Council on Am.-Islamic Relations Action Network, Inc. v. Gaubatz

• Decision Date: 27 March 2014
• Docket Number: Civil Action No. 09–02030CKK
• Court: U.S. District Court — District of Columbia
• Parties: Council on American–Islamic Relations Action Network, Inc., et al., Plaintiffs, v. Paul David Gaubatz, et al., Defendants.

31 F.Supp.3d 237

Council on American–Islamic Relations Action Network, Inc., et al., Plaintiffs

v.Paul David Gaubatz, et al., Defendants.

Civil Action No. 09–02030CKK

United States District Court, District of Columbia.

Signed March 27, 2014

Gadeir Abbas, Nina Kraut, Munia Jabbar, Council on American–Islamic Relations, Nadhira Al–Khalili, Washington, DC, for Plaintiffs.

Joseph William Eshelman, III, Butzel Long, Washington, DC, Daniel Horowitz, Lafayette, CA, Martin Garbus, Eaton & Van Winkle LLP, New York, NY, David Eliezer Yerushalmi, J. Thomas Smith, Attorney at Law, Franklin, TN, Robert J. Muise, Ann Arbor, MI, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiffs Council on American–Islamic Relations Action Network, Inc. (“CAIR–AN”) and CAIR–Foundation, Inc. (“CAIR–F”) bring this action against Chris Gaubatz, his father Paul David Gaubatz (“David Gaubatz”), the Center for Security Policy, Inc. (“CSP”) and three of its employees, Christine Brim, Adam Savit, and Sarah Pavlis, the Society of Americans for National Existence (“SANE”), and David Yerushalmi. Plaintiffs allege that Defendants conceived and carried out a scheme to place Chris Gaubatz in an internship with Plaintiffs under an assumed identity, which allowed him to remove and copy thousands of Plaintiffs' internal documents and to record private conversations involving Plaintiffs' employees without consent or authorization. In this action, Plaintiffs seek relief under the Federal Wiretap Act, 18 U.S.C. §§ 2510 –2522, the District of Columbia analog (the “D.C. Wiretap Act”), D.C. Code §§ 23–541 –23–556, the Stored Communications Act, 18 U.S.C. §§ 2701 –2712, and the common law of the District of Columbia.¹ Presently before the Court are Defendants' [154] Motion for Summary Judgment and Plaintiff CAIR–F's [156] Motion for Partial Summary Judgment. Upon consideration of the parties' submissions,² the applicable authorities, and the entire record, the Court shall DENY Plaintiff CAIR–F's [156] Motion for Partial Summary Judgment, and GRANT IN PART and DENY IN PART Defendants' [154] Motion for Summary Judgment. With respect to Plaintiffs' Wiretap Act claims (Count I), the Defendants' motion is GRANTED as to: (1) claims by Plaintiff CAIR–AN; (2) Plaintiff CAIR–F's claims for use and disclosure liability against Defendants Savit, Pavlis, SANE, and Yerushalmi; (3) Plaintiff CAIR–F's claims for procurement liability against Defendants Savit and Pavlis; (4) Plaintiff CAIR–F's claims for conspiring and aiding and abetting liability against all Defendants; and (5) Plaintiff CAIR–F's respondeat superior claims against Defendants Savit, Pavlis, and SANE. With respect to Count I, Defendants' motion is DENIED as to: (1) Plaintiff CAIR–F's claims against Chris Gaubatz; (2) Plaintiff CAIR–F's claims for use and disclosure liability against Defendants David Gaubatz, CSP, and Brim; (3) Plaintiff CAIR–F's claims for procurement liability against Defendants David Gaubatz, CSP, Brim, SANE, and Yerushalmi; and (4) Plaintiff CAIR–F's respondeat superior claims against Defendants David Gaubatz, CSP, Brim, and Yerushalmi. With respect to Plaintiffs' Stored Communications Act claims (Count II), Defendants' motion is GRANTED as to: (1) claims by Plaintiff CAIR–AN; (2) Plaintiff CAIR–F's claims for conspiring and aiding and abetting liability against all Defendants; (3) Plaintiff CAIR–F's respondeat superior claims against Defendants Savit, Pavlis, and SANE. With respect to Count II, Defendants' motion is DENIED as to: (1) Plaintiff CAIR–F's claims against Chris Gaubatz; and (2) Plaintiff CAIR–F's respondeat superior claims against Defendants David Gaubatz, CSP, Brim, and Yerushalmi. Defendants' motion is GRANTED with respect to Plaintiffs' claims for breach of contract (Count V) and tortious interference with contract (Count VI). Defendants' motion is DENIED WITHOUT PREJUDICE as to all of Plaintiffs' remaining claims. The parties shall submit additional briefing as to these claims as set out in this Opinion and the accompanying Order.

I. BACKGROUND

A. Factual Background

Plaintiff Council on American–Islamic Relations Action Network, Inc. (“CAIR–AN”) is a self-described Muslim advocacy group with a mission that includes enhancing the understanding of Islam and promoting a positive image of Muslims in the United States. TAC ¶ 10. Plaintiff Council on American–Islamic Relations Foundation (“CAIR–F”) is an organization related to CAIR–AN that was created on February 15, 2005. Defs.' Facts ¶ 10. Although Plaintiff CAIR–AN was initially named Council on American–Islamic Relations, Inc., id. ¶ 6, CAIR–AN has used the name CAIR as its de facto public name since its' founding. Id. “CAIR” is not a registered trade name or otherwise legal d/b/a in the District of Columbia. Id. ¶ 7. On June 15, 2007, CAIR–AN officially changed its name from Council on American–Islamic Relations, Inc. to its current name Council on American–Islamic Relations Action Network, Inc. Id . ¶ 8. CAIR–AN owns the real property at 453 New Jersey Avenue SE, Washington, DC, the location of Plaintiffs' offices at issue in this suit. Id. ¶ 11. As best as the Court can understand, CAIR–F occupies the offices as a tenant by virtue of an unwritten agreement. Id. ¶ 12.³

Defendant Center for Security Policy, Inc. (“CSP”) is an IRC § 501(c)(3) non-profit, Washington, D.C. based think tank founded in 1988 by Frank Gaffney. Id. ¶ 1. Defendant Christine Brim is currently the chief operating officer of CSP. Pls.' Facts ¶ 3. CSP believes CAIR (the public term apparently used to refer to CAIR–AN and CAIR–F) to be a Muslim Brotherhood front group operating in the United States. Id. ¶ 6. CSP often focuses its efforts on CAIR because it regards CAIR as an organization that is “hostile to American security interests.” Id. ¶ 7.

In late 2007 and early 2008, Defendant CSP initiated a documentary film project, referred to by Defendants as the “CAIR Documentary Film Project.” Defs.' Facts ¶ 29. Defendants describe the film as a study of Islamism and organizations linked to the Muslim Brotherhood in the United States, with a particular emphasis on Plaintiffs. Id. ¶¶ 29, 31. The parties agree that the purpose of the documentary was in part to portray CSP's beliefs about CAIR and the Muslim Brotherhood in America. Pls.' Facts ¶ 15. CSP gave the project a working title of “CAIR Film Project” and Gaffney described the project as “an effort to make a film about the Council on American–Islamic Relations.” Id. ¶ 17; Pls.' Ex. 7 (Gaffney Dep.) at 106:12–16.

In order to produce this documentary, CSP and non-party Manifold Productions created Publius Productions, LLC, an entity in which both companies had a 50 percent ownership interest. Defs.' Facts ¶ 38. Defendants state that pursuant to this agreement, Manifold would act as the producer of the documentary and CSP would act primarily as its financier. Id. Internally, Publius referred to the CAIR Documentary Film Project as a “film proposal” called “Islam and America.” Id. ¶ 40.

Defendants state that CSP conceived of and proposed the film as a series of interviews with individuals in the national security field relating to the relationship between the Muslim Brotherhood and CAIR–AN.Id. ¶ 30. In order to provide background video to air alongside these interviews, Defendants state that they planned for the proposed film to include “B-roll” video of Plaintiffs and other organizations Defendants believed to be affiliated with the Muslim Brotherhood. Id. B-roll is a term in film production for “general imagery” or more specifically “visuals which support the audio that's gathered in an interview.” Id. ¶ 33.

Defendants state that in order to obtain this B-roll, CSP contacted another organization, Defendant Society of Americans for National Existence (“SANE”). Id. ¶ 42. SANE is a nonprofit organization founded by, among others, Defendant David Yerushalmi and his wife. Pls.' Facts ¶ 10. CSP reached out to SANE though it's then-president Yerushalmi, who also served at this time as general counsel to CSP. Defs.' Facts ¶ 42.

Defendant SANE, through Yerushalmi, recommended Defendant David Gaubatz to Defendant CSP to conduct “field research” for the film. Id. ¶ 44. David Gaubatz had an ongoing contractual relationship with SANE to conduct field research for an unrelated project entitled “Mapping Sharia.” Id. ¶ 43–44. Apparently because of this pre-existing relationship, CSP, SANE, and David Gaubatz decided that SANE would contract with David Gaubatz to provide, according to Defendants, “the field research services required to obtain the B-roll for the CAIR Documentary Film Project.” Id. ¶ 47. Defendant SANE also entered into a contract with Publius “to provide researchers to obtain B-roll”, in effect creating a relationship between Publius and David Gaubatz. Id. ¶ 48. Defendants state that all parties understood that SANE was acting as a contractual intermediary and that all funding to pay David Gaubatz would be paid by CSP, either through Publius or directly from CSP. Id. ¶ 52. In March 2008, Manifold terminated its involvement in the CAIR Documentary Film Project. Id. ¶ 53. At this point, CSP became the sole operator of Publius. Id. ¶ 54.

As part of the film proposal, CSP hoped to gather video footage from inside Plaintiffs' office. Pls.' Facts ¶ 18. Prior to entering into these contracts, Frank Gaffney and David Gaubatz discussed Gaubatz's ability to obtain B-roll from inside CAIR offices. Id. ¶ 25. Gaffney and Gaubatz also discussed David Gaubatz hiring individuals who would volunteer to work as interns in CAIR offices and obtain film for the project. Id. According to Defendants, in mid-March 2008, Publius, David Gaubatz, and CSP decided that David Gaubatz would employ, train, and supervise researchers to volunteer at offices affiliated with Plaintiff CAIR–AN or at CAIR–AN itself, and use an audio-video recorder in an attempt to capture B-roll for the documentary film proposal....