Ctr. for Immigration Studies v. Cohen

• Decision Date: 13 September 2019
• Docket Number: Civil Action No. 19-0087 (ABJ)
• Citation: 410 F.Supp.3d 183
• Parties: CENTER FOR IMMIGRATION STUDIES, Plaintiff, v. Richard COHEN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

410 F.Supp.3d 183

CENTER FOR IMMIGRATION STUDIES, Plaintiff,

v.Richard COHEN, et al., Defendants.

Civil Action No. 19-0087 (ABJ)

United States District Court, District of Columbia.

Signed September 13, 2019

G. Robert Blakey, Law Office of G. Robert Blakey, Paradise Valley, AZ, Julie B. Axelrod, Center for Immigration Studies, Washington, DC, Howard W. Foster, Pro Hac Vice, Matthew Galin, Pro Hac Vice, Foster PC, Chicago, IL, for Plaintiff.

Chad R. Bowman, Ballard Spahr LLP, Washington, DC, Dana R. Green, The New York Times Company, New York, NY, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff, the Center for Immigration Studies ("CIS"), brought this civil suit against defendants, Richard Cohen and Heidi Beirich, two individuals who operate the Southern Poverty Law Center ("SPLC"), alleging a violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Compl. [Dkt. # 1]. Plaintiff alleges that defendants conspired to violate RICO when SPLC designated CIS a "hate group" in 2016. Id. ¶¶ 13, 28.

Defendants moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), Defs.' Mot. to Dismiss [Dkt. # 11] ("Defs.' Mot."), and plaintiff opposed the motion. Pl.'s Opp. to Defs.' Mot. [Dkt. # 13] ("Pl.'s Opp."). Because plaintiff has not sufficiently alleged a predicate offense or a pattern of racketeering, the Court will grant defendants' motion to dismiss.

BACKGROUND

The Center for Immigration Studies ("CIS") is a non-profit organization incorporated in Washington, D.C. Compl. ¶ 3. CIS's mission is "providing immigration policymakers, the academic community, news media, and concerned citizens with reliable information about the social, economic, environmental, security, and fiscal consequences of legal and illegal immigration into the United States. Id. ¶ 16.

The Southern Poverty Law Center ("SPLC") is a non-profit organization with its headquarters in Montgomery, Alabama. Compl. ¶ 7. The organization monitors and publishes investigative reports and expert analyses on groups that it identifies as extremist "hate groups." Id. ¶ 11. Defendant Heidi Beirich leads SPLC's Intelligence Project, which publishes a blog called "Hatewatch." Id. ¶ 8. Richard Cohen is the President of SPLC, and as plaintiff puts it, "collaborates with Beirich in designating hate groups." Id. ¶ 9.

Plaintiff alleges that Cohen and Beirich designated CIS to be a hate group in 2016, although they knew that CIS did not meet SPLC's definition for a hate group. Compl. ¶¶ 13, 18. SPLC's definition is "an organization that – based on its official statements or principles, the statements of its leaders, or its activities – has beliefs or practices that attack or malign an entire class of people, typically for their immutable characteristics." Id. ¶ 14. SPLC went on to publish thirteen blog posts on Hatewatch in which SPLC "reiterat[ed] that CIS was a hate group." Id. ¶ 19.

According to plaintiff, because being an immigrant is not an immutable characteristic, Compl. ¶ 15, and because the principles of CIS do not attack or malign an entire class of people, defendants' hate group designation constitutes the crime of wire fraud within the meaning of 18 U.S.C. § 1343 because the blog posts were transmitted on the internet. Id. ¶¶ 20, 28. Plaintiff asserts that defendants' goal was to "wreck" and "destroy" CIS financially. Id. ¶ 22.

Plaintiff asserts that it has suffered damages in the form of lost donations. In 2018, the AmazonSmile Program removed CIS from its list of non-profit organizations eligible for donations. Compl. ¶ 23. This has resulted in a loss of "at least $10,000 in donations to date and damages are ongoing." Id. ¶ 24. Plaintiff also asserts that Guidestar USA, Inc., a non-profit watchdog, published SPLC's designation of CIS as a hate group on its website. Id. ¶ 25. CIS undertook an effort to remove the designation, and while GuideStar ultimately removed it, plaintiff maintains that this caused a "diversion of resources from CIS' mission and likely deterred contributions." Id.

On January 16, 2019, plaintiff filed a complaint in this court alleging defendants conspired to violate RICO when they falsely designated plaintiff as a hate group in furtherance of a scheme to destroy plaintiff. Compl. ¶¶ 28–31. Plaintiff seeks judgment against defendants for treble damages and "an injunction prohibiting defendants from again calling CIS a hate group and requiring defendants to state on the SPLC website that CIS is not a hate group, pursuant to 18 U.S.C. § 1964(a)." Id. ¶¶ 32–33.

STANDARD OF REVIEW

"To survive a [ Rule 12(b)(6) ] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Iqbal , the Supreme Court reiterated the two principles underlying its decision in Twombly : "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. And "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679, 129 S.Ct. 1937, citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955.

A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id. , quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

In evaluating a motion to dismiss under Rule 12(b)(6), a court must "treat the complaint's factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ " Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation omitted), quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979) ; see also Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v. Principi , 394 F.3d 970, 972 (D.C. Cir. 2005). Therefore, when considering a motion to dismiss, a court must construe a complaint liberally in the plaintiff's favor. Kowal v. MCI Commc'ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the court accept plaintiff's legal conclusions. Id. ; see also Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao , 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624–25 (D.C. Cir. 1997).

ANALYSIS

Defendants have made several arguments in support of their motion to dismiss: (1) plaintiff fails to allege a cognizable predicate offense under RICO; (2) plaintiff fails to allege a pattern of racketeering activity; (3) plaintiff fails to allege each defendant's participation in the scheme; (4) plaintiff fails to allege proximate causation between the predicate acts and the alleged harm; and (5) plaintiff's RICO claim is actually a defamation claim which is barred by the First Amendment, as is the injunctive relief plaintiffs seek. Defs.' Mot. at 9–19.

The Court finds that plaintiff has failed to allege the predicate offense and a pattern of racketeering necessary for a RICO claim. Thus, plaintiff's lawsuit fails and the Court need not address defendants' other arguments.

To state a claim for a RICO conspiracy, "the complaint must allege that (1) two or more people agreed to commit a subsection (c) offense, and (2) a defendant agreed to further that endeavor." RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP , 682 F.3d 1043, 1048 (D.C. Cir. 2012), citing Salinas v. United States , 522 U.S. 52, 65, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) ; see 18 U.S.C. § 1962(d). Subsection (c) provides that:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

18 U.S.C. § 1962(c). Congress enacted § 1962(c), and RICO generally, "to target ... the exploitation and appropriation of legitimate business by corrupt individuals." Yellow Bus Lines, Inc. v. Drivers, Chauffeurs & Helpers Local Union 639 , 883 F.2d 132, 139 (D.C. Cir. 1989), modified on other grounds, 913 F.2d 948 (D.C. Cir. 1990), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991) (citation omitted). Section 1964(c) allows "[a]ny person injured in his business or property by reason of a violation of section 1962" to bring a civil suit for treble damages, costs, and attorneys' fees. § 1964(c).

I. Plaintiff has failed to allege a predicate offense.

Plaintiff's RICO claim is predicated upon alleged violations of the wire fraud statute, 18 U.S.C. § 1343, Compl. ¶¶ 20, 28, which is listed as a predicate offense under 18 U.S.C. 1961...