 

(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). For claims brought pursuant 

to a court’s specific jurisdiction, the relationship between the defendant, the forum, and the 

litigation “is the essential foundation of [personal] jurisdiction.” Id. In a diversity-jurisdiction 

case, “the federal district court’s personal jurisdiction over the defendant is coextensive with that 

of a District of Columbia court.” Helmer v. Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004). 

Accordingly, an assertion of personal jurisdiction here must comply with due process and 

District of Columbia law. Courts give District of Columbia law concerning specific jurisdiction 

an expansive reading, making D.C.’s long-arm statute coextensive with the Due Process Clause 

with respect to defendants transacting business in the District of Columbia. See id.; see also

D.C. Code § 13-423. 
15 

In determining whether specific jurisdiction over an individual defendant exists, the court 

looks to whether “there [is] some act by which the defendant purposefully avails itself to the 

privilege of conducting activities within the forum State, thus invoking the benefits and 

protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting 

Hanson v. Denckla, 357 U.S. 235, 253 (1958)); accord Heller v. Nicholas Applegate Capital 

Mgmt., LLC, 498 F. Supp. 2d 100, 109 (D.D.C. 2007). The “purposeful availment” requirement 

exists to ensure that a court does not exercise personal jurisdiction over parties who have only 

“random, fortuitous, or attenuated contacts” with the forum state. Heller, 498 F. Supp. 2d at 109 

(quoting Burger King Corp., 471 U.S. at 475). A single act by the defendant that creates a 

“substantial connection” to the forum is sufficient for a court to assert specific jurisdiction. Id. 

(quoting Burger King Corp., 471 U.S. at 475 n.18). 

Because the District of Columbia has not adopted an “absolute fiduciary doctrine”—that 

is, a rule that an employee’s actions taken on behalf of a corporation cannot give rise to specific 

jurisdiction over that employee—under certain circumstances, individual defendants can fairly 

be haled into court based on actions they took on behalf of their business organization. See 

Family Fed’n for World Peace v. Hyun Jin Moon, 129 A.3d 234, 243 (D.C. 2015). There is no 

“mechanical test” for determining whether a court has personal jurisdiction over an individual 

defendant who acted on behalf of an organization; courts “weigh the facts of each case.” Id. 

(citing Holder v. Haarmann & Reimer Corp., 779 A.2d 264, 270–71 (D.C. 2001)). 

In Family Federation for World Peace, the individual defendants, who were directors of 

a nonprofit corporation, allegedly enriched themselves without proper authority. Id. at 243. The 

nonprofit was organized under District of Columbia law. Id. at 238. However, none of the 

individual defendants were D.C. residents. Id. at 242. Nonetheless, because the directors 
16 

voluntarily served as the governing body that was “in total control of the [D.C.] corporation,” 

and participated in at least one wrong that went “to the very essence of th[e] corporation’s 

existence” in the District of Columbia, the D.C. Court of Appeals “ha[d] little difficulty in 

concluding [that the] directors clearly could anticipate being hauled into [a District of Columbia] 

court to account for their activities.” Id. at 243–44 (third alteration in original). 

Similarly, in Daley v. Alpha Kappa Alpha Sorority, Inc., members of a sorority brought 

claims of breach of fiduciary duty, breach of contract, fraud, unjust enrichment, corporate waste, 

and ultra vires acts against several sorority officials alleging that they mismanaged the sorority’s 

finances. 26 A.3d 723, 726 (D.C. 2011). The plaintiffs contended that the directors made 

several expenditures without authorization from the sorority’s legislative body, which the 

sorority’s constitution and bylaws vested with the power to run the sorority. See id. at 726–27. 

The plaintiffs specifically alleged that the directors failed to put the expenditures on the 

legislative agenda at a biannual meeting in the District of Columbia, and “suppress[ed] any 

discussion of the[] expenditures.” See id. at 728 (also reasoning that the case “focus[es] in large 

part on wrongdoing with respect to the [biannual meeting]”). None of the individual defendants 

were D.C. citizens and the sorority itself was a foreign corporation. Id. at 727. The only 

apparent connection between the individual defendants and this jurisdiction was that they 

participated in the legislative sessions—which allegedly involved the suppression of dissenting 

opinions and resulted in unauthorized spending—in the District of Columbia. The D.C. Court of 

Appeals found that “in th[o]se circumstances, the participants could reasonably anticipate being 

required to defend their actions in the District without offending traditional notions of fair play 

and substantial justice,” rejecting the notion that such contacts were “random [or] fortuitous.” 

Id. at 727–28. That court added that once the court had personal jurisdiction over the parties, the 
17 

plaintiffs’ claims need not be limited to the scope of the activity that occurred in the District of 

Columbia. Id. (citing D.C. Code § 13-423). 

This case falls squarely within the holdings in Family Federation for World Peace and 

Daley and leads the Court to the conclusion that, taken together, the facts weigh in favor of 

finding personal jurisdiction. Individual Defendants all voluntarily served as officers of the ASA 

which is a District of Columbia nonprofit corporation located in the District of Columbia and 

organized under District of Columbia law. Compl. ¶¶ 15–21. Their respective positions charged 

them with leading the ASA. See ASA Const. & Bylaws, Const., Art. IV (outlining the governing 

structure of the ASA); Compl. ¶ 28 (noting that Defendant Marez was the president of the ASA). 

Individual Defendants also voluntarily participated in the 2013 annual meeting in the District of 

Columbia. Compl. ¶ 30. Each Individual Defendant allegedly took part in the purportedly 

injurious activities of the ASA in the District of Columbia: Defendants Marez and Gordon cohosted the discussion of the resolution where dissenting ideas were allegedly suppressed, as in 

Daley; Defendant Tadiar helped organize the programming of the 2013 convention, which 

included the allegedly ultra vires act of introducing, debating, and voting on the boycott 

resolution; Defendants Maira, Duggan, and Reddy were members of the National Council and 

Executive Committee at the time. See Compl. ¶¶ 16–21. Moreover, Individual Defendants 

together led the effort to adopt the allegedly inappropriate boycott resolution, and allegedly did 

so with the intent to alter the nature and purpose of the ASA, a District of Columbia entity, as in 

Family Federation for World Peace. Compl. ¶¶ 2, 30. 

As the D.C. Court of Appeals concluded in Daley, Individual Defendants’ attendance at 

the meeting in D.C. where they allegedly suppressed ideas and mismanaged the ASA was not 

“fortuitous.” See 26 A.3d at 728. Nor was it fortuitous that Individual Defendants assumed 
18 

leadership positions in the D.C. nonprofit organization. See Family Federation for World Peace, 

129 A.3d at 243. Taken together, given that the allegedly injurious acts occurred at a meeting in 

the District of Columbia and Individual Defendants voluntarily assumed leadership roles in the 

District of Columbia organization they allegedly injured, the Court finds that each Individual 

Defendant could reasonably anticipate being haled into a District of Columbia court to answer 

for alleged wrongdoing in connection with their roles in the boycott resolution. And, because the 

Court finds specific jurisdiction over each defendant, the Court need not limit its analysis of 

Plaintiffs’ claims to activity that took place within the District of Columbia. See Daley, 26 A.3d 

at 728 (citing D.C. Code § 13-423). 

C. Ruling Against Defendants would not Violate the First Amendment, Because the Laws 

at Issue are Generally Applicable and Defendants Voluntarily Agreed to Them 

With the jurisdictional issues resolved, the Court moves to Defendants’ claim that 

judicial enforcement of the laws under which Plaintiffs seek redress would violate Defendants’ 

First Amendment rights.2

 See Defs.’ Mot. Dismiss at 19–21. In essence, Defendants argue that 

they have a First Amendment right to engage in a boycott, and that enforcing District of 

Columbia law to suppress that right would constitute unconstitutional action by the Court. See 

Defs.’ Mot Dismiss 19–20. Defendants cite to New York Times Co. v. Sullivan, a case in which 

the Supreme Court held that “[w]hat a State may not constitutionally bring about by means of a 

criminal statute is likewise beyond the reach of its civil law of libel.” 376 U.S. 254, 277 (1964). 

 2

 For the first time in their reply, Defendants argue that this case falls within the purview 

of the District of Columbia’s Anti-SLAPP statute, yet puzzlingly concede that “the statute does 

not apply in diversity cases.” See Defs.’ Reply Br. at 3 & n.1, ECF No. 25. Defendants are 

correct that the D.C. Circuit has held that the D.C. Anti-SLAPP Act does not apply under Erie 

principles, see Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1337 (D.C. Cir. 2015), so it is 

unclear how the argument applies here. At any rate, because Defendants first raise this argument 

in their reply, the Court will not consider it. See Walker v. Pharm. Research & Mfrs. of Am., 461 

F. Supp. 2d 52, 58 n.9 (D.D.C. 2006). 
19 

Although it is true that the courts cannot serve as conduits for certain private actions that 

deprive others of constitutionally-protected rights, see, e.g., Shelley v. Kraemer, 334 U.S. 1, 13–

14, 18–20 (1948), there is a “well-established line of decisions holding that generally applicable 

laws do not offend the First Amendment simply because their enforcement . . . has incidental 

effects on” expression, see Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991). To trigger 

First Amendment protection, the infringement upon speech must have arisen from state action of 

some kind. See Blum v. Yaretsky, 457 U.S. 991, 1002–03 (1982). “Mere approval of or 

acquiescence in the initiatives of a private party” does not constitute state action in the First 

Amendment context. See id. at 1004–05; see also Edwards v. Habib, 397 F.2d 687, 691 (D.C. 

Cir. 1968) (“[I]f, for constitutional purposes, every private right were transformed into 

governmental action by the mere fact of court enforcement of it, the distinction between private 

and governmental action would be obliterated.”). Thus, when a court merely enforces 

obligations explicitly assumed by the parties, there is no state action. See Cohen, 501 U.S. at 

669–70. To hold otherwise would mean that courts could never enforce non-disclosure 

agreements. See United Egg Producers v. Standard Brands, Inc., 44 F.3d 940, 943 (11th Cir. 

1995) (holding that court enforcement of a settlement agreement is not state action for 

constitutional purposes). Formal constitutions and bylaws of organizations are construed by 

courts as contracts between the organization and its members. See Meshel v. Ohev Sholom 

Talmud Torah, 869 A.2d 343, 361 (D.C. 2005). 

This case does not present a First Amendment issue because the Court’s passive 

enforcement of the obligations expressly assumed by the parties does not constitute state action. 

Plaintiffs take issue with actions by Defendants that were allegedly inconsistent with the ASA’s 

organizational purpose, constitution, and bylaws. See Compl. ¶ 1 (“An academic boycott of a 
20 

foreign country is simply outside of the ASA’s authority to act.”). Thus, Plaintiffs ask the Court 

to enforce the contract that the Plaintiffs and Defendants freely entered into when they 

voluntarily subjected themselves to the constitution and bylaws of the ASA. See Meshel, 869 

A.2d at 361. Defendants, Plaintiffs argue, voluntarily assumed certain obligations toward the 

ASA when they took on leadership positions within the organization, and that they violated those 

obligations through their roles in passage of the boycott resolution. See Compl. ¶¶ 79–80, 83–

84, 88–89, 92–93. 

Plaintiffs’ claims all arise under generally-applicable laws. See Armenian Genocide 

Museum & Mem’l, Inc. v. Cafesjian Family Found., Inc., 607 F. Supp. 2d 185, 190–91 (D.D.C. 

2009) (setting forth the elements of breach of fiduciary duty); Adamski v. McHugh, No. 14-cv0094 (KBJ), 2015 WL 4624007, at *6 (D.D.C. July 31, 2015) (describing the law governing 

ultra vires claims); Daley, 26 A.3d at 730 (describing the doctrine of waste); Compton v. Alpha 

Kappa Alpha Sorority, Inc., 64 F. Supp. 3d 1, 16 (D.D.C. 2014) (setting forth the elements of 

breach of contract), aff’d, 639 F. App’x 3 (D.C. Cir. 2016); D.C. Code § 29-405.24 (outlining the 

procedures all nonprofit organizations must follow). They also only seek to enforce rights 

created at the initiation of private parties; Individual Defendants voluntarily assumed roles where 

their right to expression would be limited by bylaws, the common law, and statute. Because 

Defendants voluntarily assented to these laws and the ASA’s constitution and bylaws, the 

Court’s interference with speech is passive and incidental to enforcement of a contract. Thus, 

enforcement of Plaintiffs’ rights derived from that contract would not constitute state action as 

contemplated under Sullivan and Shelley, meaning there would be no First Amendment issue 

with a judgment for Plaintiffs in this case. 
21 

D. Failure to State a Claim 

Defendants move to dismiss several of Plaintiffs’ claims under Federal Rule of Procedure 

12(b)(6). Specifically, Defendants argue that all of Plaintiffs’ derivative claims fail because they 

did not make an adequate pre-lawsuit demand, that Plaintiffs did not act ultra vires, that they did 

not breach any contract, and that Individual Defendants cannot be sued for acting outside the 

scope of their corporate positions. See Defs.’ Mot. Dismiss at 14–19, 21–29. Defendants do not 

specifically move to dismiss Plaintiffs’ waste or D.C. Nonprofit Act claims under Rule 12(b)(6). 

See generally Defs.’ Mot. Dismiss. For the reasons set forth below, the Court will dismiss all of 

Plaintiffs’ derivative claims and Plaintiffs’ ultra vires claim, but allow the case to proceed to 

discovery on their other claims. 

1. Plaintiffs Failed to Make an Adequate Pre-Suit Demand 

The Court first addresses Defendants’ contention that Plaintiffs’ derivative claims must 

be dismissed because Plaintiffs failed to make a proper pre-lawsuit demand, as required by the 

D.C. Nonprofit Corporation Act. See Defs.’ Mot. Dismiss at 14–19. Defendants’ contention has 

merit. 

A derivative action is a lawsuit brought by members of a corporation, on behalf of the 

corporation to remedy injuries done to the corporation. 18 C.J.S. Corporations § 482. Derivative 

suits are often brought against members of the corporation’s board of directors, and allege that a 

member or members either disregarded their duties or put their personal interests ahead of the 

corporation’s. Id. The corporation itself is included as a nominal defendant for reasons of issue 

preclusion. Knop v. Mackall, 640 F. Supp. 2d 58, 61 (D.D.C. 2009), rev’d in part on other 

grounds, 645 F.3d 381 (D.C. Cir. 2011). In many cases, before filing a derivative suit against a 

corporation to remedy injuries to the corporation, a member must attempt to have the 
22 

corporation’s board of directors remedy the problem itself. See 7C Wright, A. Miller & E. 

Cooper, Federal Practice and Procedure § 1831 (3d ed.). D.C. law requires a member of a 

nonprofit organization to make a demand on its directors ninety days before initiating a lawsuit. 

See D.C. Code § 29-411.03(2). Demand requirements arise from the concept of corporate selfgovernance. See Wright & Miller § 1831. Demand statutes are rooted in “the basic principle of 

corporate governance that the decisions of a corporation—including the decision to initiate 

litigation—should be made by the board of directors or the majority of shareholders.” Kamen v. 

Kemper Fin. Servs., Inc., 500 U.S. 90, 101 (1991) (quoting Daily Income Fund, Inc. v. Fox, 464 

U.S. 523, 530 (1984)). In comparison, demand requirements do not exist in direct claims by 

shareholders against a corporation, because in that situation the plaintiff alleges harm to himself 

as an individual, not the corporation. 

Defendants claim that Plaintiffs failed to make a proper demand because they did so only 

two days before filing the instant lawsuit, not having waited the ninety days required by statute. 

See Defs.’ Mot. Dismiss at 14–19; Defs.’ Mot. Dismiss Ex. 2, ECF No. 21-4. Plaintiffs respond 

that their demand was sufficient because over ninety days have now passed since the demand 

was made, even if only two days passed before they filed this lawsuit. Pls.’ Opp’n at 19. In the 

alternative, Plaintiffs argue that even if their demand was deficient, the lack of demand should be 

excused because a demand would have been futile. See Pls.’ Opp’n at 19–25. The Court will 

first address the sufficiency of the demand made before analyzing the futility argument. 

a. Plaintiffs Failed to Wait Ninety Days after Making a Pre-Suit Demand 

At issue under the D.C. Code is whether a plaintiff may file a derivative lawsuit 

less than ninety days after formally demanding a nonprofit corporation to take the 

plaintiff’s desired action, so long as ninety days have passed between the demand and the 
23 

court’s order on the motion to dismiss. Plaintiffs do not dispute that they filed the instant 

suit a mere two days after serving their formal demand. See Pls.’ Opp’n at 19. 

Despite Defendants’ argument that Federal Rule of Civil Procedure 23.1 

“require[s] that a demand be made before suit,” see Defs.’ Mot. Dismiss at 14, the federal 

rule concerns only the form pleadings must take, see Fed. R. Civ. P. 23.1; see also 

Kamen, 500 U.S. at 96. It does not impose legally substantive requirements any more 

than Rule 8 does with respect to ordinary complaints. See id. Because this is a diversity 

case applying D.C. law, Rule 23.1 is animated by the District of Columbia’s substantive 

law requiring a pre-suit demand, D.C. Code § 29-411.03. The text of the D.C. law leads 

the Court to an easy answer to the Court’s inquiry—with certain exceptions, after 

submitting a demand, a party must wait ninety days before filing suit. 

Under District of Columbia Code § 29-411.03, 

A person shall not commence a derivative proceeding until: 

(1) A demand in the form of a record has been delivered to the nonprofit 

corporation to take suitable action; and 

(2) Ninety days have expired from the date the demand was effective unless: 

(A) The person has earlier been notified that the demand has been rejected by the 

corporation; or 

(B) Irreparable injury to the corporation would result by waiting for the expiration 

of the 90-day period.3

The Court’s interpretation of this provision “begins with the statutory text, and ends there as well 

if the text is unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004). 

Abridged, the statute provides that “[a] person shall not commence a derivative proceeding until . 

. . [a] demand . . . has been delivered to the nonprofit corporation. . . and . . . [n]inety days have 

 3

 The D.C. nonprofit corporation demand statute is identical to the demand statute for forprofit corporations. Compare D.C. Code § 29-411.03 with D.C. Code § 29-305.52. 
24 

expired from the date the demand was effective” unless the exceptions apply.4 D.C. Code § 29-

411.03 (emphasis added). The statute defines “derivative proceeding” as “a civil action in the 

right of a domestic nonprofit corporation.” Id. § 29-411.01. Under both the D.C. and federal 

rules of civil procedure, “[a] civil action is commenced by filing a complaint with the court.” 

See D.C. Super. Ct. R. Civ. P. 3; Fed. R. Civ. P. 3. Thus, D.C. nonprofit corporation law 

provides that a person is precluded from filing a civil derivative action until the demand has been 

delivered to the nonprofit corporation and ninety days have actually expired (unless a rejection is 

received earlier or irreparable harm will occur in the interim). Thus, the act of filing the lawsuit 

before waiting ninety days is improper under D.C. law, unless some exception to the demand 

requirement applies. 

In Arkansas Teacher Retirement System ex rel. Progress Software Corp. v. Alsop, the 

District of Massachusetts reached the same result with a nearly identical statute. There, the 

plaintiff filed its original complaint before making a formal demand, but filed an amended 

 4

 In a cursory fashion, Plaintiffs assert in their complaint that waiting the ninety-day 

period would have brought about irreparable harm to the ASA, because “[e]ach day without 

redress is a day when the scholarly goals for the ASA . . . are not pursued . . . a[t] the expense of 

the ASA itself and its scholar members.” Compl. ¶ 76. This argument can be rejected out of 

hand for three reasons. First, this claim is conclusory and fails to meet the heightened pleading 

standards of Rule 23.1, as explained below. Plaintiff in no way articulates what harms flow from 

scholarly goals not being pursued on a daily basis, other than the ambiguous “expense[s]” that it 

is costing the ASA and its members. Compl. ¶ 76. Second, assuming the plaintiffs had literal 

financial expenses in mind, “economic loss does not, in and of itself, constitute irreparable 

harm.” Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) (quoting 

Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). Third, with full knowledge of the 

resolution that was allegedly causing irreparable injury each and every day, Plaintiffs waited 

over two years to file a lawsuit. This significantly undermines Plaintiffs’ claims that waiting an 

additional 88 days would have caused irreparable harm. See Hispanic Affairs Project v. Perez, 

141 F. Supp. 3d 60, 68 (D.D.C. 2015) (noting that the “[t]he D.C. Circuit has found that a delay 

of even forty-four days before bringing action” was “inexcusable,” and “bolstered the conclusion 

that” irreparable harm did not exist in the context of a motion for a preliminary injunction 

(quoting Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975))). 
25 

complaint ninety after the demand, and thus argued that the motion to dismiss for failure to make 

a demand was moot. 2007 WL 7069609, at *5 (D. Mass. 2007). The relevant statute provided 

that “[n]o shareholder may commence a derivative proceeding until . . . a written demand has 

been made upon the corporation to take suitable action[] and . . . 90 days have elapsed from the 

date the demand was made.” Id. at *7 (emphasis removed). That court concluded that “[t]he 

plain language requires a demand prior to commencing suit.” Id. at *8. 

As noted above, Federal Rule of Civil Procedure 23.1 outlines the pleading requirements 

for derivative actions brought in federal court. See Weiner v. Winters, 50 F.R.D. 306, 309 

(S.D.N.Y. 1970). As a rule of procedure, it instructs parties how to demonstrate that they have 

complied with a substantive demand requirement. See Fed. R. Civ. P. 23.1. Rule 23.1 requires 

plaintiffs to submit a verified complaint stating, with specificity, any effort by the plaintiff to 

comply with the substantive demand statute—in this case, D.C. nonprofit law—or the reasons for 

not making any such efforts, assuming that the substantive law allows plaintiffs to avoid making 

such a demand. Rule 23.1 requires plaintiffs to be substantially more thorough than does Rule 8. 

See Gaubert v. Fed. Home Loan Bank Bd., 863 F.2d 59, 68 (D.C. Cir. 1988). 

Plaintiffs plainly did not make an adequate pre-suit demand. They delivered a formal 

demand letter, with their original complaint attached, to the ASA National Council on April 18, 

2016.5 Then, two days later, Plaintiffs filed a civil derivative action in federal court. See 

Original Compl., at 31, ECF No. 1. Under the plain text of the D.C. demand statute, this was too 

 5

 The Court considers this letter because Plaintiffs explicitly relied upon it in their 

complaint. See Compl. ¶ 75; Busby, 932 F. Supp. 2d at 133–34. 
26 

early. Because Plaintiffs did not make an adequate pre-suit demand, the Court next addresses 

whether plaintiff’s lack of demand can be excused as futile.6

 

b. Demand was not Futile as a Matter of Law 

Plaintiffs argue that the demand requirement should be excused as futile because 

Defendants could not reasonably have been expected to fairly judge whether to bring this action 

themselves. Pls.’ Opp’n at 20–22. Defendants respond that Plaintiffs have not adequately pled 

futility. Reply Br. Supp. Mot. Dismiss at 8–15, ECF No. 25. Because Plaintiffs have not shown 

that a majority of the members on the National Council at the time of filing had bias against the 

corporation to the point of being unable to independently evaluate the merits of the suit, the 

Court concludes that demand would not have been futile. 

In determining whether pre-suit demand would have been futile, the court focuses on 

whether the complaint alleges enough particularized facts to create a reasonable doubt as to 

whether a majority of the officers responsible for bringing such an action could have made an 

independent and disinterested response to the demand. See Behradrezaee v. Dashtara, 910 A.2d 

349, 358 (D.C. 2006). Under Federal Rule of Civil Procedure 23.1, “mere allegations or 

conclusory statements regarding directors’ dual allegiances, self-interest, or control by others is 

insufficient.” Gaubert, 863 F.2d at 68. Indeed, “[m]ere allegations of improper motives” are 

inadequate, and showing “mere participation or acquiescence by the directors” is not enough. Id. 

(quotation marks omitted). 

 6

 The complaint also vaguely suggests that some Individual Plaintiffs made efforts to stop 

the Israel boycott and force plaintiffs to adhere to the ASA rules. Compl. ¶ 8. However, those 

allegations are far from sufficient to show that Plaintiffs “delivered” the demand to take “suitable 

action,” let alone that it did so more than ninety days before filing this suit. 
27 

Instead, the plaintiff must allege specific facts demonstrating an “unmistakable link” 

between the alleged wrongdoing and directors’ self-interest or other form of personal bias that 

could get in the way of correction. See In re Kauffman Mut. Fund Actions, 479 F.2d 257, 264 

(1st Cir. 1973); Gaubert, 863 F.2d at 68. “The predominant federal view is that the board of 

directors must have been actively involved in the alleged wrongdoing for demand to be 

excused.” Gaubert, 863 F.2d at 65. Because “rare is the significant corporate act that has not in 

one way or another been ‘approved of,’” it is not enough for a party to simply show that a 

director supported a particular action that allegedly harmed the corporation. See id. (quoting In 

re Kauffman Mut. Fund Actions, 479 F.2d at 265). Plaintiffs have not adequately pleaded facts 

showing that pre-suit demand would have been futile for four independently-sufficient reasons. 

First, the conclusory allegation that Individual Defendants7

 “have made clear that they 

will not voluntarily redress Plaintiffs’ concerns,” Compl. ¶ 8, is not only conclusory, see 

Gaubert, 863 F.2d at 68, but it is inapposite. It is not Defendants who must have been open to 

voluntary redress, but the members of the ASA’s National Council at the time the suit was filed. 

See Behradrezaee, 910 A.2d at 358. This is because it was the Council at the time of demand 

that was charged with determining whether the corporation would remedy the situation 

internally. See ASA Const. & Bylaws Const. Art. V § 2. Plaintiffs acknowledge in their 

complaint that only two Individual Defendants were members of the National Council when 

Defendants filed this suit. See Compl. ¶ 74. 

 7

 The most natural reading of paragraph 8 of Plaintiffs’ complaint suggests that only 

Individual Defendants have “made clear that they will not voluntarily redress Plaintiffs’ 

concerns. See Compl. ¶ 8. In the preceding sentence, Plaintiffs refer to their attempts to get “the 

Defendant ASA usurpers” to abide by the ASA’s rules. See Compl. ¶ 8. Moreover, as noted 

above, the organizational defendant in a derivative action is nominal only. Knop, 640 F. Supp. 

2d at 61. 
28 

Second, Plaintiffs’ argument would not be salient even if Defendants were a majority of 

the National Council. Their argument confuses bias with support for the actions underlying the 

suit. Plaintiffs, in essence, argue that Defendants have shown that they could not independently 

evaluate a demand because of their passion for the boycott resolution. See Pls.’ Opp’n at 22. 

This is insufficient under Gaubert, which notes that one could rarely find a major corporate 

action that has not been approved by a majority of directors. 863 F.2d at 65. If shareholders 

could skirt the demand requirement by showing that directors believed in their own actions, 

shareholders would almost never have to make a demand at all. As Plaintiffs themselves assert 

in their complaint, this lawsuit is not about the substance of the boycott resolution, but rather 

“turns on straightforward legal questions: whether . . . an academic boycott of Israel is an act that 

falls under the ASA’s ‘exempt purpose.’” Compl. ¶ 2. Plaintiffs do not show that any single 

Individual Defendant would be unable to independently analyze whether the actions of the ASA 

were in line with that exempt purpose. Nor do they show that all of the Individual Defendants 

were more than “mere participants” in the boycott resolution. 

Third, and perhaps most obviously, Plaintiffs have not shown that a majority of the 23-

member National Council—which is expressly charged with the governance of the ASA and 

changes every year, see ASA Const. & Bylaws, Const., Art. V §§ 1, 2—as composed at the time 

of filing, even contributed to the actions at issue. Without that showing, Plaintiffs have not 

pleaded facts demonstrating that a majority of the ASA board members participated in or 

acquiesced to the boycott resolution, a standard below the requirement articulated in Gaubert, 

which requires active involvement in the alleged wrongdoing. See 863 F.2d at 68. 

Finally, even assuming that being in favor of a past Council’s actions could demonstrate 

bias, Plaintiffs have not shown anything more than “mere allegations of improper motives” by 
29 

citing to piecemeal statements of support by current councilmembers. See id.; Compl. ¶ 74. 

Thus, Plaintiffs have not adequately pleaded facts supporting its claim of futility. Accordingly, 

the Court will dismiss Plaintiffs’ derivative claims pursuant to Federal Rule of Civil Procedure 

23.1. 

2. Defendants Did Not Act Ultra Vires

Plaintiffs’ ultra vires claim hinges on the idea that the boycott resolution falls outside the 

scope of the purpose of the ASA, and that Defendants are operating the ASA as a “social justice 

organization” instead of as an academic organization.8 See Compl. ¶¶ 82–83. Plaintiffs 

primarily cite the purpose of the ASA—which is the “promotion of the study of American 

culture through the encouragement of research, teaching, publication, and the strengthening of 

relations among persons and institutions in this country and abroad devoted to such studies”—

and the bylaw prohibiting the carrying on of propaganda. See Compl. ¶¶ 22, 82. Defendants 

contend that the boycott resolution was within the ASA’s authority to “engage in any and all 

lawful activities incidental to” the purpose of the organization. Defs.’ Mot. Dismiss at 22; see 

also ASA Const. & Bylaws, Const., Art. I § 2. Defendants further argue that the ASA 

constitution requires the organization to promote the study of American culture both 

domestically and abroad, and that no particular provision precluded the adoption of the boycott 

resolution. Defs.’ Mot. Dismiss at 22–23. Because Plaintiffs have not pleaded facts showing 

that the boycott resolution was expressly prohibited by any statute or ASA bylaw, their ultra 

vires claim must be dismissed. 

 8

 Plaintiffs devote much of their complaint and opposition to the idea that Individual 

Defendants hijacked the ASA for the improper purpose of turning it into a social justice 

organization. See Compl. ¶¶ 26, 59, 64. This alleged hijacking is not a discrete cause of action, 

but does tangentially relate to Plaintiffs’ ultra vires claim. See Compl. at 25–31. 
30 

A member of an organization may directly sue that organization to enjoin actions that the 

organization did not have power to execute. See D.C. Code § 29-403.04(b)(1); see also Daley v. 

Alpha Kappa Alpha Sorority, Inc., 26 A.3d 723, 729 (D.C. 2011). Actions taken by the 

organization that are “expressly prohibited by statute or by-law” or outside the powers conferred 

upon it by its articles of incorporation are ultra vires. Compton v. Alpha Kappa Alpha Sorority, 

Inc., 64 F. Supp. 3d 1, 18 (D.D.C. 2014), aff’d, 639 F. App’x 3 (D.C. Cir. 2016); see also Daley, 

26 A.3d at 730 (emphasis omitted) (quoting Columbia Hosp. for Women Found., Inc. v. Bank of 

Tokyo-Mitsubishi Ltd., 15 F. Supp. 2d 1, 7 (D.D.C. 1997), aff’d, 159 F.3d 636 (D.C. Cir. 1998)). 

“In certain circumstances, a long-standing pattern or practice of corporate behavior may give rise 

to a by-law.” Family Fed’n for World Peace, 129 A.3d at 251. Interpretation of an 

organization’s constitution and bylaws, including whether they are ambiguous, presents legal 

questions to be resolved by the text of the documents, unless that text is fairly susceptible to 

different interpretations. See Bazarian Int’l Fin. Assocs., LLC v. Desarrollos Aerohotelco, C.A., 

168 F. Supp. 3d 1, 20 (D.D.C. 2016) (using such a rule in the context of D.C. contract law). 

Where there is ambiguity in the text of the articles of incorporation, the Court determines 

whether the action is reasonably in furtherance of the objects of the organization. See Hollar v. 

Gov’t of the Virgin Islands, 857 F.2d 163, 169 (3d Cir. 1988) (cting 6 Am. Jur. 2d, Associations 

and Clubs § 11 (1963)). 

Plaintiffs advance three theories to support their claim that ASA’s adoption of the boycott 

resolution was an ultra vires act. First, Plaintiffs contend that the adoption of the boycott 

resolution violated the express purpose of the ASA. Second, Plaintiffs argue that it violated the 

Article of Incorporation banning the carrying on of propaganda. And third, Plaintiffs assert that 
31 

it violated a bylaw created by a longstanding practice of not becoming involved with American 

political issues. See Compl. ¶¶ 81–85. None of these theories are sufficient to state a claim. 

In support of their first theory—that the adoption of the boycott resolution was an ultra 

vires act because it violated the express purpose of the ASA—Plaintiffs cite to the ASA’s 

“organic documents” that allegedly provide that “[t]he corporation is organized exclusively for 

education and academic purposes,” and Article I § 29 of the ASA Constitution, which provides 

that “[t]he object of the association shall be 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.” Compl. ¶¶ 22, 24. Neither of these provisions “expressly prohibited” the 

boycott resolution, and the ASA was within its powers to do so. See Daley, 26 A.3d at 730. The 

boycott resolution “endorse[d] and . . . honor[ed] the call of Palestinian civil society [to] boycott 

. . . Israeli academic institutions.”10 Compl. ¶ 31. As shown by the preamble of the resolution, 

the ASA passed the boycott resolution because, in its view, Israel suppresses the academic 

freedom of Palestinian scholars and students, and the United States “plays a significant role in 

enabling” that suppression. Compl. ¶ 31. The ASA also did so as a show of solidarity with 

 9

 Later in their complaint, Plaintiffs cite to “Article II” to establish the ASA’s purpose. 

See Compl. ¶ 82. Based on earlier citations in the complaint and the ASA Constitution & 

Bylaws attached to Defendants’ motion to dismiss, it seems apparent that Plaintiffs intended to 

cite to Article I § 2. See Compl. ¶ 22. 

10 To the extent Plaintiffs argue that Defendants’ true purpose was different from the 

stated purpose in the resolution—and it is far from clear that they do—those ulterior motives do 

not matter. “The power of a corporation to do an act is not affected by the motives or intent with 

which the act is done.” 6 Fletcher Cyc. Corp. § 2477; see also 18B Am. Jur. 2d Corporations

§ 1716 (noting that an act is “not rendered ultra vires by the mere fact that the corporation 

intends to use the proceeds [of the act] for an ultra vires purpose”). 
32 

those scholars. Compl. ¶ 31. The boycott resolution was, therefore, enacted for “academic 

purposes,” at least to a point where it was not in violation of the ASA’s founding documents. 

See Daley, 26 A.3d at 730. It also was reasonably in furtherance of the ASA’s purpose of 

advancing education and the promotion of the study of American culture through encouraging 

research, teaching, and strengthening relations among persons and institutions in the United 

States and abroad. See Hollar, 857 F.2d at 169. The boycott resolution was aimed both at 

encouraging academic freedom for Palestinians and strengthening relations between American 

institutions and Palestinians. At the very least, it was “reasonably in furtherance of the objects” 

of the ASA. See id. Thus, it was not contrary to the ASA’s express purposes. 

Plaintiffs’ second theory—that the adoption of the boycott resolution was an ultra vires

act because it violated the Articles of Incorporation banning the carrying on of propaganda—also 

comes up short. According to the ASA’s bylaws, “[n]o substantial part of the activities of the 

corporation shall be the carrying on of propaganda, or otherwise attempting, to influence 

legislation, and the corporation shall not participate in . . . any political campaign on behalf of 

any candidate for public office.” Compl. ¶ 25. Without the phrase offset by commas (“or 

otherwise attempting”), the bylaw plainly reads as a restriction only on using propaganda to 

influence legislation: “[n]o substantial part of the activities of the corporation shall be the 

carrying on of propaganda . . . to influence legislation.”11 Compl. ¶ 25. The boycott resolution 

 11 Plaintiffs disregard this caveat in their opposition, suggesting that there is both “an 

absolute ban on ‘propaganda’ and [on] efforts ‘to influence legislation.’” See Pls.’ Opp’n at 5. 

This is plainly not the case. At least one other court has reached the same conclusion 

interpreting similar text. See Williamson v. S. Reg’l Council, Inc., 154 S.E.2d 21, 25 (Ga. 1967). 

The statute at issue in Williamson restricted the “carrying on propaganda, or otherwise 

attempting to influence legislation.’” 154 S.E.2d at 24. Despite the absence of a comma after 

“attempting,” the Georgia Supreme Court concluded that “[t]he use of the word ‘otherwise’ 

indicates that ‘carrying on propaganda’ relates to ‘attempting to influence legislation.” Id. at 25. 
33 

was not an attempt to influence legislation in any meaningful sense of the term. See Haswell v. 

United States, 500 F.2d 1133, 1140 (Ct. Cl. 1974) (citing Cammarano v. United States, 358 U.S. 

498, 512 (1959)) (tracing “the development of the congressional policy against an exemption for 

organizations that attempt to promote or defeat legislation” (emphasis added)). Plaintiffs have 

not pointed to any existing, proposed, or pending legislation that the ASA may have been 

targeting with the resolution. Although one may be able to draw an indirect link between any 

resolution and some potential piece of legislation in that it calls attention to a public issue, that 

connection is far too attenuated to make the boycott resolution “expressly prohibited” by the 

bylaw. See id.; Daley, 26 A.3d at 730. 

Plaintiffs’ final theory—that the boycott resolution was a violation of longstanding 

practice—also falls short of stating a plausible claim of ultra vires acts. As noted above, in 

certain circumstances, longstanding practice can give rise to a bylaw. Family Fed’n for World 

Peace, 129 A.3d at 251. The complaint alleges that a “long record of uniform practice prevent[s] 

the ASA from taking action to advance a particular position on questions of U.S. government 

policy.” Compl.¶ 25. The boycott resolution was passed, at least in part, because the ASA 

believed that the United States’ policies toward Israel “play[] a significant role in enabling” 

Israeli suppression of academic freedom for Palestinians. See Compl. ¶ 31. However, ultra vires

acts are those that are “expressly prohibited by statute or by-law.” Daley, 26 A.3d at 730 

(emphasis added and omitted) (quoting Columbia Hosp. for Women Found., Inc., 15 F. Supp. at 

7). For a bylaw to “expressly” prohibit an action, the prohibition must be “[c]learly and 

unmistakably communicated,” or, in other words, “stated with directness and clarity.” Express, 

Black’s Law Dictionary (10th ed. 2014); accord Threshold Techs., Inc. v. United States, 117 

Fed. Cl. 681, 697 (Ct. Fed. Cl. 2014). An “express” bylaw is one “whose terms [are] explicitly 
34 

set out.” See Threshold Techs., Inc., 117 Fed. Cl. at 697 (quoting Express Contract, Black’s Law 

Dictionary (10th ed. 2014)). 

Plaintiffs do not in any way allege that the “long record of uniform practice” actually 

functioned as a prospective, affirmative prohibition on taking a position on U.S. government 

policy. See Compl. ¶ 25. Even if the Court were to read such a rule into the complaint, Plaintiff 

does not suggest that the rule was in any way “set out” by the ASA itself, its membership, its 

past National Council members, or any other relevant party. See Compl. ¶ 25; Threshold Techs., 

Inc., 117 Fed. Cl. at 697. Still further, there is no indication that the rule was clearly and directly 

set out in explicit terms. See Compl. ¶ 25. Without pointing to some express form of a rule that 

Defendants could have violated as a result of the “longstanding practice” of not involving the 

ASA in U.S. government policy, Plaintiffs have not stated a cognizable ultra vires claim. Thus, 

the Court dismisses Plaintiffs’ ultra vires claim. 

* * * 

 Plaintiffs have not pled facts plausibly showing that Defendants acted ultra vires. The 

boycott resolution was, at the very least, reasonably in furtherance of the ASA’s organic 

documents and Articles of Incorporation, which provide that the ASA was organized exclusively 

for educational and academic purposes, and that the object of the ASA is the promotion of 

American culture through, inter alia, “the encouragement of research, teaching, publication, [and 

the] strengthening [of] relations among persons and institutions in this country and abroad 

devoted to such studies.” See Compl. ¶¶ 22, 24. The boycott resolution was aimed at promoting 

academic freedom abroad, solidarity with foreign institutions and scholars, and encouraging an 

array of studies at foreign institutions. The boycott resolution did not violate the ASA bylaws’ 

restriction on “the carrying on of propaganda . . . to influence legislation,” see Compl. ¶ 25, 
35 

because Plaintiffs have not drawn the connection between the boycott resolution and any piece of 

legislation. Finally, Plaintiffs have not shown that an implied bylaw exists that precludes 

commentary of U.S. governmental policy. Even if they had, however, because that bylaw would 

not be “express,” violation of it would not constitute ultra vires action. 

3. Plaintiffs have Stated a Plausible Claim for Breach of Contract 

Plaintiffs’ breach of contract claim assumes that even if the ASA had the authority to 

adopt the boycott resolution, its authority was contractually bound by Article XI § 3 of the ASA 

Bylaws, which requires the affirmative votes of two-thirds of voting members on the first full 

day of the meeting, and the ASA failed to enact the resolution in accordance with those 

procedures. See Compl. ¶¶ 90–94. Defendants argue that Article XI § 3 did not apply to the 

boycott resolution, because the Committee itself had the power to speak on behalf of the ASA, 

and that the vote on the resolution was simply a legitimizing act on the controversial measure. 

Defs.’ Mot. Dismiss at 26–28. Because Plaintiffs have plausibly alleged that the boycott 

resolution was enacted in violation of the ASA’s bylaws, the Court denies Defendants’ motion to 

dismiss with respect to their breach of contract claim. 

A nonprofit organization’s “Constitution and Bylaws form a contract between that 

[organization] and its members.” See Compton v. Alpha Kappa Alpha Sorority, Inc., 64 F. Supp. 

3d 1, 16 (D.D.C. 2014), aff’d, 639 F. App’x 3 (D.C. Cir. 2016). “Plaintiffs’ breach of contract 

claims require (1) the existence of a valid contract, (2) an obligation or duty arising out of that 

contract, (3) a breach of the contract . . . , and (4) damages suffered by Plaintiffs due to the 

breach.” Id. Defendants only argue that they did not breach the contract by violating the ASA 

bylaws, because no obligation or duty arose from the inapplicable provision of the bylaws. See 

Defs.’ Mot. Dismiss at 26–28. 
36 

Article XI of the ASA Bylaws empowers the Executive Committee to speak for the ASA 

on public issues that “directly affect [members’] work as scholars and teachers.” ASA Const. & 

Bylaws, Bylaws, Art. XI § 1. That provision sets forth examples of the types of issues on which 

the Executive Committee may speak for the ASA, including matters of academic freedom, 

freedom of access to information, and policies concerning academic grants. ASA Const. & 

Bylaws, Bylaws, Art. XI § 1. This provision extends only to issues directly affecting ASA 

members. It seems based on the complaint—which contains the text of the boycott resolution 

itself, including the preamble—that the purportedly oppressive practices by Israel do not 

“directly” affect the scholarly work or teaching of current ASA members. As a result, it is 

plausible that the ASA was not entitled to speak for the ASA on this issue. 

Article XI also provides the following: 

Sec. 3. Should an issue arise 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, the Council shall meet to formulate a 

response. The 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(s); and the vote of two-thirds of those in 

attendance may approve the recommended action. 

ASA Const. & Bylaws, Bylaws, Art. XI § 3. Breaking this provision down, anytime an issue 

arises that the Executive Committee or Counsel feels requires (1) public action, speech, or 

demonstration (2) by the association at a particular annual meeting, the Council shall comply 

with the procedural requirements of Article XI § 3. 

Because it is plausible that the Executive Committee saw the U.S.–Israeli policy issue as 

the type “requir[ing] public action, speech, or demonstration by the association at [the 2013] 

annual meeting,” Plaintiffs state a plausible claim for breach of contract. Plaintiffs have pleaded 

multiple facts suggesting that the Executive Committee and Council felt that the ASA needed to 

speak and demonstrate on the public issue of Israeli suppression of academic freedom as a matter 
37 

of social justice. See Compl. ¶¶ 26, 59, 64, 78. They also plead facts plausibly showing that the 

Executive Committee felt the demonstration must take place by the ASA at the 2013 annual 

meeting. At the annual meeting, the Executive Committee organized a variety of boycott-related 

programming, including a town-hall meeting, to discuss the issue as an organization. See Compl. 

¶¶ 30, 47. Moreover, the ASA Executive Committee appears to have attempted to follow some 

procedural requirements of Article XI § 3—they “formulate[d] a response” in the form of the 

boycott resolution, they “recommend[ed] a course of action,” they “conduct[ed] a public 

discussion of the issue[],” and they held a vote. But the Executive Committee did not secure 

“the vote of two-thirds of those in attendance” at the annual meeting before implementing the 

resolution. See Compl. ¶ 33. Instead, the Executive Committee opened the vote to all ASA 

members and conducted the vote during the course of ten days in December. See Compl. ¶ 33. 

It is plausible that the Executive Committee attempted to follow some, but not all, of the Article 

XI § 3 procedures because it saw the issue as the type described therein. 

As noted above, if the Executive Committee or Council did indeed believe that Israeli 

policies “require[d] public action, speech[,] or demonstration by the [ASA] at [the] annual 

meeting,” the National Council was required to “meet to formulate a response,” “convene an 

emergency meeting of the membership on the first full day of the annual meeting[] to 

recommend a course of action,” “conduct a public discussion of the issue[],” and obtain votes 

from two-thirds of those in attendance. At this stage, Defendants do not dispute that the National 

Council did not follow all of these steps. See Defs.’ Mot. Dismiss at 26–28. Thus, if it is 

established that this provision of the bylaws applies to the scenario at issue, Plaintiffs have 

plausibly alleged that the ASA breached its contractual obligations to its members. 
38 

4. Defendants’ Substantive Ultra Vires Arguments are Moot 

Defendants’ final argument is that, under the D.C. Nonprofit Corporation Act, Plaintiffs 

cannot bring ultra vires claims directly against Individual Defendants. See Defs.’ Mot. Dismiss 

at 28–29. Because the Court dismisses Plaintiffs’ ultra vires claims brought against both the 

ASA and Individual Defendants, that argument appears to be moot. But Defendants assert, in 

conclusory terms, that, in addition to applying to the now-dismissed ultra vires counts, this 

statutory argument also pertains to Plaintiffs’ claim for waste. See Defs.’ Mot. Dismiss at 28–29. 

Defendants are wrong. 

The D.C. Nonprofit Corporation Act provides that individual members of the nonprofit 

may only directly challenge an action as ultra vires by suing the corporation to enjoin the act. 

D.C. Code § 29-403.04(b)(1). By virtue of this provision, Defendants claim that Plaintiffs 

cannot bring waste claims against Individual Defendants. In contrast to ultra vires claims, 

however, claims of corporate waste need only “articulate an ‘exchange of corporate assets for 

consideration so disproportionately small as to lie beyond the range at which a reasonable person 

might be willing to trade,’ and must be ‘egregious or irrational.’” Daley, 26 A.3d at 730 

(quoting In re Greater Southeast Comty. Hosp. Corp., I, 333 B.R. 506, 524 (Bankr. D.D.C. 

2005)). Plaintiffs cite to this rule in their Count for waste. See Compl. ¶ 87 (quoting 3A 

Fletcher Cyc. Corp. § 1102 at 150–51) (2010)). Although Plaintiffs also assert that the 

motivation for the allegedly wasteful use of corporate assets was a cause “beyond the purposes 

established by its organic documents,” Compl. ¶ 88, that language is not essential to Plaintiffs’ 

claim for waste; improper motive is not an element, see Daley, 26 A.3d at 730. Thus, because 

the D.C. Nonprofit Corporation Act does not prohibit Plaintiffs’ waste claim against Individual 

Defendants, that claim survives dismissal. 
39 

V. CONCLUSION 

For the foregoing reasons, Defendants’ Renewed Motion to Dismiss is GRANTED IN 

PART and DENIED IN PART. An order consistent with this Memorandum Opinion is 

separately and contemporaneously issued. 

Dated: March 31, 2017 RUDOLPH CONTRERAS 

 United States District Judge