UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

STEVE JACKSON GAMES INCORPORATED,
STEVE JACKSON, ELIZABETH
McCOY, WALTER MILLIKEN, and
STEFFAN O'SULLIVAN,
 ­ 
   Plaintiffs,                  Docket No. A 91 CA 346

 ­ 
UNITED STATES SECRET SERVICE,
UNITED STATES OF AMERICA,
WILLIAM J. COOK, TIMOTHY M. FOLEY,
BARBARA GOLDEN, and HENRY M.
KLUEPFEL,
 ­ 
   Defendants.

________________________________________________________

 ­ 
PLAINTIFFS' FURTHER RESPONSE AND
MEMORANDUM IN OPPOSITION TO
INDIVIDUAL DEFENDANTS' MOTION TO DISMISS 

Defendants are all federal officials who planned and
executed a blatantly unconstitutional search and seizure of
Austin publisher Steve Jackson Games. Although the
defendants deliberately directed their unlawful activities at
this forum and this Court -- by filing of a false and
misleading warrant affidavit -- they claim that they are not
subject to Öthis Court's jurisdiction because they acted
within the scope of federal authority. Defendants imply that
the Austin-based victim of their unlawful conduct can obtain
relief only by filing identical lawsuites in the multiples
jurisdictions in which the defendants reside.  Defendants'
position is unsupprted by any legal authority and is manifestly contrary to the interests of justice.

I.  THE FIDUCIARY 8HIELD DOCTRINE DOES NOT
PROHIBIT THIS COURT FROM EXERCISING PERSONAL
JURISDICTION OVER GOVERNMENT OFFICIALS WHO
PLANNED AND EXECUTED AN UNLAWFUL SEARCH
AND SEIZURE PURPOSEFULLY DIRECTED AT THIS FORUM.
 ­ 
We have argued that the personal jurisdiction issue in
this case is controlled by Calder v. Jones, 465 U.S. 783
(1984). In Calder, the Supreme Court upheld the exercise of
personal jurisdiction over out-of-state defendants whose
tortious activity -- undertaken in the scope of their
employment -- was intentionally directed at residents of the
forum. 465 U.S. at 1487. Defendants have made no attempt to
distinguish Calder. Instead, defendants have simply
misconstrued the facts and the holding of Stuart v. Spademan,
772 F.2d 1185 (5th Cir. 1985). That case does not aid
defendants' argument, but rather, supports this Court's
exercise of jurisdiction over them.

Like Calder, Stuart v. Spademan held that personal
jurisdiction over an out-of-state defendant should be judged
on the basis of defendant's contacts with the forum
(including his activities undertaken in the course of his
employment), but not on the basis of activities by his
corporate employer that are neither undertaken by the
defendant nor related to the litigation. 772 F.2d at 1192-
1199. In considering whether the district court had personal
jurisdiction over Spademan, the Fifth Circuit plainly
Spademan Release Systems (SRS) to him personally. (l) What the
Fifth Circuit refused to do was to attribute to Spademan,
additional activities of SRS that were "unrelated to the
underlying contractual dispute," and that were not undertaken
by Spademan:
 ­ 
 The court below concluded that, [a]lthough
plaintiffs have shown additional contacts with
Texas on the part of Spademan Release Systems, such
as advertising and soliciting sales through the
agent, they have not shown that the corporation's
contacts are in any way attributable to Spademan
individually.
 ­ 
772 F.2d at 1196 n.10.(2)

 ***FN 1 The activities that the Fifth Circuit attributed to
Spademan personally included the following: "Spademan's
contract with the Texas plaintiffs," his "shipment of two
bindings to the plaintiffs in Texas," the "communications
between Spademan and the plaintiffs," and "communications
between the plaintiff's and Spademan's attorneys." 772 F.2d
at 1194. As defendants concede, "[a]ll of these activities
were undertaken either by Spademan, in his capacity as an
officer of the corporation or by attorneys representing him
in that capacity." Defs. Reply at 2 n.l.
 ­ 
 ***FN 2  This quotation from the Spademan case demonstrates
that defendants have simply misconstrued the facts of the
case.  See  Reply at 2 n.l. Unlike Spademan's personal
contacts with the forum, which were attributed to him despite
the fact that they were undertaken in his capacity as an
officer of SRS, 772 F.2d at 1192-1194, the marketing and
advertising activities of SRS were not attributed to Spademan
because they were not undertaken by him personally, 772 F. 2d
at 1196-1198.
    Defendants' suggestion that the Spademan case stands for
the proposition that personal jurisdiction over an individual
cannot be based upon activities undertaken in the scope of
his employment is obviously erroneous, because it would place
the Fifth Circuit in conflict with the Supreme Court's
decision in Calder.

Defendant's reliance on dicta in Saktides v. Cooper, 742
F. Supp. 382 (W.D. Tex. 1990), is similarly misplaced, for in
sharp contrast to the facts of this case, the defendant in
Saktides had no contact with this forum in relation to the
litigation other than handling the funds of a Texas
corporation. Application of the dicta in Saktides to the
very different facts of this case would be inconsistent with
both the Fifth Circuit's opinion in Stuart v. Spademan and
the Supreme Court's decision in Calder v. Jones.

Moreover, application of the fiduciary shield doctrine,
as interpreted by defendants, to Bivens cases would lead to
absurd results. The rationale underlying the fiduciary
shield doctrine is that, even if the plaintiff cannot sue the
individual employee in the forum where the cause of action
arose, the plaintiff can obtain relief from the employer
there.3 However, this rationale does not apply to Bivens 
actions, since the federal government is absolutely immune
from suit for constitutional torts committed by its
employees. Defendants seek the wholesale elimination of
"specific jurisdiction" over Bivens defendants. (4) This
 ­ 
  ***FN 3 See, e.q., Stuart v. Spademan, 772 F.2d at 1197 n.
11 ("Succinctly paraphrased, 'jurisdiction over an individual
cannot be predicated upon jurisdiction over a corporation.'")
 ­ 
  ***FN 4 The Fifth Circuit has recognized the distinction
between "specific" and "general" jurisdiction.  Bullion v.  
Gillespie, 895 F.2d 213, 216-217 (5th Cir. 1990). "General"
jurisdiction is based upon a defendant's continuous and
systematic contacts with the forum state, including contacts
unrelated to the litigation. 895 F.2d at 216. "Specific"
radical proposal would make it unduly burdensome -- and in
many situations impossible -- for the victims of
constitutional torts to vindicate their constitutional
rights. (5) Where, as here, the individual government officials
residing in multiple jurisdictions engage in tortious
activity deliberately aimed at residents of this forum and
cause substantial harm here, there is no conceivable
rationale for requiring plaintiffs to engage in multi-forum
litigation elsewhere to obtain relief.
 ­ 
Plaintiffs do not claim that defendants "must submit to
jurisdiction in far-flung locations, simply because they have
made the unfortunate decision to serve the United States
rather than a private employer." Def. Reply at 4, 5.
Rather, plaintiffs argue that defendants have subjected
themselves to this Court's jurisdiction by virtue of their
substantial contacts with this forum giving rise to this
lawsuit. These contacts include submitting a false and
misleading warrant application to this Court, and planning
jurisdiction, in contrast, is based upon the defendant's

 ***FN "specific jurisdictional contacts" giving rise to the cause
of action. Id. "It is well settled that specific
jurisdiction may arise without the nonresident defendant's
ever stepping foot upon the forum state's soil, or may arise
incident to the commission of a single act directed at the
forum." Id.
 ­ 
   ***FN 5 Defendants do not suggest how the plaintiffs in this
case should attempt to vindicate their federal rights other
than by filing this lawsuit here, in the judicial district in
which their claims arose. Since the defendants reside in
different jurisdictions, there is no other jurisdiction in
which venue would be proper. 28 U.S.C. S 1391(b).
 ý  m  p in this forum. ?  w 6 Under both  u Calder §   u v. §   u Jones §  and  u Stuart §   u v. § 
and executing the unconstitutional search and seizure of SJG
in this forum. (6)  Under both Calder v. Jones and Stuart v.
Spaceman, defendants' torious and unlawful activities
 ­ 
of personal jurisdiction over them.

II. THE SUPREMACY CLAU8E DOE8 NOT PROHIBIT A
FEDERAL COURT FRON EXERCI8ING PERSONAL
JURI8DICTION OVER FEDERAL OFFICIALS WHO
COMMIT FEDERAL CONSTITUTIONAL TORT8 WITHIN THE FORUM.
 ­ 
Conceding that this Court's exercise of jurisdiction over
them is a matter of federal law, the defendants now appear to
argue -- still without any supporting authority -- that the
Supremacy Clause exempts them from any rule -- state or
federal -- making them amenable to service of process based
on activity undertaken in the scope of their authority as
federal officials. This argument, too, is without merit.(7)

The Supreme Court has clearly explained that personal
jurisdiction over a defendant in a federal action is proper

  ***FN 6  Defendants' substantial contacts with this forum
are described more fully in Plaintiffs initial memorandum in
opposition to this motion at 5-7. Plaintiffs maintain, and
defendants do not seriously dispute, that these contacts are
more than sufficient to meet the "minimum contacts" test.
However, if the Court has any doubts about the extent of the
defendants' contacts with this forum, plaintiffs are entitled
to discovery on that issue.
 ­ 
 ***FN 7 Defendants repeat their claim that the State of  
Texas cannot constitutionally condition the activities of the
federal qovernment within its borders, but this claim
continues to be irrelevant, since Rule 4(e) is imposed by
Congress (and not by the State of Texas) and authorizes
service of process on individuals (and not the federal
government).

if jurisdiction satisfies the Due Process Clause and if the
defendant is amenable to service of process under Rule 4(e).
Omni Capital International v. Rudolf Wolff & Co. Ltd., 484
U.S. 97 (1987). Rule 4(e), in turn, expressly authorizes
service in accordance with "a statute or rule of court of the
state in which the district court is held."
 ­ 
The individual defendants do not argue that Rule 4(e) or
the Texas long arm statute are inconsistent with any
particular federal constitutional provision or law, nor could
they, since the Texas long arm statute is incorporated within
with Rule 4(e) and is coextensive with the personal
jurisdiction requirements of the Due Process Clause.  Stuart 
v. Spademan, 772 F.2d at 1189. Rather, defendants simply
assert that any rule subjecting them to the jurisdiction of
this federal Court by virtue of their activity under color of
federal law interferes with the sovereignty of the federal
government. This novel argument fails, however, because the
Supreme Court has repeatedly explained that sovereignty
issues are irrelevant to the personal jurisdiction analysis:
 ­ 
 [The Due Process] Clause is the only source of the
personal jurisdiction requirement and the Clause
itself makes no mention of federalism concerns.
Furthermore, if the federalism concept operated as
an independent restriction on the sovereign power
of the court, it would not be possible to waive the
personal jurisdiction requirement: Individual
actions cannot change the powers of sovereignty,
although the individual can subject himself to
powers from which he may otherwise be protected.
powers from which he may otherwise be protected.

Insurance Corp. of Ireland v. Compagnie des Bauxites de
Guinee,  456 U.S. 694, 702 (1982); Omni Capital International 
v. Rudolf Wolff & Co. Ltd.,  484 U.S. 97 (1987), 108 5. Ct.
at 409 (reaffirming that the requirement of personal
jurisdiction ... represents a restriction on judicial power
not as a matter of sovereignty, but as a matter of individual
liberty");  Burger King Corp. v.  Rudzewicz,  471 U.S. 462, 472
n. 13 (1985). (8)

The defendants have not cited a single authority in
support of their novel claim that the Supremacy clause
shields them from amenability to process under Rule 4(e). To
the contrary, the Supreme Court has expressly prohibited
federal courts from interfering with the rulemaking powers of
those who propose the Federal Rules of Civil Procedure and
... Congress," since "courts are inappropriate forums for
deciding" measures for service of process. 108 S. Ct. at  412-
13.
 ­ 
  **FN 8  The Supreme Court has expressly and repeatedly
     explained that the language quoted in defendants' memorandum
     at 8 does not reflect sovereignty concerns. See, e.g.,
     Insurance Corp. of  Ireland v. Compagnie des Bauxites de 
     Guinee, 456 U. S. at 702  ("It is true that we have stated that
     the requirement of personal jurisdiction, as applied to state
     courts, reflects an element of federalism and the character
     of state sovereignty vis-a-vis other states,... [but the]
     restriction on state sovereign power described in World-Wide § 
     Volkswagen Corp., however, must be seen as ultimately a
     function of the individual liberty interest preserved by the
     Due Process Clause.");  Omni Capital International v. Rudolf
     Wolff & Co. Ltd., 484 U.S.  97 (1987), 108 S.  Ct. at 409;
     Burger King Corp. v. Rudzewicz, 471 U. 5 . at  d 472  n. 13 (  d 1985) .


The Rules Enabling Act, 28 U.S.C. S 2702, refutes rather
than supports defendants' argument. That Act establishes the
controlling authority of Rule 4(e). While the Act provides
that the Federal Rules of Civil Procedure "shall not abridge
... any substantive right," the individual defendants have
not argued that Rule 4(e) abridges any of their rights.

Defendants' position is not aided -- and is
significantly hindered -- by citation to Johnson v. Railway  
Express Agency. Inc., 421 U.S. 454 (1975); Board of Reqents
 v. Tomanio, 446 U.S. 478 (1980); and West v. Conrail, 481
U.S. 35 (1987). In sharp contrast to Johnson v. Railway  
Express and Board of Regents v. Tomanio, in which the Court
was asked to fill a gap in federal law, the defendants are
asking this Court to repeal the express provisions of a
Federal Rule. The Court's unanimous opinion in West v.  
Conrail soundly reaffirmed that, in federal question cases,
the Federal Rules of Civil Procedure control. 481 U.S. at 39.

Moreover, in holding that federal courts should look to
state law for the statute of limitations governing federal
civil rights claims, the Court stated -- in contradiction to
the defendants' argument to this Court -- that there is
nothing "peculiar to a federal civil rights action that would
justify special reluctance in applying state law." Johnson,
421 U.S. at 464. The Court further held that "considerations
would be inconsistent with the federal policy underlying the  
of state law may be displaced" only "where their application
would be inconsistent with the federal policy underlying the 
cause of action under consideration."  Johnson, 421 U.S. at
465.  In this case, defendants' bid for an exemption from
Rule 4(e) is dramatically inconsistent with the policies
underlying Bivens actions, and would seriously undermine
plaintiffs' ability to obtain relief for civil rights
violations by federal officials.
 ­ 
Finally, defendants claim this lawsuit will distract
them from pursuing the public good is peculiar in light of
their implication that this case should be litigated in the
various jurisdictions in which they reside. All of the
individual defendants are material witnesses to the events
giving rise to plaintiffs' claims. Testifying in this one
lawsuit would be significantly less burdensome for them than
testifying in multiple proceedings in various jurisdictions. (9)
Thus, the relative burdens on the individual defendants, as
well as all of the other considerations deemed relevant to
the personal jurisdiction question -- the "plaintiff[s']
interest in obtaining relief," the State's interest in
protecting its citizens from unconstitutional exercise of
federal power, "the interstate judicial system's interest in

 ***FN 9 Moreover, defendants' protestations are vastly
       overstated. All of them are being represented by the United
       States Attorney's office in Austin. It is difficult to see
       how Cook could "be distracted from [his] official duties" by
       this lawsuit, since he is no longer employed by the
       government. In any event, the Supreme Court has recognized
       that "modern transportation and communications have made it
       much less burdensome" for out-of-state defendants to defend
       themselves. Burger King Corp. v. Rudzewicz, 471 U.S. 462,
       475 (1985).


obtaining efficient resolution of controversies; and the
shared interest of the several States in furthering
fundamental substantive social policies," World Wide  
Volkswagen Corp. V. Woodson, 444 U.S. 286, 292 (1980) --
support this Court's exercise of personal jurisdiction over
the individual defendants in this case.
­ 
CONCLU8ION

For the reasons stated above, the individual defendants'
motion to dismiss for lack of personal jurisdiction should be
denied.
 ­ 
DATED: October 9, 1991

Respectfully submitted
by their attorneys,
 ­ 
Sharon L. Beckman 
Andrew Good 
Harvey A. Silverglate 
Silverglate & Good
89 Broad St., 14th Floor
Boston, MA 02110
(617) 542-6663

Eric M. Lieberman
Nicholas E. Poser
Rabinowitz, Boudin, Standard,
Krinsky & Lieberman, P.C.
740 Broadway, at Astor Place
New York, NY 10003-9518
(212) 254-1111

James George, Jr.
Peter D. Kennedy
Graves, Dougherty, Hearon & Moody
2300 NCNB Tower
515 Congress Avenue
Austin, TX 78701
(512) 480-5600