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

Filing 22

MOTION to Dismiss Amended Complaint by ROGER STONE (Attachments: # 1 Text of Proposed Order)(Buschel, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROY COCKRUM, ET AL.,
Plaintiffs,
v.

Case No. 1:17-cv-1370-ESH

DONALD J. TRUMP FOR PRESIDENT, INC.,
ROGER STONE,
Defendants.

DEFENDANT ROGER STONE’S MOTION TO DISMISS
AMENDED COMPLAINT

L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]
Counsel for Roger Stone

Defendant Roger Stone (“Stone”) respectfully moves that the Court dismiss the D.C.-law
claims under Federal Rules of Civil Procedure12(b)(1); dismiss all claims for lack of personal
jurisdiction under Federal Rules of Civil Procedure12(b)(2); dismiss all claims for improper
venue under Federal Rules of Civil Procedure12(b)(3); and, dismiss all claims for failure to state
a claim upon which relief can be granted under Federal Rules of Civil Procedure12(b)(6).
Dated: October 25, 2017.

L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]

Counsel for Roger Stone
(**admitted pro hac vice)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROY COCKRUM, ET AL.,
Plaintiffs,
v.

Case No. 1:17-cv-1370-ESH

DONALD J. TRUMP FOR PRESIDENT, INC.,
ROGER STONE,
Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT ROGER STONE’S MOTION TO DISMISS
AMENDED COMPLAINT

L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]

Counsel for Roger Stone
( appearing pro hac vice)
**

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION ...........................................................................................................................1
FACTS ............................................................................................................................................ 2
ARGUMENT ...................................................................................................................................3
I. The Court Does Not Have Subject Matter Jurisdiction. (Rule 12(b)(1)) ....................................3
A. Plaintiffs lack Article III standing. .........................................................................................3
1. Heightened risk of identity theft. .......................................................................................4
2. Chilling effect on political activism. ................................................................................ 6
B. The Court lacks diversity jurisdiction. ...................................................................................9
C. The Court lacks supplemental jurisdiction …………………………………………………9
II. The Court Lacks Personal Jurisdiction Over Roger Stone. (Rule 12(b)(2)) .............................10
A. Exercising personal jurisdiction would violate the D.C. long-arm statute. ..........................10
B. Exercising personal jurisdiction would violate the Due Process Clause..............................12
III. The District of Columbia Is An Improper Venue For This Lawsuit. (Rule 12(b)(3)) ............16
IV. Plaintiffs Fail To State A Claim Upon Which Relief Can Be Granted. (Rule 12(b)(6)) ........18
A. Standard of Review. .............................................................................................................18
B. The allegations are vague and do not support a complete and plausible set of facts. .........20
C. Plaintiffs fail to state a claim of conspiracy. .......................................................................23
1. Conspiracy between Stone and the Campaign. ..............................................................23
2. Conspiracy between Stone and Russian agents. ............................................................. 24
3. Conspiracy between Stone and WikiLeaks .....................................................................26
D. D.C.-Law does not support any theory of aiding and abetting ........................................... 27
i

E. Failure to State a Claim of Public Disclosure of Private Facts. ...........................................28
F. Failure to State a Claim for Emotional Distress ...................................................................32
G. Plaintiffs fail to state a civil rights conspiracy claim under § 1985(3) ................................32
1. Plaintiffs’ complaint fails to allege state action ..............................................................33
2. The intracorporate conspiracy doctrine applies to section 1953(3) lawsuits ..................34
3. Plaintiffs cannot allege a civil rights conspiracy with entities outside the
United States ...................................................................................................................35
Plaintiffs have failed to allege with particularity a nexus between the defendants’
overt conspiratorial acts and Plaintiffs’ alleged injury ...................................................35
Conclusion .....................................................................................................................................36

ii

TABLE OF AUTHORITIES
3M Co. v. Boulter, 842 F. Supp. 2d 85 (D.D.C. 2012) ..................................................................27
Acosta Orellana v. CropLife Intern., 711 F. Supp. 2d 81 (D.D.C. 2010) ..................................... 22
Aiken v. Lustine Chevrolet, Inc., 392 F. Supp. 883 (D.D.C. 1975) ...............................................11
Amadasu v. Christ Hosp., 514 F.3d 504 (6th Cir.2008) ................................................................34
Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010) .........................................................24
Armstrong v. Thompson, 80 A.3d 177 (D.C. 2013) .......................................................................30
Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014) .....................................................................7
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................19, 20, 24, 27
Atl. Marine Constr. Co. v. U.S. Dist. Court, 134 S. Ct. 568 (2013) ..............................................16
Attias v. Carefirst, Inc., 865 F.3d 620 (D.C. Cir. 2017) ..................................................................5
See Barros v. Beck, 28 F. Supp. 3d 31, 34 (D.D.C. 2014) ………………………………...…….14
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................18, 19, 23, 25
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) ...........................................21
Benningfield v. City of Houston, 157 F.3d 369 (5th Cir.1998) ......................................................34
Bowie v. Maddox, 642 F.3d 1122 (D.C.Cir.2011) .........................................................................34
Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) .....................................12, 15
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ...........................................................13, 15
Buschi v. Kirven, 775 F.2d 1240 (4th Cir.1985) ............................................................................35
Bush v. Butler, 521 F. Supp. 2d 63 (D.D.C. 2007) ....................................................................8, 22
Calder v. Jones, 465 U.S. 783 (1984) ......................................................................................11, 12
Clapper v. Amnesty Int’l, 133 S. Ct. 1138 (2013)............................................................................7
Conley v. Gibson, 355 U.S. 41 (1957) ...........................................................................................18
Crane v. Carr, 814 F.2d 758 (D.C. Cir. 1987) ..............................................................................11
iii

Crockett v. Mayor of the D.C., 181 F. Supp. 3d 70 (D.D.C. 2013) .................................................9
Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .............................................................................12
Dickerson v. Alachua County Comm., 200 F.3d 761 (11th Cir. 2000) ..........................................23
Doe v. Bernabei & Wachtel, PLLC, 116 A.3d 1262 (D.C. 2015)............................................30, 32
E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621 (D.C. Cir. 1997) ............................22
Evangelou v. D.C., 901 F. Supp. 2d 159 (D.D.C. 2012)................................................................24
Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724 (D.C. 2000) ....................23
Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005)…………………………..9
Fam v. Bank of Am. NA (USA), 236 F. Supp. 3d 397 (D.D.C. 2017) ................................16, 17, 18
Federer v. Gephardt, 363 F.3d 754 (8th Cir. 2004) ......................................................................33
Flax v. Schertler, 935 A.2d 1091 (D.C.2007) ................................................................................27
Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013) .......................................................................24
Galaria v. Nationwide Mut. Ins. Co., 663 Fed. Appx. 384 (6th Cir. 2016) .....................................3
Gauntlett v. Illinois Union Ins. Co., 5:11-CV-00455 EJD, 2012 WL 4051218
(N.D. Cal. Sept. 13, 2012) .............................................................................................................31
Georgiades v. Martin-Trigona, 729 F.2d 831 (D.C. Cir. 1984)…………..………………………9
Gerlich v. United States Dep't of Justice, 659 F.Supp.2d 1 (D.D.C.2009) ....................................19
Gilmore v. Palestinian Interim Self-Gov't Auth., 53 F. Supp. 3d 191 (D.D.C. 2014) ...................22
Gottlieb v. Fed. Election Comm’n, 143 F.3d 618, 620 (D.D.C. 1998) ............................................6
Graves v. United States, 961 F. Supp. 314 (D.D.C. 1997) ................................................22, 23, 35
Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366 (1979) ...........................................33
Grider v. City of Auburn, 618 F.3d 1240 (11th Cir.2010) .............................................................34
GTE New Media Services Inc. v. BellSouth Corp., 199 F.3d 1343 (D.C. Cir. 2000) ........10, 15, 16

iv

Halberstram v. Welch, 705 F.2d 472 (D.C. Cir. 1983) ..................................................................27
Hall v. Clinton, 285 F.3d 74 (D.C. Cir. 2002) ...............................................................................26
Harrison v. Washington Post Co., 391 A.2d 781 (D.C. 1978) ......................................................30
Hartline v. Gallo, 546 F.3d 95 (2d Cir.2008) ................................................................................34
Hartman v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 4 F.3d 465 (7th Cir.1993) ...................34
Helmer v. Doletskaya, 393 F.3d 201 (D.C. Cir. 2004). .................................................................12
Hess v. Indiana, 414 U.S. 105 (1973) ............................................................................................29
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ..............................................................................3
In re Barnes & Noble Pin Pad Litigation, 2016 WL 5720370 (N.D. Ill. Oct. 3, 2016) ................31
In re Carter, 411 B.R. 730 (M.D. Fla. 2009) .................................................................................31
In re Zappos.com, Inc., 2013 WL 4830497 (D. Nev. Sep. 9, 2013) ..............................................31
Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249 (D.C. Cir. 2005) ..............16
Johnson v. Sawyer, 47 F.3d 716 (5th Cir. 1995)............................................................................31
Katz v. Pershing, LLC, 672 F.3d 64 (1st Cir. 2012) ........................................................................4
Kelley v. D.C., 119–20 (D.D.C. 2012) ...........................................................................................34
Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014) .............................................................27
Kowal v. MCI Communications Corp., 16 F.3d 1271 (D.C. Cir. 1994) ........................................23
Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir. 2010) ...........................................................4
Kvech v. Holder, 10-CV-545 RLW, 2011 WL 4369452 (D.D.C. Sept. 19, 2011) ........................24
Lamont v. Haig, 590 F.2d 1124 (D.C. Cir. 1978) ……………………………………………….17
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................3, 8
McCreary v. Heath, CIV.A. 04-0623 PLF, 2005 WL 3276257 (D.D.C. Sept. 26, 2005) .............23
Middlebrooks v. Bonner Kiernan Trebach & Crociata, 671 F. Supp. 2d 61 (D.D.C. 2009) ........20

v

Miller v. Blattner, 676 F. Supp. 2d 485 (E.D. La. 2009) ...............................................................31
Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010) ..................................................35
Ortberg v. Goldman Sachs Grp., 64 A.3d 158 (D.C.2013) ...........................................................32
Paige v. U.S. Drug Enforcement Admin., 818 F.Supp 4 (D.D.C. 2010) ........................................30
Partovi v. Matuszewski, 647 F. Supp. 2d 13 (D.D.C. 2009) ..........................................................20
Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969) ..........................................................................15
Pena v. A. Anderson Scott Mortg. Group, Inc., 692 F. Supp. 2d 102 (D.D.C. 2010) ....................19
Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629 (7th Cir. 2007) .........................................................4
Prakash v. Am. Univ., 727 F.2d 1174 (D.C. Cir. 1984) ...................................................................8
Prisology, Inc. v. Fed. Bureau of Prisons, 852 F.3d 1114 (D.C. Cir. 2017) ...................................3
Randolph v. ING Life Insurance & Annuity Co., 973 A.2d 702 (D.C. 2009) ..........................28, 31
Reilly v. Ceridian Corp., 664 F.3d 38, 40 (3d Cir. 2011) ................................................................4
Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688 (7th Cir. 2015).............................................4
Renal Physicians Ass'n v. U.S. Dept. of Health & Human Services, 489 F.3d 1267 (D.C. Cir.
2007) ................................................................................................................................................7
Richmond v. Bd. of Regents of Univ. of Minnesota, 957 F.2d 595 (8th Cir.1992) ........................35
Robertson v. Cartinhour, 867 F. Supp. 2d 37 (D.D.C. 2012) ........................................................24
Roe v. Abortion Abolition Soc., 811 F.2d 931 (5th Cir. 1987).......................................................33
Sandza v. Barclays Bank PLC, 151 F. Supp. 3d 94 (D.D.C. 2015) ...............................................20
Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521 (D.C. Cir. 2001) .........13
Shafer v. Children's Hosp. Soc. of Los Angeles, Cal., 265 F.2d 107 (D.C. Cir. 1959)....................9
Spaeth v. Georgetown Univ., 839 F. Supp. 2d 57 (D.D.C. 2012) ..................................................20
Sundberg v. TTR Realty, LLC, 109 A.3d 1123 (D.C. 2015) ..........................................................28

vi

Tabb v. D.C., 477 F. Supp. 2d 185 (D.D.C. 2007) ..................................................................23, 34
*United Broth. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825
(1983) .............................................................................................................................................33
United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) ....................14
United States v. Yudong Zhu, 23 F. Supp. 3d 234 (S.D.N.Y. 2014) ..............................................31
Voinche v. Obama, 744 F. Supp. 2d 165 (D.D.C. 2010) .................................................................9
Walden v. Fiore, 134 S. Ct. 1115 (2014) .................................................................................13, 15
Wilding v. DNC Services Corp., Case No. 16-61511-CIV-Zloch (ECF No. 62, S.D.FL Aug. 25,
2017) ................................................................................................................................................5
Williams v. District of Columbia, 9 A.3d 484 (D.C.2010) ............................................................32
Wolf v. Grunseth v. Marriott Corp., 79 F.3d 169 (D.C. Cir. 1996) ...............................................28
Wolf v. Regardie, 553 A.2d 1213 (D.C.1989) .........................................................................28, 29
Other Authorities
United States Constitution Article 3 § 2 ..........................................................................................3
11 C.F.R. §104.8 ........................................................................................................................7, 32
18 U.S.C. § 1028A(a)(1) ................................................................................................................31
28 U.S.C. § 1332 ………………………………………………………………………………….8
28 U.S.C. § 1367(c)(2) .....................................................................................................................9
28 U.S.C. §1391(b)(1) .............................................................................................................17, 18
28 U.S.C. § 1406(a) .................................................................................................................16, 18
42 U.S.C. § 1985(3) ...........................................................................................9, 11, 32, 33, 34, 35
47 U.S.C. §230 ...............................................................................................................................26
D.C. Code § 13-423(a) ...................................................................................................................10

vii

D.C. Code § 28-3852 .....................................................................................................................31
Federal Rule of Civil Procedure 12 .................................................................2, 8, 9, 10, 16, 18, 19
Dobbs’ Law of Torts § 581 (2017).................................................................................................28
Restatement (Second) of Torts § 652D (1977) ..............................................................................30

viii

INTRODUCTION
Three individual plaintiffs allege Russians, working on behalf of their government,
hacked the Democratic National Committee’s emails and other data, transferred it to WikiLeaks,
which disclosed it to the world via the internet. Plaintiffs' data was part of that hack. The data
was disclosed to the world without redaction and they claim they suffered individual
consequences. Roger Stone is not alleged to have hacked, transferred, or touched the emails or
other data Plaintiffs claim were disseminated. Roger Stone is not alleged to have spoken to any
Russians or hackers about the alleged theft of DNC data by hackers or its transfer to WikiLeaks.
The alleged advice and commentary by Stone on the method of dissemination is the claimed
source of the tortious conduct. Regardless, Plaintiffs conclude that Stone conspired with the
Trump Campaign, the Russian hackers, and WikiLeaks -- for the publication of those emails.
Stone, however, is a political strategist, pundit, and commentator. Like or dislike him for who he
campaigns for or his political advocacy; that is a personal choice. Stone is an “agent
provocateur. 1 ” He is the First Amendment running, not walking; but his conduct cannot be
adjudged a civil wrong.
Nevertheless, Plaintiffs have filed what is predominately two D.C.-common law
conspiracy claims “involving public dissemination of private facts.” 2 Ironically, Plaintiffs
gratuitously published Roger Stone's prior home address in the caption of original complaint,

1

GET ME ROGER STONE, a NETFLIX
https://media.netflix.com/en/only-on-netflix/128318
2

https://unitedtoprotectdemocracy.org/privacylawsuit/
1

Original

Documentary,

(2017).

while alleging similar conduct is outrageous, violated their privacy, and exposed them to a
heighted risk of identity theft. Their last claim is a federal conspiracy violation of civil rights.
This case is meritless and filed for sensational and politically partisan reasons. The hope
is this Court will authorize a private investigation through civil discovery, into the President of
the United States and as consequence, Roger Stone; an adviser and friend to President Donald
Trump. Proof of this lies in the extensive conclusory allegations about the Presidential Campaign
of 2016, alleged contacts and motives of the Russian government, Mr. Trump’s tax returns,
business and financial ties, real estate projects, and conversations with former FBI Director
Comey. All of which having nothing to do with Roger Stone.
As a general proposition, Plaintiffs cannot successfully sue Roger Stone because they
think he may have been involved in a grand conspiracy in a purported effort to “tilt” the election
against the Democratic Candidate for President in favor of Donald Trump. Although allegations
of tilting may be fodder for media speculation, in the Courts there must be a wall against all
allegations that without doubt are implausible and near impossible to prove. At the outset, and at
a minimum, Plaintiffs must establish standing and a legitimate claim for relief. Here there is
neither. This case should be dismissed.3

3

This motion to dismiss under Federal Rule of Civil Procedure 12(b) is filed contemporaneously
with Roger Stone’s special motion to dismiss under the District of Columbia’s strategic lawsuit
against public participation (“Anti-SLAPP”).
Roger Stone adopts Defendant Donald J. Trump for President’s motion to dismiss, to the extent
that the arguments apply to him.
2

FACTS
To avoid redundancy, Roger Stone adopts the recitation of the facts as outlined by
codefendant Donald J. Trump for President, Inc.
ARGUMENT
Defendant Roger Stone has multiple challenges to the Complaint starting with Article III
standing and then other challenges under Federal Rule of Procedure 12.
I.

The Court does not have Subject Matter Jurisdiction. (Rule 12(b)(1)).
A. Plaintiffs lack Article III standing.
Article III standing concerns subject matter jurisdiction. Prisology, Inc. v. Fed. Bureau of

Prisons, 852 F.3d 1114, 1116 (D.C. Cir. 2017). The party invoking federal jurisdiction bears the
burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Plaintiffs cannot sustain this action because they allege no cognizable injury that can be fairly
traced to Roger Stone’s alleged actions, and thus fail to clear a fundamental constitutional
threshold necessary to pursue their claims in federal court. Article III of the Constitution limits
the jurisdiction of federal courts to actual “cases and controversies.” U.S. Const. art. 3, § 2.
Central to that requirement is that a litigant has “standing.” This requires more than a “keen
interest in the issue.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013). To avoid dismissal,
the plaintiff bears the burden of demonstrating (1) he has suffered “a concrete and particularized”
injury, (2) that is “fairly … trace[able] to the challenged action of the defendant, and not … th[e]
result [of] the independent action of some third party [who is] not before the court,” and (3)
“likely … will be redressed by a favorable [judicial] decision.” Lujan, 504 U.S. at 560-61
(internal quotation marks and citation omitted). Stone challenges that Plaintiffs have suffered a
concrete and particularized injury and that Stone’s actions are fairly traceable to the challenged
3

action. In fact, Plaintiffs focus their allegations on the alleged effect the WikiLeaks disclosure
had on the presidential election. (Am. Compl. ¶¶ 224, 232, 243).
1.

Heightened risk of identity theft.

There is a conflict among the United States Circuit Courts of Appeals regarding whether
a plaintiff can establish Article III injury-in-fact based on an increased risk of future identity
theft. The Sixth, Seventh, and Ninth Circuits have held that plaintiffs can establish an injury-infact based on the threatened injury of an increased risk of future identity theft. See Galaria v.
Nationwide Mut. Ins. Co., 663 Fed. Appx. 384, 388 (6th Cir. 2016) (unpublished) (plaintiffcustomers' increased risk of future identity theft theory established injury-in-fact after hackers
breached Nationwide Mutual Insurance Company's computer network and stole their sensitive
personal information, because “[t]here is no need for speculation where Plaintiffs allege that their
data has already been stolen and is now in the hands of ill-intentioned criminals”); Remijas v.
Neiman Marcus Grp., LLC, 794 F.3d 688, 692, 694-95 (7th Cir. 2015) (plaintiff-customers'
increased risk of future fraudulent charges and identity theft theory established “certainly
impending” injury-in-fact and “substantial risk of harm” after hackers attacked Neiman Marcus
with malware to steal credit card numbers, because “[p]resumably, the purpose of the hack is,
sooner or later, to make fraudulent charges or assume those consumers' identities”); Krottner v.
Starbucks Corp., 628 F.3d 1139, 1142-43 (9th Cir. 2010) plaintiff employees' increased risk of
future identity theft theory a “credible threat of harm” for Article III purposes after theft of a
laptop containing the unencrypted names, addresses, and social security numbers of 97,000
Starbucks employees); Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 632-34 (7th Cir. 2007)
(banking services applicants' increased risk of harm theory satisfied Article III injury-in-fact

4

requirement after “sophisticated, intentional and malicious” security breach of bank website
compromised their information).
The First and Third Circuits have denied standing under the same injury-in-fact theory.
See Katz v. Pershing, LLC, 672 F.3d 64, 80 (1st Cir. 2012) (brokerage account-holder's increased
risk of unauthorized access and identity theft theory insufficient to constitute “actual or
impending injury” after defendant failed to properly maintain an electronic platform containing
her account information, because plaintiff failed to “identify any incident in which her data has
ever been accessed by an unauthorized person”); Reilly v. Ceridian Corp., 664 F.3d 38, 40, 44
(3d Cir. 2011). Recently, the same hack of the DNC's computer servers has been reviewed in the
Southern District of Florida. In that case, the District Court dismissed the case for lack of
standing based upon an alleged heightened risk of identity theft. See Wilding v. DNC Services,
Corp., 16-cv-61511-WJZ (ECF No. 62 at 28, Aug. 25, 2017) (DNC, the entity sued, not liable
for heightened risk of identity theft).
This Circuit has ruled Plaintiffs can have standing to sue for a heightened risk of identity
theft. Attias v. Carefirst, Inc., 865 F.3d 620, 622 (D.C. Cir. 2017) (health insurer holding
customers’ stolen personal information). This case, however, does not eliminate Stone’s
argument. While there remains a split in the circuits regarding whether the injury is concrete, the
issue of fairly traceable is dominant in this case because Stone did not hold or release the
Plaintiffs’ emails or own or control the server it was on. All of the cases discussing the issue of
standing as it relates to a heightened risk of identity theft are at least of parties that held and
controlled the data servers that were compromised. None is of third-parties.
Heightened risk of identity theft is too speculative for Plaintiffs to establish standing.
Plaintiff Schoenberg alleges that his identity was stolen and used “in fraudulent attempts to get
5

credit cards,” that were mailed to his house. (Am. Compl. ¶18). This necessarily means the
attempts were unsuccessful. But his claim is also insufficient because he cannot establish that the
identity theft he asserts came from the DNC hack. The other Plaintiffs claim an ongoing fear
concerning future identity theft. (Am. Compl. ¶¶ 44, 63, 64, 68). While the information
disseminated by the DNC has the potential to invite identity theft, so do the forms that the
campaign is required to disclose from when donors contribute to a presidential campaign along
with other methods.
Stone is not connected to a conspiracy to hack or publish. It is clear from the complaint
that the DNC emails were going to be published. The Court is meant to infer Roger Stone was
consulted without ever reviewing the thousands of emails and gave strategic advice on how to
disseminate the tranche of emails that included Plaintiffs' data. It is implausible, however, that
Stone could offer meaningful strategic advice on dissemination without viewing the emails. The
complaint fails to allege sufficient conduct fairly traceable with the alleged effect because it is
contingent on a chain of attenuated hypothetical events and actions by third parties independent
of Roger Stone.
2.

Chilling effect on political activism.

Plaintiffs also describe they suffer from a “chilling effect on the rights of Americans to
support and advocate for candidates for office.” (Am. Compl. ¶ 221). Plaintiffs, in effect,
because their data along with many others were made publicly available on WikiLeaks their
desire to participate in the political process has waned and they suffered a diminution in their
ability to influence the political process. Plaintiffs, financial contributors and a campaign
employee of the Democratic National Committee do not suffer a cognizable injury based on
claims that they “suffered a diminution in their ability to influence the political process,” or that
6

their preferred candidate was put at a disadvantage, because such theories necessarily “rest[] on
gross speculation and [are] far too fanciful to merit treatment as an ‘injury in fact.’” Gottlieb v.
Fed. Election Comm’n, 143 F.3d 618, 620, 621 (D.D.C. 1998) (citation omitted). Plaintiffs’
allegations that Russian hackers conspired with Stone and the Trump Campaign to have
WikiLeaks strategically disseminate among others, their emails that revealed mostly information
that must be disclosed on federal campaign forms regardless, falls short of meeting the
requirement of Article III standing. Because a diminution in Plaintiffs’ ability to influence the
political process is not a cognizable injury, this lawsuit should be dismissed for lack of standing.
Plaintiffs also cannot meet Article III’s causation requirement. A large part of Plaintiffs’
case is that the security breach of the DNC’s servers drew attention to information about them
that the DNC was required to disclose under federal campaign law. See 11 C.F.R. §104.8.4 (Am.
Compl. ¶¶ 44, 63, 64, 68). The amended complaint paints a picture that hackers were rummaging
the DNC’s files for information pertinent to the presidential election not specific to these
particular plaintiffs. Plaintiffs frame the facts that the hacks and dissemination led to foreseeable
risk. But Stone is not responsible for the actions of the third party hackers or disseminators. See
Clapper v. Amnesty Int’l, 133 S. Ct. 1138, 1150 (2013) (observing courts’ “usual reluctance to
endorse standing theories that rest on speculation about the decisions of independent actors”). “A
plaintiff must not only show an ‘injury in fact,’ but must also show that the injury is fairly
traceable to the allegedly harmful conduct and that the relief sought by the plaintiff will likely
redress the injury.” Arpaio v. Obama, 27 F. Supp. 3d 185, 203 (D.D.C. 2014). The direct cause

4

“This identification shall include the individual's name, mailing address, occupation, the name
of his or her employer, if any, and the date of receipt and amount of any such contribution.”
7

of the injury is the independent action of “Russian hackers” and WikiLeaks. The traceability of
the cause and effect Plaintiffs complain becomes more constitutionally tenuous when alleged
third party actions arise. See Renal Physicians Ass'n v. U.S. Dept. of Health & Human Services,
489 F.3d 1267, 1275 (D.C. Cir. 2007). In fact, the identity theft cases cited above describe
lawsuits where the entity who was hacked was the party to the lawsuit – none were conspirators
based upon their speech. Absent a plausible causal link between the injury alleged and
Defendants’ actions, the Court lacks jurisdiction. See Lujan, 504 U.S. at 560.
In this case, Roger Stone is alleged to have offered advice to WikiLeaks on how to
strategically disseminate thousands of emails held by the DNC in order to gain maximum
political effect for Donald Trump. Plaintiffs do not describe how he did that other than to say
Stone tweeted directly or publicly posted remarks to Guccifer 2.0 (an alleged Russian hacker)
and a “backchannel” to Julian Assange, the administrator of WikiLeaks. Allegations that Stone
“amplified and drew attention to hacked emails that had been published” are protected by the
First Amendment as free speech. (Am. Compl. at 42, F.) Plaintiffs must allege more than Stone
told people to look over at WikiLeaks.
The Plaintiffs were not specifically targeted. Their personal information regarding their
donations is required by law to be disclosed. Plaintiff Comer’s sexual orientation also was not a
secret to everyone but his grandparents. Most importantly, Stone did not do anything that made
Russian hackers hack, or WikiLeaks disseminate the DNC’s data. Because the Plaintiffs only
allege tenuous events that occur at or near the time they felt they were injured, does not create a

8

sufficient fairly traceable connection between Stone’s acts and the injuries suffered. Thus, the
Plaintiffs do not have standing to pursue this lawsuit.5
B. The Court lacks diversity jurisdiction.
Plaintiffs attempt to invoke the District Court’s diversity jurisdiction by claiming the
amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. Plaintiffs fail to properly allege
this element since they aggregated the amount in controversy over all Plaintiffs. Multiple
Plaintiffs require “separate and distinct claims” and their allegations must be individually and
specifically alleged. Georgiades v. Martin-Trigona, 729 F.2d 831, 833 (D.C. Cir. 1984).
Plaintiffs’ claims cannot be stacked. Each individual plaintiff must meet the threshold amount of
controversy requirement. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 555
(2005).
In the case at bar, Plaintiffs have aggregated their claim for purposes of the amount in
controversy. (Am. Compl. ¶29) (prayer for relief b). Because Plaintiffs failed to properly allege
the amount in controversy, the amended complaint must be dismissed because the Court does not
have diversity jurisdiction over their claims.
C. The Court lacks supplemental jurisdiction.
Supplemental jurisdiction also is improper, because Plaintiffs’ D.C.-law claims
“substantially predominat[e] over” their federal claim. 28 U.S.C. § 1367(c)(2). See generally
Crockett v. Mayor of the D.C., 181 F. Supp. 3d 70, 72 (D.D.C. 2013). Plaintiffs’ common law
claims are the first two causes of action, and the 42 U.S.C. § 1985(3) claim seeks relief for a civil

Stone also analyzes Plaintiff’s failure to connect emotional distress to his actions (infra, section
IV(F)), and a failure to allege a nexus between conduct and effect under their civil rights
conspiracy. Infra, section IV(G)(4).
5

9

rights conspiracy. Plaintiffs’ allegations are so broad and sweeping its hope for authorization
from this Court to investigate the 2016 Campaign for President does not justify the exercise of
jurisdiction. The common law claims “substantially predominate” over the long-reaching weak
and attempt at a connection to the federal claim, which Plaintiffs put last in their complaint.
Little doubt is left as to the substantial predominance as stated by Plaintiffs’ lawyers’ press
release describing public disclosure as “the principal claim” in this case.6 Because the federal
claim is tenuously connected to this predominate common law privacy tort case, this Court
should dismiss this lawsuit.
II. The Court lacks personal jurisdiction over Roger Stone. (Rule 12(b)(2)).
This Court may exercise personal jurisdiction over Roger Stone only if Plaintiffs satisfy:
(1) the D.C. long-arm statute; and, (2) the Due Process Clause. GTE New Media Services Inc. v.
BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). The Plaintiffs must satisfy both. Id.
Plaintiffs satisfy neither. Roger Stone is a non-resident defendant who also is not alleged to have
committed any tort in the District.
A. Exercising personal jurisdiction would violate the D.C. long-arm statute.
The D.C. long-arm statute lists a number of grounds for jurisdiction (D.C. Code § 13423(a)); only two are relevant here. Clause (a)(3) grants jurisdiction over a defendant who causes
“tortious injury in the District” through an act inside the District. And clause (a)(4) grants
jurisdiction over a defendant who causes “tortious injury in the District” through an act outside
the District, but only if the defendant also engages in a persistent course of conduct in the

“The principal claim is that the defendants, the Trump Campaign and its agents and associates,
were involved in a conspiracy with Russia and WikiLeaks involving the public dissemination of
private facts.” (emphasis added). https://unitedtoprotectdemocracy.org/privacylawsuit/
6

10

District. Both clauses require “tortious injury in the District.” There is no such injury here
because: (1) this case involves a mental injury; (2) mental injury usually occurs where the
plaintiff lives; and, (3) Plaintiffs all live outside the District.
Plaintiffs’ “tortious injury” in this case is a mental or emotional injury. The injury in the
claim for publication of private facts is the “shame” and “humiliation” caused by the disclosure,
(Am. Compl. ¶ 227). The injury in the claim for intentional infliction of emotional distress is
“emotional distress.” (Am. Compl. Count II). And the injury in the claim under § 1985 is the
“intimidation” and distress allegedly caused by the disclosure of “private emails” (Am. Compl. ¶
244)—all mental and emotional injury.
Plaintiffs’ tortious injury, their mental harm, resides where they do. Thus, the D.C.
Circuit has held that usually occurs “in the place where the plaintiff lives.” Crane v. Carr, 814
F.2d 758, 760 (D.C. Cir. 1987) (citing Calder v. Jones, 465 U.S. 783, 787 (1984)) (effects of
infliction of emotion distress caused by published article jurisdictionally sufficient because that
is where the effects are felt) (other citations omitted). Injuries to one’s “mental and emotional
well-being” can “only have been sustained” where one lives. Aiken v. Lustine Chevrolet, Inc.,
392 F. Supp. 883, 886 (D.D.C. 1975).
Plaintiffs all live outside the District, thus their alleged mental or emotional injury
occurred outside this District. Cockrum lives in Tennessee, Schoenberg in New Jersey, and
Comer in Maryland. (Am. Compl. ¶¶ 32–34.) None of them experienced their injuries in the
District, as the long-arm statute requires. This argument more so applies for Roger Stone. Stone
was sued in his individual capacity. The allegations by Plaintiffs about the Campaign are not
shared by Stone, meaning nothing alleged connects Stone to the District. Aiken, 392 F. Supp. at
886. The only new allegation in the amended complaint is that Roger Stone made two trips to
11

D.C. during the campaign and “on information and belief,” he “interacted with other agents and
associates of the Campaign.” (Am. Compl. ¶ 41). Plaintiffs’ suggestive language implies more
but simply expresses Stone communicated with unknown campaign workers while he was in the
District. Plaintiffs do not allege with whom Stone communicated and the significance of any
communication as it relates to their alleged conspiracy.
It is also not enough that Comer worked in the District. (Am. Compl. ¶ 5). True,
“emotional or reputational injury” can sometimes occur not just “where the plaintiff lives” but
also where he “works.” Helmer v. Doletskaya, 393 F.3d 201, 208 (D.C. Cir. 2004). It does so,
however, only when the injury in question concerns the plaintiff’s “career”—for example, where
a “libelous story” impugns the plaintiff’s “professional reputation.” Calder 465 U.S. at 788–89.
But Comer’s alleged injuries arise from disclosure of his sexual orientation—a feature of his
personal life, not his work life. Moreover, that disclosure allegedly disrupted Comer’s
relationship with his “grandparents” (Am. Compl. ¶¶ 5, 19, 51), not his relationship with work
colleagues. In fact, Comer’s colleagues already knew that he is gay, which Comer discussed in
his work emails. (Id.). Indeed, he was the LGBT Finance Director for the Clinton campaign. (Am.
Compl. ¶34). In short, his sexual orientation was not a secret to everyone accept his grandparents
and certain other relatives. Thus, although emotional injury can occur in one’s workplace,
Comer’s alleged injury occurred where he lived, in Maryland. In short, none of the Plaintiffs can
satisfy the D.C. long-arm statute.
B. Exercising personal jurisdiction would violate the Due Process Clause.
“Even when the literal terms of the long-arm statute have been satisfied, a plaintiff must
still show that the exercise of jurisdiction is within the permissible bounds of the Due Process
Clause.” GTE, 199 F.3d at 1347. The Due Process Clause authorizes two forms of personal
12

jurisdiction: general and specific. A court with general jurisdiction may hear any claim against a
defendant, regardless of where the claim arose; a court with specific jurisdiction may only hear
claims that arose in the forum. Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773,
1780 (2017). This Court has neither general nor specific jurisdiction.
General jurisdiction is no factor. “For an individual, the paradigm forum for the exercise
of general jurisdiction is the individual's domicile. . . .” Daimler AG v. Bauman, 134 S. Ct. 746,
760 (2014) (citations omitted). Roger Stone does not live or work in the District. Plaintiffs do not
allege he committed any act other than communicate with people in the District. Nor do they
allege he conspired with anyone else within the District about the subject matter of the
conspiracy. Therefore, general jurisdiction does not apply.
This leaves specific jurisdiction. Specific jurisdiction requires a “relationship among the
defendant, the forum, and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1126 (2014). A court
has specific jurisdiction only if (1) the defendant has “purposefully established minimum
contacts” with the forum by “purposefully direct[ing]” his activities there and (2) the plaintiff’s
claims “arise out of or relate to” those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462
(1985).

Bare allegations of agency or conspiracy are insufficient to establish personal

jurisdiction. Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 525 (D.C.
Cir. 2001). Plaintiffs must allege specific acts connecting a defendant to the forum. Id.
This case does not arise out of Roger Stone’s actions in the District of Columbia.
Plaintiffs do not allege that anyone, including Stone, published the emails from within the
District. Nor do they allege that the Campaign conspired with anyone else within the District. So
there is no specific jurisdiction. None of Plaintiffs’ allegations suggests otherwise.

13

Plaintiffs do their best to allege that Roger Stone has been in the District for campaign
events. This is simply not correct. Roger Stone has been to the District for other matters outside
of the Campaign for President. Even if accepted as true, campaigning is not illegal, and not
every act of campaigning would be an overt act in support of a scheme to promote dissemination
of data from the DNC’s computers. 7
First, the presence of the DNC’s headquarters in the District (Am. Compl. ¶ 31) does not
create jurisdiction. Specific jurisdiction can rest only on “contacts that the defendant himself
creates with the forum.” Walden, 134 S. Ct. at 1122. The Supreme Court has “consistently
rejected attempts to satisfy the defendant-focused ‘minimum contacts’ inquiry by demonstrating
contacts between the plaintiff (or third parties) and the forum.” Id. For example, a court does not
acquire personal jurisdiction “merely because the plaintiff … was residing” in the forum at the
time of the defendant’s actions. Id. at 1123. Likewise, this Court does not acquire personal
jurisdiction merely because the DNC (which is not even a plaintiff, but a third party) is
headquartered in the District.
Second, the claim that Russian hackers “hacked into the email systems of the DNC in the
District,” (Am. Compl. ¶ 7) likewise does not create personal jurisdiction. Plaintiffs allege that
the hacked servers were in the District. Assuming the servers were located in the District,
personal jurisdiction must (as just noted) rest on Stone’s contacts with the forum. See Walden,

7

To the extent that personal jurisdiction boils down to whether Stone appeared in the District
during the campaign and precisely what his purpose was in the District becomes a critical
allegation to determining jurisdiction, Plaintiffs allegations are wrong. See Barros v. Beck, 28 F.
Supp. 3d 31, 34 (D.D.C. 2014) (plaintiff has burden of alleging personal jurisdiction and court
could conduct evidentiary hearing).

14

134 S. Ct. at 1122. Jurisdiction thus cannot rest on an allegation that third parties (Russian
computer hackers) hacked computers within the District. That is particularly so because
Plaintiffs never allege that Stone in any way participated in, conspired to conduct, or aided and
abetted the initial hack.
In all events, specific jurisdiction extends only to claims that “arise out of or relate to” the
defendant’s activities in the forum. Bristol-Myers, 137 S. Ct. at 1780. Plaintiffs’ claims arise out
of and relate to the publication, not the acquisition, of the emails. In fact, as a matter of tort law,
liability for publication does “not turn on the manner in which [the information] has been
obtained.” Pearson v. Dodd, 410 F.2d 701, 706 (D.C. Cir. 1969). Since the claims do not arise
from the alleged hack, allegations that the hack targeted computers in the District could not
establish personal jurisdiction.
Third, the accessibility of WikiLeaks in the District (Am. Compl. ¶ 42) does not create
specific jurisdiction. The D.C. Circuit has ruled jurisdiction cannot rest on the “mere
accessibility” of a website in the forum. GTE, 199 F.3d at 1350. Personal jurisdiction requires
action “purposefully directed” at the forum (Burger King, 471 U.S. at 472), but posting
something on the internet, where the entire world can read it, is not action “purposefully directed”
at the District. In addition, if mere accessibility were enough, a defendant who posts material on
the internet would be subject to jurisdiction “in any forum in the country,” “shred[ding]” the
“constitutional assurances” provided by the Due Process Clause “out of practical existence.”
GTE, 199 F.3d at 1350. Because dissemination of data on the internet including the District of
Columbia is insufficient to connect Stone to this District for purposes of personal jurisdiction, he
must be dismissed because this Court does not have jurisdiction over him.

15

III. The District of Columbia is an improper venue for this lawsuit. (Rule 12(b)(3)).
Rule 12(b)(3) of the Federal Rules of Civil Procedure authorizes a party to move to
dismiss a case for “improper venue.” Similarly, the federal venue statute, 28 U.S.C. § 1406(a),
requires that a district court “dismiss, or if it be in the interest of justice, transfer” a case, which
is filed “in the wrong division or district.” 28 U.S.C. § 1406(a). Together, “Section 1406(a) and
Rule 12(b)(3) allow dismissal only when venue is ‘wrong’ or ‘improper’... in the forum in which
[the case] was brought.” Atl. Marine Constr. Co. v. U.S. Dist. Court, 134 S. Ct. 568, 573 (2013).
“Whether venue is ‘wrong’ or ‘improper’ depends exclusively on whether the court in which the
case was brought satisfies the requirements of federal venue laws, ....” Id.at 578. See also Fam v.
Bank of Am. NA (USA), 236 F. Supp. 3d 397, 405 (D.D.C. 2017).
The moving party objecting to the venue must provide sufficient specificity to advise
Plaintiffs of the defect. Id. Once Plaintiffs are on notice of the defect, the burden shifts to them
to establish that venue is proper. Id. (citations omitted). When assessing the motion for improper
venue, the court should accept Plaintiffs’ well-pled factual allegations regarding venue. Id.
(citations omitted). On the other hand, the Court should not accept Plaintiffs’ legal conclusions
as true, and may consider material outside the pleadings. Id. at 406 (citing Jerome Stevens
Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005)) (other citations
omitted).
According to 28 U.S.C. §1391(b)(1), venue is proper in a “judicial district which any
defendants resides, if all defendants are residents of the State in which the district is located.”
Roger Stone does not reside in the same State as the Donald J. Trump Campaign for President,
Inc. Thus, this part of the statute does not apply.

16

Second, venue is proper in “a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property that is the subject of
the action is situated.” 28 U.S.C. § 1391(b)(2). Fam, 236 F. Supp. 3d at 406. Plaintiffs allege a
world-wide conspiracy of Russians working for the Russian government and using Julian
Assange of WikiLeaks, wherever he is located, throughout the complaint. Neither defendant
resides in this District. None of the Plaintiffs reside in the District. The only allegation in this
lawsuit that places the setting in this District is that the DNC resides in the District. There are
allegations surrounding the DNC servers that were hacked and that data was copied and stolen;
but for purposes of venue and jurisdiction (also as alleged above), it is where the events take
place that is the center of the analysis and consequently whether this Court is a proper forum.
Plaintiffs’ allegation is venue is proper because the DNC is headquartered in the District.
Plaintiff Comer was employed by the DNC, and all of the published emails were sent to or from
and resided on the DNC’s servers, were maintained by the DNC, and were hacked from those
servers. Moreover, Plaintiffs’ private information was published across the world, including in
this District. The claim that “Plaintiffs suffered injury in this District,” (Am. Compl. ¶ 31) is
unsubstantiated since none of them reside in the District. Roger Stone is not alleged to have
hacked or even known about the hack before it occurred; rather, Stone is alleged to have
conspired to effectively disseminate the Plaintiffs’ data (and everyone else’s in the DNC) in
order to effectuate maximum political impact. None of this allegedly happened in the District.
(Am. Compl. ¶ 88–101). Plaintiffs do not allege that WikiLeaks published the emails from
within the District; and, they do not allege the conspirators had a meeting of the minds in the
District. Thus, venue is not proper in this District.

17

Plaintiffs claim potential viewing of the emails through WikiLeaks is not unique to the
District. (Am. Compl. ¶ 31). WikiLeaks can be viewed through internet access anywhere. The
theory that venue is proper anywhere because WikiLeaks can be viewed in any district is not a
viable theory of venue. Lamont v. Haig, 590 F.2d 1124, 1134 & n.63 (D.C. Cir. 1978).
While presumptively this Court should transfer venue rather than dismiss this case, if the
only ground for dismissal is improper venue. Fam, 236 F.Supp.3d at 408 (citing 28 U.S.C.
§1406(a)). Venue is proper in “any judicial district in which any defendant is subject to the
court's personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b)(3). Those choices
are the Southern District of Florida, the Southern District of New York (principal place of
business for the Trump Campaign), or Eastern District of Virginia (state of incorporation for the
Trump Campaign).
IV. Plaintiffs fail to state a claim upon which relief can be granted. (Rule 12(b)(6)).
A. Standard of Review
Until the Supreme Court decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
courts routinely followed the rule that, “a complaint should not be dismissed for failure to state a
claim unless it appears beyond a doubt that the plaintiff could prove no set of facts in support of
his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
However, pursuant to Twombly, to survive a motion to dismiss, a complaint must now contain
factual allegations which are “enough to raise a right to relief above the speculative level . . . on
the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of
his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation
18

of the elements of a cause of action will not do.” Id. In all, determining whether a complaint
states a plausible claim for relief will “be a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662 (2009);
see also Pena v. A. Anderson Scott Mortg. Group, Inc., 692 F. Supp. 2d 102, 106 (D.D.C. 2010).
Second, the court must determine whether the well-pled factual allegations, if assumed to be true,
“plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 662. When the factual
allegations are “not only compatible with, but indeed [are] more likely explained by” lawful
activity, the complaint must be dismissed. Id. at 663.
A complaint must be dismissed if it consists only of “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Id. at 678. “Although ‘detailed
factual allegations' are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide
the ‘grounds' of ‘entitle[ment] to relief,’ a plaintiff must furnish ‘more than labels and
conclusions' or ‘a formulaic recitation of the elements of a cause of action.’” Gerlich v. United
States Dep't of Justice, 659 F.Supp.2d 1, 4 (D.D.C.2009) (quoting Twombly, 550 U.S. at 555–
56)). The plausibility standard “asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678. Thus, “[f]actual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Twombly, 550 U.S. at 555. Following Iqbal, this District
Court has applied the Iqbal standard strictly in cases ranging from racketeering to age
discrimination, and other civil rights cases.8

8

See Sandza v. Barclays Bank PLC, 151 F. Supp. 3d 94, 101 (D.D.C. 2015) (RICO case
applying “implausibility” standard); Spaeth v. Georgetown Univ., 839 F. Supp. 2d 57, 58 (D.D.C.
19

Applying the Iqbal standard in this case, it is abundantly clear that Plaintiffs’ allegations
of conspiracy fall short in crossing the line from “conceivable” to the “plausible” as they allege
fantastic claims that are conclusory and unlikely. See Iqbal, 556 U.S. at 680. As discussed below,
the allegations are implausible because they do not clearly identify who are the members of the
conspiracy; if the DNC was actually hacked or it was taken from the inside on a USB thumb
drive, how the computer hacking of the DNC servers occurred, who and how many hacked,
where the computer server hack occurred, and, how did Stone encourage delivery of the data to
WikiLeaks and coach its impactful dissemination. Plaintiffs fail to allege any facts that could
plausibly support a viable claim, relying instead on broad and conclusory allegations, largely
gleaned from unsourced publications.
B. The allegations are vague and do not support a complete and plausible set of facts.
The facts of Iqbal are instructive on delineating sufficient allegations from insufficient
conclusory allegations. In the wake of the September 11, 2001, terrorist attacks Iqbal was
arrested in the United States on criminal charges and detained by federal officials. Iqbal, 556 U.S.
at 666. He claims he was deprived of various constitutional protections while in federal prison.
Id. He filed a complaint against numerous federal officials, including John Ashcroft, the former
Attorney General and Robert Mueller, the then Director of the FBI. Id. The complaint against
Ashcroft and Mueller alleged that they adopted an unconstitutional policy that subjected Iqbal to
“harsh conditions of confinement on account of his race, religion, or national origin.” Id. After
he pled guilty to criminal charges and served his term of imprisonment, Iqbal sued in United

2012) (ADEA case); Middlebrooks v. Bonner Kiernan Trebach & Crociata, 671 F. Supp. 2d 61,
64 (D.D.C. 2009) (§ 1981 case); Partovi v. Matuszewski, 647 F. Supp. 2d 13, 18 (D.D.C. 2009)
(§ 1983 case).
20

States District Court and 34 current and former federal officials, and 19 unnamed federal
corrections officers under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Id.
at 668.
The complaint further alleged that “[t]he policy of holding post–September–11th
detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was
approved by Ashcroft and Mueller in discussions in the weeks after September 11, 2001.” Id. at
669. Lastly, the complaint posited Ashcroft and Mueller “each knew of, condoned, and willfully
and maliciously agreed to subject” Iqbal to harsh conditions of confinement “as a matter of
policy, solely on account of [his] religion, race, and/or national origin and for no legitimate
penological interest.” Id. The pleading named Attorney General Ashcroft as the “principal
architect” of the policy, and identified Mueller as “instrumental in [its] adoption, promulgation,
and implementation,” Id.
The failure of Iqbal’s pleading is that he pled as fact allegations that were “merely
consistent with” a defendant's liability, it “stop[ped] short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id. at 557. Like Plaintiffs’ complaint, the essential
allegations are presented merely consistent with liability and are so outrageous and unexplained
that it comes nowhere near line of possibility and plausibility. See id. Plausibility of the
complaint is a “context-specific task” that requires the court to draw on its “judicial experience”
and “common sense.” Id. at 679.
Looking at this complaint within only its four corners should lead this Court to conclude
in its experience that Plaintiffs’ complaint is too vague to survive a motion to dismiss. In a
hyperbolic manner, Plaintiffs have alleged, with nothing but reference to unverified Intelligence
and media reports, the allegations are correct. When referencing Intelligence reports, these
21

citations beg the question, which report is being referenced. Both alleged referenced Intelligence
reports and news reports from various media are inadmissible hearsay when used in motions for
summary judgment. See Gilmore v. Palestinian Interim Self-Gov't Auth., 53 F. Supp. 3d 191, 201
(D.D.C. 2014). While the Court may consider proper attachments to a complaint, Plaintiffs do
not attach the reports they reference. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997). In the posture of a motion to dismiss, it is also not acceptable.
Plaintiffs must identify with whom Roger Stone conspired. See Bush v. Butler, 521 F.
Supp. 2d 63, 69 (D.D.C. 2007). Alleging Stone conspired with Russians is as broad and as
absurd as saying he conspired with Americans. Plaintiffs do not identify the “multiple agents and
associates” of the Campaign. They do not identify who are the agents or the “entities”; and more
particularly, who are the ones who are “close to the Russian President and government.” (Am.
Compl. ¶ 11). See Acosta Orellana v. CropLife Intern., 711 F. Supp. 2d 81, 113 (D.D.C. 2010)
(when and how the offending agreement was brokered must be factually supported). Furthermore,
the terms of the agreement are not specified so that there was a “meeting of the minds”; a
pleading requirement that must be met. See Graves v. United States, 961 F. Supp. 314, 320
(D.D.C. 1997). What does being “close to the Russian President and government” mean? Then,
in an attempt to be as inflammatory as possible, the Plaintiffs accuse those unnamed individuals
of conspiring with unnamed entities that sought to “maximize the impact” of the hacked data.
The amended complaint does not factually support how or what Roger Stone did to facilitate the
political maximization.
Without identifying with whom Stone conspired, they do not illustrate a “meeting of the
minds.” See id.; McCreary v. Heath, CIV.A. 04-0623 PLF, 2005 WL 3276257, at *5 (D.D.C.
Sept. 26, 2005) (unpublished). “Those in control of the hacked materials” (Am. Compl. ¶ 11),
22

consulted with Stone leaves the questions of when and where widely open; in addition to, what
did he tell those people. Because these questions are unanswered, the complaint is vague and
conclusory and does not meet the pleading standard of Rule 8.
Without that level of specificity, Plaintiffs will never be able to show they are entitled to
relief. Without more specificity, Plaintiffs complaint fails to “nudge” their claim “across the line
from conceivable to plausible.” See id. at 683 (citing Twombly, 550 U.S. at 570); see Kowal v.
MCI Communications Corp., 16 F.3d 1271, 1279 (D.C. Cir. 1994).
C. Plaintiffs fail to state a claim of conspiracy.
1.

Conspiracy between Stone and the Campaign.

Plaintiffs do not state a proper theory of conspiracy to support any claim. An agent of a
corporation cannot conspire with the corporation itself. Executive Sandwich Shoppe, Inc. v. Carr
Realty Corp., 749 A.2d 724, 739 (D.C. 2000) (referred to as the “intracorporate conspiracy
doctrine”); Tabb v. D.C., 477 F. Supp. 2d 185, 190 (D.D.C. 2007) (citing Dickerson v. Alachua
County Comm., 200 F.3d 761, 767 (11th Cir. 2000)). Stone was an employee at a relevant period,
and ". . . continued to play an important role in the Trump Campaign as an advisor even after his
alleged departure, and he remained in regular contact with Trump throughout the campaign,"
according to paragraph 41 of the complaint. (emphasis added). In short, the amended complaint
alleges Stone was always acting as an agent of the Trump Campaign for President. The D.C.-law,
therefore, does not support a claim of conspiracy between Stone and the Campaign.
2.

Conspiracy between Stone and Russian agents.

Plaintiffs’ overused incantation of upon “information and belief” does not meet the
standard enunciated in Rule 8 and Iqbal, 556 U.S. at 678 (complaints must state “plausible”
claims for relief). The phrase does not add credibility to the allegation and it signals the
23

remainder of the allegation is conclusory. The phrase is allowable in a complaint; where the facts
are “peculiarly within the possession and control of the defendant, or where the belief is based on
factual information that makes the inference of culpability plausible.” Evangelou v. D.C., 901 F.
Supp. 2d 159, 170 (D.D.C. 2012) (citing Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d
Cir. 2010); see also Kvech v. Holder, 10-CV-545 RLW, 2011 WL 4369452, at *3 n. 7 (D.D.C.
Sept. 19, 2011) (unpublished). In fact, the parties with the most technical information about
what might have happened are conspicuously not a party to this action – the DNC and the
“Russians.” The Court should remove the phrase and the reading of the material allegations will
reveal the complaint as conclusory and implausible. Franklin v. Curry, 738 F.3d 1246, 1250-51
(11th Cir. 2013) (district court should identify and remove conclusory allegations not entitled to
the assumption of truth). See also Robertson v. Cartinhour, 867 F. Supp. 2d 37, 59 n. 57 (D.D.C.
2012) (citing Kowal, 16 F.3d at 1279)).
Plaintiffs refer to the Russians throughout its complaint. They refer to “secret meetings,”
“phone calls,” emails, lawyers, and “Putin confidants.” (Am. Compl. ¶¶ 88, 102-118). Roger
Stone is not alleged to have attended, called, sent emails, or been connected in any way to Putin
or his “confidants.” The complaint copies and refers to an uncited report in the New York Times
and serves in large part as the basis for Stone’s summons to this lawsuit.9 (See Am. Compl. ¶¶ 41,
165). One allegation in paragraph 41 comingles Stone with Paul Manafort, and must be called to
the Court’s attention. “In early 2016, Stone helped arrange his longtime friend and former

9

Maggie Haberman, Roger Stone, the ‘Trickster’ on Trump’s Side, Is Under FBI Scrutiny, New
York Times, Mar. 21, 2017. https://www.nytimes.com/2017/03/21/us/roger-stone-donald-trumprussia.html

24

business partner Manafort to become chairman of the Trump Campaign. He has consulted on
political strategy around the world, including in Ukraine. . . ‘His ties to Russia are now under
scrutiny by the F.B.I.’” The “he” and “his” in the New York Times refers to Manafort, not Stone.
Citing to the New York Times does not avoid the pleading requirements of Rule 8; Plaintiffs
cannot replace Stone for Manafort. The complete quotation in the New York Times report states:
“His ties to Russia are now under scrutiny by the F.B.I., but Mr. Manafort denies any suggestion
that he colluded with Russian officials or anybody else.” The allegation in the complaint implies
reference to Stone when clearly the article does not. This is an example of why Rule 8 requires
more than just conclusory allegations. It is meant to avoid misleading allegations and protracted
litigation when it is clear no plausible claim can be made. See Twombly, 550 U.S. at 558-59.
Furthermore the complaint does not allege the who, what, where, and when of Stone’s
involvement in any conspiracy. See id. at 565 n.10. Plaintiffs claim the goal of dissemination of
the emails was disruption of the Democratic campaign. (Am. Compl. ¶125). But the alleged
meetings and contacts with Russians, all but the one with Russian lawyer, Natalia Veselnitskaya
(Am. Compl. ¶ 98), occurred after the release of the email tranche by WikiLeaks on July 22,
2016. (Am. Compl. ¶160). The Veselnitskaya meeting does not allege to have been about
dissemination of DNC emails. And none of the allegations refers to Stone being connected to
those meetings.
Plaintiffs also claim that the Russians received “benefits” in a meeting of the minds that
led to an agreed quid pro quo. (Am. Compl. ¶¶ 14-15, 22, 97, 116, 146-48, 160). Plaintiffs do not
specify what “benefits” were provided to the Russian government, what concessions made were
“important to Russia’s national interests, or how the “drafting” the Republican Party Platform
was influenced because of this agreement. (Am. Compl. ¶14). Plaintiffs do not specify the
25

Republican Party’s planks of its platform that shifted or changed. (Am. Compl. ¶ 146). Nor do
they sufficiently allege what “generally positive communications posture” entails. (Am. Compl.
¶15). The most important missing link is a total absence of what role Stone played in any of
these allegations to promote Russia’s agenda.
Stone’s public social media posts alleged in the complaint are therefore nothing more
than political speech. ‘Podesta’s time in the barrel,’ ‘WikiLeaks will drop a payload of new
documents soon,’ ‘Wednesday Hillary Clinton is done,’ ‘Assange is my hero and will educate
the American people;’ and the like, is what political operatives do during a campaign. They
proclaim their candidate is great, the opposition candidate is bad. In the context of a campaign,
none of this demonstrates that Stone participated in the strategic dissemination of Plaintiffs’
emails.
3.

Conspiracy between Stone and WikiLeaks.

WikiLeaks did not commit a tort; therefore Roger Stone could not have vicarious liability
for conspiring to participate in actions that do not amount to a tort. See Hall v. Clinton, 285 F.3d
74, 83 (D.C. Cir. 2002) (citation omitted). The Communications Decency Act of 1996, 47 U.S.C.
§230, shields interactive computer services from liability from those who post on its site. Stone
is not alleged to have taken the Plaintiffs’ data from the DNC or transferred it to WikiLeaks.
Mere encouragement of publication of Plaintiffs’ data on WikiLeaks is not a tort and Stone
cannot be held liable. See Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014). This
protection from liability exists even if WikiLeaks fails to edit the posts coming from third party
users. See id. Since WikiLeaks could not be held liable for its act of dissemination, then Stone
cannot be held liable even if he were to have encouraged or reveled in the dissemination.

26

Again, the complaint also fails to specify how “the Defendants” and “those they
conspired with arranged” for the hacked data to be “provided to WikiLeaks.” (Am. Compl. ¶16).
This skips over critical allegations of overt acts in order for this Court to determine if the
allegations are “plausible” or conclusory. See Iqbal, 556 U.S. at 680. This is particularly
important when analyzing allegations regarding Roger Stone in this complaint. Paragraph 16 is
the moving part of this entire lawsuit. Plaintiffs do not state what Stone did to “arrange” the
transfer of hacked data to WikiLeaks. They do not allege Stone touched a computer, made a
phone call, met with anyone of Russian decent, let alone performed an act that furthered the
conspiracy. Plaintiffs cite to media where Stone allegedly admits to speaking to Assange through
a “backchannel,” (Am. Compl. ¶162), but that is insufficient to allege a conspiracy. The
complaint as a whole does not rule out that Stone’s political expressions are nothing more than
predictions, prescient analysis, or political punditry, that Americans can see every day all day
long on our various media outlets.
D. D.C.-Law does not support any theory of aiding and abetting.
Roger Stone cannot be liable for aiding and abetting. The tort theory of aiding and
abetting is not recognized under District Law. 3M Co. v. Boulter, 842 F.Supp.2d 85, 119
(D.D.C.2012) (citing Flax v. Schertler, 935 A.2d 1091, 1108 n.15 (D.C.2007)). Although
Plaintiffs may invite this Court to recognize a theory of aiding and abetting, citing to
Halberstram v. Welch, 705 F.2d 472, 479 (D.C. Cir. 1983), in the ensuing three plus decades,
D.C.-law has not recognized such a theory of liability. Sundberg v. TTR Realty, LLC, 109 A.3d
1123, 1129 (D.C. 2015) (“not recognized the tort of aiding and abetting in the District”).
Plaintiffs’ allegations that Stone communicated on a public social network with Russian
intelligence operatives (Guccifer 2.0 and others) or agents through “backchannels” of WikiLeaks
27

strains credulity and is not aiding and abetting. (Am. Compl. ¶¶162-64). Stone’s “tweets” or
public postings are speech and protected by the First Amendment. Second, there is no allegation
that Guccifer 2.0 is a Russian group or individual, hacker, or the same Guccifer 2.0. Third, the
tweets and comments are not necessarily predictive but anticipative or historical commentary.
Indeed, the allegations themselves do not rule out that the information was flowing from
WikiLeaks to Stone. Regardless, the law of the District of Columbia does not recognize this
theory of liability and thus cannot support any cause of action alleged.
E. Failure to State a Claim of Public Disclosure of Private Facts.
In the District of Columbia, the tort of public disclosure of private facts has five elements:
“(1) publicity, (2) absent any waiver or privilege, (3) given to private facts (4) in which the
public has no legitimate concern (5) and which would be highly offensive to a reasonable person
of ordinary sensibilities.” Wolf v. Grunseth v. Marriott Corp., 79 F.3d 169 (D.C. Cir. 1996)
(unpublished) (citing Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C.1989)). Plaintiffs have alleged
that Stone conspired or aided and abetted WikiLeaks to disclose private facts about Plaintiffs
publicly.
Public disclosure is “an intentional tort.” Randolph v. ING Life Insurance & Annuity Co.,
973 A.2d 702, 711 (D.C. 2009). “The defendant must intend to reveal the [private] information.”
Dobbs’ Law of Torts § 581 (2017). This requirement is essential in light of the First Amendment,
which generally allows the punishment of truthful speech only if the speaker “intends to produce”
the harm that the state seeks to prevent. Hess v. Indiana, 414 U.S. 105, 109 (1973). Again, the
fact that Stone is not alleged to have taken or transferred any private data is key to whether
Plaintiffs alleged a theory of conspiracy, aiding and abetting, or the elements of this tort at all.
Roger Stone can comment on published news. See Wolf, 553 A.2d at 1220. He can even
28

comment on how the news is unfair and biased.
As to Plaintiff Comer, he alleges his sexual orientation was publicly disclosed. However,
in paragraph 5 he admits in 2011, he came out as gay to his mother and close friends. A couple
of years later he told his father. He did not tell his grandparents, because he knew that they
viewed homosexuality as inconsistent with their deeply held religious beliefs. For the next five
years, he kept his sexual orientation from his grandparents so as not to upset them or disrupt his
relationship with them, which he cherished. Comer, without concern, wrote emails from his
workplace to friends and referred to his sexual preference and to others. Later in the complaint
Comer’s circle of people who did not know his sexual orientation grew. His “family members—
including his grandparents—searched for and read emails to, from, and about him, including
emails suggesting that Mr. Comer is gay.” (Am. Compl. ¶ 51). Had he known about the
disclosure of the emails, he would have told his family in a different way. (Am. Compl. ¶ 51).
Roger Stone did not give publicity to a matter concerning the private life of another;
rather, Comer attempted to maintain privacy to a matter that was public to almost everyone but
his grandparents and other family members. Indeed, the only reason Comer’s sexual preference
has caused him any distress is because of his perception of how his grandparents might respond
and supposedly their reaction to news of his sexual orientation, and his decision to keep that part
of his life a secret to them. This was his personal choice. This allegation does not meet the
element of private fact.
Plaintiff Comer also cannot blame the Roger Stone for Comer writing “colloquial
references” about homosexuals on his employer’s (work) email server. (Am. Compl. ¶ 73). The
responsibility for his distress is misplaced, if Comer was not polite and precise in his work email
communications and some people scorned him for it. This lawsuit cannot serve as blame on
29

Roger Stone because the DNC (a third party) failed to protect their employees’ emails or
WikiLeaks (a third party) opened the work emails without redaction for the world to review.
In this day and age, Comer’s sexual preference is not “highly offensive” to a reasonable
person and his choice to keep the information known by most who knew him since 2011 a secret
from his grandparents, does not make it a private fact subject of a tort. See Doe v. Bernabei &
Wachtel, PLLC, 116 A.3d 1262, 1266 (D.C. 2015) (citing Restatement (Second) of Torts § 652D
(1977)). Publicity means a communication in such a manner that it is “substantially likely to
become one of public knowledge.” Id. (citing Restatement (Second) of Torts §652D (1977)
comm. a)). Since Comer’s sexual preference is not outrageous all the elements of tort is not met.
Since the Comer’s sexual orientation was a secret only it was already public knowledge. Giving
additional publicity to Comer’s known preference is not a ground for liability. See Paige v. U.S.
Drug Enforcement Admin., 818 F.Supp 4, 16 (D.D.C. 2010). As to health information, but for a
reference to Comer having a virus at work, there is no specified health information for other
Plaintiffs and therefore does not meet the element of private fact.
Lastly, public-disclosure torts cover “embarrassing private facts.” Harrison v.
Washington Post Co., 391 A.2d 781, 784 (D.C. 1978) (emphasis added). “Embarrassing,” in the
sense that disclosure would cause “shame” and “humiliation.” Armstrong v. Thompson, 80 A.3d
177, 189 (D.C. 2013). “Private,” means the plaintiff has revealed it “at most” to “family” and
“close friends.” Restatement (Second) of Torts § 652D, comment b. Social security numbers,
addresses, are not “embarrassing,” “shameful,” or “humiliating.” People disclose that
information daily, not just to family and friends. So the public-disclosure tort does not cover
them. See In re Barnes & Noble Pin Pad Litigation, 2016 WL 5720370, at *7 (N.D. Ill. Oct. 3,
2016) (social security number); In re Zappos.com, Inc., 2013 WL 4830497, at *3 (D. Nev. Sep. 9,
30

2013) (social security number); In re Carter, 411 B.R. 730, 741 (M.D. Fla. 2009) (social security
number); Johnson v. Sawyer, 47 F.3d 716, 732 (5th Cir. 1995) (address).
Other laws deal with the problems caused by exposure of social security numbers. For
example, using improper means to gain access to a social security number can amount to the
separate tort of intrusion. Randolph, 973 A.2d at 710. A D.C. statute also requires businesses to
safeguard consumer financial data against security breaches. D.C. Code § 28-3852. But the
exposure of a social security number simply does not constitute a public disclosure of private
facts, the tort asserted here. And the criminal law also protects consumers and citizens from
identity theft. See 18 U.S.C. § 1028A(a)(1).
Lastly, Plaintiffs also allege that Cockrum’s support for political candidates has been
chilled. (Am. Compl. ¶17). Plaintiffs also reference in general terms to a “chilling effect” on the
democratic process because of dissemination of a hacked employee’s email and supporter
information is also not stating a claim. (Am. Compl. ¶ 221). First, Plaintiff Comer worked for the
DNC. One’s work emails are not necessarily private. Gauntlett v. Illinois Union Ins. Co., 5:11CV-00455 EJD, 2012 WL 4051218, at *9 (N.D. Cal. Sept. 13, 2012) (expectation of privacy
must be alleged of work email); Miller v. Blattner, 676 F. Supp. 2d 485, 497 (E.D. La. 2009)
(emails are property of the company that provides the email capability); United States v. Yudong
Zhu, 23 F. Supp. 3d 234, 238 (S.D.N.Y. 2014) (citing United States v. Ziegler, 474 F.3d 1184,
1198 (9th Cir. 2007) (no allegations of expectation of privacy on computer like encryption on
laptop). Second, it is unclear how donors could be chilled from donating to the Democratic Party
because donor information is required to be disclosed and is public record. There are campaign
disclosure requirements that all political parties must maintain. 11 C.F.R. §104.8. Thus, the

31

“foreseeable consequence” is not so foreseeable and must be explained further before that
allegation can be considered plausible and not conclusory.
F. Failure to State a Claim for Emotional Distress.
As to intentional infliction of emotional distress, “a plaintiff must show (1) extreme and
outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes
the plaintiff [to suffer] severe emotional distress.” Doe v. Bernabei & Wachtel, PLLC, 116 A.3d
1262, 1269 (D.C. 2015) (citing Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 163 (D.C.2013))
(brackets in original). Plaintiffs do not allege extreme or outrageous conduct. See id. “To survive
a motion to dismiss,” a plaintiff must allege conduct that was “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Id. (citing Williams v. District of
Columbia, 9 A.3d 484, 494 (D.C.2010)). Plaintiff Comer’s sexual orientation is not regarded as
atrocious and utterly intolerable. See id. The allegation that Comer had a virus and graphically
described it to his boss at work is not either. The disclosure of information described in the
complaint is not outrageous, atrocious, and utterly intolerable. Thus, Plaintiffs have not alleged
the elements of the tort intentional infliction of emotional distress.
G. Plaintiffs fail to state a civil rights conspiracy claim under § 1985(3).
Plaintiffs’ only federal question claim is for conspiracy to violate civil rights under Title
42 Section 1985(3) by “intimidating eligible voters including Plaintiffs in a manner designed to
prevent them from giving [their] support or advocacy in a legal manner, toward or in favor of the
election of [a] lawfully qualified person as an elector President and injure Plaintiffs’ person and
property.” (Am. Compl. ¶ 26). Section 1985(3) provides no substantive rights itself; it merely

32

provides a remedy for violation of the rights it designates. Great Am. Fed. Sav. & Loan Ass'n v.
Novotny, 442 U.S. 366, 372 (1979).
While they do not expressly cite to a federal right or the Constitution, interpreting their
claim, Plaintiffs complain they were not free to associate and advocate for the candidate of their
choice; they do not allege a conspiracy. In other words they were denied the protections of the
First Amendment. If Plaintiffs’ complaint is based upon First Amendment protections, then state
action is required. In this lawsuit, neither defendant is a state actor. Additionally, Plaintiffs’
claims do not apply territorially outside the United States and also fails to state a claim for
conspiracy with the Trump campaign.
1.

Plaintiffs’ complaint fails to allege state action.

“Therefore, the Court found that § 1985(3) did provide a cause of action for damages
caused by purely private conspiracies.” Great Am. Fed. Sav. & Loan Ass’n, 442 U.S. at 371-72.
But this does not mean that § 1985(3) allows all private claims to be redressed. The First
Amendment is meant to protect people from government encroaching on the right to assemble
and speak. The civil conspiracy claim can only be made is when state action is alleged. United
Broth. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 833 (1983);
Federer v. Gephardt, 363 F.3d 754, 759 (8th Cir. 2004); Roe v. Abortion Abolition Soc., 811
F.2d 931, 933 (5th Cir. 1987) (citing id.) (Section 1985(3) does not protect individuals against
private efforts to encroach on constitutional shields, such as the first amendment)).
Plaintiffs do not cite in their complaint to any amendment in our Bill of Rights that they
request be vindicated. They leave that task to the Defendants and this Court. Plaintiffs’
constitutional claim is that Defendants conspired to disclose their personal information as well as
their “lawful support and advocacy for a candidate for President,” to draw attention to the
33

disseminated DNC emails containing Plaintiffs’ private information. (Am. Compl. ¶ 246).
“Defendants conspired to prevent by intimidation Plaintiffs and others like them from giving
their support or advocacy in a legal manner for a candidate for President of the United States.”
(Am. Compl. ¶ 247). Defendants conspired to injure Plaintiffs and others like them in “their
persons and property on account of their support or advocacy in a legal manner for candidate for
President of the United States. (Am. Compl. ¶¶ 248, 249). Plaintiffs have been significantly
harmed entitling them to damages. (Am. Compl. ¶ 250). In the light most favorable to the
Plaintiffs, they are claiming an infringement upon their First Amendment rights. Since
allegations of infringement of First Amendment rights requires an allegation of state action and
no state action is allege or could be alleged, Plaintiffs §1985(3) claim must be dismissed.
2.

The intracorporate conspiracy doctrine applies to section 1985(3) lawsuits.

As outlined above, the Trump campaign cannot conspire with Roger Stone since he was
alleged to always be an agent of the Campaign. See Kelley v. D.C., 119–20 (D.D.C. 2012).
“Several circuits have applied the intracorporate conspiracy doctrine in civil rights cases under
42 U.S.C. § 1985 to preclude conspiracy liability for a municipal entity's employees, while other
circuits have declined to apply the doctrine in that context.” Tabb v. District of Columbia, 477
F.Supp.2d 185, 190 (D.D.C.2007) (listing cases); Bowie v. Maddox, 642 F.3d 1122, 1130–31
(D.C.Cir.2011). The D.C. Circuit has not ruled on the issue. Id. at 1130 n. 4, 1131. District courts
within this Circuit have, however, “consistently ... applied the intracorporate conspiracy doctrine
to Section 1985.” Tabb, 477 F.Supp.2d at 190.
At least seven circuits have held the intracorporate conspiracy doctrine applies to civil
rights conspiracies. See Grider v. City of Auburn, 618 F.3d 1240, 1261–62 (11th Cir.2010);
Hartline v. Gallo, 546 F.3d 95, 99 n. 3 (2d Cir.2008); Amadasu v. Christ Hosp., 514 F.3d 504,
34

507 (6th Cir.2008); Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir.1998); Hartman
v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 4 F.3d 465, 469–71 (7th Cir.1993); Richmond v.
Bd. of Regents of Univ. of Minnesota, 957 F.2d 595, 598 (8th Cir.1992); Buschi v. Kirven, 775
F.2d 1240, 1252–53 (4th Cir.1985). For the grounds stated in Part IV(C)(1) supra, this Court
should dismiss the civil right conspiracy claim against Roger Stone.
3.

Plaintiffs cannot allege a civil rights conspiracy with entities outside the
United States.

Plaintiffs improperly seek to apply § 1985(3) for actions that allegedly occur outside the
United States. Federal laws “apply only within the territorial jurisdiction of the United States”
unless Congress “clearly” says otherwise. Morrison v. National Australia Bank Ltd., 561 U.S.
247, 255 (2010). Far from clearly saying otherwise, § 1985(3) begins: “If two or more persons in
any State or Territory conspire …” (emphasis added). But “Russian actors” and WikiLeaks are
not “persons in any State or Territory.” Because Roger Stone could not enter into a civil rights
conspiracy with actors or entities outside the United States, the 1985(3) conspiracy claim must
be dismissed.
4.

Plaintiffs have failed to allege with particularity a nexus between the
defendants’ overt conspiratorial acts and Plaintiffs’ alleged injury.

Plaintiffs claim a specific violation of Section 1985(3) pertaining to a conspiracy to injure
a citizen on account of support or advocacy. The purpose of the conspiracy is different than the
effect. Plaintiffs have effectively claimed that they were bystanders of a larger conspiratorial
purpose, elect Donald Trump and defeat Hillary Clinton. (Am. Compl. ¶¶ 24, 128). “The
plaintiff's § 1985 claim also must be dismissed because at the pleading stage a plaintiff is
required to allege a connection between the overt acts, the furtherance of the conspiracy and the
plaintiff's injury.” Graves v. United States, 961 F. Supp. 314, 321 (D.D.C. 1997) (citation
35

omitted). Plaintiffs fail to allege any conspiracy as explained in Part IV(C), supra. At best,
Plaintiffs correlate allegations with injury. For example, they claim Roger Stone expressed a
view or political and therefore that means the events that he caused the subsequent events. (Am.
Compl. ¶¶145-152). Stone’s words, even if he knew WikiLeaks was going to publish DNC data
does not allege that he caused or did some act in furtherance of release of the emails absent
some other allegations of an overt act that he engineered, directed, or assisted in the taking of the
emails. Without more, there is no cause and effect that alleges a nexus between the overt acts
and the injury to the specific Plaintiffs in this lawsuit.

36

CONCLUSION
The Court should dismiss the complaint for lack of subject-matter jurisdiction, lack of
personal jurisdiction, and improper venue. Alternatively, it should dismiss the complaint for
failure to state a claim.
Respectfully submitted,

Dated: October 25, 2017

/s/ Robert Buschel
Robert C. Buschel
L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]
Counsel for Roger Stone

37

CERTIFICATE OF SERVICE
I certify that on October 25, 2017, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system, which will send a notice of electronic filing to all registered
parties.
/s/ Robert Buschel
Robert C. Buschel
Counsel for Roger Stone

38