Council On Am.–islamic Relations Action Network Inc. v. Gaubatz, Civil Action No. 09–02030 (CKK).
Decision Date | 24 June 2011 |
Docket Number | Civil Action No. 09–02030 (CKK). |
Citation | 793 F.Supp.2d 311,79 Fed.R.Serv.3d 1221 |
Parties | COUNCIL ON AMERICAN–ISLAMIC RELATIONS ACTION NETWORK, INC., et al., Plaintiffs,v.Paul David GAUBATZ, et al., Defendants. |
Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
Nadhira Al–Khalili, Washington, DC, for Plaintiffs.Bernard S. Grimm, Cozen O'Connor, Washington, DC, Daniel Horowitz, Lafayette, CA, Martin Garbus, Eaton & Van Winkle LLP, New York, NY, for Defendants.
Plaintiffs Council on American–Islamic Relations Action Network, Inc. (“CAIR–AN”) and CAIR–Foundation, Inc. (“CAIR–F”) bring this action against two sets of defendants: Paul David Gaubatz and Chris Gaubatz (the “Gaubatz Defendants”); and the Center for Security Policy, Inc. (“CSP”) and three of its employees, Christine Brim, Adam Savit, and Sarah Pavlis (collectively with CSP, the “CSP Defendants”). Plaintiffs allege that Defendants conceived and carried out a scheme to place Chris Gaubatz in an internship with CAIR–AN 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. Plaintiffs contend that Defendants thereafter publicly disclosed and published the contents of those documents and recordings. In this action, Plaintiffs seek relief under Titles I and II of the Electronic Communications Privacy Act of 1986 (the “ECPA”), 18 U.S.C. §§ 2510–2712, and the common law of the District of Columbia.1
There are three motions pending before the Court and addressed in this memorandum opinion: the Gaubatz Defendants' [34] Motion to Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Motion to Dismiss”); Plaintiffs' [43] Motion to Amend Complaint (“First Motion to Amend”); and Plaintiffs' [48] Motion for Leave to File Second Amended Complaint (“Second Motion to Amend”). Upon consideration of the submissions by Plaintiffs and the Gaubatz Defendants, the relevant authorities, and the record as a whole, the Court shall grant in part and deny in part the Gaubatz Defendants' Motion to Dismiss and grant Plaintiffs' First Motion to Amend and Second Motion to Amend.
CAIR–AN is a self-described national Muslim advocacy group with a mission that includes enhancing the understanding of Islam and promoting a positive image of Muslims in the United States. Second Am. Compl. (“2d Am. Compl.”), ECF No. [48–4], ¶ 10.2 CAIR–F is an organization supporting CAIR–AN and its mission. Id. ¶ 11. Both CAIR–AN and CAIR–F are non-profit corporations incorporated in the District of Columbia. Id. ¶¶ 10–11. They share physical office space in the District of Columbia that is generally closed to the public and accessible to third parties only upon invitation. Id. ¶¶ 10–11, 27.
Chris Gaubatz is Paul David Gaubatz's son.2d Am. Compl. ¶¶ 12–13. CSP is a nonprofit corporation incorporated and located in the District of Columbia. Id. ¶ 14. Christine Brim, Adam Savit, and Sarah Pavlis are all employed by CSP. Id. ¶¶ 15–17.
Sometime prior to April 2008, Defendants conceived a plan to infiltrate Plaintiffs' offices with the aim of obtaining Plaintiffs' internal documents and recording conversations involving Plaintiffs' employees.2d Am. Compl. ¶ 19. According to their plan, Chris Gaubatz would attempt to secure an internship with CAIR–AN under an assumed identity and deliver any materials that he was able to obtain from Plaintiffs' offices to Paul David Gaubatz and the CSP Defendants for further dissemination. Id. In furtherance of this plan, the Gaubatz Defendants entered into two written agreements with CSP to provide CSP with materials. Id. ¶ 35.
Consistent with the agreed-upon plan, Chris Gaubatz sought and obtained an internship with the office for CAIR–AN Maryland/Virginia in April 2008. 2d Am. Compl. ¶ 20. However, in June 2008, after it was announced that the office for CAIR–AN Maryland/Virginia would be closing, Chris Gaubatz sought an internship at CAIR–AN's headquarters in the District of Columbia. Id. ¶¶ 10, 21.
Chris Gaubatz obtained his internship with CAIR–AN under false pretenses. During the application process, he made false statements and omitted important facts about his background, interests, and intentions. 2d Am. Compl. ¶¶ 22–23. Among other things, he used an assumed name and represented that he was a student at a liberal arts college, that his father was in the construction business, and that he was a practicing Muslim. Id. ¶ 22. When Chris Gaubatz made these representations, he knew them to be false, and he made them in order to induce Plaintiffs to repose trust and confidence in him so that he might obtain an internship with CAIR–AN. Id. ¶¶ 23–25. He succeeded and was hired as an intern. Id. ¶ 29.
As a condition of and in consideration for his internship, Chris Gaubatz signed a confidentiality and non-disclosure agreement (the “Confidentiality Agreement”).2d Am. Compl. ¶¶ 29, 102. The other party to the agreement is identified as the “Council on American–Islamic Relations.” Id. Ex. A (Confidentiality Agreement) at 1. The agreement provides:
Non–Disclosure of “Confidential Information”
I agree that I shall not at any time after the termination of my internship with CAIR, use for myself or others, or disclose or divulge to others ... any trade secrets, confidential information, or any other proprietary data of CAIR in violation of this agreement.... The intern further agrees to take and protect the secrecy of, and to avoid disclosure or use of, the “Confidential Information” in order to prevent it from falling into public domain or into the possession of persons not bound to maintain the confidentiality of Confidential Information.
Id. Ex. A (Confidentiality Agreement) at 1–2. Paul David Gaubatz and the CSP Defendants were aware of the Confidentiality Agreement because Chris Gaubatz told them that he had signed the agreement. Id. ¶ 31.
Chris Gaubatz worked as an intern for CAIR–AN until August 2008, though he returned to perform additional work over a weekend in September 2008. 2d Am. Compl. ¶ 32. During the course of his internship, he sought to collect information about Plaintiffs and their employees with the intention of publicly disclosing that information for profit and in order to cast Plaintiffs in a negative light. Id. ¶ 36. To that end, he physically removed more than 12,000 of Plaintiffs' internal documents without authorization and delivered those documents to Paul David Gaubatz. Id. ¶¶ 37–38. Electronic documents, including e-mails and computer-generated spreadsheets, were obtained by accessing Plaintiffs' computers and computer systems with user-names and passwords that were not assigned to him. Id. ¶¶ 40–41.
Chris Gaubatz also used a concealed electronic device to make audio and video recordings of conversations involving Plaintiffs' employees without authorization and consent.2d Am. Compl. ¶ 42. He was able to compile over fifty computer discs containing recordings of Plaintiffs' employees. Id. ¶ 44. The Gaubatz Defendants delivered the recordings to CSP and Christine Brim who, with the assistance of the other CSP Defendants, organized and edited the recordings. Id. ¶¶ 45–46.
Defendants publicly disclosed the documents and recordings that they obtained from Plaintiffs. The CSP Defendants provided a compilation of recordings to the third-party publisher of WND Books and a website identified as WorldNet Daily, http:// www. wnd. com (last visited June 17, 2011).2d Am. Compl. ¶ 47. Meanwhile, Paul David Gaubatz posted documents and recordings on his blog, David Gaubatz, http:// dgaubatz. blogspot. com (last visited June 17, 2011).2d Am. Compl. ¶¶ 56–57. In addition, Paul David Gaubatz and a co-author wrote a book about Chris Gaubatz's internship with CAIR–AN. Id. ¶ 48; see also P. David Gaubatz & Paul Sperry, Muslim Mafia: Inside the Secret World That's Conspiring to Islamize America (1st ed., WND Books 2009) (“ Muslim Mafia ”). In Muslim Mafia, the authors characterize Chris Gaubatz's internship as a “six-month counterintelligence operation,” admitting that Chris Gaubatz “routinely load [ed] the trunk of his car with boxes of sensitive documents and deliver[ed] them into the custody of investigative project leader P. David Gaubatz.” 2d Am. Compl. ¶ 50. The book references and quotes from materials obtained from Plaintiffs' offices, including internal memoranda, minutes of board meetings, budget reports, real estate records, bank statements, strategy papers, employee evaluations, and e-mails. Id. ¶ 51.
The original Complaint was filed on October 29, 2009. See Compl., ECF No. [1]. The Complaint was filed in the name of the “Council on American–Islamic Relations,” which for reasons that will soon become clear the Court will refer to as CAIR–AN. See infra Part III.A. The Complaint named as defendants the Gaubatz Defendants and ten John and Jane Does whose identities were then unknown but who were alleged to have participated in and benefitted from the activities alleged in the Complaint. 2d Am. Compl. ¶¶ 12–14. The original Complaint asserted a single claim under Title II of the ECPA and common law claims for conversion, breach of fiduciary duty, breach of contract, and trespass. Id. ¶¶ 49–77.
Contemporaneous with the filing of the Complaint, CAIR–AN moved for a temporary restraining order and a preliminary injunction. See Mem. in Supp. of Pl.'s Mot. for a TRO & Prelim. Inj., ECF No. [2–1]. On November 2, 2009, after repeated efforts to contact the Gaubatz Defendants proved fruitless, the Court held an ex parte hearing to address CAIR–AN's request for a temporary restraining order. See Min. Entry (Nov. 2, 2009). On November 3, 2009, the Court granted in part and denied in part CAIR–AN's motion for a temporary restraining order, temporarily prohibiting the...
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