Courser v. Mich. House of Representatives

• Decision Date: 11 July 2019
• Docket Number: Case No. 1:18-CV-882
• Citation: 404 F.Supp.3d 1125
• Parties: Todd COURSER, Plaintiff, v. MICHIGAN HOUSE OF REPRESENTATIVES, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

404 F.Supp.3d 1125

Todd COURSER, Plaintiff,

v.MICHIGAN HOUSE OF REPRESENTATIVES, et al., Defendants.

Case No. 1:18-CV-882

United States District Court, W.D. Michigan, Southern Division.

Signed July 11, 2019

Matthew S. DePerno, DePerno Law Office PLLC, Kalamazoo, MI, for Plaintiff.

Frank Anthony Dame, Jr., Gary P. Gordon, Jason Thomas Hanselman, Dykema Gossett PLLC, Lansing, MI, Cameron Jezewski Evans, Kevin Charles Majewski, Evans Law Group, P.C., Rochester, MI, for Defendants.

OPINION REGARDING DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFF'S MOTION FOR RULE 37(e) SANCTIONS

GORDON J. QUIST, UNITED STATES DISTRICT JUDGE

I. OVERVIEW

Plaintiff, Todd Courser, a former member of Michigan's House of Representatives, claims that he and his colleague, former Representative Cindy Gamrat,¹ were victims of a political conspiracy designed to squelch their voices within the Republican Caucus, eventually have them removed from office, and, as to Courser, subject him to criminal charges, all because they refused to sign the Republican Caucus Pledge. Courser says that the individual Defendants, Kevin Cotter, Tim Bowlin, Brock Swartzle, Norm Saari, Edward McBroom, and Hassan Beydoun (collectively the House Defendants), conspired with Keith Allard, Benjamin Graham, and Josh Cline—three legislative aides assigned to Courser's and Gamrat's staffs² —and Gamrat's then-husband, Joe Gamrat, and his friends, David Horr and Vincent Krell, to conduct illegal surveillance, wiretapping, and extortive acts in order to "dig up dirt" on Courser and Gamrat. Courser alleges that Defendants' activities gave rise to a host of violations of federal and state laws.

Reality, as we know from Courser's and Gamrat's own admissions, as well as public hearings and investigations, is much different. In fact, soon after Courser and Gamrat took office, Allard, Graham, and, to a lesser extent, Cline, began complaining to House leadership staff that Courser and Gamrat were requiring them to devote House work time to Courser's and Gamrat's political and personal tasks. Complicating matters further, Courser and Gamrat were engaged in an extramarital sexual relationship, which they hid in plain sight from Allard, Graham, Cline, and Joe Gamrat. The affair led to the now well-known "inoculate the herd" conversation between Courser and Graham in May of 2015 and Graham's recording of the conversation; Courser's subsequent false-flag-gay-sex email to his constituents; the August 7, 2015, Detroit News article reporting on the affair and Courser's and Gamrat's use of public funds to hide it; House investigations into the matter; and, eventually, Courser's resignation and Gamrat's expulsion.

This is Courser's second go-around in this Court. In 2016, Courser filed a complaint against the House Defendants, Allard, Graham, and Cline, and numerous other defendants alleging violations of federal and state law (Courser I ). After several defendants filed motions to dismiss, and facing an imminent response deadline, Courser amended his complaint and, minutes later, voluntarily dismissed his complaint. See Courser v. Allard , et al. , No. 1:16-CV-1108 (W.D. Mich.), ECF Nos. 121, 123. Courser returned about eighteen months later, separating his prior lawsuit into three separate cases, including the instant case against the House Defendants.

Courser's First Amended Complaint, which is the subject of this Opinion, like all of Courser's prior pleadings in his cases before this Court, is massive—148 pages, 676 paragraphs, and 18 counts—stretching Federal Rule of Civil Procedure Rule 8(a)(2)'s command that a pleading contain "a short and plain statement of the claim" to a point beyond all possible recognition. Invoking federal law, Courser alleges claims pursuant to 42 U.S.C. §§ 1983 and 1985 ; the federal wiretapping act, known as the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 – 2522 ; the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 ; the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962 ; and a claim that Article IV, § 16 of the Michigan Constitution is unconstitutionally vague. Courser alleges state-law claims for violation of the Fair and Just Treatment Clause of the Michigan Constitution; violation of the Michigan Fraudulent Access to Computers, Computer Systems, and Computer Networks Act, M.C.L. § 752.791 ; libel, slander, and defamation; civil stalking; invasion of privacy and intrusion upon seclusion; tortious interference with business relationships; intentional infliction of emotional distress; negligence and negligent infliction of emotional distress; indemnification pursuant to M.C.L. § 691.1408 ; fraudulent misrepresentation; intentional interference with or destruction of evidence and spoliation; and conspiracy and concert of action.

The House Defendants have filed motions to dismiss, in which they argue that Courser's claims are barred by Eleventh Amendment immunity, legislative immunity, qualified immunity and, as to the state-law tort claims, governmental immunity.³ The House Defendants further argue that, notwithstanding the First Amended Complaint's heft, it fails to state a claim, and at least some of Courser's claims are time-barred. The Court heard oral argument on the motions on June 11, 2019, and the motions are ready for decision.

For the reasons that follow, the Court will grant the House Defendants' motions. In addition, the Court will deny Courser's motion for sanctions pursuant to Rule 37 based on Defendants' alleged destruction of evidence and spoliation of evidence.

II. BACKGROUND

In November 2014, Gamrat and Courser were elected, respectively, as the State Representatives of Michigan's 80th House District and Michigan's 82nd House District. Keith Allard volunteered and served on Courser's political campaign. In addition, Benjamin Graham and Josh Cline were paid political consultants and served on Courser's campaign. (ECF No. 33 at Page ID.401.) In January 2015, Allard, Graham, and Cline were officially employed by the House. (Id. at PageID.402.) On January 2, 2015, the House assigned Allard to Gamrat's office and assigned Graham and Cline to Courser's office. (Id. )

At the time Courser and Gamrat took office, Defendants Cotter and McBroom were State Representatives, and Cotter was also the Speaker of the House. Defendant Bowlin was the Business Director and Chief Financial Officer for the House, Defendant Swartzle was the House General Counsel, Defendant Saari was Cotter's Chief of Staff, and Defendant Beydoun was the House Majority Legal Counsel. (Id. at PageID.393.)

Following the election, Gamrat and Courser agreed to a staff-sharing arrangement in which Allard, Graham, and Cline served as staff members in both districts and worked out of both Gamrat's and Courser's separate offices. (Id. at PageID.408.) From the beginning of their tenures as Representatives, Gamrat and Courser carried on an extramarital sexual relationship. Around the same time—January 2015—Allard, Graham, and Cline began meeting with Defendants Saari and Swartzle to issue reports on Courser and Gamrat. Courser claims that the purpose of these reports was to erode Courser's "credibility and effectiveness as a State Representative, and to force his vote according to COTTER's wishes." (Id. at PageID.405.) One such report included an incident in May 2015 in which Courser asked Graham to disseminate a "false flag" email designed as a "controlled burn" to "inoculate the herd." The email that Courser or someone on his behalf had authored contained a number of outlandish, untrue, and salacious allegations about Courser. Courser hoped that the email would create such a stir that any real information that came out about his affair with Gamrat would be ignored as an exaggeration or seen as a smear campaign. Graham refused to send the email, but Courser found someone else to send it. (ECF No. 28-5 at PageID.326–27.)

On July 6, 2015, Bowlin terminated Allard's and Graham's employment, apparently at the behest of Courser and Gamrat. (ECF No. 33 at PageID.411.) After Bowlin implemented the termination, Allard and Graham told Bowlin about their prior reports to Swartzle and Saari regarding Courser and Gamrat's affair and other misconduct. When the House leadership did not investigate, Allard and Graham provided their information, including an edited version of the audio recording of Graham's "false flag" conversation with Courser, to the Detroit News. On August 7, 2015, the Detroit News ran a story about Courser and Gamrat's sexual relationship and Courser's "false flag" email, as well as Courser's and Gamrat's misuse of taxpayer money to cover up their affair. The same day the Detroit News article ran, Cotter requested and directed Bowlin and the House Business Office (HBO) to investigate and prepare a report on Courser's and Gamrat's alleged misconduct. (ECF No. 28-5 at PageID.322.)

On August 31, 2015, the HBO issued a report that concluded further investigation by the House was warranted. On August 19, 2015, before Bowlin had completed the HBO report, the House adopted Resolution 129 to form a Select Committee to examine the qualifications of Gamrat and Courser and to determine their fitness to continue holding office. The Select Committee was composed of six members, four from the Republican Caucus and two from the Democratic Caucus. Defendant McBroom chaired the Select Committee.

On September 8, 2015, the HBO and the Office of the General Counsel issued a "Combined Statement," which set forth the facts uncovered during the investigation.⁴ The Combined Statement concluded with the recommendation that Courser be expelled and that Gamrat not be expelled but censured with severe conditions attached. (Combined Statement at 32.) On September 11, 2015, Courser resigned from the House before the House could act on the Select Committee's recommendation. (ECF No. 33 at PageID.455.) The full House voted to expel Gamrat the same day.

On or about August 2, 2015, Defendant...