Cockrum v. Donald J. Trump for President, Inc.

• Decision Date: 15 March 2019
• Docket Number: Civil Action No. 3:18–CV–484–HEH
• Citation: 365 F.Supp.3d 652
• Parties: Roy COCKRUM, et al., Plaintiffs, v. DONALD J. TRUMP FOR PRESIDENT, INC., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

365 F.Supp.3d 652

Roy COCKRUM, et al., Plaintiffs,

v.DONALD J. TRUMP FOR PRESIDENT, INC., Defendant.

Civil Action No. 3:18–CV–484–HEH

United States District Court, E.D. Virginia, Richmond Division.

Signed March 15, 2019

Anne Harden Tindall, Pro Hac Vice; Justin Grant Florence, Pro Hac Vice; United to Protect Democracy, Washington, DC, Jessica Ann Marsden, Pro Hac Vice; United to Protect Democracy, Carrboro, NC, Steven Arthur Hirsch, Pro Hac Vice; Keker Van Nest & Peters LLP, Barbara Jane Chisholm, Pro Hac Vice; Danielle Leonard, Pro Hac Vice; Altshuler Berzon LLP, Stephen P. Berzon, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, CA, April Heather Pullium, Bredhoff & Kaiser PLLC, Washington, DC, Benjamin Leon Berwick, Pro Hac Vice; United to Protect Democracy, Cambridge, MA, Cameron Oatman Kistler, Pro Hac Vice; United to Protect Democracy, Washington, DC, Elizabeth Childress Burneson, Hirschler Fleischer PC, Kelly Jeanne Bundy, Richmond, VA, Ian Michael Bassin, Pro Hac Vice; United to Protect Democracy, New York, NY, Nancy Gertner, Pro Hac Vice; Fick & Marx, Boston, MA, Richard Primus, Pro Hac Vice; The University of Michigan School of Law, Ann Arbor, MI, for Plaintiff.

Nikki Lynn McArthur, William Dennis Coglianese, Pro Hac Vice; Michael Anthony Carvin, Pro Hac Vice; Vivek Suri, Pro Hac Vice; Jones Day, Washington, DC, Jeffrey Dewan Baltruzak, Pro Hac Vice; Jones Day, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

(Granting Defendant's Motion to Dismiss Amended Complaint)

Henry E. Hudson, Senior United States District Judge

I. BACKGROUND

Plaintiffs¹ in this case seek damages for injuries resulting from the unauthorized publication of their personal information on the internet. Plaintiffs allege that their information was illegally obtained by Russian intelligence operatives during the Russians' hack of computer servers belonging to the Democratic National Committee ("DNC" or the "Committee"). The Amended Complaint alleges that "[a]gents of the Trump Campaign, acting on behalf of the Campaign, met with—and were otherwise in contact with—Russian officials or their agents on numerous occasions during the spring and summer of 2016." ( Am. Compl. ¶ 15, ECF No. 8.) During this period, the Kremlin alerted Donald J. Trump for President, Inc. (the "Campaign" or "Defendant") that it possessed stolen DNC emails and could publicize them in order to harm the DNC and Mr. Trump's political opponent, Hillary Clinton, thereby helping the Campaign win the 2016 presidential election. (Id. ¶ 2.) In return, the Campaign and the Russian regime allegedly agreed that the Campaign would provide political benefits to Russia. (Id. ) Following this coordination of effort, and at the direction of the Campaign and Russian agents, "the emails were then released by WikiLeaks, which joined the conspiracy as a trusted Russian intermediary." (Id. )

According to the Amended Complaint, "[i]n order to defeat Secretary Clinton and help elect Mr. Trump, hackers working on behalf of the Russian government," (id. ¶ 86), allegedly converted "voluminous amounts of data, including emails and other documents sent to and from thousands of individuals. Some of those individuals were staff members of the DNC; some were donors; and some were other supporters, members of the media, or other private citizens." (Id. ¶ 10.) "On July 22, 2016, WikiLeaks posted thousands of private emails on the Internet. These emails were made available to anybody in the world with a web browser." (Id. ¶ 43.) As a result of the publication of the Plaintiffs' personal information, which allegedly included emails, social security numbers, dates of birth, home addresses, phone numbers, and banking relationships, they allegedly sustained significant personal and financial damage. (Id. ¶ 44.) This lawsuit followed.

Plaintiffs' Amended Complaint alleges three discrete causes of action. In Count I, they allege a conspiracy to intimidate lawful voters from giving support or advocacy to electors for president and to injure citizens in person or property on account of such support or advocacy in violation of 42 U.S.C. § 1985(3).² (Id. ¶¶ 257–70.) Count II seeks damages for public disclosure of private facts as to Mr. Cockrum in violation of Tennessee law (civil conspiracy and aiding and abetting liability). (Id. ¶¶ 271–78.) The third count is a claim of public disclosure of private facts as to Mr. Comer in violation of Maryland law (civil conspiracy and aiding and abetting liability). (Id. ¶¶ 279–86.) Count IV alleges public disclosure of private facts as to Mr. Schoenberg in violation of New Jersey law (civil conspiracy and aiding and abetting liability). (Id. ¶¶ 287–94.) Count V is a claim for intentional infliction of emotional distress as to Mr. Comer in violation of Maryland law (civil conspiracy and aiding and abetting liability). (Id. ¶¶ 295–303.) During oral argument, Plaintiffs moved to dismiss Count VI, which seeks damages for civil conspiracy in violation of the common law. Counsel represented to the Court that it wished to dismiss Count VI because the theory underlying this cause of action is integrated into the preceding counts. Consequently, the Court will grant counsel's oral motion, and Count VI will be dismissed.

Presently before the Court is Defendant's Motion to Dismiss the Amended Complaint filed pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "Motion," ECF No. 22.) Both the Plaintiffs and the Campaign have filed extensive memoranda supporting their respective positions on the pending Motion. The Court heard oral argument on January 24, 2019. The parties were then directed to file supplemental memoranda addressing the choice of law governing Counts II, III, and IV. The parties have done so, and the matter is now ripe for this Court's review.

II. STANDARD OF REVIEW

The well-pleaded facts contained within the Amended Complaint both inform and constrain this Court's review of the Campaign's Motion at this stage. The task at hand is to determine the sufficiency of the Amended Complaint, "not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin , 980 F.2d 943, 952 (4th Cir. 1992). In considering a motion to dismiss, a plaintiff's well-pleaded allegations are taken as true and the complaint must be viewed in the light most favorable to the plaintiff. T.G. Slater & Son, Inc. v. Donald P. & Patricia A. Brennan LLC , 385 F.3d 836, 842 (4th Cir. 2004). At this stage of the proceedings, the record is one dimensional, focusing solely on the adequacy of the Amended Complaint.

A Rule 12(b)(6) motion to dismiss "should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 (4th Cir. 1993). The Court, however, "need not accept the legal conclusions drawn from the facts, and [it] need not accept as true unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 253 (4th Cir. 2009) (quoting Giarratano v. Johnson , 521 F.3d 298, 302 (4th Cir. 2008) ).

To survive Rule 12(b)(6) scrutiny, a plaintiff must provide more than merely "labels and conclusions," or a "formulaic recitation of the elements of a cause of action...." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level," by stating a claim, that is "plausible on its face" rather than merely "conceivable." Id. at 555, 570, 586, 127 S.Ct. 1955 (internal citations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

III. ANALYSIS

As a threshold challenge, the Campaign argues that its alleged publication of the information hacked by Russian operatives, and acquired from WikiLeaks, was First Amendment protected because the Campaign did not participate in its actual acquisition and the information, at least in part, involved information of public concern.³ The Court will address this argument first because it effects the viability of all of Plaintiffs' claims. The Court will then turn to the Campaign's individual arguments with respect to Counts I–V.

A. Applicability of the First Amendment to Plaintiffs' Claims

The Campaign's First Amendment argument relies heavily on Bartnicki v. Vopper , 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001). In Bartnicki , an unlawfully-intercepted cellphone conversation was turned over to the media who then broadcasted the tape. Id. at 518–19, 121 S.Ct. 1753. The Court in Bartnicki premised its analysis on the well-settled principle that when "a newspaper lawfully obtains truthful information about a matter of public significance [ ] state officials may not constitutionally punish publication of the information, absent a need ... of the highest order." Id. at 527, 121 S.Ct. 1753 (second alteration in original) (quoting Smith v. Daily Mail Publ'g Co. , 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) ); see also Florida Star v. B.J.F. , 491 U.S. 524, 533, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (quoting same). The Supreme Court in Bartnicki also drew guidance from New York Times Co. v. United States , 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam), where the Court upheld the right of the press to publish information of great public concern obtained from documents stolen by a third party. Bartnicki , 532 U.S. at 528, 121 S.Ct. 1753.

Bartnicki is distinguishable from the immediate case in several respects. Here, unlike Bartnicki , the Campaign is alleged to have conspired with...