Storms v. Veterans of Foreign Wars of the United States, Inc., 15 Civ. 1038 (ENV) (ST)

• Decision Date: 28 October 2016
• Docket Number: 15 Civ. 1038 (ENV) (ST)
• Parties: DERRICK STORMS, Plaintiff, v. VETERANS OF FOREIGN WARS OF THE UNITED STATES, INC., WILLIAM A. THIEN, ERIC K. SHINSEKI, MAURA SULLIVAN, KEVIN SECOR, JOHN E. HAMILTON, ROBERT WALLACE, MICHAEL PASCAL, ART KOCK III, JOHN/JANE DOES 1-100, UNITED STATES, and VETERANS OF FOREIGN WARS OF THE UNITED STATES DEPARTMENT OF NEW YORK, INC., Defendants.
• Court: U.S. District Court — Eastern District of New York

DERRICK STORMS, Plaintiff, v. VETERANS OF FOREIGN WARS OF THE UNITED STATES, INC.,WILLIAM A. THIEN, ERIC K. SHINSEKI, MAURA SULLIVAN,KEVIN SECOR, JOHN E. HAMILTON, ROBERT WALLACE,MICHAEL PASCAL, ART KOCK III, JOHN/JANE DOES 1-100, UNITED STATES,

and VETERANS OF FOREIGN WARS OF THE UNITED STATES DEPARTMENT

OF NEW YORK, INC., Defendants.

15 Civ. 1038 (ENV) (ST)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

October 28, 2016

MEMORANDUM & ORDER

VITALIANO, D.J.

Plaintiff Derrick Storms, an attorney appearing pro se,¹ brought this action against the Veterans of Foreign Wars of the United States, Inc. ("the VFW"), the Veterans of Foreign Wars of the United States Department of New York, Inc. ("the VFW-NY"), numerous individual defendants, and John/Jane Does 1-100. Compl., ECF No. 1. As to each defendant, plaintiff asserts claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), as well as state law tort and breach of contract claims. Id. ¶¶ 75-121. Three separate motions to dismiss the complaint were filed by: (1) theVWF, William A. Thien, John E. Hamilton, and Robert E. Wallace (collectively, "the VFW defendants"), VFW Not. of Mot., ECF No. 48; (2) the VFW-NY, Michael Pascal, and Arthur Koch III² (collectively, "the VFW-NY defendants"), VFW-NY Not. of Mot., ECF No. 51; and (3) the United States, General Eric K. Shinseki, Maura Sullivan, and Kevin Secor (collectively, "the VA defendants"), VA Not. of Mot., ECF No. 54.³ For the reasons that follow, the defendants' motions are granted in their entirety.

Background

Unless otherwise noted, the following facts are derived from the complaint and are accepted as true for purposes of the present motions only.⁴ The saga begins on March 6, 2014, when The Daily Caller, a news website, published an article by Storms that was critical of the United States Department of Veterans Affairs ("VA") and General Shinseki's work as Secretary. Compl. ¶¶ 20-21, Ex. 2. In the article, titled "How veterans can fight back against VA abuse,"Storms sought to advise veterans who believed that they were wrongly denied federal benefits that they "should immediately call an attorney to take legal recourse," and that the "most effective lawsuit a veteran can initiate against VA officials is a Bivens action," which would "allow veterans to personally sue senior VA officials, including Secretary Eric Shinseki." Id. Ex. 2. The byline of this article identified Storms as the Legislative Vice Chairman of the VFW, which was not his true position. Id. ¶ 6, Ex. 2. Actually, he was the Vice Legislative Chairman of the VFW-NY, an unpaid, volunteer post. Id. ¶ 6; see Pl. VA Opp. Mem. at 16-17, ECF No. 55-1 (describing his volunteer position).⁵

Storms complains that his article triggered a conspiracy for revenge that stretched from the highest level of the VA to his local VFW post. He alleges that Sullivan, the VA's Assistant Secretary for the Office of Public and Intergovernmental Affairs, "immediately contacted" General Shinseki about the article. Compl. ¶¶ 10, 24-25.⁶ Sullivan and General Shinseki allegedly discussed "measures to alleviate the negative publicity" and agreed to have Secor, theVA's Veterans Service Organizations Liaison Officer, request that the VFW "write a defamatory article" and "encourage[]" it to "punish" Storms. Id. ¶¶ 11, 26.

Later that day, Secor allegedly contacted Wallace, the VFW's Assistant Adjutant General and Executive Director, to request that the VFW "punish" Storms and begin a "smear campaign." Id. ¶¶ 13, 27. However, the pleadings show, as reflected in a March 6, 2014 email, and without any further elaboration, that Secor simply asked Wallace if Storms was "speaking for the VFW." Muckelbauer Aff. Ex. 1, ECF No. 48-2.⁷ Wallace responded, "I am not sure I even know this individual," and Secor replied "[I] just wish he didn't use his title." Id.

Storms claims that Wallace then contacted Thien, who was, at that time, the VFW's Commander-in-Chief, as well as Hamilton, the VFW's Adjutant General. He alleges that they also agreed to "join the conspiracy" and "punish" him. Compl. ¶¶ 8, 12, 29, 69. Finally, plaintiff asserts that the VFW defendants contacted the VFW-NY and Pascal, who was, at that time, the VFW-NY's Commander-in-Chief, to "demand that [Storms] be terminated" from his volunteer position. Id. ¶ 30.

On March 10, 2014, Thien published in The Daily Caller a rebuttal article refuting Storms's criticisms and clarifying that he was not a VFW spokesperson. Compl. ¶ 38, Ex. 6.⁸ That same day, Pascal informed Storms and several members of the VFW-NY's leadership, by letter, that Storms had been relieved of his volunteer position. Id. ¶ 31, Ex. 3. By separate letter, Storms was informed that he would not be reimbursed for travel expenses to the VFW's Spring Conference. Id. ¶ 34, Ex. 5. Also on March 10, 2014, Koch, who was then the VFW-NY's Adjutant, wrote a letter to Storms, which was circulated to the VFW's and the VFW-NY's leadership, criticizing plaintiff's use of a false title that could give the mistaken impression that he was an authorized spokesperson. Id. ¶¶ 16, 32, Ex. 4. When Storms called Pascal about these events, Pascal allegedly stated that Storms was terminated at the request of the VA, the VFW, and Thien "as punishment for writing the op-ed article." Id. ¶ 36.

Interposing a Bivens claim against each defendant, Storms asserts a violation of his rights under the First and Fifth Amendments. Id. ¶¶ 75-96. His complaint also asserts claims against each defendant under New York law for defamation, intentional infliction of emotional distress, negligence under several theories, and breach of contract. Id. ¶¶ 97-121.

Legal Standards

Where defendants move under both Rules 12(b)(2) and 12(b)(6), the motion court must first consider that branch of the motion challenging the existence of jurisdiction over the movant. See, e.g., Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963). On that branch, the burden rests with the plaintiff to establish personal jurisdiction. See Troma Entm't, Inc. v. Centennial Pictures Inc., 729 F.3d 215, 217 (2d Cir. 2013). Where there has been no discovery or evidentiary hearing as to personal jurisdiction, the plaintiff must hurdle only the low bar of a prima facie showing, meaning that the "allegations, taken as true, are 'legally sufficient allegations of jurisdiction.'" Id. (quoting Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 35 (2d Cir. 2010)); see Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84-85 (2d Cir. 2013).

"To determine personal jurisdiction over a non-domiciliary in a case involving a federal question,'" the district court must (1) "'apply the forum state's long-arm statute'" and (2) "analyze whether personal jurisdiction comports with due process protections established under the Constitution." Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168 (2d Cir. 2015) (quoting Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010)). However, thecourt need conduct a due process analysis only if long-arm jurisdiction is available under the relevant state statute. See Penguin Grp. (USA), 609 F.3d at 35.

To stave off dismissal under Rule 12(b)(6), "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, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When considering a 12(b)(6) motion, the district court must "accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor." In re Thelen LLP, 736 F.3d 213, 218 (2d Cir. 2013). However, courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2943, 92 L. Ed. 2d 209 (1986)). Courts "may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).Discussion

I. Personal Jurisdiction

The only defendants advancing a Rule 12(b)(2) attack on the claim of personal jurisdiction over them are the individual VA defendants: General Shinseki, Sullivan, and Secor. In the stead of any allegations of direct action by these defendants in New York, Storms contends they conspired with the VFW-NY defendants to remove him from his volunteer position. See, e.g., Compl. Ex. 3; Pl. VA Opp. Mem. 33-34. He argues that jurisdiction is available under the provision of New York's long-arm statute that applies to a non-domiciliary who, "in person or through an agent[,] . . . commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act." N.Y. C.P.L.R. 302(a)(2); see Pl. VA Opp. Mem. at 33. Consequently, the defamation claims asserted by Storms are expressly excluded from any long-arm analysis designed to save them.

The analysis required by this claim will not be written on a clean slate. "To establish jurisdiction on a conspiracy theory, a plaintiff must: (1) establish a prima facie factual showing of a conspiracy; and (2) allege specific facts warranting the inference that the defendant was a member of the conspiracy." Brady v. Basic Research, L.L.C., 101 F. Supp. 3d 217, 232 (E.D.N.Y. 2015). In order to satisfy the second step, the complaint must allege that "(a) the defendant had an awareness of the effects in New York of its activity; (b) the activity of the co-conspirators in New York was to the benefit of...