Council on American–Islamic Relations Action Network, Inc. v. Gaubatz

• Decision Date: 17 September 2012
• Docket Number: Civil Action No. 09–02030 (CKK).
• Citation: 891 F.Supp.2d 13
• 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

891 F.Supp.2d 13

COUNCIL ON AMERICAN–ISLAMIC RELATIONS ACTION NETWORK, INC., et al., Plaintiffs,

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

Civil Action No. 09–02030 (CKK).

United States District Court, District of Columbia.

Sept. 17, 2012.

Nadhira Al–Khalili, Washington, DC, for Plaintiffs.

Joseph William Eshelman, III, Butzel Long Tighe Patton, PLLC, Washington, DC, Daniel Horowitz, Lafayette, CA, Martin Garbus, Eaton & Van Winkle LLP, New York, NY, David Eliezer Yerushalmi, Chandler, AZ, Erin Elizabeth Mersino, Thomas More Law Center, Robert J. Muise, American Freedom Law Center, Ann Arbor, MI, for Defendants.

MEMORANDUM OPINION AND ORDER

COLLEEN KOLLAR–KOTELLY, District Judge.

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: David Gaubatz and Chris Gaubatz (together, 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 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

There are two motions pending before the Court: the CSP Defendants' [97] Motion to Dismiss Certain Claims (“Motion to Dismiss”); and Plaintiffs' [112] Motion for Leave to File Third Amended Complaint (“Motion to Amend”). Through their Motion to Dismiss, the CSP Defendants argue that Plaintiffs cannot recover against them under the Federal and D.C. Wiretap Acts or the Stored Communications Act. Through their Motion to Amend, Plaintiffs seek to add a third set of Defendants—namely, the Society of Americans for National Existence (“SANE”) and its President, David Yerushalmi (“Yerushalmi”). Plaintiffs also look to assert additional claims against all Defendants, narrow the scope of their demand for damages, and add certain clarifying allegations in support of extant claims. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole, the CSP Defendants' Motion to Dismiss shall be GRANTED IN PART and DENIED IN PART and Plaintiffs' Motion to Amend shall also be GRANTED IN PART and DENIED IN PART. ( See infra Part IV.)

I. BACKGROUND

A. Factual Background

The following factual background is derived from the well-pleaded factual allegations in the Second Amended Complaint. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)(“[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.”). The Court shall also provide parallel citations to, and relevant allegations from, Plaintiffs' proposed Third Amended Complaint.

1. The Parties

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., ECF No. [76], ¶ 10; Third Am. Compl., ECF No. [112–1], ¶ 10.) CAIR–F is an organization supporting CAIR–AN and its mission. (Second Am. Compl. ¶ 11; Third Am. Compl. ¶ 11.) Both CAIR–AN and CAIR–F are non-profit corporations incorporated in the District of Columbia. (Second Am. Compl. ¶¶ 10–11; Third Am. Compl. ¶¶ 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. (Second Am. Compl. ¶¶ 10–11, 27; Third Am. Compl. ¶¶ 10–11, 34.)

Chris Gaubatz is David Gaubatz's son. (Second Am. Compl. ¶¶ 12–13; Third Am. Compl. ¶¶ 12–13.) CSP is a non-profit corporation incorporated and located in the District of Columbia. (Second Am. Compl. ¶ 14; Third Am. Compl. ¶ 14.) Christine Brim, Adam Savit, and Sarah Pavlis are all employed by CSP. (Second Am. Compl. ¶¶ 15–17; Third Am. Compl. ¶¶ 15–17.) SANE is a non-profit corporation incorporated and located in Arizona. (Third Am. Compl. ¶ 19.) Yerushalmi is SANE's President and CSP's General Counsel. ( Id. ¶ 18.)

2. Chris Gaubatz's Internship with CAIR–AN

Sometime prior to April 2008, Defendants ² conceived a plan to infiltrate Plaintiffs' offices with the aim of obtaining Plaintiffs' internal documents and recording conversations involving Plaintiffs' employees. (Second Am. Compl. ¶ 19; Third Am. Compl. ¶ 21.) 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 David Gaubatz and the CSP Defendants for further dissemination. (Second Am. Compl. ¶ 19; Third Am. Compl. ¶ 21.)

Consistent with the agreed-upon plan, Chris Gaubatz sought and obtained an internship with the office for CAIR–AN Maryland/Virginia in April 2008. (Second Am. Compl. ¶ 20; Third Am. Compl. ¶ 26.) But 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. (Second Am. Compl. ¶¶ 10, 21; Third Am. Compl. ¶¶ 10, 27.)

Chris Gaubatz obtained his internship with CAIR–AN under false pretenses. During the application process, Chris Gaubatz, acting on Yerushalmi's advice, made false statements and omitted important facts about his background, interests, and intentions. (Second Am. Compl. ¶¶ 22–23; Third Am. Compl. ¶¶ 28–30.) 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. (Second Am. Compl. ¶ 22; Third Am. Compl. ¶ 28.) 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. (Second Am. Compl. ¶¶ 23–25; Third Am. Compl. ¶¶ 30–32.) He succeeded and was hired as an intern. (Second Am. Compl. ¶ 29; Third Am. Compl. ¶ 36.)

As a condition of, and in consideration for, his internship, Chris Gaubatz signed a confidentiality and non-disclosure agreement. (Second Am. Compl. ¶¶ 29, 102; Third Am. Compl. ¶¶ 36, 112.) 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.

(Second Am. Compl., Ex. A at 1–2.) Defendants were aware of the confidentiality agreement because Chris Gaubatz told them that he had signed it. ( Id. ¶ 31; Third Am. Compl. ¶ 38.)

3. The Collection of Materials

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. (Second Am. Compl. ¶ 32; Third Am. Compl. ¶ 39.) 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. (Second Am. Compl. ¶ 36; Third Am. Compl. ¶ 45.) To that end, he physically removed more than twelve thousand of Plaintiffs' internal documents without authorization and delivered those documents to David Gaubatz. (Second Am. Compl. ¶¶ 37–38; Third Am. Compl. ¶¶ 46–47.) 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. (Second Am. Compl. ¶¶ 40–41; Third Am. Compl. ¶¶ 49–50.)

Chris Gaubatz also used a concealed electronic device to make audio and video recordings of conversations involving Plaintiffs' employees without authorization and consent. (Second Am. Compl. ¶ 42; Third Am. Compl. ¶ 5 1.) He was able to compile over fifty computer discs containing recordings of Plaintiffs' employees. (Second Am. Compl. ¶ 44; Third Am. Compl. ¶ 53.) 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. (Second Am. Compl. ¶¶ 44–46; Third Am. Compl. ¶¶ 53, 55–56.)

4. Agreements Between Defendants

In June 2007, before Chris Gaubatz sought an internship with CAIR–AN, David Gaubatz entered into a written agreement with SANE. (Third Am. Compl. ¶ 22.) Pursuant to this agreement, executed by Yerushalmi on SANE's behalf, SANE engaged David Gaubatz to “serve as the Director of the Mapping Shari'a in America: Knowing the Enemy Project.” ( Id., Ex. A at PDG000010.) The two-page agreement does not specify the nature of the services David Gaubatz was expected to provide or the contours of the referenced project. ( Id., Ex. A at PDG000010–11.) It does, however, speak of “field work” and contemplate that David Gaubatz would oversee the collection of “field data.” ( Id., Ex. A at P...