O'Rourke v. Dominion Voting Sys. Inc.

• Decision Date: 03 August 2021
• Docket Number: Civil Action No. 20-cv-03747-NRN
• Parties: Kevin O'ROURKE, Nathaniel L. Carter, Lori Cutunilli, Larry D. Cook, Alvin Criswell, Kesha Crenshaw, Neil Yarbrough, and Amie Trapp, Plaintiffs, v. DOMINION VOTING SYSTEMS INC., a Delaware corporation, Facebook, Inc., a Delaware corporation, Center for Tech and Civic Life, an Illinois non-profit organization, Mark E. Zuckerberg, individually, Priscilla Chan, individually, Brian Kemp, individually, Brad Raffensperger, individually, Gretchen Whitmer, individually, Jocelyn Benson, individually, Tom Wolf, individually, Kathy Boockvar, individually, Tony Evers, individually, Ann S. Jacobs, individually, Mark L. Thomsen, individually, Marge Bostelman, individually, Julie M. Glancey, Dean Knudson, individually, Robert F. Spindell, Jr., individually, and Does 1-10,000, Defendants.
• Court: U.S. District Court — District of Colorado

552 F.Supp.3d 1168

Kevin O'ROURKE, Nathaniel L. Carter, Lori Cutunilli, Larry D. Cook, Alvin Criswell, Kesha Crenshaw, Neil Yarbrough, and Amie Trapp, Plaintiffs,

v.DOMINION VOTING SYSTEMS INC., a Delaware corporation, Facebook, Inc., a Delaware corporation, Center for Tech and Civic Life, an Illinois non-profit organization, Mark E. Zuckerberg, individually, Priscilla Chan, individually, Brian Kemp, individually, Brad Raffensperger, individually, Gretchen Whitmer, individually, Jocelyn Benson, individually, Tom Wolf, individually, Kathy Boockvar, individually, Tony Evers, individually, Ann S. Jacobs, individually, Mark L. Thomsen, individually, Marge Bostelman, individually, Julie M. Glancey, Dean Knudson, individually, Robert F. Spindell, Jr., individually, and Does 1-10,000, Defendants.

Civil Action No. 20-cv-03747-NRN

United States District Court, D. Colorado.

Signed August 3, 2021

Ernest John Walker, Ernest J. Walker Law Offices, Benton Harbor, MI, Gary D. Fielder, Gary D. Fielder, Law Office of, Denver, CO, for Plaintiff Kevin O'Rourke.

Ernest John Walker, Ernest J. Walker Law Offices, Benton Harbor, MI, for Plaintiffs Nathaniel L. Carter, Lori Cutunilli, Larry D. Cook, Alvin Criswell, Kesha Crenshaw, Neil Yarbrough, Amie Trapp.

Amanda Kristine Houseal, Bridget C. DuPey, David Meschke, Stanley L. Garnett, Brownstein Hyatt Farber Schreck LLP, Denver, CO, for Defendant Dominion Voting Systems, Inc.

Craig Brian Streit, Gibson Dunn & Crutcher LLP, San Francisco, CA, Joshua Seth Lipshutz, Gibson Dunn & Crutcher LLP, Washington, DC, Natalie Jean Hausknecht, Ryan Thomas Bergsieker, Gibson Dunn & Crutcher LLP, Denver, CO, for Defendant Facebook, Inc.

Joshua Adam Matz, Louis William Fisher, Marcella E. Coburn, Michael Skocpol, Kaplan Hecker & Fink LLP, New York, NY, for Defendant Center for Tech and Civic Life.

Charlene Swartz McGowan, Georgia Attorney General's Office, Atlanta, GA, for Defendants Brian Kemp, Brad Raffensperger.

Heather Stuht Meingast, Michigan Department of Attorney General, Lansing, MI, for Defendants Gretchen Whitmer, Jocelyn Benson.

Jacob Biehl Boyer, Michael John Fischer, Pennsylvania Office of Attorney General, Philadelphia, PA, for Defendants Tom Wolf, Kathy Boockvar.

ORDER GRANTING DEFENDANTS’ MOTIONS FOR SANCTIONS (Dkt. ##98, 101, 102, 103, & 109)

N. REID NEUREITER, United States Magistrate Judge This matter is before the Court with the consent of the Parties, referred for all purposes by Chief Judge Philip A. Brimmer pursuant to 28 U.S.C. § 636(c).

1. Procedural History

This case was filed on December 22, 2020, more than a month-and-a-half after the November 3, 2020 Presidential election. As filed, the suit was a class action brought on behalf of all American registered voters, alleging that their constitutional right to vote for President somehow was unconstitutionally infringed on or burdened by the Defendants. Claims included alleged violations of the Electors, Due Process, and Equal Protections Clauses of the Constitution, and alleged violations of the First Amendment, including burdens on political speech and freedom of the press. On March 15, 2021, Plaintiffs sought to amend the Complaint to add more than 150 additional plaintiffs and several new claims, including claims brought pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO").

This Court dismissed the entire case for lack of standing on April 28, 2021, granting motions to dismiss filed by three private entity defendants, Facebook, Inc. ("Facebook"), Dominion Voting Systems, Inc. ("Dominion"), and the Center for Tech and Civic Life ("CTCL"). See Dkt. #92. In the order dismissing the case, the Court denied Plaintiffs’ Motion for Leave to Amend, finding that any amendment would be futile. Various state officials (including governors) from the states of Georgia, Michigan, Pennsylvania, and Wisconsin (the "State Official Defendants"), who also were named as defendants in the case, had also filed motions to dismiss and had opposed Plaintiffs’ request for leave to amend. But Plaintiffs voluntarily dismissed these State Official Defendants prior to issuance of my order of dismissal. Therefore, the State Official Defendants’ motions to dismiss were denied as moot.

Defendants Dominion, Facebook, and CTCL have moved for sanctions pursuant to Fed. R. Civ. Pro. 11 ; 28 U.S.C. § 1927 ; and the Court's inherent authority. See Dkt. #98 (Dominion's Motion); Dkt. #102 (CTCL's Motion); and Dkt. #103 (Facebook's Motion). Defendants from the state of Michigan, Governor Gretchen Whitmer and Secretary of State Jocelyn Benson (the "Michigan Defendants"), also have moved for sanctions pursuant to Rule 11, the Court's inherent authority, and under 28 U.S.C. § 1927. See Dkt. #109. Also moving for sanctions are Pennsylvania Governor Tom Wolf and Pennsylvania's former Secretary of the Commonwealth, Kathy Boockvar (the "Pennsylvania Defendants"). See Dkt. #101. The Pennsylvania Defendants’ sanctions motion differs only in that they do not seek sanctions under Rule 11 because Plaintiffs voluntarily dismissed the Pennsylvania Defendants from the case within the time provided under the safe-harbor provisions of that Rule.

Plaintiffs have responded to the Defendants’ various motions for sanctions and the moving Defendants have filed replies. I held a hearing on the Motions on July 16, 2021.

2. Jurisdiction to hear Sanctions Motion

While dismissal terminates a court's subject-matter jurisdiction over the substantive merits of an action, the Court nonetheless "retains the inherent authority to issue orders on matters collateral to the merits." Lundahl v. Halabi , 600 F. App'x 596, 605 (10th Cir. 2014). This authority extends to conducting proceedings to address requests for sanctions and imposing "any sanction for abusive conduct for which sanctions are authorized by the federal rules of procedure or federal statutes, including awarding costs or attorney's fees." Id. at 605–06.

As the Supreme Court has explained in justifying the imposition of sanctions, even after a voluntary dismissal, on a plaintiff for filing a baseless complaint:

The filing of complaints, papers, or other motions without taking the necessary care in their preparation is a separate abuse of the judicial system, subject to separate sanction. As noted above, a voluntary dismissal does not eliminate the Rule 11 violation. Baseless filing puts the machinery of justice in motion, burdening courts and individuals alike with needless expense and delay. Even if the careless litigant quickly dismisses the action, the harm triggering Rule 11 ’s concerns has already occurred. Therefore, a litigant who violates Rule 11 merits sanctions even after a dismissal. Moreover, the imposition of such sanctions on abusive litigants is useful to deter such misconduct. If a litigant could purge his violation of Rule 11 merely by taking a dismissal, he would lose all incentive to "stop, think and investigate more carefully before serving and filing papers."

Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 399, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (quoting Amendments to Federal Rules of Civil Procedure, 97 F.R.D. 165, 192 (1983) (Letter from Judge Walter Mansfield, Chairman, Advisory Committee on Civil Rules) (Mar. 9, 1982)).

Accordingly, the Court retains jurisdiction to rule on Defendants’ motions for sanctions.

3. The Lawsuit

This lawsuit arises out of the 2020 election for President of the United States. The original Complaint (Dkt. #1) purported to be a class action lawsuit on behalf of all American registered voters, alleging a vast conspiracy between four governors, secretaries of state, and various election officials of Michigan, Wisconsin, Pennsylvania and Georgia; along with Dominion, a private supplier of election and voting technology; the social media company Facebook; CTCL, a non-profit organization dedicated to making elections more secure and inclusive; as well as Facebook founder Mark Zuckerberg and his wife Priscilla Chan.

I use the words "vast conspiracy" purposefully. The Complaint is one enormous conspiracy theory. And a conspiracy is what the original Complaint, all 84 pages and 409-plus paragraphs, alleged: that "the Defendants engaged in concerted action to interfere with the 2020 presidential election through a coordinated effort to, among other things, change voting laws without legislative approval, use unreliable voting machines, alter votes through an illegitimate adjudication process, provide illegal methods of voting, count illegal votes, suppress the speech of opposing voices, disproportionally and privately fund only certain municipalities and counties, and other methods, all prohibited by the Constitution." Dkt. #1 at 2, ¶ 4 (emphasis added).

So, this was not a normal case in any sense. Plaintiffs purported to represent 160 million American registered voters and came seeking a determination from a federal court in Colorado that the actions of multiple state legislatures, municipalities, and state courts in the conduct of the 2020 election should be declared legal nullities. See Dkt. #1 at 83 (asking that the Court "[d]eclare the actions of the Defendants, as herein described, as unconstitutional and ultra vires, thereby making them legal nullities"). This presumably would have included the certification of the votes of the states and the subsequent inauguration of President Biden. See , e.g., Dkt. #1 at 50, ¶¶ 256–57 (alleging that the "certification of the Election in Pennsylvania is unconstitutional" and that Pennsylvania's certification of the Election "is void ab initio "); Id. at 58, ¶¶ 280–81 (alleging that the certification of the election in Wisconsin was ultra vires , unconstitutional and "void ab initio ").

While Plaintiffs’ counsel insist that the lawsuit was not intended to challenge the election or reverse the results, the effect of the allegations and relief sought would be to sow doubt over the legitimacy of the Biden presidency and the mechanisms of...