Exxon Mobil Corporation v. Robert Andres Bonta et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
EXXON MOBIL CORPORATION,
Plaintiff,
v.
ROBERT ANDRES BONTA A.K.A.
ROB BONTA, IN HIS INDIVIDUAL
CAPACITY; SIERRA CLUB, INC.;
SURFRIDER FOUNDATION, INC;
HEAL THE BAY, INC.; BAYKEEPER,
INC.; AND INTERGENERATIONAL
ENVIRONMENT JUSTICE FUND LTD.,
Defendants.
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CIVIL ACTION NO. 1:25-CV-00011
JUDGE MICHAEL J. TRUNCALE
MEMORANDUM OPINION AND ORDER
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TABLE OF CONTENTS
I. FACTUAL BACKGROUND ..................................................................................................3
A. Foreign Influence .................................................................................................................3
B. Defamation ..........................................................................................................................5
II. PROCEDURAL HISTORY ....................................................................................................6
III. MOTIONS ON PERSONAL JURISDICTION.......................................................................7
A. Legal Standard .....................................................................................................................7
B. Discussion ..........................................................................................................................10
i. U.S. Environmental Organizations ................................................................................14
1. Heal the Bay ..............................................................................................................15
2. Surfrider .....................................................................................................................17
3. Baykeeper ..................................................................................................................18
4. Sierra Club .................................................................................................................20
ii. Bonta ..............................................................................................................................22
iii. IEJF ...............................................................................................................................27
iv. Jurisdictional Discovery ................................................................................................28
IV. MOTION ASSERTING IMMUNITY ..................................................................................29
A. Legal Standard ...................................................................................................................29
B. Discussion ..........................................................................................................................31
i. Official Immunity ..........................................................................................................31
1. Choice of Law............................................................................................................31
2. Official Immunity under Texas Law .........................................................................35
ii. Eleventh Amendment Immunity....................................................................................38
V. MOTION TO TRANSFER VENUE .....................................................................................40
VI. MOTION CHALLENGING DECARATORY RELIEF .......................................................41
VII. MOTIONS TO INTERVENE ...............................................................................................41
A. Legal Standard ...................................................................................................................42
B. Discussion ..........................................................................................................................42
VIII. CONCLUSION......................................................................................................................44
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Before the Court are several motions to dismiss and motions to intervene, as well as a
motion to transfer.1 Specifically, this Order considers the following eleven motions and makes the
following rulings:
Movant(s) Motion Dkt. Ruling
Heal the Bay, Inc. Defendant Heal the Bay, Inc.’s 12(b)(2),
(3), and (6) Motion to Dismiss
47 GRANTED IN
PART
Surfrider
Foundation, Inc.
Defendant Surfrider Foundation’s Rule
12(b) Motion to Dismiss
48 GRANTED IN
PART
Baykeeper, Inc. Baykeeper, Inc’s Rule 12(b)(2), (3), (6)
Motion to Dismiss
49 GRANTED IN
PART
Sierra Club, Inc. Defendant Sierra Club’s Motion to
Dismiss
50 GRANTED IN
PART
Robert Andres Bonta Motion to Dismiss 44 DENIED
Intergenerational
Environment Justice
Fund Ltd.
Defendant Intergenerational Environment
Justice Fund Ltd.’s Motion to Dismiss for
Lack of Personal Jurisdiction and for
Failure to State a Claim
51 GRANTED IN
PART
Sierra Club, Inc.,
Surfrider
Foundation, Inc.,
Heal the Bay, Inc.,
and Baykeeper, Inc.
Joint Motion to Transfer to the Northern
District of California
46 DENIED AS
MOOT
City of Baytown,
Texas
Opposed Motion to Intervene 39 GRANTED
City of Beaumont,
Texas
City of Beaumont’s Opposed Motion to
Intervene
54 GRANTED
Chambers County,
Texas
Chambers County, Texas’ Opposed
Motion to Intervene
62 GRANTED
City of Mont
Belvieu, Texas
City of Mont Belvieu’s Opposed Motion
to Intervene
63 GRANTED
1 The Court acknowledges and commends the effort of both sides’ attorneys in drafting and arguing their motions,
responses, and replies.
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I. FACTUAL BACKGROUND
This case arises from a pair of environmental lawsuits in California. California Attorney
General Robert Andres Bonta (“Bonta”) and several environmental organizations filed separate
cases against the Exxon Mobil Corporation (“ExxonMobil”) for its alleged role in plastic
pollution.2 Those organizations—the Sierra Club, Inc. (the “Sierra Club”), Surfrider Foundation,
Inc. (“Surfrider”), Heal the Bay, Inc. (“Heal the Bay”), and Baykeeper, Inc. (“Baykeeper”)
(collectively the “U.S. Environmental Organizations”)—and Bonta himself made comments3
about ExxonMobil and the ongoing California litigation. These comments, which range from
calling ExxonMobil a “liar,” “polluter,” “source” of “wreckage,” and “perpetuator” of the “myth”
of plastic recycling, form the basis for this lawsuit.4
But, as ExxonMobil would have it, there’s more to the story. For ExxonMobil, this case
goes beyond defamation; it argues the defendants, once promoters of recycling, have performed
an about-face at the behest of foreign influence. Id. at ¶¶ 2–5.
A. Foreign Influence
The story starts in Australia. The Minderoo Foundation Ltd. (“Minderoo”) was founded by
Andrew Forrest (“Forrest”), an Australian billionaire. Id. Forest is also the founder of an Australian
mining conglomerate, Fortescue Metals Group Ltd. (“Fortescue”), and remains one of its largest
shareholders. Id. at ¶ 22. Another of Fortescue’s major shareholders is Minderoo. Id. at ¶ 42.
In 2019, Minderoo announced a “Sea the Future” campaign to end plastic waste via a
“‘levy’ on virgin plastic.” Id. at ¶ 35. The levy, apparently designed by Forrest, was a “joint
2 People of the State of California v. Exxon Mobil Corp., CGC-24-618323 (Cal. Super. Ct.––San Francisco); Sierra
Club, Inc. v. Exxon Mobil Corp., 3:24-cv-07288-RS (N.D. Cal.).
3 Surfrider itself did not make comments, but published a blog entry with quotes by the other organizations. See infra
Part III.B.i.
4 See infra Part III.B.i–iii.
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agree[ment]” between plastic resin manufacturers “to artificially inflate the price of virgin plastic
resign derived from fossil fuels.” Id. (alteration added). The free market would dictate the price of
recycled plastic (presumably a substitute for virgin plastic). Id. Therefore, an artificially-higher
price for virgin plastic would allow the now-cheaper recycled plastic to eventually outcompete
virgin plastic and further “encourage chemical (advanced) recycling.” Id.
The problem? From ExxonMobil’s description, the United States would call such a scheme
“price-fixing,”5 a possible ticket to federal prison.6 ExxonMobil, in a meeting with Forrest, said as
much. [Dkt. 1 at ¶ 36]. ExxonMobil states Forrest continued to pitch this plan to other companies,
and ExxonMobil continued to object. Id. According to ExxonMobil, no one adopted the plan and
Forrest changed strategy: warfare on plastic production. Id. at ¶ 38. This took several forms.
The first has to do with Minderoo. In 2021 Minderoo began publishing reports which
allegedly make “several false and deceptive statements concerning ExxonMobil, plastics waste,
and advanced recycling.” Id. at ¶¶ 38–41. And in 2022 Minderoo formed the Intergenerational
Environment Justice Fund Ltd. (“IEJF”) as a subsidiary. Id. at ¶ 42. IEJF is relevant later.
Pivot to Fortescue, Forrest’s mining company. It made a pledge in 2020 to “decarbonize
by 2030 and transform itself into a green energy powerhouse.” Id. at ¶ 43. A goal of this transition
was to produce a surplus of renewable energy and “sell ‘green hydrogen’ to the world’s factories
and mills.” Id. at ¶ 43. This business would compete with ExxonMobil and other American oil-
and-gas companies. Id. Ultimately, green hydrogen was too expensive to be a viable competitor
5 Price-fixing with good intentions is still price-fixing. See U.S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 217 (1940)
(noting the Supreme Court “has consistently and without deviation adhered to the principle that price-fixing
agreements are unlawful per se under the Sherman Act and that no showing of so-called anticompetitive abuses or
evils which those agreements were designed to eliminate or alleviate may be interposed as a defense”). Of special note
for the curious: Socony-Vacuum was a corporate predecessor of the modern ExxonMobil.
6 See U.S. DEP’T OF JUST., PRICE FIXING, BID RIGGING, AND MARKET ALLOCATION SCHEMES: WHAT THEY ARE AND
WHAT TO LOOK FOR 1 (2021), https://www.justice.gov/atr/file/810261/dl?inline= (“Violation of the Sherman Act is a
felony punishable by, for corporations, a fine of up to $100 million, and for individuals, a fine of up to $1 million or
10 years’ imprisonment (or both)”).
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and Forrest had to “downsize his hydrogen dream.” Id. at ¶ 44. The fallout from the green hydrogen
plan, combined with the failed plastic levy, led Fortescue “on information and belief” to instead
“compete by turning the wheels of American justice to [Fortescue’s own] self-interested
purposes.” Id. at ¶ 45 (alteration added).
Recall IEJF. ExxonMobil alleges that IEJF “retained” a U.S. law firm “to engage in
‘political activities,’” which ExxonMobil says includes the California lawsuits. Id. at ¶¶ 6, 46.
ExxonMobil’s theory is this: IEJF hires the U.S. law firm, which then recruits the U.S.
Environmental Organizations, who then “act[] for the foreign business interests” and “compet[e]
in U.S. courts rather than the marketplace.” Id. at ¶ 6. ExxonMobil argues that this triggered the
U.S. law firm’s registration as a foreign agent. Id. at ¶¶ 6, 47.
Now, how does Bonta fit into this? Answer: the four firm partners who registered as foreign
agents, as well as other firm members, donated to Bonta’s political campaign for California
Attorney General. Id. at ¶¶ 7, 48. Interestingly, the firm received IEJF’s legal fees and made
donations to Bonta “at almost the exact same time.” Id. at ¶ 7. And the two California lawsuits
were filed at nearly the same time, with Bonta and the U.S. Environmental Organizations
announcing their lawsuits together at the same press conference. Id. at ¶ 49. Afterwards, the
Defendants published press releases, comments, and videos containing statements ExxonMobil
calls defamatory.
B. Defamation
ExxonMobil contends the Defendants’ defamation targeted and harmed its advanced
recycling technology. Id. at ¶ 103. According to ExxonMobil, advanced recycling is “a technology
that supplements traditional mechanical recycling by breaking down plastics into the usable raw
materials to manufacture fuels, lubricants, new plastics, and other products.” Id. at ¶ 57. It is an
“innovative” approach that “gives new life and value to plastic waste that might otherwise go to a
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landfill.” Id. at ¶ 10. This method “allows a wider variety of plastics to be recycled, including hard-
to-recycle chip bags, motor oil bottles, and artificial turf.” Id. at ¶ 58. ExxonMobil believes that as
advanced recycling “is broadly adopted, it can greatly increase the recycling rate for plastics and
promote a more circular economy.” Id. at ¶ 11. Put another way, ExxonMobil strenuously argues
that advanced recycling is different from plastic recycling. If advanced recycling came with a
sticker, it would say “New and Improved!” This is a critical factor in the Court’s analysis.
ExxonMobil says defendant’s alleged defamation—discussed further below—harmed
existing and future contracts. ExxonMobil has already entered contracts supporting its advanced
recycling imitative. Id. at ¶ 62. These include contracts with Texas Gulf Coast cities and counties
to provide a “destination” for community recycling programs and construction contracts for new
facilities in and around Baytown, Texas and Beaumont, Texas. Id. at ¶¶ 66–67. The alleged
defamation of advanced recycling and statements that “ExxonMobil has lied to consumers about
the efficacy of its recycling practices for decades” have interfered with these contracts. Id. at ¶ 99.
More specifically, “major international brands have refused to jointly promote advanced recycling
with ExxonMobil.” Id. at ¶ 102. “Potential customers have expressed concern and hesitancy to
work with ExxonMobil and explicitly referenced” Bonta’s and the U.S. Environmental
Organizations’ statements. Id. Additionally, “a number of companies have backed out of proposed
transactions with ExxonMobil for advanced recycling.” Id.
II. PROCEDURAL HISTORY
ExxonMobil filed its Complaint on January 6, 2025, asserting claims of business
disparagement, defamation, tortious interference with contract, tortious interference with
prospective business, and civil conspiracy. [Dkt. 1 at ¶¶ 104–33]. ExxonMobil also requested a
declaratory judgment to the effect of: “(i) advanced recycling is recognized and permitted by law
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in multiple states, including Texas, and that (ii) ExxonMobil is lawfully permitted to engage in
and promote advanced recycling at its Texas facility.” Id. at ¶ 140.
This Order considers the many motions filed in late April to early May 2025. [Dkts. 39,
44, 46, 47, 48, 49, 50, 51, 54, 62, 63]. Responses and replies concerning the motions were filed
shortly thereafter. [Dkts. 90, 91, 94, 95, 96, 98, 102, 103, 104, 105, 106, 107, 108, 110]. The Court
held a hearing on the motions to dismiss and the motion to transfer on August 20, 2025. [Dkt. 117].
The motions are now ripe for review.
III. MOTIONS ON PERSONAL JURISDICTION
All of the motions to dismiss assert a lack of personal jurisdiction. [Dkts. 44 at 13–17; 47
at 5.1–5.16; 48 at 6–13; 49 at 13–18; 50 at 5–8; Dkt. 51 at 12–17]. For the reasons described below,
the Court dismisses, without prejudice, the claims against the U.S. Environmental Organizations
and IEJF. However, the Court finds specific personal jurisdiction over Bonta.
A. Legal Standard
Motions raised under Federal Rule of Civil Procedure 12(b)(2) assert as a defense a lack
of personal jurisdiction. FED. R. CIV. P. 12(b)(2). “Federal courts ordinarily follow state law in
determining the bounds of their jurisdiction over persons.” Daimler AG v. Bauman, 571 U.S. 117,
125 (2014). “This is because a federal district court’s authority to assert personal jurisdiction in
most cases is linked to service of process on a defendant ‘who is subject to the jurisdiction of a
court of general jurisdiction in the state where the district court is located.’” Walden v. Fiore, 571
U.S. 277, 283 (2014) (quoting FED. R. CIV. P. 4(k)(1)(A)).
Accordingly, “[a] federal court sitting in diversity may assert personal jurisdiction over the
defendant if (1) the state’s long-arm statute permits it, and (2) exercising jurisdiction would not
violate the Fourteenth Amendment's Due Process Clause.” Savoie v. Pritchard, 122 F.4th 185, 190
(5th Cir. 2024) (Engelhardt, J.) (alteration added) (citing Libersat v. Sundance Energy, Inc., 978
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F.3d 315, 318 (5th Cir. 2020)). “Because Texas’s long-arm statute is coextensive with the Due
Process Clause of the Fourteenth Amendment, the two inquiries merge.” Carmona v. Leo Ship
Mgmt., Inc., 924 F.3d 190, 193 (5th Cir. 2019) (Smith, J.) (citing Sangha v. Navig8 Ship Mgmt.
Private Ltd., 882 F.3d 96, 101 (5th Cir. 2018)). “Due process is satisfied where the defendant
‘purposefully availed himself of the benefits and protections of the forum state by establishing
minimum contacts with the forum state, and the exercise of jurisdiction over that defendant does
not offend traditional notions of fair play and substantial justice.’” Savoie, 122 F.4th at 190
(quoting Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 867 (5th Cir.
2001)).
“There are two types of personal jurisdiction under federal law: general and specific.”
Shambaugh & Son, L.P. v. Steadfast Ins. Co., 91 F.4th 364, 372 (5th Cir. 2024) (citing Halliburton
Energy Servs., Inc. v. Ironshore Specialty Ins. Co., 921 F.3d 522, 539 (5th Cir. 2019)). “General
personal jurisdiction applies ‘only when a defendant is ‘essentially at home,’ and any and all claims
may be brought against a defendant wherever it is subject to such jurisdiction.” Id. (quoting Ford
Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 352 (2021)). “By comparison, specific
personal jurisdiction is narrower and attaches only when there is a sufficient connection between
a defendant's forum-related contacts and a plaintiff's causes of action.” Id. (citing Ford Motor, 592
U.S. at 359–60). ExxonMobil relies on specific personal jurisdiction for each of the defendants.
The Fifth Circuit “engages in a three-step analysis to determine whether a court may
exercise specific jurisdiction over a non-forum defendant.” Savoie, 122 F.4th at 190. These steps
are “‘(1) whether the defendant has minimum contacts with the forum state, i.e., whether it
purposely directed its activities toward the forum state or purposefully availed itself of the
privileges of conducting activities there; (2) whether the plaintiff's cause of action arises out of or
results from the defendant's forum-related contacts; and (3) whether the exercise of personal
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jurisdiction is fair and reasonable.’” Id. at 190–91 (quoting Shambaugh & Son, 91 F.4th at 372).
This inquiry “‘derive[s] from and reflect[s] two sets of values—treating defendants fairly and
protecting interstate federalism.’” Johnson v. TheHuffingtonPost.com, Inc., 21 F.4th 314, 318 (5th
Cir. 2021) (Smith, J.) (quoting Ford Motor, 592 U.S. at 360) (alterations added). “Put another way,
a defendant must have ‘fair warning’ that his activities may subject him to another state’s
jurisdiction.” Id. (citing Ford Motor, 592 U.S. at 360). “That warning permits the defendant to
‘structure its primary conduct to lessen or avoid exposure to a given State’s courts.’” Id. (quoting
Ford Motor, 592 U.S. at 360). “The limits on specific jurisdiction also ‘ensure that States with
little legitimate interest in a suit’ cannot wrest that suit from ‘States more affected by the
controversy.’” Id. (quoting Ford Motor, 592 U.S. at 360).
The party invoking the Court’s jurisdiction bears the burden of establishing that specific
personal jurisdiction is warranted. Savoie, 122 F.4th at 190 (quoting Danziger & De Llano, L.L.P
v. Morgan Verkamp, L.L.C., 24 F.4th 491, 495 (5th Cir. 2022)). This showing must be made for
each claim. Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274–75 (5th Cir. 2006). Once
that party establishes both minimum contacts and that her cause of action arises from those
contacts, “the burden shifts to the defendant to show that the exercise of personal jurisdiction
would be unfair or unreasonable.” E. Concrete Materials, Inc. v. ACE Am. Ins. Co., 948 F.3d 289,
296 (5th Cir. 2020) (citing Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 433 (5th Cir. 2014)).
Five factors determine if the exercise of personal jurisdiction would be unfair or unreasonable:
“‘(1) the burden on the nonresident defendant, (2) the forum state’s interests, (3) the plaintiff’s
interest in securing relief, (4) the interest of the interstate judicial system in the efficient
administration of justice, and (5) the shared interest of the several states in furthering fundamental
social policies.’” McFadin v. Gerber, 587 F.3d 753, 760 (5th Cir. 2009) (quoting Luv N’ care, Ltd.
v. Insta-Mix, Inc., 438 F.3d 465, 473 (5th Cir. 2006)). However, “it is rare to say the assertion of
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jurisdiction is unfair after minimum contacts have been shown.” Id. at 759–60 (citation modified)
(quoting Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999)).
B. Discussion
“‘The analysis applicable to a case involving jurisdiction based on the Internet should not
be different at its most basic level from any other personal jurisdiction case.’” Admar Int’l, Inc. v.
Eastrock, L.L.C., 18 F.4th 783, 786 (5th Cir. 2021) (quoting Pervasive Software, Inc. v. Lexware
GmbH & Co. KG, 688 F.3d 214, 226–27 (5th Cir. 2012)). The Fifth Circuit distinguishes between
“passive” and “interactive” websites as a preliminary step. Revell v. Lidov, 317 F.3d 467, 470 (5th
Cir. 2002). “A ‘passive’ website, one that merely allows the owner to post information on the
internet, is at one end of the scale.” Id. (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp.
1119, 1124 (W.D. Pa. 1997)). Passive websites cannot support personal jurisdiction. Id. An
interactive website “allows for bilateral information exchange with its visitors,” which can create
specific personal jurisdiction. Id. A website is not passive (and therefore has some amount of
interactivity) when it “receives purchases, allows customers to create accounts, and accepts
product reviews.” Admar Int’l, 18 F.4th at 787.
After this step comes the standard personal jurisdiction inquiry. Additional caselaw
clarifies the analysis in defamation claims specifically, but the same logic applies to business
disparagement and tortious interference claims. See Nicholas Servs., LLC v. Glassdoor, LLC, 746
F. Supp. 3d 343, 349 (N.D. Miss. 2024) (applying specific personal jurisdiction inquiry from
defamation caselaw to tortious interference and breach of contract claims). Two Fifth Circuit cases
are particularly relevant: Herman v. Cataphora, Inc., 730 F.3d 460 (5th Cir. 2013), and Johnson v.
TheHuffingtonPost.Com, Inc, 21 F.4th 314 (5th Cir. 2021). Both cases address specific personal
jurisdiction over statements made by non-forum defendants where those statements were not sent
into the forum state.
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Consider the facts of Herman. The Herman plaintiffs were members of a steering
committee for ongoing multidistrict litigation in the Eastern District of Louisiana (the “Louisiana
MDL”). 730 F.3d at 462. Cataphora was a Delaware corporation with its principal place of business
in California. Id. Cataphora and the steering committee entered into a contract for services related
to the Louisiana MDL, which eventually gave rise to a breach-of-contract lawsuit in the Northern
District of California. Id. After Cataphora won in the trial court and while an appeal was pending,
Cataphora’s technology counsel sat for an interview for the website Above the Law (while in
California). Id. Referring to the Herman plaintiffs, the technology counsel said “[t]hese guys are
the worst of hypocrites you can possibly find,” who “claim to be trying to help the little guy, but
what they’re doing is trying to put more money in their own pockets,” among additional comments.
Id. at 462–463 (alteration added). The article “contain[ed] no mention of the [Herman plaintiffs]
individually, but only of the [steering committee] generally of which Plaintiffs are members along
with numerous other attorneys from various states.” Herman v. Cataphora, Inc., No. CIV.A. 12-
497, 2012 WL 4210427, at *8 (E.D. La. Sept. 19, 2012), vacated on other grounds, 730 F.3d 460
(5th Cir. 2013) (alterations added). The Herman plaintiffs promptly sued for defamation in the
Eastern District of Louisiana. 730 F.3d at 463. Cataphora won dismissal on personal jurisdiction
grounds, and the plaintiffs appealed. Id.
The Fifth Circuit found that the relevant starting point was the allegedly defamatory
remarks. To form the basis for specific personal jurisdiction, the statements must “‘constitute
personal availment such that [the defendant] could have reasonably anticipated being haled into a
[Texas] court as a result of [the defendant’s] statements.’” Id. at 464 (alterations added) (citation
modified) (quoting Clemens v. McNamee, 615 F.3d 374, 379 (5th Cir. 2010)). When determining
whether this personal availment exists, the “importance of the [statement’s] ‘focal point’” should
be “emphasized.” Id. at 465 (alteration added) (citing Clemens, 615 F.3d at 379). While “[a]
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plaintiff’s suffering damage in the forum state is part of the calculus,” the focal point is
indispensable. Id. If this focal point is not the forum, then the statement does not constitute personal
availment; without personal availment, there is no basis for specific personal jurisdiction. Id. See
also Clemens, 615 F.3d at 379; Revell, 317 F.3d at 473.
After providing this foundation, the Herman court began its focal point analysis. It found
that it was “not immediately clear who the targets of the statements were and where the conduct
[ ] described took place.” Herman, 730 F.3d at 465 (alteration added). Even though Cataphora’s
technology counsel knew that the steering committee was “engaged in some activity in Louisiana,”
this was “not sufficient to prove the allegedly defamatory statements themselves were made in
reference to that activity.” Id. Crucially, it was not enough that the article had described the
Louisiana MDL as background for the counsel’s statements, because the focal point of those
statements were “on the contract dispute.” Id. Indeed, Cataphora’s counsel “never mentioned
Louisiana explicitly or implicitly” and “did not refer to specific actions taken in Louisiana.” Id.
Rather, Cataphora’s counsel “discussed his perceptions of the Steering Committee members’
behavior surrounding the [California] contract dispute.” Id. (alteration added). At bottom, the focal
point of the Herman statements was not Louisiana, so there was no purposeful availment to form
the basis of specific personal jurisdiction. Id. at 466.
The Fifth Circuit also looked to Above the Law’s readership. This also did not help the
Herman plaintiffs. There was “no evidence” that the statements “were directed at Louisiana
residents” or that Above the Law had “a disproportionately high Louisiana readership.” Id.
The Fifth Circuit concluded that while the plaintiffs may have made “a prima facie
showing” that the statements’ harm would “be felt largely in Louisiana,” that alone was “not
enough.” Id. Without showing that the focal point was Louisiana, the statements could not support
specific personal jurisdiction in Louisiana.
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Now consider Johnson, which reached the same result via a different route.7 There, the
Fifth Circuit considered a libel lawsuit involving an online article calling Johnson, the Texas
plaintiff, “a ‘noted Holocaust denier and white nationalist’” in the context of Johnson’s meeting
with two congressmen in Washington, D.C. 21 F.4th at 316. Because the defendant website was a
citizen of Delaware and New York, Johnson relied on a four-part specific personal jurisdiction
theory. Johnson argued that because the site 1) was “visible in Texas,” 2) sold “an ad-free
experience and merchandise” in Texas, 3) sold advertising space to Texans, and 4) collected
visitors’ location information to show relevant ads, it had “‘purposefully availed itself of the
privileges of doing business in Texas.’” Id. at 317.
The Fifth Circuit did not find any of these arguments convincing, and affirmed dismissal
of the case for want of personal jurisdiction. It had essentially three categories of reasons. First, it
noted that the article “ha[d] no ties to Texas,” “[did] not mention Texas,” “recount[ed] a meeting
that took place outside of Texas,” and “used no Texan sources.” Id. at 319 (alterations added).
Second, while the website was accessible in Texas, this alone is not enough; the website must
actually “exploit a forum” or “produce[] the plaintiff’s claim” via “its forum contacts.” Id.
(alteration added). Neither existed because the alleged libel had no nexus with advertising or
merchandise. Id. Third, “settled principles of personal jurisdiction” required dismissal. Id. at 320.
There was no “‘fair warning’ that [the defendant’s] activities could furnish jurisdiction,” and the
defendant had no “chance to limit or avoid [its] exposure to the courts of a particular state.” Id.
(alterations added). Furthermore, under specific personal jurisdiction’s relatedness prong, the
“only” actions that count are “those that relate to the plaintiff’s suit.” Id. at 325. Again, there was
no connection between the libel and the ads. Id. Lastly, the defendant must itself “create the
7 Johnson mentions Cataphora once in a string cite in one of its footnotes. Johnson, 21 F.4th at 322 n.8.
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contacts” sustaining personal jurisdiction. Id. at 321. The website itself did not “create” Texas
contacts, nor did it “solicit[] Texan visits.” Id. (alteration added).
From these cases it appears that in internet defamation/libel cases where the statement was
not sent into the forum, there are both intrinsic and extrinsic aspects that relate to specific personal
jurisdiction and must be considered. The considerations above can be sorted into these two
categories. Intrinsic aspects—relating to the content and nature of the statement—includes the
statement’s focal point, where the conduct/activity described took place, whether the forum was
mentioned, and the sources used. Herman, 730 F.3d at 465; Johnson, 21 F.4th at 319. Extrinsic
elements surround the statement, having more to do with the speaker and what was done with the
comment. Where was the speaker when the statement was made? Did the speaker send the alleged
defamation into the forum, or otherwise know its readership would be high in that forum? These
are a few examples. Herman, 730 F.3d at 466–465; Johnson, 21 F.4th at 320–25. The same
framework applies for tortious interference and business disparagement claims. See Nicholas
Servs., 746 F. Supp. 3d at 350–51 (applying Johnson to tortious interference and breach of contract
claims).
After a court finds it lacks personal jurisdiction, it has the discretion to dismiss the affected
defendants or transfer the case. See, e.g., Herman, 730 F.3d at 466 (reciting law that a district court
has the option to dismiss or transfer). Here, ExxonMobil did not request transfer in the event the
Court found a lack of personal jurisdiction. ExxonMobil may rather have the claims dismissed
than pursue them in the Northern District of California. The Court accordingly dismisses without
prejudice ExxonMobil’s claims against the U.S. Environmental Organizations.
i. U.S. Environmental Organizations
The U.S. Environmental Organizations made similar arguments on specific personal
jurisdiction in their motions to dismiss. [Dkts. 47 at 5.1–5.16; 48 at 6–13; 49 at 13–18; 50 at 5–8].
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Likewise, Exxon’s Response used similar personal jurisdiction theories with regard to each of the
U.S. Environmental Organizations. [Dkt. 96 at 14–18].
As an initial matter, the Court considers each website to be interactive because they solicit
donations, emails, and subscriptions from visitors.8 Even so, there are no grounds for finding
specific personal jurisdiction over these defendants, as the Court discusses below.
1. Heal the Bay
First is Heal the Bay’s Motion to Dismiss. [Dkt. 47]. ExxonMobil alleges that the relevant
statement made by Heal the Bay is: “Instead of cleaning up the wreckage caused by Big Plastic,
we are moving aggressively to stop the harm at its source.” [Dkt. 1 at ¶ 93; Dkt. 47 at ¶ 5.8; Dkt.
96 at 18].9 The Court begins with the statement’s intrinsic elements. Recall Herman’s “focal point”
discussion, where the Fifth Circuit noted it was “not immediately clear who the targets of the
statements were and where the conduct [ ] described took place” and that Cataphora’s counsel
“never mentioned Louisiana explicitly or implicitly” and “did not refer to specific actions taken in
Louisiana.” Herman, 730 F.3d at 465 (alteration added).10
While it is true that the comment clearly refers to ExxonMobil from its context, the
statement is still vague in two crucial aspects. First, “moving aggressively to stop the harm” does
not concern recycling at all, let alone advanced recycling, which is the relevant activity
8 The Court doubts the continued utility of this distinction, given that the original passive/interactive inquiry was
created nearly thirty years ago in 1997. The internet and web design were far different. The passive/interactive decision
characterized the internet as “a global ‘super-network of over 15,000 computer networks used by over 30 million
individuals, corporations, organizations, and educational institutions worldwide.’” Zippo, 952 F. Supp. 1119, 1123
(W.D. Pa. 1997) (quoting Panavision Intern., L.P. v. Toeppen, 938 F. Supp. 616, 618 (C.D. Cal. 1996)). This
description seems quaint by today’s standards.
9 There are some small variations of the statement across the filings (such as a missing comma). [Compare Dkt. 47 at
¶ 5.8 with Dkt. 96 at 18. See also Dkt. 1 at ¶ 93 (using alterations for persuasive effect)]. This version of the statement
is exactly as it appears on Heal the Bay’s website in its press release. [Dkt. 47-2 at 2].
10 See also Johnson, 21 F.4th at 319 (noting that the relevant article “ha[d] no ties to Texas,” “[did] not mention
Texas,” “recount[ed] a meeting that took place outside of Texas,” and “used no Texan sources”) (alterations added).
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ExxonMobil alleges occurs in Texas.11 Second, it is not clear where any conduct is occurring; the
phrase “at its source,” for a global company like ExxonMobil, could mean anywhere in the world.
There are no extrinsic elements supporting specific personal jurisdiction either. Recall from
Johnson that the “only” actions that count for specific personal jurisdiction are “those that relate
to the plaintiff’s suit.” Id. at 325. The Complaint alleges that “[u]pon information and belief, at
least some of the [U.S. Environmental Organizations] solicited residents in Texas and received
donations from residents in Texas.” [Dkt. 1 at ¶ 93]. The Court notes two things. First, this
argument is not specific to Heal the Bay. Second, even if Heal the Bay made those solicitations,
they would also have to contain the above statement to satisfy Johnson. Heal the Bay denies using
the comment to fundraise from Texans.12 [Dkt. 47 at 9 (citing Dkt. 47-1 at ¶ 10)]. ExxonMobil
does not address this argument.
ExxonMobil makes two other arguments worth discussing. First, it contends Heal the Bay
has “not denied that [it] knew that ExxonMobil is a Texas corporation or that its advanced
recycling operations are Texas-based.” [Dkt. 96 at 18]. But even if Heal the Bay knew
ExxonMobil’s Texan nature, that would not be enough under Herman. The fact Heal the Bay
“knew” ExxonMobil “engaged in some activity in [Texas] is not sufficient to prove the allegedly
defamatory statements themselves were made in reference to that activity.” Herman, 730 F.3d at
465 (alteration added).
Second, ExxonMobil points to an alleged conspiracy between the U.S. Environmental
Organizations. It states that “Heal the Bay admitted that it was ‘quietly meeting’” with the other
11 ExxonMobil has stressed these are very different processes; recall the paragraph discussing the differences between
plastic and advanced recycling. For personal jurisdiction purposes, therefore, plastic recycling cannot be taken to refer
to advanced recycling.
12 The affidavit also states that “the press release was not sent to any Texas resident or Texas corporation.” [Dkt. 47-
1 at ¶ 10]. ExxonMobil’s Response does not address this affidavit. [Dkt. 96].
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organizations “and that they were engaged in a ‘coordinated campaign’ against ExxonMobil to
change US policy surrounding plastic production.” [Dkt. 96 at 18]. Johnson emphasized that the
“only” actions that count for specific personal jurisdiction are “those that relate to the plaintiff’s
suit,” and this is no less true for conspiracies. 21 F.4th at 325 (citing Ford Motor, 592 U.S. at 354–
57). ExxonMobil does not allege any relationship between the conspiracy and Texas specifically—
other than that the victim, ExxonMobil, happens to be at home in Texas—so this argument fails.13
The Court therefore concludes that it lacks personal jurisdiction over Heal the Bay and
dismisses it from this action.14 [Dkt. 47].
2. Surfrider
Next is Surfrider’s Motion to Dismiss. [Dkt. 48]. Surfrider did not make any statement of
its own. Rather, it published a press release containing quotes from the other nonprofits’
representatives involved in the California litigation. [Dkts. 1 at ¶ 92; 48 at 7; 96 at 15]. ExxonMobil
relies mostly on the alleged conspiracy between the nonprofits to support personal jurisdiction
over Surfrider and does so in two senses. First, it points out that Surfrider has three chapters in
Texas, but does not specify how those chapters are involved in either the alleged defamation or
the conspiracy. [Dkts. 1 at ¶ 19; 96 at 15]. Surfrider itself states in its Motion that these chapters
were not involved in the preparation of the press release nor have they taken any direct action
against advanced recycling. [Dkt. 48 at 10]. Without a nexus between the defendant’s forum
contacts and the activity of which the plaintiff complains, there is no basis for specific personal
jurisdiction. Ford Motor, 592 U.S. at 354–57.
13 Again, it is not enough that a defendant knows where its victim is, as Herman illustrates in the defamation context.
730 F.3d at 465 (“the fact that [Cataphora’s technology counsel] knew [the plaintiffs] engaged in some activity in
Louisiana is not sufficient to prove the allegedly defamatory statements themselves were made in reference to that
activity”).
14 Accordingly, the Court does not reach Heal the Bay’s Rule 12(b)(3) and (6) arguments. [Dkt. 47].
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Second, ExxonMobil argues that the Court should follow other circuits’ precedents
allowing “the purposeful acts of a co-conspirator in furtherance of the conspiracy” as the basis for
specific personal jurisdiction. [Dkt. 96 at 17]. Even if the Court took heed of other circuits’ law, it
would not apply. Here none of the other U.S. Environmental Organizations have done anything
amounting to “purposeful conduct directed at the forum in furtherance of the conspiracy,” as the
Court will discuss in further detail below. Id. In fact, the Court finds it lacks personal jurisdiction
over any of the U.S. Environmental Organizations, so there is no personal jurisdiction to extend to
Surfrider by way of the conspiracy.
For these reasons, the Court grants Surfrider’s motion to dismiss on personal jurisdiction
grounds.15 [Dkt. 48].
3. Baykeeper
Next is Baykeeper’s Motion to Dismiss. [Dkt. 49]. According to ExxonMobil, Baykeeper
“effectively accuse[s] ExxonMobil of homicide.” [Dkt. 1 at ¶ 92 (alteration added)]. The
Complaint highlights the following comment from Baykeeper’s Executive Director in the Surfrider
press release:
“The [California nonprofit] complaint alleges that Exxon has brainwashed
everyone into thinking that plastic recycling works and that it’s good for the planet.
But when we pulled back the curtain, we found that Exxon’s plastic polymers are
poisoning waterways, wildlife, and people,” said Sejal Choksi-Chugh of San
Francisco Baykeeper. “San Francisco Bay has some of the highest levels of
microplastics in the world. That’s why we are going after Exxon: to stop plastic
pollution at its source. This stuff is killing us a little bit more every day . . .”
15 The Court does not reach Surfrider’s Rule 12(b)(1) and (6) arguments. [Dkt. 48].
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[Dkt. 1 at ¶ 92 (quoting Dkt. 1-9 at 3) (alteration added)].16 Again, begin with the intrinsic
elements of the quote, using Herman’s “focal point” analysis.17 This statement is just as vague as
Heal the Bay’s. True, this quote names ExxonMobil. However, Baykeeper’s quote concerns
“plastic recycling,” which is not advanced recycling, as ExxonMobil strenuously argues. Further
it is not clear where that plastic recycling is occurring, neither mentioning “[Texas] explicitly or
implicitly.” Herman, 730 F.3d at 465 (alteration added).
Even if there were no intrinsic problems with the statement, extrinsic defects preclude
specific personal jurisdiction. ExxonMobil does not argue Baykeeper sent the statement into Texas
or otherwise knew it would have a high Texas readership. While Texans can access the website
where the statement was published, this does not mean Baykeeper has “exploit[ed] a forum” or
“that its forum contacts produced [ExxonMobil’s] claim.” Johnson, 21 F.4th at 319 (alterations
added).
The closest argument ExxonMobil makes on extrinsic aspects is a restatement of one of its
Heal the Bay arguments. It points out that Baykeeper has “not denied that [it] knew that
ExxonMobil is a Texas corporation or that its advanced recycling operations are Texas-based.”
[Dkt. 96 at 18 (alteration added)]. This falls by the same sword as the Heal the Bay argument. Even
if Baykeeper knew ExxonMobil is based in Texas, Herman says the fact that ExxonMobil
“engaged in some activity in [Texas] is not sufficient to prove the allegedly defamatory statements
themselves were made in reference to that activity.” Herman, 730 F.3d at 465 (alteration added).
This is not enough for specific personal jurisdiction.
16 ExxonMobil’s Complaint uses an edited version of the comment for persuasive effect. [Dkt. 1 at ¶ 92]. This version
includes all of the pieces ExxonMobil highlighted as they appeared in the Surfrider press release. [Dkt. 1-9 at 3]. The
Sierra Club press release contains a truncated version of the same quote. [Dkt. 1-7 at 2].
17 See also Johnson, 21 F.4th at 319 (noting that the relevant article “ha[d] no ties to Texas,” “[did] not mention
Texas,” “recount[ed] a meeting that took place outside of Texas,” and “used no Texan sources”) (alterations added).
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Accordingly, the Court grants Baykeeper’s motion to dismiss on personal jurisdiction
grounds.18 [Dkt. 49].
4. Sierra Club
The Sierra Club’s Motion to Dismiss is the last of the U.S. Environmental Organizations’
motions. [Dkt. 50]. ExxonMobil takes issue with two comments (numbered for ease of reference):
1. “As alleged in our complaint, Exxon profited by claiming plastics are safe and
recyclable. But we know better now—our environment and health were being
sacrificed just to protect Exxon's bottom line,” said Allison Chin, President of
the Sierra Club’s Board of Directors. “Plastic Pollution has risen to be one of
the defining environmental issues of our time. If we're going to clean up the
mountains of plastic waste, Exxon needs to clean up its act.”19
2. “Exxon profited by claiming that plastics are disposable, safe and recyclable.
And that's simply not true,” said the Sierra Club's SF Chair Martha Kreeger.
“Exxon perpetuated the myth of recyclability to keep consumers buying more
and more.”20
Each comment will be assessed individually.
As the reader will likely predict, the Court starts with the intrinsic elements. Like
Baykeeper’s quote, the statement clearly refers to ExxonMobil. However, also like Baykeeper’s,
the comment only reaches plastic’s recyclable nature (or, as the Sierra Club believes, a lack
thereof). Again, this is not advanced recycling. Further, it is not clear where any activity is
occurring and does not mention “[Texas] explicitly or implicitly.” Herman, 730 F.3d at 465
(alteration added). The Sierra Club’s comment therefore does not have the intrinsic elements for
which Herman and Johnson search.
Turn to the first quote’s extrinsic aspects. This comment was published on the Sierra Club’s
own blog. [Dkt. 1-7 at 1]. ExxonMobil references the Sierra Club’s Texas membership and that
18 Baykeeper also made Rule 12(b)(3) and (6) arguments, which the Court does not reach. [Dkt. 49].
19 [Dkt. 1 at ¶ 91 (citing Dkt. 1-7 at 1)].
20 Id. (citing Dkt. 1-8 at 4).
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membership’s “history of taking in-state action against ExxonMobil’s Baytown Refining
Complex, which now houses ExxonMobil’s advanced recycling operations.” [Dkts. 1 at ¶ 18; 96
at 14]. However, ExxonMobil does not tie that membership to the cause of action in this case,
which it must to create specific personal jurisdiction. Johnson, 21 F.4th at 325; Ford Motor, 592
U.S. at 354–57. ExxonMobil merely relies on the Sierra Club’s membership to assume it had a
“‘large circulation’ in Texas.” [Dkt. 96 at 14, quoting Calder v. Jones, 465 U.S 783, 784 (1984)].
Again, “just because a site can exploit a forum does not mean that it has or that its forum contacts
produced the plaintiff’s claim.” Johnson, 21 F.4th at 319 (emphasis in original). For this to be true
the Sierra Club would have to send the statement into Texas, which ExxonMobil does not argue.
Lastly, ExxonMobil claims the Sierra Club “knew ExxonMobil was a Texas corporation
with Texas operations” and therefore must have “purposefully targeted its tortious conduct at
Texas.” [Dkt. 96 at 14]. But Herman squarely rejects this theory. The fact the Sierra Club “knew”
ExxonMobil “engaged in some activity in [Texas] is not sufficient to prove the allegedly
defamatory statements themselves were made in reference to that activity.” Herman, 730 F.3d at
465 (alteration added). So, the first quote is out.
Now for the second. The analysis is the same for the second comment’s intrinsic qualities.
The statement names ExxonMobil, but only reaches plastic’s recyclability (not to be confused with
advanced recycling) and does not mention “[Texas] explicitly or implicitly.” Herman, 730 F.3d at
465 (alteration added). Consequently, this statement also falls short of what ExxonMobil needs.
The extrinsic inquiry comes to the same conclusion. Unlike the first quote, this comment
was published in a CBS news article. [Dkt. 1 at ¶ 91, citing Dkt. 1-8 at 4]. But this does not change
anything; there is no reason to assume a “disproportionately high [Texas] readership” of CBS.
Herman, 730 F.3d at 466 (alteration added). As with every other website the Court has considered,
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CBS is accessible in Texas, but this alone is not enough for Herman or Johnson. The second
comment likewise fails to justify specific personal jurisdiction.
The Sierra Club’s Motion is therefore granted on personal jurisdiction.21
ii. Bonta
Here the tide turns in ExxonMobil’s favor. ExxonMobil identifies the following comments
from Bonta (numbered for ease of reference):22
1. They lied. They deceived. They falsely advertised. Uh, they undermined the
science and made, uh, claims that were counter to the truth and so, uh, we’re
holding them accountable for that.23
2. . . . and they deserve and need a judgment day, and we are going to bring it to
them with our lawsuit.24
3. . . . they have proposed sham solutions, and it’s illegal, and so we are here to
hold them accountable.25
4. ExxonMobil . . . are [sic] one of the largest producer [sic] of polymers and one
of the biggest liars.26
5. Like a false promise about this new, so called newfangled, advanced recycling:
it’s not based on truth.27
21 The Court does not discuss the Sierra Club’s Rule 12(b)(3) and 12(b)(6) arguments. [Dkt. 50].
22 These comments are arranged in the order in which they appear in the Complaint. [Dkt. 1].
23 Id. at ¶ 69 (quoting Interview by Ross Palombo with Rob Bonta, California Attorney General, at 0:24 (Sept. 16,
2024), https://www.cbsnews.com/losangeles/video/ca-attorney-general-rob-bonta-speaks-on-states-lawsuit-against-
big-oil-companies/).
24 Id. (quoting REUTERS, California Sues Exxon over Global Plastic Pollution, at 0:57 (Youtube, Sept. 23, 2024),
https://www.youtube.com/watch?v=Nsy8exWEcxw).
25 Id. (quoting CLIMATE GROUP, Climate Week NYC 2024 - Rob Bonta, at 0:30 (Youtube, Oct. 7, 2024),
https://www.youtube.com/watch?v=XOGn_nFZ3Q8).
26 Id. (quoting Dkt. 1-1 at 4).
27 Id. (quoting Dkt. 1-1 at 3).
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6. We want them to tell the truth. Stop lying, stop deceiving, and stop
manipulating the public. Stop lying to consumers, stop propping up channel
solutions.28
7. Wonderful to join @ValerieVolco at Reuters’ Sustainability Summit USA
2024 to discuss California’s nation & world-leading climate action including
my office’s first-of-its-kind lawsuit against ExxonMobil for promoting the
myth of plastic recycling.29
8. Wonderful to join @ValerieVolcovici at Reuters’ Sustainability Summit USA
2024 to discuss California’s nation & world-leading climate action including
my office’s first-of-its-kind lawsuit against ExxonMobil for promoting the
myth of plastic recycling, lying to consumers, manipulating the public and
propping up sham solutions.30
9. The lawsuit is basically the state of California suing ExxonMobil for a
decades-long campaign of deception in which they’ve tried to convince the
world, including California, that the recycling of plastic products, including
single-use plastics is sustainable. It is not. It’s a lie, that’s a deception, only
about five percent of plastic waste in the United States is ever actually
recycled. Um, ninety-five percent goes to landfill [sic], or into the
environment, or oceans, rivers, uh, or is incinerated, and the idea behind it was
that if the public was convinced that, uh, their single-use throwaway consumer
lifestyle, uh, was supported by recycling and that it was environmentally
friendly they would buy more more and more and it would drive the profits of
ExxonMobil up up and up. And so, that’s the idea, but it’s based on a lie, it’s
illegal, we’ve sued them in court, and we’re here to hold them accountable.31
10. We’ve sued Exxon Mobil for a decades-long campaign of deception to
convince the public that recycling makes plastic, include single-use plastic,
sustainable[.] It doesn’t[.] The truth is: Only 5% of U.S. plastic waste is
recycled [.] Exxon Mobil knew. And Exxon Mobil lied.32
28 Id. (quoting Dkt. 1-1 at 2).
29 Id. at ¶ 71 (quoting Dkt. 1-2 at 1).
30 Id. (quoting Dkt. 1-3 at 1).
31 Id. at ¶ 72 (quoting Interview by Rebecca Quick with Rob Bonta, California Attorney General, at 0:23 (Sept. 24,
2024), https://www.cnbc.com/video/2024/09/24/california-ag-rob-bonta-on-exxon-mobil-lawsuit-they-lied-to-the-
world.html). In its Complaint, ExxonMobil stated Bonta “said [Advanced recycling is] based on a lie.” Id. (alteration
in original). Bonta did not refer to advanced recycling in that portion of the interview; he was discussing an alleged
ongoing deception that plastics are recyclable. After he made this statement, the interviewer then asked about
ExxonMobil’s statement on the lawsuit, which provides the first mention of advanced recycling in the interview. This
edit is, ironically, deceptive.
32 Id. at ¶ 73 (quoting Dkt. 1-4 at 1) (alterations added).
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11. “The plastics industry has spent decades selling and marketing single-use
products while falsely promising that we can recycle our way out of the
problem…California Attorney General Rob Bonta is now suing
ExxonMobil…for its role in deceiving the public.”33
12. This landmark lawsuit by the state of California seeks to hold one of the
world’s largest polluters accountable for decades of lies and deception that
created and exacerbated the global plastics crisis. ExxonMobil, the largest
promoter and producer of polymers used to create single-use plastics that
become waste in California, spent years convincing the public that recycling
makes plastic, including single-use plastic, sustainable. It doesn’t. The truth
is that only 5 percent of U.S. plastic waste is recycled. The rest ends up in
our environment, our waterways and oceans, our wildlife, and even our
own bodies. Exxon Mobil knew, and Exxon Mobil lied.34
13. Advanced recycling is neither advanced nor recycling. It’s a new version of an
old lie. . . . Advanced recycling, let’s talk about it. Their plant that you
referenced? Here’s what that plant does. It doesn’t recycle. It’s an old
technology.35
14. And look at Houston, look at Idaho, look at Salt Lake City. These are advanced
recycling projects that are supposed to be the new solution. And what is
happening is post-consumer plastic waste is just piling up. It is not being
recycled.36
Rather than repeating itself ad nauseum, the Court analyzes at once all comments that do
not support specific personal jurisdiction. It then considers the others individually.
First, consider the statements that do not create specific personal jurisdiction. These are
comments numbered 1–4, 6–11, and 13. A few name ExxonMobil. A few others mention lying,
sham solutions, or the myth that plastic is recyclable—but only one explicitly indicates advanced
33 Id. at ¶ 74 (quoting Dkt. 1-5 at 1) (alterations in original).
34 Id. at ¶ 77 (quoting Dkt. 1-6 at 2-3) (emphasis in original).
35 Id. at ¶ 85 (quoting Interview by Rebecca Quick with Rob Bonta, California Attorney General, at 3:37 (Sept. 24,
2024), https://www.cnbc.com/video/2024/09/24/california-ag-rob-bonta-on-exxon-mobil-lawsuit-they-lied-to-the-
world.html) (alterations added).
36 Id. at ¶ 86 (quoting Dkt. 1-1 at 2).
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recycling. Further, it is not clear where any activity is occurring and does not mention “[Texas]
explicitly or implicitly.” Herman, 730 F.3d at 465 (alteration added). Additionally, none of these
comments were sent into Texas or published where they might have high Texas readership. Neither
were they made in Texas or use Texas sources. Accordingly, they cannot support specific personal
jurisdiction.
Now for the others, which are numbered 5, 12, and 14. Consider statements 5 and 14 first.
They clearly concern ExxonMobil and specifically mention advanced recycling; statement 14 also
names Houston. Further, Bonta also relied on Texas sources when making these statements. As
ExxonMobil alleges in the Complaint, Bonta’s comments (especially comment 14’s reference to
the “piling up” of “post-consumer plastic waste” in advanced recycling facilities) were made based
on another organization’s deployment of AirTags in plastic bags, themselves concealed in plastic
waste, to monitor ExxonMobil’s Texas-based advanced recycling processes.37 [Dkt. 1 at ¶¶ 30,
87]. Finding specific jurisdiction based on these circumstances would be consistent with Johnson
and Herman.38 The intrinsic and extrinsic aspects of comments 5 and 14 therefore create specific
personal jurisdiction over Bonta.
Comment 12 does not need the intrinsic/extrinsic analysis because it appears in a campaign
email allegedly sent directly to Texas residents. Johnson and Herman only conducted the
intrinsic/extrinsic analysis where the defendant had not sent their defamatory statements into the
37 Elsewhere in the interview Bonta also thanks those who did the tracking, stating that they have “actually cited” the
reporting. [Dkt. 1-1 at 1].
38 Calder v. Jones also supports specific personal jurisdiction here. 465 U.S. 783 (1984) There, the defamatory article
“was drawn from [forum] sources, and the brunt of the harm, in terms both of respondent’s emotional distress and the
injury to her professional reputation, was suffered in [the forum].” Id. at 788–89 (alterations added). Therefore, the
forum was “the focal point both of the story and of the harm suffered.” Id. at 789. The Supreme Court accordingly
found that jurisdiction was proper. Id. This Court must follow Supreme Court precedent and apply constitutional
provisions to modern realities of the internet and digital publications. Therefore, specific jurisdiction for a suit alleging
the intentional tort of libel exists when an author or publisher “aims” a story at the state knowing that the “effects” of
the story will be felt there. See id. at 789–90.
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forum. 21 F.4th 314 at 316; 730 F.3d at 462. This is because where the defendant himself sends a
defamatory email into the forum, he himself has created contacts with that forum from which the
plaintiff’s cause of action arises—no defamation-specific analysis necessary. Calder, 465 U.S. at
788–89; Keeton v. Hustler Magazine, 465 U.S. 770, 776–77. This is enough for the first two prongs
of specific personal jurisdiction. Savoie, 122 F.4th at 190–91 (providing the specific personal
jurisdiction inquiry, where the first element is whether the defendant “‘purposely directed its
activities toward the forum state’” and the second is “‘whether the plaintiff's cause of action arises
out of or results from the defendant's forum-related contacts’”) (quoting Shambaugh & Son, 91
F.4th at 372)
As to the third element of specific personal jurisdiction, the Court’s exercise of jurisdiction
over Bonta would not be unfair. In the first place “it is rare to say the assertion of jurisdiction is
unfair after minimum contacts have been shown.” McFadin, 587 F.3d at 759–60 (citation
modified) (quoting Wien Air, 195 F.3d at 215). Per McFadin, it is on Bonta to show unfairness,
but he did not argue that specific personal jurisdiction would be unfair or unreasonable. [Dkts. 44,
106]. Even so, McFadin’s five factors analyzing unfairness do not indicate cause for concern. At
bottom, ExxonMobil accuses Bonta of emailing defamatory comments about ExxonMobil into
Texas (statement 12) and then fundraising from Texas residents, possibly through that exact email.
If Bonta wants to fundraise in Texas, he can answer to courts in Texas. The outcome is the same
for the other comments (5 and 14), which targeted Texas activities and used Texas sources in the
process. There is nothing unfair about specific personal jurisdiction here.
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Given this discussion, Bonta’s motion to dismiss is denied as to personal jurisdiction.39
The Court has specific personal jurisdiction for Bonta for the purposes of adjudicating comments
5, 12, and 14.
iii. IEJF
ExxonMobil’s theory of personal jurisdiction was contingent on personal jurisdiction over
the U.S. Environmental Organizations and Bonta. [Dkt. 96 at 18–21]. The Court does not have
personal jurisdiction over the U.S. Environmental Organizations to impute to IEJF. While the
Court does have personal jurisdiction over Bonta, it cannot impute that personal jurisdiction to
IEJF.
In the Fifth Circuit, minimum contacts can be extended to parties in an agency relationship.
Trois v. Apple Tree Auction Ctr., Inc., 882 F.3d 485, 490 (5th Cir. 2018). Not just any relationship
counts; both California and Texas law40 require something more. In California, “[f]undamental
tenets of agency theory require that an agent ‘act on the principal’s behalf and subject to the
principal’s control.’” Williams v. Yamaha Motor Co. Ltd., 851 F.3d 1015, 1024 (9th Cir. 2017)
(quoting Restatement (Third) Of Agency § 1.01 (Am. L. Inst. 2006)); Ratha v. Phatthana Seafood
Co., 35 F.4th 1159, 1172–73 (9th Cir. 2022) (“‘Agency requires that the principal maintain control
over the agent’s actions’”) (quoting Murphy v. DirecTV, Inc., 724 F.3d 1218, 1232 (9th Cir. 2013)).
Texas has similar requirements; agency exists where “‘the principal has both the right: (1) to assign
the agent’s task; and (2) to control the means and details of the process by which the agent will
39 The portion of Bonta’s Motion asserting official immunity and Eleventh Amendment Immunity are considered
below.
40 The choice of law issue on this point was not briefed by either ExxonMobil or IEJF. However, where two states’
law would produce the same decision, there is no conflict of laws. In re Chinese Manufactured Drywall Prod. Liab.
Litig., 753 F.3d 521, 529 (5th Cir. 2014).
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accomplish that task.’” Trois, 882 F.3d at 490 (quoting Indian Harbor Ins. Co. v. Valley Forge
Ins. Grp., 535 F.3d 359, 364 (5th Cir. 2008)) (emphasis in original).
ExxonMobil does not sufficiently allege a principal-agent relationship between IEJF and
Bonta. The closest tie that ExxonMobil has between the two is the fact that four law firm partners
(the registered foreign agents) as well as other firm members, donated to Bonta’s political
campaign nearly contemporaneously with the receipt of IEJF legal fees. [Dkt. 1 at ¶¶ 7, 48]. There
is nothing in the Complaint to suggest that IEJF retained the ability to “assign [Bonta’s] task” or
“control the means and details” of how Bonta would achieve it. Trois, 882 F.3d at 490 (alteration
added) (emphasis removed). So-called fishy business is not enough to create an agency
relationship. Without an agency relationship, the Court cannot find specific personal jurisdiction
over IEJF.
The IEJF’s motion to dismiss for lack of personal jurisdiction [Dkt. 51] is therefore
granted.41
iv. Jurisdictional Discovery
ExxonMobil requested jurisdictional discovery in the event the Court found lacking
evidence of conspiracy or allegations against the U.S. Environmental Organizations. [Dkt. 96 at
20–21]. Johnson addressed this issue. “To merit jurisdictional discovery, [the plaintiff] must show
that it is ‘likely to produce the facts needed to withstand dismissal.’” Johnson, 21 F.4th at 326
(alteration added) (quoting Davila v. United States, 713 F.3d 248, 264 (5th Cir. 2013)). “[The
plaintiff requesting jurisdictional discovery] must make clear which ‘specific facts’ [it] expects
discovery to find.” Id. (quoting Bell Helicopter Textron, Inc. v. Eurocopter, LLC, 729 F. Supp. 2d
789, 797 (N.D. Tex. 2010)) (alterations added). The Court “will not authorize ‘a jurisdictional
41 This Order does not address IEJF’s Rule 12(b)(6) argument. [Dkt. 51].
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fishing expedition’ based on a plaintiff’s general averments that more discovery will prove our
jurisdiction.” Id. (quoting Bell Helicopter, 729 F. Supp. 2d at 798). ExxonMobil does not allege
“specific facts,” but describes only the types of information discovery might uncover and urges
that the Court not rely on the defendants’ affidavits. [Dkt. 96 at 20–21]. This is not enough,
especially when ExxonMobil’s allegations “cannot sustain [the Court’s personal jurisdiction] as a
matter of law.” Johnson, 21 F.4th at 326 (citing Seiferth, 472 F.3d at 277).
Accordingly, the Court denies jurisdictional discovery as to the U.S. Environmental
Organizations and IEJF.
IV. MOTION ASSERTING IMMUNITY
Bonta’s Motion also asserts official immunity and Eleventh Amendment immunity from
suit. [Dkts. 44 at 17–27; 106 at 10–16]. ExxonMobil opposes these arguments. [Dkt. 95 at 6–23].
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) allows challenges of the Court’s subject matter
jurisdiction.42 FED. R. CIV. P. 12(b)(1). In weighing a 12(b)(1) motion, “a district court may dismiss
a case under Rule 12(b)(1) based on (1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.” T&W Holding Co., L.L.C. v. City of Kemah, 160 F.4th
622, 626 (5th Cir. 2025) (citation modified). “‘A case is properly dismissed for lack of subject
matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the
case.’” Walmart Inc. v. U.S. Dep’t of Just., 21 F.4th 300, 307 (5th Cir. 2021) (quoting Home
Builders Ass’n v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). “A dismissal for lack of
jurisdiction under Rule 12(b)(1)” is only justified where “it appears certain that the plaintiff cannot
42 While some Rule 12(b)(6) motions assert official or sovereign immunity, Bonta does not bring his Motion under
Rule 12(b)(6)—he brings it under Rule 12(b)(1). [Dkt. 44 at 12]. The Court therefore uses the 12(b)(1) framework.
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prove any set of facts in support of her claim that would entitle plaintiff to relief.” Robledo v.
United States, 147 F.4th 515, 519 (5th Cir. 2025) (citation modified).
Unlike a standard 12(b)(1) motion, the present motion implicates two potential burdens.
Typically under the Rule 12(b)(1) “the burden of proving subject matter jurisdiction lies with the
party asserting jurisdiction, and it must be proved by a preponderance of the evidence.” T&W
Holding Co., 160 F.4th at 626 (citation modified). In Texas, common-law “official immunity is an
affirmative defense that must be pleaded and proved to shield an employee from personal liability;
otherwise, the defense is lost.” City of Houston v. Rodriguez, 704 S.W.3d 462, 469 (Tex. 2024).
The parties disagree as to which burden applies here. Bonta argues the 12(b)(1) standard
controls, which places the burden on ExxonMobil. [Dkt. 44 at 24 ll. 24–26]. ExxonMobil argues
that because official immunity is an affirmative defense under Texas law, the burden is Bonta’s.
[Dkt. 95 at 13]. So, who is right? To answer that question, the Court considers Erie Railroad Co.
v. Tompkins. 304 U.S. 64 (1938).
“Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and
federal procedural law.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). “When
a party has alleged a direct conflict between the Federal Rules and state law, however, an additional
step precedes the Erie analysis.” All Plaintiffs v. All Defendants, 645 F.3d 329, 333 (5th Cir. 2011)
(citing Hanna v. Plumer, 380 U.S. 460, 469–70 (1965)). “‘The initial step is to determine whether,
when fairly construed, the scope of [the Rule] is sufficiently broad to cause a direct collision with
the state law or, implicitly, to control the issue before the court, thereby leaving no room for the
operation of that law.’” Id. (citation modified) (alteration in original) (quoting Burlington N. R.R.
Co. v. Woods, 480 U.S. 1, 4–5 (1987)). If a court finds a direct collision, it “must apply the Federal
Rule as long as that Rule is a valid exercise of Congress's rulemaking authority.” Id. (quoting
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Burlington N. R.R., 480 U.S. at 4–5)). See also Berk v. Choy, 607 U.S. --- 2026 WL 135974 (U.S.
Jan. 20, 2026) (same).
Though neither party appears to have realized it, Bonta and ExxonMobil have alleged such
a direct conflict here. This leads to the next step: validity under the Rules Enabling Act. Rule 12
is “‘a valid exercise of Congress’s rulemaking authority’ under the Rules Enabling Act.” Klocke
v. Watson, 936 F.3d 240, 247–48 (5th Cir. 2019), as revised (Aug. 29, 2019) (quoting All Plaintiffs
v. All Defendants, 645 F.3d 329, 333 (5th Cir. 2011)). Importantly, the Supreme Court has
“rejected every statutory challenge to a Federal Rule” it has received, including one decided just
recently. Berk, 607 U.S. ---, 2026 WL 135974, at *6 (U.S. Jan. 20, 2026). Given Rule 12’s validity,
its burden governs. ExxonMobil bears the burden.
B. Discussion
Bonta asserts two kinds of immunity in his 12(b)(1) Motion: official immunity and
Eleventh Amendment immunity. [Dkts. 44 at 17–27; 106 at 10–16]. The Court accordingly
separates its analysis.
i. Official Immunity
Bonta argues his statements should be afforded official immunity. [Dkt. 44 at 17–25].
ExxonMobil disagrees. [Dkt. 95 at 13–29].
1. Choice of Law
First, a preliminary point on conflict of laws. In diversity cases, “[f]ederal courts apply the
forum state’s conflict[]-of-law[s] rules to determine what law governs state-law claims.” Bailey v.
Shell W. E&P, Inc., 609 F.3d 710, 722 (5th Cir. 2010) (alterations added) (citing Klaxon v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). “Texas courts initially determine whether there is a
conflict between Texas law and the other potentially applicable law.” Id. (citing SAVA gumarska
in kemijska indusria d.d. v. Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 314 (Tex.App.—
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Dallas 2004, no pet.)). If there “are no differences between the relevant substantive laws of the
respective states,” or if the “result would be the same,” Texas law applies. R.R. Mgmt. Co. v. CFS
Louisiana Midstream Co., 428 F.3d 214, 222 (5th Cir. 2005) (citing Vandeventer v. All Am. Life
& Cas. Co., 101 S.W.3d 703, 711 (Tex.App.—Fort Worth 2003, no pet.)); SAVA, 128 S.W.3d at
314. See also In re Chinese Manufactured Drywall Prod. Liab. Litig., 753 F.3d 521, 529 (5th Cir.
2014). Otherwise, Texas follows the “most significant relationship” test from the Restatement
(Second) of Conflict of Laws to choose the applicable tort law. Nix v. Major League Baseball, 62
F.4th 920, 932 (5th Cir. 2023) (citing Hughes Wood Prod., Inc. v. Wagner, 18 S.W.3d 202, 205
(Tex. 2000)).
Consider Texas law. In Texas, the “common-law affirmative defense of official immunity”
shields “officers ‘when they are performing (1) discretionary duties, (2) in good faith, and (3)
within the scope of their authority.’” Rodriguez, 704 S.W.3d at 468 (quoting City of Houston v.
Sauls, 690 S.W.3d 60, 70 (Tex. 2024)). The Texas Tort Claims Act (the “TTCA”) “alters the
common-law scheme by requiring plaintiffs to choose between suing the governmental unit under
the Act and suing a responsible employee in an individual capacity.” Garza v. Harrison, 574
S.W.3d 389, 399 (Tex. 2019) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a)–(f);
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 656 (Tex. 2008)). Dismissal upon a
public employee’s motion is proper when the suit “(1) is based on conduct within the general scope
of the employee’s employment and (2) could have been brought under the Act against the
governmental unit.”43 Id. at 400 (citation modified).
Essential to both Texas common-law official immunity and the TTCA is that the employee
was within the scope of her employment. The definition is “nearly identical” under both concepts.
43 “Unlike official immunity, which is an affirmative defense that bars a governmental employee’s individual liability,
[the TTCA] essentially prevents an employee from being sued at all for work-related torts and instead provides for a
suit against the governmental employer.” Garza, 574 S.W.3d at 399–400.
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Wilkerson v. Univ. of N. Texas By & Through Bd. of Regents, 878 F.3d 147, 161 n.14 (5th Cir.
2017) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994); TEX. CIV. PRAC.
& REM. CODE ANN. § 101.001(5); Laveriev. Wetherbe, 517 S.W.3d 748, 752–53 (Tex. 2017)). The
term means “(1) the performance for a governmental unit of the duties of an employee’s office or
employment, which (2) includes being in or about the performance of a task lawfully assigned to
an employee by competent authority.” Garza, 574 S.W.3d at 400 (citation modified). Moreover,
“[c]onduct falls outside the scope of employment when it occurs ‘within an independent course of
conduct not intended by the employee to serve any purposes of the employer.’” Id. (alteration
added) (emphasis in original) (quoting Alexander v. Walker, 453 S.W.3d 789, 792 (Tex. 2014)).
Campaign-related activities are not within a public employee’s authority or scope of employment.
TEX. GOV’T CODE § 556.004. See also § 556.007 (providing for a public employee’s termination
for violation of certain provisions of § 556.004); TEXAS ETHICS COMMISSION, ETHICS ADVISORY
OPINION NO. 550 (2019) (elaborating on prohibitions on elected officials’ use of government
resources for political purposes).
California’s law is similar. Statutory official immunity applies to statements made “in the
proper discharge of an official duty.” CAL. CIV. CODE § 47(a). “The privilege protects any
statement by a public official, so long as it is made (a) while exercising policy-making functions,
and (b) within the scope of his or her official duties.” Fitzgerald v. City of Fresno, No. 1:21-CV-
01409-AWI-SAB, 2022 WL 1204707, at *6 (E.D. Cal. Apr. 22, 2022) (citing McQuirk v.
Donnelley, 189 F.3d 793, 801 (9th Cir. 1999); Sanborn v. Chron. Pub. Co., 18 Cal. 3d 406, 412–
13 (1976); Maranatha Corr., LLC v. Dep’t of Corr. & Rehab., 70 Cal. Rptr. 3d 614, 622 (2008)).
Policy-making functions mean “the official must reach a basic policy decision, as distinct from an
operational decision, after balancing risks and advantages,” as distinguished from ministerial or
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operational duties. Id. (citing McQuirk, 189 F.3d at 801; Neary v. Regents of Univ. of Cal., 230
Cal. Rptr. 281, 284–84 (1986)).
The California Tort Claims Act (the “CTCA”) also prohibits “a cause of action against a
public employee . . . for injury resulting from an act or omission in the scope of his employment
as a public employee” where the plaintiff has not first “presented [her claim] to the state” through
means dictated by statute. CAL. GOV’T CODE §§ 911.2, 915(b), 950.2 (alterations added) (providing
the timing and manner of claim filing, and barring claims that do not comply); Roger v. Cnty. of
Riverside, 257 Cal. Rptr. 3d 566, 577 (2020) (discussing the claim presentment requirement in a
defamation case). “The filing requirement does not apply to either non-pecuniary actions such as
injunctive, specific, or declaratory relief, or causes of action based upon federal law.” Robinson v.
Alameda Cnty., 875 F. Supp. 2d 1029, 1044 (N.D. Cal. 2012) (citing Canova v. Trustees of
Imperial Irrigation Dist. Emp. Pension Plan, 59 Cal. Rptr. 3d 587, 592 (2007)); Howard Jarvis
Taxpayers Ass’n v. Coachella Valley Water Dist., 329 Cal. Rptr. 3d 373, 404 (2025).
Both statutory official immunity and the CTCA apply only to public employees acting
within the scope of their employment. “Generally, California courts determine that a public
employee is acting in the course and scope of his employment when ‘he is engaged in work he was
employed to perform, or when the act is an incident to his duty and was performed for the benefit
of his employer and not to serve his own purposes or convenience.’” Wilson-Combs v. Cal. Dep’t
of Consumer Affs., 555 F. Supp. 2d 1110, 1118 (E.D. Cal. 2008) (quoting Burgdorf v. Funder, 54
Cal. Rptr. 805 (1966)). A public employee in California may not engage in certain activities that
are “clearly inconsistent, incompatible, in conflict with, or inimical to his or her duties as a state
officer or employee.” CAL. GOV’T CODE § 19990. This includes the “use of state resources, their
titles, or their positions when fundraising.” Progressive Democrats for Soc. Just. v. Bonta, 73 F.4th
1118, 1120 (9th Cir. 2023) (citing CAL. GOV’T CODE § 19990(a)–(b)).
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The two sets of laws are strikingly similar. While they differ in form, they do not differ in
substance; they both extend immunity to public employees performing official duties, and neither
includes campaigning within those official duties. Accordingly, there is no conflict and no need
for a Second Restatement analysis. The Texas law applies.
2. Official Immunity under Texas Law
Here, the Court only considers Texas common-law official immunity. As ExxonMobil
correctly argues, the TTCA “only applies to employees of ‘this state’ and ‘political subdivisions
of this state’” meaning “employees of Texas or its subdivisions, not the California attorney
general.” [Dkt. 95 at 26 (quoting TEX. CIV. PRAC. & REM. CODE §§101.001(2)–(3); Jaxson v.
Becker, No. 01-93-00892-CV, 1994 WL 192338, at *2 (Tex. App.—Houston [1st Dist.] May 19,
1994, no writ))]. Bonta argues that this weighs in favor of applying California law. [Dkt. 106 at 11
ll. 13–14]. Not so fast. When a court is faced with a statute that by its own terms limits itself to in-
state actors and activities, that court may apply the state’s common law. See Highway Equip. Co.
v. Caterpillar Inc., 908 F.2d 60, 64 (6th Cir. 1990); Peugeot Motors of Am., Inc. v. E. Auto
Distribs., Inc., 892 F.2d 355, 358 (4th Cir. 1989). See also Robert A. Sedler, Functionally
Restrictive Substantive Rules in American Conflicts Law, 50 S. CAL. L. REV. 27, 35 (1976) (“in [a]
conflicts situation, where the statute is construed as constituting a functionally restrictive
substantive rule, the common law rule is applicable to the decision of the case”) (alteration
added).44 So it would seem that per a conflict-of-laws twist, Texas common law controls.
The Texas “common-law affirmative defense of official immunity” shields “officers ‘when
they are performing (1) discretionary duties, (2) in good faith, and (3) within the scope of their
authority.’” Rodriguez, 704 S.W.3d at 468 (quoting Sauls, 690 S.W.3d at 70). Texas courts
distinguish discretionary duties from ministerial ones. “A duty is discretionary if its performance
44 The Court could not locate a Fifth Circuit precedent addressing this issue.
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involves personal deliberation, decision, and judgment” and ministerial if “the law prescribes and
defines the duty to be performed with such precision and certainty as to leave nothing to the
exercise of discretion or judgment.” Sauls, 690 S.W.3d at 70 (citation modified). The good-faith
inquiry states an officer’s actions “must be justified with reference to what a reasonably prudent
officer, possessed of the same information and under the same or similar circumstances, could
have believed.” Id. at 75. It is “‘one of objective legal reasonableness, without regard to whether
the government official involved acted with subjective good faith.’” Id. at 73 (quoting Chambers,
883 S.W.2d at 656). Good faith “protects ‘all but the plainly incompetent’ and is akin to the
deferential abuse-of-discretion standard.” Id. at 75 (quoting Chambers, 883 S.W.2d at 656 (Tex.
1994)). Alternate courses of action do “not necessarily negate[]” good faith. Id. (alteration added).
The public employee must be within the scope of employment to qualify for immunity
under Texas common law. “Scope of employment” means “(1) the performance for a
governmental unit of the duties of an employee’s office or employment, which (2) includes being
in or about the performance of a task lawfully assigned to an employee by competent authority.”
Garza, 574 S.W.3d at 400 (citation modified). Additionally, “[c]onduct falls outside the scope of
employment when it occurs ‘within an independent course of conduct not intended by the
employee to serve any purposes of the employer.’” Id. (alteration added) (emphasis in original)
(quoting Alexander, 453 S.W.3d at 792). A public employee’s scope of employment does not
include campaigning; certain electoral activities, if conducted using state resources, can result in
the employee’s termination. TEX. GOV’T CODE §§ 556.004, 556.007; TEXAS ETHICS COMMISSION,
ETHICS ADVISORY OPINION NO. 550 (2019) (extending Texas statutes to elected statewide
officials).
The Court found specific personal jurisdiction as to comments 5, 12, and 14. Of those,
statements 5 and 14 came from a Reuters interview. [Dkt. 1 at ¶ 69 (quoting Dkt. 1-1 at 3); Id. at
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¶ 86 (quoting Dkt. 1-1 at 2)]. When read in context, Bonta is speaking as California Attorney
General about the lawsuit his office filed against ExxonMobil. [See generally Dkt. 1-1]. He
routinely uses “we” and “us” to refer to investigations, subpoenas, and the lawsuit’s ultimate filing.
Id. at 1–2. Moreover, he discusses other cases filed in his official capacity as California Attorney
General. Id. at 2 (“. . . our suit against BP and ConocoPhillips [among others] for climate change
deception”) (alterations added). Bonta also said “[w]e are the only public entity to sue a
petrochemical company that produces [plastic] polymers.” Id. (alterations added). Statements 5
and 14 appear among these other quotes.
As to the first immunity factor, discretionary duties, Bonta asserts he “was not ordered or
instructed to speak publicly about California’s lawsuit against ExxonMobil—instead, he exercised
personal deliberation and judgment in speaking to the press.” [Dkt. 44 at 24 ll. 3-5]. ExxonMobil
does not contest this in its Response. [See generally Dkt. 95].
The second immunity factor considers the officer’s objective good faith. Good faith
“focus[es] on the objective facts and information the officer knew and perceived.” Sauls, 690
S.W.3d at 74–75 (alteration added). This stands separately from subjective, which looks to
“whether the officer had subjectively considered and assessed certain factors.” Id. at 75.
ExxonMobil argues it “has alleged that Bonta actually knew his defamatory statements were false
and that he made them as part of a concerted attack on ExxonMobil.” [Dkt. 95 at 27–28 (emphasis
in original)]. At first blush this seems subjective and therefore irrelevant to good faith, which is
objective. However, it is a factual claim about what Bonta objectively knew. If ExxonMobil is
correct, Bonta did not act with good faith. “[A] reasonably prudent officer, possessed of the same
[knowledge of his statements’ falsity] and under the same or similar circumstances, could [not]
have believed” his actions justified. Id. at 75 (alterations added). Bonta’s official immunity
therefore rises and falls based on whether his statements were objectively false. Because 12(b)(1)
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motions can only be granted where “it appears certain that the plaintiff cannot prove any set of
facts in support of her claim that would entitle plaintiff to relief,” the Court cannot grant Bonta’s
12(b)(1) motion in this instance. Robledo, 147 F.4th at 519 (citation modified).
Now consider the remaining statement. Comment 12 was made in an election email sent to
Texas residents. [Dkt. 1 at ¶ 77 (quoting Dkt. 1-6 at 2-3)]. Bonta argues the email was official
because it “informed recipients of his office’s activities and its management of the public business,
even if it ‘allegedly acted partly to serve his own interests.’” [Dkt. 44 at 23 ll. 14–16 (citation
modified) (quoting Carter v. Diamond URS Huntsville, LLC, 175 F. Supp. 3d 711, 751 (S.D. Tex.
2016); Laverie, 517 S.W.3d at 753)]. In other words, Bonta believes his email was official
communication that just so happened to include a campaign contribution link. It is the link’s
presence that changes things. Here, the contribution request betrays the email’s true nature: a
campaign promotion. Campaigning is not within Bonta’s scope of employment.
The outcome may be different for statements made in press conferences; an elected official
can make statements communicating his office’s activities, with an unspoken expectation that later
on he will receive campaign donations as a result. This is consistent with Texas law. See generally
Carter, 175 F. Supp. 3d at 752 (finding official immunity under the TTCA even where the official
“acts partly to serve his or her own interests”) (citing Tipps v. McCraw, 945 F. Supp. 2d 761, 766
(W.D. Tex. 2013)). It is a different matter entirely to make those statements and simultaneously
request campaign contributions. Quote 12 is therefore beyond the bounds of Bonta’s scope of
employment and is not subject to Texas common-law official immunity.
Bonta’s 12(b)(1) Motion to Dismiss for official immunity is therefore denied. [Dkt. 44].
ii. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution provides “[t]he Judicial power
of the United States shall not be construed to extend to any suit in law or equity, commenced or
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prosecuted against one of the United States by Citizens of another State.” U.S. CONST. AMEND. XI
(alteration added). The Eleventh Amendment gives states, state agencies, and state officials acting
in their official capacities immunity from suits brought by citizens of other states. Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–01 (1984); K.P. v. LeBlanc, 627 F.3d 115, 124 (5th
Cir. 2010)). A lawsuit “against a state official in his individual capacity may not in all instances
implicate the Eleventh Amendment.” Henley v. Simpson, 527 F. App’x 303, 305 (5th Cir. 2013)
(citing Hudson v. City of New Orleans, 174 F.3d 677, 687 n.7 (5th Cir. 1999)). In fact, “the general
rule” is that a public official does not get Eleventh Amendment immunity “from an action against
him in his individual capacity.” Id. at 306 (citing Modica v. Taylor, 465 F.3d 174, 183 (5th Cir.
2006); Stramaski v. Lawley, 44 F.4th 318, 322 (5th Cir. 2022). However, there is an exception to
this general rule “‘where the state is the real and substantial party in interest,” in which case “the
Eleventh Amendment may bar the suit.’” Stramaski¸44 F.4th at 322 (quoting Modica, 465 F.3d at
183). This determination “depends on the circumstances of the case.” Id.
Relevant to a case’s circumstances is the distinction between indemnification and a draw
on the state’s coffers. “‘The Eleventh Amendment does not come into play in personal capacity
suits, and the existence of an indemnification statute promising to pay judgments when an officer
is sued in his individual capacity does not extend the Eleventh Amendment’s protections around
the officer.’” Id. at 323 (citation modified) (quoting Hudson, 174 F.3d at 687 n.7). By contrast, the
Eleventh Amendment does encompass “situations in which the individual [is] simply a nominal
defendant and the judgment sought would expend itself on the public treasury or compel the State
to act.” Id. at 325 (alteration added) (citation modified) (citing Henley, 527 F. App’x at 306).
Some examples illustrate the difference. A case in the former category includes one where
“the defendant retaliated specifically against [the plaintiff] for complaints she was making about a
possible delay in being paid.” Id. (alteration added). This type of case will not typically involve “a
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challenge to a state policy simply being implemented by a supervisor employee.” Id. An example
of a “public treasury” case is one implicating a “‘State’s compensation policy and whether the
state employees’ caring for, and training, service canines resulted in an accrual of overtime
hours.’” Id. There, “the policy promulgated by the state itself violated federal wage and hour laws.”
Id. (citing Henley, 527 F. App’x at 307–08).
The Court has already denied Bonta’s 12(b)(1) motion to dismiss for official immunity.
Because it is not clear Bonta was acting in his official capacity, the Court cannot grant his Eleventh
Amendment arguments on that ground. Therefore, the only relevant question is whether the State
of California is the “real and substantial party in interest” such that this case qualifies for the
exception.
Under the above caselaw, California is not the target of this lawsuit and the Eleventh
Amendment does not apply. This case concerns an individual’s behavior—specifically actions for
which the Court denied official immunity. Additionally, this case is not aimed at changing the way
California operates, compelling California to act, or accomplishing a California policy change.
This makes the present case more like the retaliation claim than the wage-and-hour suit. Under
these circumstances Eleventh Amendment immunity is not implicated.
The Court accordingly denies Bonta’s (12)(b)(1) Motion to Dismiss based on Eleventh
Amendment immunity. [Dkt. 44].
V. MOTION TO TRANSFER VENUE
Only the U.S. Environmental Organizations joined in the Motion to Transfer Venue. [Dkt.
46]. Because the Court has found it lacks personal jurisdiction over these defendants and has
dismissed them, that motion is moot and the Court denies it as such.
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VI. MOTION CHALLENGING DECARATORY RELIEF
Bonta’s Motion also requests dismissal of ExxonMobil’s request for declaratory relief.
[Dkt. 44 at 27]. Bonta’s argument is that “ongoing litigation in California addresses the issues
sought to be resolved by declaratory judgment.” Id. at 27 ll. 24–25. He does not elaborate. Neither
does his Reply mention this argument. [Dkt. 105 at 16 ll. 15–18].
Wright & Miller provides hornbook law on this topic. Another suit “does not bar
declaratory relief if the issues in the declaratory action will not necessarily be determined in the
other suit.” 10B FED. PRAC. & PROC. CIV. § 2758 (4th ed.).45 Here, ExxonMobil requests “a
declaration that (i) advanced recycling is recognized and permitted by law in multiple states,
including Texas, and that (ii) ExxonMobil is lawfully permitted to engage in and promote
advanced recycling at its Texas facility.” [Dkt. 1 at ¶ 140]. In relevant part, Bonta’s California
lawsuit concerns the way ExxonMobil promoted advanced recycling in California, alleging
ExxonMobil did so deceptively. [Dkt. 44-4 at ¶¶ 240–350]. While there is a small amount of
overlap insofar as promotion of the advanced recycling technology goes, Bonta’s California
lawsuit will not necessarily resolve the issues presented here.
The Court therefore denies this portion of Bonta’s Motion to Dismiss. [Dkt. 44].
VII. MOTIONS TO INTERVENE
Three Texas cities and one Texas county filed motions to intervene under Federal Rule of
Civil Procedure 24(b)(1). [Dkts. 39, 54, 62, 63].46 Bonta, the sole remaining defendant in this case,
filed a Response in opposition. [Dkt. 90]. The would-be intervenors filed a Reply. [Dkt. 103].
45 The Court was unable to locate Fifth Circuit precedent on this topic, specifically where the other court is a federal
court.
46 The last-filed Complaint in Intervention lists all four intervenors and is therefore the one the Court considers for
inclusion on the docket. [Dkt. 65].
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A. Legal Standard
Federal Rule of Civil Procedure 24(b)(1) allows a court to permit an intervenor who files
a “timely motion” and “has a claim or defense that shares with the main action a common question
of law or fact.” FED. R. CIV. P. 24(b)(1). The Fifth Circuit “has accepted that the ‘claim or defense’
portion of Rule 24(b) is to be construed liberally.” United States ex rel Hernandez v. Team Fin.,
L.L.C., 80 F.4th 571, 577 (5th Cir. 2023) (citation modified) (citing Newby v. Enron Corp., 443
F.3d 416, 422 (5th Cir. 2006)). “[A]mong other factors,” district courts consider “whether the
intervenors are adequately represented by other parties and whether they are likely to contribute
significantly to the development of the underlying factual issues.” League of United Latin Am.
Citizens v. Clements, 884 F.2d 185, 189 (5th Cir. 1989) (alteration added) (citing New Orleans
Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 472 (5th Cir. 1984)). “When a proposed
intervenor possesses the same ultimate objectives as an existing litigant, the intervenor's interests
are presumed to be adequately represented absent a showing of adversity of interest, collusion, or
nonfeasance.” Id. (citing Kneeland v. Nat’l Collegiate Athletic Ass’n, 806 F.2d 1285, 1288 (5th
Cir. 1987); Bush v. Viterna, 740 F.2d 350, 355 (5th Cir. 1984)). This presumption of adequate
representation “may be rebutted on a relatively minimal showing,” but mere speculation of
inadequacy is not enough. Id. (citing Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610 F.2d
49, 54 (1st Cir. 1979)). Ultimately, “[i]ntervention under Rule 24(b) is left to the sound discretion
of the district court.” Hopwood v. State of Tex., 21 F.3d 603, 606 (5th Cir. 1994) (alteration added).
B. Discussion
The City of Baytown, Texas (“Baytown”) is a “Texas Gulf Coast community” currently
“working closely with ExxonMobil as it operates and constructs advanced recycling facilities to
recycle plastic at its Baytown refining complex.” [Dkt. 39 at 2]. Moreover, Baytown has been
working with ExxonMobil to use its advanced recycling technology as part of its waste
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management and community recycling programs. Id. at 4–5. In fact, this is a first for Baytown—
it has never had a plastics recycling program. Id. at 3.
The City of Beaumont, Texas (“Beaumont”), also a “Texas Gulf Coast community,” has
also worked with ExxonMobil to expand advanced recycling operations at ExxonMobil’s
Beaumont facility. [Dkt. 54 at 2, 3]. As was the case with Baytown, Beaumont also considers
advanced recycling a key component of its waste management planning. Id. at 7. Like Baytown,
Beaumont previously has never had a plastics recycling program. Id. at 3.
Chambers County, Texas (“Chambers County”) is in a similar position. Unlike Baytown
and Beaumont, it “had plastic recycling program [sic] at one time, but its recycling vendor went
out of business and the program was dropped.” [Dkt. 62 at 3]. ExxonMobil’s investment in its
Baytown facility’s advanced recycling allows Chambers County to explore plastics recycling
again. Id. This advanced recycling effort is “the backbone” of Chambers County’s “comprehensive
solid waste management programs.” Id. at 7.
Lastly, the City of Mont Belvieu, Texas (“Mont Belvieu”) is no different from Chambers
County; it had a recycling program, lost it, and now has regained it through ExxonMobil’s
advanced recycling investments. [Dkt. 63 at 3]. Moreover, advanced recycling is allegedly a key
component of its waste management program. Id. at 7.
Under Rule 24(b)(1), the party seeking to intervene must file a “timely motion.” FED. R.
CIV. P. 24(b)(1). Baytown filed its Motion to Intervene approximately three months after the
Complaint was filed. [Dkt. 39]. Beaumont’s, Chambers County’s, and Mont Belvieu’s motions
followed shortly thereafter. [Dkts. 54, 62, 63]. The Court considers all four of these motions timely.
The second part of the Rule 24(b)(1) asks whether the intervenor “has a claim or defense
that shares with the main action a common question of law or fact.” FED. R. CIV. P. 24(b)(1).
ExxonMobil alleges the defamation in this case affected its business relationships concerning
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advanced recycling. As parties on the other end of ExxonMobil’s business relationships, each of
the intervenors have their own damages flowing from the alleged defamation. Each claims the
alleged defamation has disrupted its waste management and community recycling programs—
some of a local government’s most essential services. [Dkts. 39 at 4–5; 54 at 7; 62 at 3, 7; 63 at 3,
7]. This has implications for both factual development and adequate representation. ExxonMobil
cannot provide facts on how these programs have been impacted, so intervention will contribute
significantly to factual development on damages. Separately, ExxonMobil cannot adequately
represent their interests; they are governmental bodies with affected recycling and waste
management programs. While these interests may be related to ExxonMobil’s advanced recycling
business, they are far from the same.
For these reasons, the Court grants the motions to intervene. [Dkts. 39, 54, 62, 63].
VIII. CONCLUSION
In accordance with the above, the Court therefore ORDERS that:
1. Heal the Bay, Inc.’s 12(b)(2), (3), and (6) Motion to Dismiss [Dkt. 47] is GRANTED
IN PART;
2. Surfrider Foundation, Inc.’s Rule 12(b) Motion to Dismiss [Dkt. 48] is GRANTED IN
PART;
3. Baykeeper, Inc.’s Rule 12(b)(2), (3), (6) Motion to Dismiss [Dkt. 49] is GRANTED
IN PART;
4. Sierra Club, Inc.’s Motion to Dismiss [Dkt. 50] is GRANTED IN PART;
5. Robert Andres Bonta’s Motion to Dismiss [Dkt. 44] is DENIED;
6. Intergenerational Environment Justice Fund Ltd.’s Motion to Dismiss for Lack of
Personal Jurisdiction and for Failure to State a Claim [Dkt. 51] is GRANTED IN
PART;
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7. Sierra Club, Inc.’s, Surfrider Foundation, Inc.’s, Heal the Bay, Inc.’s, and Baykeeper,
Inc.’s Joint Motion to Transfer to the Northern District of California [Dkt. 46] is
DENIED AS MOOT;
8. City of Baytown, Texas’s Opposed Motion to Intervene [Dkt. 39] is GRANTED;
9. City of Beaumont, Texas’s Opposed Motion to Intervene [Dkt. 54] is GRANTED;
10. Chambers County, Texas’s Opposed Motion to Intervene [Dkt. 62] is GRANTED;
11. City of Mont Belvieu, Texas’s Opposed Motion to Intervene [Dkt. 63] is GRANTED;
The Clerk is INSTRUCTED to TERMINATE Heal the Bay, Inc., Surfrider Foundation,
Inc., Baykeeper, Inc., Sierra Club, Inc., and Intergenerational Environment Justice Fund Ltd. as
defendants in this action.
The Clerk is further INSTRUCTED to ACCEPT the City of Baytown, Texas, City of
Beaumont, Texas, City of Mont Belvieu, Texas, and Chambers County, Texas Complaint in
Intervention [Dkt. 65] and make same a part of the record in this matter.
____________________________
Michael J. Truncale
United States District Judge
SIGNED this 13th day of February, 2026.
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