COCKRUM et al v. DONALD J. TRUMP FOR PRESIDENT, INC. et al

Filing 15

MOTION to Dismiss under the D.C. Anti-SLAPP by ROGER STONE (Attachments: # 1 Declaration, # 2 recent unpublished opinion, # 3 Text of Proposed Order)(Buschel, Robert)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-61511-CIV-ZLOCH
CAROL WILDING, et al.,
Plaintiffs,
FINAL ORDER OF DISMISSAL

vs.
DNC SERVICES CORP., d/b/a/
Democratic National Committee
and DEBORAH WASSERMAN SCHULTZ,
Defendants.
/

THIS MATTER is before the Court upon Defendants’ Motion To
Dismiss Plaintiffs’ First Amended Complaint (DE 44). The Court has
carefully reviewed said Motion, the entire court file, and, with
the benefit of oral argument, is otherwise fully advised in the
premises.
In the 2016 presidential election’s Democratic primaries,
Bernie Sanders and others vied against Hillary Clinton for the
Party’s nomination. This case, in short, involves allegations that
the Democratic National Committee1 was in cahoots with the Clinton
campaign

and

sought

to

tip

the

scales

in

her

favor

in

the

Democratic primaries, all at the direction of, and under the
leadership and watchful eye of, its then-chair, Deborah Wasserman
Schultz, despite the DNC’s and Wasserman Schultz’s promise to

1

The Court will refer to Defendant DNC Services Corp. as
the “DNC.”

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remain impartial.
evidence of

that

Plaintiffs discovered what they believe is
bias after

penetrated by hackers.

the DNC’s

computer

servers

were

Shortly thereafter, they brought this

putative class action against the DNC and its former chair.
In evaluating Plaintiffs’ claims at this stage, the Court
assumes their allegations are true——that the DNC and Wasserman
Schultz held a palpable bias in favor Clinton and sought to propel
her ahead of her Democratic opponents.
fraud-type claims.

Plaintiffs assert several

But they do not allege they ever heard or acted

upon the DNC’s claims of neutrality. Plaintiffs also assert a tort
claim on behalf of all registered Democrats, even though the harm
they allege impacted all Democratic-primary-eligible voters——and
under their theory, the entire body politic——the same way.
finally,

Plaintiffs

claim

that

donors

to

the

DNC

are

at

And
an

increased risk of identity theft as a result of the computer hack.
But they do not allege that the DNC regularly keeps the type of
information necessary to facilitate identity theft or that the
hackers targeted, much less obtained, that information.

The Court

must now decide whether Plaintiffs have suffered a concrete injury
particularized

to

them,

or

one

certainly

impending,

that

is

traceable to the DNC and its former chair’s conduct——the keys to
entering federal court.

The Court holds that they have not, which
2

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means the truth of their claims cannot be tested in this Court.
I.
According to the First Amended Complaint (DE 8), the DNC is
the formal governing body for the Democratic Party in the United
States.

Its

Democratic

role

Party

elections.

is

to

coordinate

candidates

in

strategy

local,

state,

in

support

and

of

national

With respect to the presidential election, the DNC

organizes the Democratic National Convention in order to nominate
and confirm a Democratic candidate for the presidency. At the time
Plaintiffs filed the First Amended Complaint (DE 8), Deborah
Wasserman Schultz served as the DNC’s Chairperson and presently
serves as a member of the United States House of Representatives.
Through its Charter and Bylaws, the DNC has obliged itself to
a policy of neutrality among Democratic presidential candidates.
To that end,

as it pertains to the “Presidential nominating

process,

Chairperson

the

shall

exercise

impartiality

and

evenhandedness as between Presidential candidates and campaigns.
The Chairperson shall be responsible for ensuring that the national
officers and staff of the Democratic National Committee maintain
impartiality

and

evenhandedness

Presidential nominating process.”
in Complaint).

during

the

Democratic

Party

DE 8, ¶ 159 (emphasis supplied

Wasserman Schultz and other DNC officials touted
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this policy in public statements during presidential primaries.
Plaintiffs attribute the following quotes to Wasserman Schultz or
other DNC staff:
•

“I count Secretary Clinton and Vice President
Biden as dear friends, but no matter who
comprises the field of candidates it’s my job to
run a neutral primary process and that’s what I
am committed to doing.”

•

“the DNC runs an impartial primary process.”

•

“the DNC
period.”

•

“the Democratic National Committee remains
neutral in this primary, based on our rules.”

•

“even though Senator Sanders has endorsed my
opponent, I remain, as I have been from the
beginning, neutral in the presidential Democratic
primary.”

runs

an

impartial

primary

process,

DE 8, ¶ 160.
Plaintiffs allege that despite the DNC’s Charter and Bylaws,
and these public statements of neutrality and impartiality, the DNC
devoted its resources to supporting Hillary Clinton over other
Democratic

Party

candidates.

The

DNC’s

bias,

according

to

Plaintiffs, came to light after computer hackers penetrated the
DNC’s computer network. An individual identified as “Guccifer 2.0"
took credit for the hack and posted several documents purportedly
taken from the DNC’s servers on a publically accessible website.

4

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Those documents include: excel spreadsheets containing information
of DNC donors; spreadsheets containing information of donors to
Hillary Clinton’s campaign; research regarding Hillary Clinton’s
campaign, including vulnerabilities, attacks, rebuttals, policy
positions, and opposition research on other Democratic candidates;
and

various

other

documents

presidential campaign.

regarding

Hillary

Clinton’s

DE 8, ¶¶ 165 & 169.

Also included in the documents released by “Guccifer 2.0" was
a memorandum dated May 26, 2015, addressed to the DNC.

That

memorandum provides “a suggested strategy for positioning and
public messaging around the 2016 Republican presidential field,”
including use of “specific hits to muddy the waters around ethics,
transparency and campaign finance attacks on HRC.”

DE 8-1.

It

states, “Our goals in the coming months will be to frame the
Republican field and the eventual nominee early and to provide a
contrast between the GOP field and HRC.”

Id.

The memorandum

observes that “the right wing attack machine has been building its
opposition research on Hillary Clinton for decades.

HRC’s critics

have been telegraphing they are ready to attack and do so with
reckless abandon.”

Id.

As a tactical response, the memorandum

suggests “[w]orking with the DNC and allied groups” to “help pitch
stories with no fingerprints and utilize reporters to drive a
5

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message” and “insert our messaging into [Republican] press.”

Id.

The memorandum closes with an invitation for further discussion,
“to answer the question of who do we want to run against and how
best to leverage other candidates to maneuver them into the right
place.”

Id.

Plaintiffs

do

not

allege

who

authored

this

memorandum, but as of May 26, 2016, the Democratic presidential
field already included both Clinton and Sanders.
As a result of the information “Guccifer 2.0" released,
Plaintiffs conclude that “the DNC was anything but ‘impartial,’
‘evenhanded,’

or

‘neutral’

with

respect

to

the

Democratic

nominating process.” DE 8, ¶ 171. And all while Wasserman Schultz
was the DNC’s chair.

Plaintiffs bring six causes of action on

behalf of three proposed classes. The first class comprises “[a]ll
people or entities who have contributed to the DNC from January 1,
2015 through the date of this action (‘DNC Donor Class’).”
¶ 175.

DE 8,

The second, “[a]ll people or entities who have contributed

to the Bernie Sanders campaign from January 1, 2015 through the
date of this action (‘Sanders Donor Class’).”

Id. And the third,

“[a]ll registered members of the Democratic Party (‘Democratic
Party Class’).”
Class

each

Id.

assert

The DNC Donor Class and the Sanders Donor
causes

of

action

for

fraud,

negligent

misrepresentation, and violation of § 28-3904 of the District of
6

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Columbia

Code

(Counts

I,

II,

and

III,

respectively).

The

Democratic Party Class asserts a cause of action for breach of
fiduciary duty (Count V).

And the DNC Donor Class also asserts

causes of action for unjust enrichment and negligence (Counts IV
and VI, respectively).
The apparent theories for each of these causes of action merit
further discussion.

The DNC Donor Class and Sanders Donor Class

Plaintiffs’ fraud and negligent misrepresentation causes of action
are premised on the theory that Plaintiffs, as well as putative
class members, donated either to the DNC or Senator Sanders’s
campaign in reliance on the DNC’s promise of neutrality in the
presidential primaries.

According to Plaintiffs, the DNC knew or

should have known that those promises of neutrality were false and
intended to induce members of the DNC Donor Class and Sanders Donor
Class’s

reliance.

The

DNC

Donor

Class

Plaintiffs’

unjust

enrichment cause of action is largely coextensive with these fraud
claims.

And

the

DNC

Donor

Class

and

Sanders

Donor

Class

Plaintiffs’ cause of action for violation of § 28-3904 of the
District of Columbia Code presents a similar theory: that the DNC
falsely

claimed

it

would

presidential primaries.

remain

neutral

in

the

Democratic

The Democratic Party Class Plaintiffs’

cause of action for breach of fiduciary duty suggests that the DNC
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owes a fiduciary duty to all registered Democrats to comply with
the terms of the DNC’s Charter and Bylaws.

By failing to maintain

impartiality and evenhandedness in the Democratic presidential
primaries, Plaintiffs believe that the DNC breached this fiduciary
duty.

Lastly, the DNC Donor Class Plaintiffs’ negligence cause of

action arises from the DNC’s failure to secure from computer
hackers Plaintiffs’ personal information.
The DNC and Wasserman Schultz have moved to dismiss the First
Amended Complaint (DE 8) on various grounds. The DNC and Wasserman
Schultz argue that Plaintiffs lack standing to assert their claims,
that they have insufficiently pled those claims, and that the class
allegations must be stricken as facially deficient.
II.
This

Order

does

not

concern

who

should

have

been

the

Democratic Party’s candidate for the 2016 presidential election; it
does not concern whether the DNC or Wasserman Schultz generally
acted unfairly towards Senator Sanders or his supporters; indeed,
it does not even concern whether the DNC was in fact biased in
favor of Hillary Clinton in the Democratic primaries.

At this

stage,

Amended

the

Court

is

required

to

construe

the

First

Complaint (DE 8) in the light most favorable to Plaintiffs and
accept its well-pled allegations as true. See Stalley ex rel. U.S.
8

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v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232-33
(11th Cir. 2008).

The Court thus assumes that the DNC and

Wasserman Schultz preferred Hillary Clinton as the Democratic
candidate for president over Bernie Sanders or any other Democratic
candidate.

It assumes that they stockpiled information useful to

the Clinton campaign. It assumes that they devoted their resources
to assist Clinton in securing the party’s nomination and opposing
other Democratic candidates.

And it assumes that they engaged in

these surreptitious acts while publically proclaiming they were
completely neutral, fair, and impartial.
This

Order

therefore

concerns

only

technical

matters

of

pleading and subject-matter jurisdiction. To the extent Plaintiffs
wish to air their general grievances with the DNC or its candidate
selection process, their redress is through the ballot box, the
DNC’s internal workings, or their right of free speech——not through
the judiciary.

To the extent Plaintiffs have asserted specific

causes of action grounded in specific factual allegations, it is
this Court’s emphatic duty to measure Plaintiffs’ pleadings against
existing legal standards. Having done so, and for the reasons that
follow,

the

Court

finds

that

the

named

Plaintiffs

presented a case that is cognizable in federal court.
IV.
9

have

not

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Federal courts are courts of limited jurisdiction, possessing
“only that power authorized by Constitution and statute.” Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

In

cases that do not present a federal claim for relief, like this
one, that power derives from 28 U.S.C. § 1332.
authorizes

this

Court

to

exercise

circumstances pertinent here.

its

Section 1332

jurisdiction

in

two

First, this Court has “original

jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interests and
costs, and is between . . . citizens of different states.”

28

U.S.C.

of

§

1332(a).

Section

1332(a)

permits

the

exercise

jurisdiction only where there is complete diversity——that is, no
plaintiff maintains citizenship in the same state as any defendant.
See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806); Triggs v.
John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998).
Second, except in circumstances not present here, this Court has
“original jurisdiction of any civil action in which the matter in
controversy exceeds the sum or value of $5,000,000, exclusive of
interest and costs, and is a class action in which . . . any member
of a class of plaintiffs is a citizen of a State different from any
Defendant.”
jurisdiction”).

28

U.S.C.

§

1332(d)(2)

(hereinafter

“CAFA

As the text makes plain, § 1332(d) requires only
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minimal diversity——at least one plaintiff must be diverse from one
defendant.

See Evans v. Walter Indus., Inc., 449 F.3d 1159, 1163

(11th Cir. 2006).
It is readily apparent that this Court lacks jurisdiction
under § 1332(a), for the Parties are not completely diverse.
According to the First Amended Complaint (DE 8), two Plaintiffs
“reside” in the District of Columbia, where the DNC maintains its
citizenship.
ostensibly

Seven “reside” in Florida, where Wasserman Schultz
maintains

citizenship.2

But

“[c]itizenship,

not

residence, is the key fact that must be alleged in the complaint to
establish diversity for a natural person.”
F.3d 1365, 1367 (11th Cir. 1994).

Taylor v. Appleton, 30

Plaintiffs’ failure to properly

allege their own citizenship is, in itself, sufficient to preclude
the exercise of the Court’s jurisdiction under 1332(a).

Indeed,

this pleading failure makes it impossible for the Court to conclude
that the Parties are even minimally diverse for purposes of its
CAFA jurisdiction.

See Travaglio v. Am. Exp. Co., 735 F.3d 1266,

1268 (11th Cir. 2013) (the plaintiff “must allege facts that, if
true, show federal subject matter jurisdiction over her case
exists”).

And even if the Court assumed that residence were the

2

As with the Plaintiffs, the First Amended Complaint (DE 8)
does not specifically allege Wasserman Schultz’s citizenship.
Rather, it alleges that she “resides in and is a Congresswoman
representing portions of this district.” DE 8, ¶ 1.
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equivalent of citizenship——an assumption the Court is not permitted
to make——Plaintiffs would still not be completely diverse from
Defendants.
Putting aside these pleading deficiencies, it is also apparent
that Plaintiffs lack standing to assert each of the causes of
action raised in this putative class action. In order to maintain
a class action lawsuit, the class representatives——as distinct from
the putative class members——must establish their standing to sue,
as measured by the standard of Lujan v. Defenders of Wildlife, 504
U.S. 555 (1992).

See Allen v. Wright, 468 U.S. 737 (1984)

(applying standing inquiry to a class action); Carter v. West Pub.
Co., 225 F.3d 1258, 1263 (11th Cir. 2003). The standing requirement
stems from Article III of the Constitution, which limits federal
courts’ jurisdiction to certain “Cases” and “Controversies.”

U.S.

Const. Art. III; see Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138,
1146 (2013). The Supreme Court has made clear that “[n]o principle
is more fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies.”

DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal marks omitted).
To effectuate this limitation, Lujan laid out three basic elements
of Article III standing: “First, the plaintiff must have suffered
an ‘injury in fact’——an invasion of a legally protected interest
which is (a) concrete and particularized . . . and (b) ‘actual or

12

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imminent, not ‘conjectural’ or ‘hypothetical.’’” Lujan, 504 U.S. at
560

(citations

omitted).

“Second,

there

must

be

a

causal

connection between the injury and the conduct complained of . . .
.”

Id.

“Third, it must be ‘likely,’ as opposed to merely

‘speculative,’ that the injury will be ‘redressed by a favorable
decision.’” Id.

The class representatives must meet each of these

elements to pursue not only their own claims, but the class
members’ claims as well.

See Prado-Steiman ex re. Prado v. Bush,

221 F.3d 1266, 1279 (11th Cir. 2000).
a.
As

to

the

fraud-type

claims

Counts

I,

II,

III

and

IV,

Plaintiffs fail to allege any causal connection between their
injuries and Defendants’ statements. The Plaintiffs asserting each
of these causes of action specifically allege that they donated to
the DNC or to Bernie Sanders’s campaign.

See DE 8, ¶¶ 2-109.

But

not one of them alleges that they ever read the DNC’s charter or
heard the statements they now claim are false before making their
donations.

And not one of them alleges that they took action in

reliance on the DNC’s charter or the statements identified in the
First Amended Complaint (DE 8).
Plaintiffs lack standing.
two paragraphs

of

the

Absent such allegations, these

See Lujan, 504 U.S. at 560.

First

Amended Complaint

(DE

To be sure,
8)

assert

generally that the “DNC Donor Class Plaintiffs, the Sanders Donor
Class Plaintiffs, and members of the DNC Donor Class and the

13

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Sanders Donor Class, relied on Defendants’ false statements and
omissions to their injury.”

DE 8, ¶¶ 188 & 195.3

But this

boilerplate recitation, absent factual content to support it, does
not permit the Court to “determine that at least one named class
representative has Article III standing to raise each class claim.”
Prado-Steiman, 221 F.3d at 1279; cf. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“A pleading that offers ‘labels and conclusions’
or ‘a formulaic recitation of the elements of a cause of action
will not do.’”).
Nor do these Plaintiffs’ donations to the DNC or to Bernie
Sanders’s campaign create standing.

The act of donating to an

organization does not, of itself, create a legally protected
interest in the organization’s operations.

Pearson v. Garrett-

Evangelical Theological Seminary, Inc., 790 F. Supp. 2d 759, 763
(N.D. Ill. 2011) (“donating money to a charitable fund does not
confer standing to challenge the administration of that fund”);
Orient v. Linus Pauling Inst. of Sci. and Med., 936 F. Supp. 704,
707 (D. Ariz. 1996) (“Funding research does not automatically
confer a legally protected interest in that organization’s assets
on a donor”); cf. Leonard v. Campbell, 189 So. 839, 840 (Fla. 1939)
(observing that delivery of a gift “divest[s] the donor of all
present control and dominion over [the gift], absolutely and
irrevocably”).

Just as donating to Sanders’s campaign would not

3

Paragraph 195 alleges “justifiable reliance” but is
otherwise the same as paragraph 188.
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entitle the donor to dictate the campaign’s platform, donating to
the DNC or to Bernie Sanders’s campaign does not entitle Plaintiffs
to challenge the manner in which the DNC has conducted its affairs.
A donor may suffer a cognizable injury from the violation of an
independent duty, such as if the donation was procured by fraud.
But, for the reasons just explained, Plaintiffs do not allege the
causal connection between their donations and the DNC’s statements
necessary to give them standing to assert that type of claim.
b.
The Plaintiffs who assert the breach of fiduciary duty cause
of action in Count V of the First Amended Complaint (DE 8) are
simply alleged to be “registered Democrat[s],” residing in nineteen
states.

Ostensibly this means that they are registered voters who

have publically declared allegiance with their state’s Democratic
Party, which in turn follows guidelines established by the DNC.
See DE 8, ¶¶ 156-57.

They contend that the DNC owes (and Wasserman

Schultz owed) all registered Democrats a fiduciary duty to comply
with the

DNC’s

breached

by

primaries.

charter,

favoring

which

Hillary

the

DNC and

Clinton

Wasserman

during

the

Schultz

Democratic

Other than labeling their claim as a common-law tort,

these Plaintiffs have done little to make out a concrete injury,
particularized to them.

See DE 48, 7-8.

For their part, the DNC

and Wasserman Schultz have characterized the DNC charter’s promise
of

“impartiality

and

evenhandedness”

15

as

a

mere

political

Case 0:16-cv-61511-WJZ Document 62 Entered on FLSD Docket 08/25/2017 Page 16 of 28

promise——political rhetoric that is not enforceable in federal
courts. The Court does not accept this trivialization of the DNC’s
governing principles.

While it may be true in the abstract that

the DNC has the right to have its delegates “go into back rooms
like they used to and smoke cigars and pick the candidate that
way,” DE 54, at 36:22-24, the DNC, through its charter, has
committed itself to a higher principle.

Nevertheless, it is

apparent that these Plaintiffs cannot satisfy Lujan’s test, and
therefore lack standing to assert Count V of the First Amended
Complaint (DE 8).
The Supreme Court has long made clear that “when the asserted
harm is a ‘generalized grievance’ shared in substantially equal
measure by all or a large class of citizens, that harm alone
normally does not warrant exercise of jurisdiction.”

Warth v.

Seldin, 422 U.S. 490, 499 (1975) (quoting Schlesinger v. Reservists
to Stop the War, 418 U.S. 208 1974)).

To that end, courts have

routinely concluded “that a voter fails to present an injury-infact when the alleged harm is abstract and widely shared or is only
derivative of a harm experienced by a candidate.”

Crist v. Comm’n

on Presidential Debates, 262 F.3d 193, 195 (2d Cir. 2001); see also
Gottlieb

v.

Fed.

Election

Comm’n,

(concluding

that

voters’

“supposed injury to their ‘ability to influence the political
process’” was “too vague to constitute an injury-in-fact”).
example, in

Crist,

a

voter

sued

16

the

sponsor

of

For

presidential

Case 0:16-cv-61511-WJZ Document 62 Entered on FLSD Docket 08/25/2017 Page 17 of 28

debates, the Commission on Presidential Debates (“CPD”), contending
that the CPD’s policy of limiting participation in its debates to
candidates with demonstrated popularity violated the voter’s First
Amendment Rights.

Crist, 262 F.3d at 194.

The Second Circuit held

that the voter’s claimed injury was too abstract and generalized to
invoke the court’s jurisdiction. Id. at 195. Similarly, in Becker
v. Fed. Election Comm’n, several supporters of Ralph Nader sued the
Federal Election Commission (“FEC”), claiming that FEC regulations
permitting corporate sponsorship of presidential debates corrupted
the political process.

230 F.3d 381, 383-84 (1st Cir. 2000).

Just

as in Crist, the Becker Court held that the Nader supporters’
alleged harm was not sufficiently concrete or personalized to
establish standing.
The

Plaintiffs

Id. at 389-90.
asserting

Count

V

of

the

First

Amended

Complaint (DE 8) suffer an analogous standing deficiency.

Their

association with the DNC is voluntary and their relationship to it
indirect.

The harm they suffered from the DNC’s alleged bias is,

as their claim makes explicit, undifferentiated from all other
registered Democrats.

But it also sweeps more broadly.

In states

with open primaries, where voters unaffiliated with a political
party may vote in the Democratic presidential primary, the harm as
between unaffiliated voters and those affiliated with their state’s
Democratic
theory,

party

“the

is

undifferentiated.

Democratic

Party

impartial election process.”

is

a

And

under

custodian

of

DE 54, at 63:15-17.
17

Plaintiffs’
a

fair

and

If the DNC

Case 0:16-cv-61511-WJZ Document 62 Entered on FLSD Docket 08/25/2017 Page 18 of 28

failed to take proper care of the election process, as Plaintiffs’
theory goes, then their injury is also undifferentiated from the
voting public at large.
law

tort

does

Labeling this type of injury as a common-

nothing

Plaintiffs’ grievance.

to

alter

the

generalized

nature

of

For, if the tort harm is failure to act as

a proper “custodian of this country’s democracy,” DE 54, at 18:8-9,
then the measure of Plaintiffs’ damages must be the extent to which
the DNC’s actions corrupted the election process.

But just like a

voter’s interest in diverse political discourse (Crist), or in
untainted presidential debates (Becker), “the harm done to the
general public by corruption of the political process is not a
sufficiently concrete, personalized injury to establish standing.”
Becker, 230 F.3d at 389.
The Court also entertains serious doubts about whether it
could redress the harm asserted in Count V.

In addition to

damages, Plaintiffs seek declaratory and injunctive relief that
would bind the DNC to the present iteration of its charter.

But “a

political party’s determination of the structure which best allows
it to pursue its political goals is protected by the Constitution.”
Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 229 (1989)
(internal marks omitted) (quoting Tashjian v. Republican Party of
Conn., 479 U.S. 208, 224 (1986)).

So, the choice——and attendant

consequences——between “impartiality and evenhandedness” and Tammany
Hall politics lies in the province of the DNC, not the judiciary.
Cf. O’Brien v. Brown, 409 U.S. 1, (1972) (“It has been understood
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since our national political parties first came into being as
voluntary associations of individuals that the convention itself is
the proper forum for determining intra-party disputes as to which
delegates shall be seated.”).

Grave questions regarding the DNC’s

right of association would undoubtedly arise if this Court were to
enjoin the DNC to a particular manner of governance.

And those

same concerns would arise with respect to any award of damages,
which would impose liability for the DNC’s alleged decision to
associate

with

a

particular

standard-bearer

in

a

manner

not

otherwise prohibited by law.
c.
Finally, with respect to their negligence claim in Count VI of
the First Amended Complaint (DE 8), the six named DNC Donor Class
Plaintiffs claim they suffered an injury-in-fact from the data
breach of the DNC’s servers.

Two of them, Cridde and Berners-Lee,

donated to the DNC “by check.”

DE 8, ¶¶ 108 & 109.

Two others,

Lynch and Young, allege they contributed to the DNC “online,” but
do not specify where.

DE 8, ¶¶ 105 & 106.

Davis donated money to

the DNC in “various ways, including online at www.democrats.org.”
DE 8, at ¶ 107.
where or how.

And Cork gave to the DNC but does not specify
Their cause of action is premised on a security

breach of the DNC’s computer servers, which Plaintiffs allege was
perpetrated by two Russian hacking groups having “a long history of
successfully targeting sensitive government and industry computer
networks in both the United States and other countries, often using
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‘sophisticated phishing attacks.’” DE 8, ¶ 164. A computer hacker
known as “Guccifer 2.0" claimed credit for the security breach and
posted several documents from the DNC’s servers online.

Those

documents include “Excel spreadsheets containing the names and
personal information of donors to the Democratic Party” and other
“spreadsheets of donors to the DNC . . . containing personal
information such as names, email addresses, and phone numbers.” DE
8,

¶¶

164,

165

&

170.

Although

these

Plaintiffs

do

not

specifically so allege, their theory is that this security breach
of the DNC’s servers places them at a heightened risk of identity
theft.

According to these Plaintiffs, “data breaches engender

injury sufficient to confer Article III standing based solely on
increased risk of identity theft in the future.”

DE 48, at 8.

Although the Eleventh Circuit has held that a party who has
actually suffered identity theft as a result of a data breach has
standing, it has expressly left open the question whether the mere
threat of future identity theft creates Article III standing.
See Resnick v. AvMed, Inc., 693 F.3d 1317, 1323 n.1 (11th Cir.
2012).

The Supreme Court requires that a “threatened injury must

be certainly impeding to constitute an injury in fact, and that
allegations

of

possible

future

injury

are

not

sufficient.”

Clapper, 133 S. Ct. at 1147 (quoting Whitmore v. Arkansas, 495 U.S.
149, 158 (1990)) (internal quotation marks omitted).

Theories of

standing that “rel[y] on a highly attenuated chain of possibilities
do[] not satisfy the requirement that threatened injury must be
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certainly impending.”

Id.

To some measure, three circuits have

held that a risk of future identity theft can constitute an injury
in fact.

Galaria v. Nationwide Mut. Ins. Co., 663 F. App’x 384,

387-89 (6th Cir. 2016); Krottner v. Starbucks Corp., 628 F.3d 1139,
1142-43 (9th Cir. 2010); Pisciotta v. Old Nat’l Bancorp, 499 F.3d
629, 632-34 (7th Cir. 2007).
not.

Three others have held that it does

Beck v McDonald, 848 F.3d 262, 274-76 (4th Cir. 2017); Katz

v. Pershing, 672 F.3d 64, 80 (1st Cir. 2012); Reilly v. Ceridian
Corp., 664 F.3d 38, 40 (3d Cir. 2011).

The cases on both sides of

this apparent circuit split are largely reconcilable, and each
proves instructive here.
In Krottner, current and former Starbucks employees brought
suit after a laptop containing the names, addresses, and Social
Security numbers of 97,000 Starbucks employees was stolen from
Starbucks.

628 F.3d at 1140.

Following the theft, one of the

employees alleged that someone tried to open a bank account in his
name, but his bank closed the account before he suffered any loss.
Id. at 1142.

The Ninth Circuit held that the employees faced “a

credible threat of harm” from the theft of the laptop containing
their personal information, constituting an injury-in-fact for
purposes of Article III.

Id. at 1343.

In Pisciotta, the defendant operated an online marketing
service though which individuals could complete applications for
banking services.

499 F.3d at 631.

Upon completion of the

applications, the defendant was privy to the individuals’ name,
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address, Social Security number, driver’s license number, date of
birth, mother’s maiden name, and credit card and other financial
account numbers.

Id.

The plaintiffs had provided this type of

personal information to the defendant and brought suit after the
defendant’s online hosting facility suffered a “sophisticated,
intentional and malicious” security breach.

Id. at 631-32.

The

plaintiffs did not allege “any completed direct financial loss to
their accounts” or “that they or any other member of the putative
class already had been the victim of identity theft as a result of
the breach.”

Id. (emphasis in original).

But the Seventh Circuit

nevertheless concluded that the plaintiffs had standing, reasoning
that “the injury-in-fact requirement can be satisfied by a threat
of future harm or by an act which harms the plaintiff only by
increasing the risk of future harm that the plaintiff would have
otherwise faced, absent the defendant’s actions.”

Id. at 634.

In Galaria, an insurance company maintained sensitive personal
information of current customers, as well as prospective customers
who had applied for quotes on insurance products.
386.

663 F. App’x at

The information retained by the insurance company, including

names,

dates

of

birth,

marital

status,

gender,

occupation,

employer, Social Security numbers, and driver’s license numbers,
was stolen by computer hackers.
as a result of the breach.

Id.

Id.

Two plaintiffs brought suit

The Sixth Circuit held that the

plaintiffs had standing because they alleged that “their data has
already been stolen and is now in the hands of ill-intentioned
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criminals.” According to the Sixth Circuit, “[w]here a data breach
targets personal information, a reasonable inference can be drawn
that the hackers will use the victims’ data for the fraudulent
purposes alleged in Plaintiffs’ complaints.”

Id. at 389.

In Beck, a Veterans Affairs Medical Center lost two sets of
patient data.

848 F.3d at 266-67.

The first data set, stored on

a laptop that was misplaced or stolen, held the names, dates of
birth, partial Social Security numbers, and physical descriptions
of 7,400 patients.

Id. at 267.

The second, kept in four storage

boxes that were misplaced or stolen, contained the names, Social
Security numbers, and medical diagnoses of 2,000 patients.
268.

Id. at

Three patients whose personal information was kept on the

laptop or in the storage boxes sued as a result of the Medical
Center’s mishandling

of

their

data.

But

the

Fourth

Circuit

rejected as “too speculative” the patients’ argument that their
risk of future harm constituted an injury-in-fact.

Id. at 274.

The Fourth Circuit reasoned that the patients’ theory of standing
relied on an “attenuated chain of possibilities”: that the thief
targeted the stolen items for the information they contained;
selected,

from

thousands

of

others,

the

three

patients’

information; and attempted successfully to use that information to
steal the patients’ identities.

Id. at 275.

The Fourth Circuit

also concluded that the patients had not established a “substantial
risk” of harm.

Id.

In Reilly, a payroll processing firm’s systems were penetrated
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by

a

computer

hacker,

potentially

exposing

the

personal

and

financial information of 27,000 employees from 1,900 different
companies.

664 F.3d at 40.

The nature of the payroll processing

firm’s business meant that it held information regarding its
customers’ employees, including their names, addresses, Social
Security numbers, dates of birth, and bank account information.
Id.

Two employees whose employers utilized the payroll processing

firm’s services sued the payroll processing firm based on their
belief that they were at an increased risk of identity theft.

Id.

The Third Circuit held that the employees lacked standing to sue
because they
impending.”

failed

to

Id. at 42.

allege

an

injury

that

was

“certainly

Like in Beck, the Third Circuit reasoned

that the employees’ theory of standing rested on a speculative
chain of “ifs”——“that the hacker: (1) read, copied, and understood
their personal information; (2) intends to commit future criminal
acts by misusing the information; and (3) is able to use such
information to the detriment of Appellants by making unauthorized
transactions in Appellants’ names.”
And

in

Katz,

the

defendant

Id.
sold

various

finance-related

products and services to investment advisers and broker-dealers,
who in turn traded securities on behalf of their clients. 672 F.3d
at 69. One of the defendant’s services was an online platform that
allowed the advisers and broker-dealers to obtain research and
manage brokerage accounts.

Id.

If authorized, end users of that

platform were able to view the clients’ private information,
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including Social Security and taxpayer identification numbers. Id.
at 69-70.

Some of the defendant’s employees also had access to

that information. Id. at 70. The plaintiff maintained a brokerage
account with a firm that used the defendant’s platform.
concerned

that

the

defendant’s

platform

left

She sued,

her

private

information vulnerable to abuse. Id. The plaintiff did not allege
that any specific data breach occurred; only that many must have
occurred.

Id. at 79.

The First Circuit concluded that this claim

fell short of establishing an injury-in fact.

Id.

Because the

plaintiff did not allege that her information had actually been
accessed, the court reasoned that “[h]er cause of action rests
entirely on the hypothesis that at some point an unauthorized, asyet unidentified, third party might access her data and attempt to
purloin her identity.”

Id.

One common thread runs through each of these cases that is
not present here.

The defendant in each had a practice of

retaining the plaintiffs’ sensitive personal information, for one
reason or another.

In Krottner and Reilly, it was for purposes of

employment; in Pisciotta and Katz for financial services; and in
Galaria and Beck for insurance or medical purposes.

There is no

allegation here that the DNC retains private information of its
donors that is not mandated to be disclosed to the Federal Election
Commission

and

thus

publically

4

available.4

That

is,

unlike

Federal law mandates that political parties report any
donation over $200.00 to the Federal Election Commission, as well
as the donor’s name, mailing address, occupation, name of
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Krottner, Pisciotta, Galaria, Beck, Reilly, and Katz, Plaintiffs do
not allege that the DNC has access to and stores information from
its donors, such as their Social Security or credit card numbers.
Without such an allegation, the DNC donor Plaintiffs’ claimed
threat of injury is too speculative to support an Article III
injury-in-fact.

Plaintiffs Young, Lynch, and Davis’ threat of

injury rests on speculation that the DNC, rather than some third
party not before the Court, processed and stored information from
their

online

donations.

Plaintiffs

Cork,

Berners-Lee,

Criddle’s threat of injury is even more attenuated.

and

For Criddle

and Berners-Lee, the Court must speculate that the DNC copied and
stored the account and routing numbers from their checks onto the
servers that were attacked. And for Cork, the Court must speculate
she provided sensitive personal information to the DNC and that it
was stored on the compromised servers. These “what ifs” push their
alleged injury near sheer conjecture.
And even if the Court assumed that the DNC did store the named
DNC Donor Class Plaintiffs’ sensitive personal information on the
hacked servers, Plaintiffs’ First Amended Complaint (DE 8) still
would not make out an injury that is “certainly impending.” Lujan,
504 U.S. at 565.

If Krottner, Pisciotta, Galaria, Beck, Reilly,

and Katz represent a sliding scale——arranged from least speculative
harm to most——this case falls far closer to Katz than it does

employer, and the date of contribution. 11 C.F.R. § 104.8.
Federal Election Commission in turn makes that information
available for public consumption.
26

The

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Krottner.

Unlike Krottner, none of the DNC donor Plaintiffs have

suggested they were the victim of a failed identity theft attempt.
And unlike Pisciotta and Galaria, these Plaintiffs do not allege
that their personal information was targeted for the purpose of
future criminal misuse. The First Amended Complaint (DE 8) instead
paints a picture that hackers were generally rummaging the DNC’s
files for information pertinent to the presidential election.

The

named DNC Donor Plaintiffs do not allege that hackers targeted
their information, took it, or would be able to make use of it to
inflict some harm in the future.

See Clapper, 133 S. Ct. at 1150

(observing courts’ “usual reluctance to endorse standing theories
that

rest

actors.”).

on

speculation

about

the

decisions

of

independent

As a result, this case mirrors Reilly and Beck, in

which the Third and Fourth Circuits held that the plaintiffs’
claimed

injury

lacked

the

establish an injury-in-fact.

degree

of

immediacy

necessary

to

Thus, absent an “actual or imminent”

injury, the named DNC Donor Class Plaintiffs lack standing, and
this Court lacks jurisdiction over their claim in Count VI of the
First Amended Complaint (DE 8).

Lujan, 504 U.S. at 560.

V. Conclusion
“Federal Courts cannot exercise jurisdiction over cases where
the parties lack standing.”

Florida Wildlife Fed’n, Inc. v. S.

Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir. 2012).
Because Plaintiffs do not allege a causal link between their
donations and the DNC’s statements, they lack standing to assert

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the fraud-type claims in Counts I, II, III, and IV of the First
Amended Complaint (DE 8).

Their breach of fiduciary duty claim in

Count V relies on a harm far too diffuse to constitute an injuryin-fact in federal court.

And their negligence claim in Count VI

is buffered by too many layers of speculation and conjecture to
create the immediacy of harm necessary to unlock this Court’s
jurisdiction.

That being so, Plaintiffs have not “present[ed] a

live case or controversy,” and the Court “must dismiss the case for
lack of subject matter jurisdiction.”

Id.

Accordingly, after due consideration, it is
ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion To Dismiss Plaintiffs’ First Amended
Complaint (DE 44) be and the same is hereby GRANTED; and
2. The above-styled cause be and the same is hereby DISMISSED
without prejudice for lack of subject matter jurisdiction.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward
County, Florida, this

25th

day of August, 2017.

WILLIAM J. ZLOCH
Sr. United States District Judge
Copies furnished:
All Counsel of Record

28