DE LA FUENTE et al v. DNC SERVICESCORPORATION et al
Filing
21
MEMORANDUM OPINION granting 6 Defendants' Motion to Dismiss; denying 14 Plaintiffs' Motion to Consolidate. See document for details. Signed by Judge Rudolph Contreras on April 23, 2019. (lcrc3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROQUE “ROCKY” DE LA FUENTE and
ROCKY 2016 LLC,
Plaintiffs,
v.
DNC SERVICES CORPORATION and
DEBORAH WASSERMAN SCHULTZ,
Defendants.
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Civil Action No.:
18-336 (RC)
Re Document Nos.:
6, 14
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION TO DISMISS;
DENYING PLAINTIFFS’ MOTION TO CONSOLIDATE
I. INTRODUCTION
Plaintiff Roque De La Fuente, proceeding pro se, is a Mexican-American entrepreneur
from California who unsuccessfully ran in the 2016 Democratic presidential primary. With the
benefit of hindsight, he believes that the deck was stacked against his campaign from the start.
He claims that Defendants, the Democratic National Committee (“DNC”) and its thenchairperson, 1 Deborah Wasserman Schultz, thwarted his campaign because he was a threat to
steal Hispanic-American votes from Hillary Clinton, votes necessary to seal her nomination for
the 2016 election. He seeks over $6 million in compensatory damages and $1 million in punitive
damages, under breach of contract, promissory estoppel, race discrimination, conspiracy to
violate civil rights, and misrepresentation theories. Mr. De La Fuente’s breach of contract,
promissory estoppel, and misrepresentation theories all fail for similar reasons: He has not
1
The DNC was incorporated as “DNC Services Corporation.” See Defs.’ Mot. Dismiss
(“Defs.’ Mot.”) at 1, ECF No. 6. It does business as the DNC. See id.
adequately identified a definite promise or offer of contract terms, nor has he sufficiently
explained why it was reasonable for him to take action based on the vague and indefinite
communications he has identified. Mr. De La Fuente’s discrimination theory fails because he
has not plausibly alleged that Defendants thwarted his campaign efforts because of his race. And
Mr. De La Fuente’s conspiracy theory fails because he has not adequately identified an
agreement between two or more people, or organizations, to deprive him of his civil rights. That
said, the Court believes that Mr. De La Fuente is entitled to another bite at the apple. Thus, the
Court will dismiss Mr. De La Fuente’s complaint without prejudice.
II. BACKGROUND
Mr. De La Fuente is a Mexican-American “entrepreneur, businessman, and real estate
developer” from San Diego, California. Compl. ¶ 5, ECF No. 1. On October 1, 2015, he
registered a political campaign committee, “Rocky 2016,” with the Federal Election Commission
(“FEC”), and began a campaign to seek the Democratic Party nomination for the 2016
Presidential election. See id. ¶ 9. He notified the DNC of his campaign in a December 2015
letter, in which he also sought “campaign support and general information on the Democratic
Party’s nominating process.” Id. ¶ 13.
Mr. De La Fuente claims that Defendants made certain promises that caused him to
pursue his unsuccessful campaign, which cost approximately $6.7 million when all was said and
done. See id. ¶ 16. First, Mr. De La Fuente alleges that he would not have entered the DNC’s
“nomination process” absent Article Five, Section Four of the DNC’s Charter and Bylaws. See
id. ¶¶ 28, 34. That provision states, in relevant part, that the DNC’s chairperson—at the time,
Ms. Schultz—“shall exercise impartiality and evenhandedness as between Presidential
2
candidates and campaigns.” 2 Id. ¶ 28. According to Mr. De La Fuente, the provision requires
the DNC to “be an objective facilitator among candidates,” and it forbids the DNC from
“endors[ing]” or “differentiat[ing] between ‘sanctioned’ and/or ‘unsanctioned’ candidates.” Id. ¶
31. Second, Mr. De La Fuente alleges that a DNC employee, “Ms. Dacey,” sent
“correspondence” to him in which the DNC promised to “provide assistance . . . through
introductions to State Party officials, logistical resources, and general political assistance.” Id. ¶
15. Third, Mr. De La Fuente alleges that the DNC “expressly agreed to provide all registered
Democratic Presidential candidates and campaigns access to the DNC’s voter data base [sic] and
other logistical assistance, guidance, resources to permit candidates to build their campaigns . . .
.” Id. ¶ 32.
Mr. De La Fuente claims that despite these promises, Defendants did not help his
campaign in any way. In fact, Mr. De La Fuente alleges, Defendants actively sabotaged him.
The DNC told its “state affiliate party organs” that Mr. De La Fuente was not an “endorsed” or
“sanctioned” candidate, which caused the Nevada State Democratic Party to withhold from him
the locations of its Democratic caucus sites. See id. ¶¶ 43–46. 3 The DNC also failed to make
good on its promise to introduce Mr. De La Fuente to key state officials, which caused him to be
denied access to South Carolina’s primary ballot. See id. ¶¶ 50–51. The DNC’s conduct
2
Mr. De La Fuente also alleges that Ms. Schultz “publicly affirmed [the DNC’s]
impartiality and evenhandedness” in a series of articles and television appearances in 2015 and
2016. See id. ¶¶ 36–37.
3
In the body of his complaint, Mr. De La Fuente at times identifies the Nevada state
party organization as a Defendant. See Compl. ¶ 9. He does not however, identify the Nevada
organization as a Defendant in his complaint’s introduction, see id. at 1–2, in his complaint’s
subsection describing the “Parties,” see id. ¶ 5–8, or in his other filings, see, e.g., Pls.’ Opp’n at
14 (referring to “Defendants’ DNC affiliate Nevada State Democratic Party”). And the record
does not indicate that Mr. De La Fuente effected service on the Nevada organization. The Court
thus assumes that Mr. De La Fuente did not intend for the Nevada organization to be a party in
this case, and it will treat Mr. De La Fuente’s references to the contrary as typos.
3
“ensure[d] that [Mr.] De La Fuente would not meet the required polling thresholds necessary to”
secure invitations to “important debates and town hall meetings.” Id. ¶ 53. And the DNC
refused to grant Mr. De La Fuente access to its Voter Data File, a “compilation of all registered
Democrats in the United States,” which included “vital voter information.” See id. ¶¶ 59–62,
76–77, 81. Mr. De La Fuente alleges that “only selected Caucasian Democratic presidential
candidates” were given that access. Id. ¶ 80.
Mr. De La Fuente has a theory for why Defendants would want his campaign to fail, a
theory that permeates his filings. Mr. De La Fuente is Hispanic-American, part of “a vital and
growing constituency within the Democratic Party.” Id. ¶ 19. His “more moderate economic
and social policy agenda aligns more closely to the experiences of Hispanic-America’s religious
and entrepreneurial instincts than the more radical policies advanced by any of the other
candidates that sought the 2016 Democratic Party nomination.” Id. According to Mr. De La
Fuente, Defendants recognized his “growing traction with Hispanic-American voters” in late
2015 and early 2016, voters that Hillary Clinton needed to secure the Democratic nomination.
Id. ¶ 20. This was a problem for the DNC, as it was “biased in favor of” Secretary Clinton; it
“devoted its considerable resources to supporting [her] over any of the other Democratic
candidates . . . .” Id. ¶ 41. Defendants “thus considered [Mr.] De La Fuente’s race and ethnicity
as a threat to Hillary Clinton’s campaign that needed to be curtailed and marginalized to save her
candidacy.” Id. ¶ 23. At the same time, Defendants “desired the public trappings of a contested
presidential nominating process,” leading them to seek candidates like Mr. De La Fuente to enter
the race in the first place. Id. ¶ 38.
In February 2018, Mr. De La Fuente and his campaign, proceeding pro se, brought this
lawsuit, asserting that Defendants engaged in actionable misrepresentations, contract- and
4
promise-based violations, and constitutional violations. 4 Shortly thereafter, Defendants moved
to dismiss the complaint.5 See Defs.’ Mot. Dismiss (“Defs.’ Mot.”), ECF No. 6. More recently,
Mr. De La Fuente moved to consolidate this case with Wilson v. DNC Services Corporation, No.
17-cv-730 (D.D.C. Apr. 19, 2017), overseen by Judge McFadden. See generally Pls.’ Mot.
Consolidation, ECF No. 14. Both of those motions are now ripe for the Court’s consideration.
The Court will consider Defendants’ motion first, then Mr. De La Fuente’s motion.
III. DEFENDANTS’ MOTION TO DISMISS
Defendants have moved to dismiss Mr. De La Fuente’s complaint under Federal Rule of
Civil Procedure 12(b)(6). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s
ultimate likelihood of success on the merits, but instead whether a plaintiff has properly stated a
claim. See, e.g., Skinner v. Switzer, 562 U.S. 521, 530 (2011). When considering such a motion,
the Court accepts the complaint’s factual allegations as true and construes them liberally in the
plaintiff’s favor. See, e.g., Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). However,
the Court need not accept the complaint’s legal conclusions as true, see Ashcroft v. Iqbal, 556
4
Mr. De La Fuente brings his claims on behalf of himself and Rocky 2016. See
generally Compl. As Defendants note, see Defs.’ Mot. at 1, because Mr. De La Fuente is not an
attorney, he may not represent anyone but himself before this Court. See Casares v. Wells Fargo
Bank, N.A., No. 13-cv-1633, 2015 WL 13679889, at *2 (D.D.C. May 4, 2015) (“[P]laintiff, who
is proceeding pro se, cannot represent the trust in federal court, even as the trustee, as he is not a
licensed attorney.”). This Memorandum Opinion will thus treat Mr. De La Fuente as the lone
plaintiff.
5
As Defendants note, Mr. De La Fuente brought each of his claims against both the DNC
and Ms. Schultz, based on conduct that occurred while Ms. Schultz was the DNC’s chairperson.
See Defs.’ Mot. at 1 n.1; see generally Compl. And Mr. De La Fuente appears to consider them
to be the same entity for purposes of the alleged wrongful conduct. See, e.g., Compl. ¶ 74
(discussing “Defendants DNC and Schultz’s scheme to disadvantage the Presidential campaigns
of non-white candidates”). His only allegation regarding Ms. Schultz specifically is that she
publicly affirmed the DNC’s commitment to “impartiality and evenhandedness,” in her capacity
as chairperson. See Compl. ¶¶ 36–37. The Court will thus treat Mr. De La Fuente’s claims and
factual allegations as relating to both Defendants equally, and Ms. Schultz in her official
capacity.
5
U.S. 662, 678 (2009), nor must it presume the veracity of legal conclusions that are couched as
factual allegations, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a
motion to dismiss, [the] complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). In other words, the factual allegations “must be enough to raise a right to relief
above the speculative level . . . .” Twombly, 550 U.S. at 555–56. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements” are insufficient. Iqbal,
556 U.S. at 678. At this stage, the Court is limited to considering “the facts alleged in the
complaint, any documents either attached to or incorporated in the complaint and matters of
which [the Court] may take judicial notice.” Hurd v. D.C. Gov’t, 864 F.3d 671, 678 (D.C. Cir.
2017) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).
This Court construes pro se complaints liberally. See Atherton v. D.C. Office of Mayor,
567 F.3d 672, 681 (D.C. Cir. 2009). Thus, Mr. De La Fuente’s complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers.” Id. (quoting Erickson v. Pardus,
551 U.S. 89, 94 (2007)). Even under this liberal standard, a pro se complainant must plead facts
that allow the Court to infer “more than the mere possibility of misconduct.” Id. at 681–82
(quoting Iqbal, 556 U.S. at 679). A court considering a pro se plaintiff’s complaint should look
to “all filings, including filings responsive to a motion to dismiss,” Brown v. Whole Foods Mkt.
Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015), to discern whether the plaintiff has “nudged [his]
claim[s] across the line from conceivable to plausible,” id. (quoting Twombly, 550 U.S. at 570).
“The Court need not,” however, “assume the role of the pro se plaintiff’s advocate.” Mehrbach
v. Citibank, N.A., 316 F. Supp. 3d 264, 268 (D.D.C. 2018). It need not stalk the record to find
6
support for Mr. De La Fuente’s claims. See Sun v. D.C. Gov’t, 133 F. Supp. 3d 155, 168 n.6
(D.D.C. 2015).
Mr. De La Fuente asserts six causes of action against Defendants: breach of implied-infact contract (Count I), promissory estoppel (Count II), racial discrimination in violation of 42
U.S.C. § 1981 (Count III), civil conspiracy in violation of 42 U.S.C. § 1985 (Count IV),
fraudulent misrepresentation (Count V), and negligent misrepresentation (Count VI). See
Compl. ¶¶ 88–141. The Court addresses each in turn. It concludes that, even under the relaxed
pro se standard, Mr. De La Fuente has failed to plausibly allege that Defendants violated the law
in their treatment of him and his campaign. Mr. De La Fuente may have legitimate gripes with
Defendants’ apparent favoritism during the Democratic primary, but not every gripe deserves
redress in federal court. For the reasons stated below, the Court thus grants Defendants’ motion
to dismiss and dismisses Mr. De La Fuente’s complaint without prejudice.
A. Implied-In-Fact Contract and Promissory Estoppel
First, the Court considers Mr. De La Fuente’s implied-in-fact contract and promissory
estoppel claims. See Compl. ¶¶ 88-104 (Counts I and II). Defendants’ motion argues, at great
length, for the dismissal of these claims. See Defs.’ Mot. at 7–23. And Mr. De La Fuente’s
opposition brief appears to accept Defendants’ arguments. For instance, Mr. De La Fuente states
that he “do[es] not believe that [an implied-in-fact contract] was created” by his interactions with
Defendants. Pls.’ Opp’n at 16 n.1, ECF No. 10. Mr. De La Fuente also notes that Judge
McFadden recently dismissed implied-in-fact contract and promissory estoppel claims brought
by a scorned political candidate under similar circumstances. See id. at 21; Wilson v. DNC Servs.
Corp., 315 F. Supp. 3d 392, 398–99 (D.D.C. 2018). Mr. De La Fuente states that he “will not
waste effort seeking to counter Judge McFadden’s analysis.” Pls.’ Opp’n at 21. Thus, while Mr.
7
De La Fuente insists that he “do[es] not abandon these claims,” id., he appears to have done just
that.
“It is well understood in this Circuit that when a plaintiff files an opposition to a
dispositive motion and addresses only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as conceded.” Xenophon Strategies, Inc.
v. Jernigan Copeland & Anderson, PLLC, 268 F. Supp. 3d 61, 72 (D.D.C. 2017) (quoting
Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003));
see also Texas v. United States, 798 F.3d 1108, 1110 (D.C. Cir. 2015) (“[Local Rule 7(b) ] is
understood to mean that if a party files an opposition to a motion and therein addresses only
some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.”
(quoting Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014))); Head v. Fed. Bureau
of Prisons, 86 F. Supp. 3d 1, 4 (D.D.C. 2015) (applying this principle to a pro se plaintiff’s
opposition brief). If Mr. De La Fuente will not expend the effort to support his claims, the Court
will not expend the effort to evaluate them. It dismisses Counts I and II. 6
6
Regardless, Mr. De La Fuente’s factual allegations are insufficient for either claim to
survive Defendants’ motion to dismiss. To state a claim for an implied-in-fact contract, a
plaintiff must show, among other elements, that the plaintiff rendered “valuable services” which
“were accepted and enjoyed by” the defendant. Providence Hosp. v. Dorsey, 634 A.2d 1216,
1218–19, n.8 (D.C. 1993). Mr. De La Fuente does not identify, with any specificity, any
valuable services he rendered to the DNC or Ms. Schultz. And Mr. De La Fuente’s allegation
that the DNC considered him “a threat to Hillary Clinton’s campaign that needed to be curtailed
and marginalized,” Compl. ¶ 23, undercuts any inference that either Defendant intended to
contract with him, another required element of an implied-in-fact contract. See Wilson, 315 F.
Supp. 3d at 397–99.
Likewise, to state a claim for promissory estoppel, a plaintiff must allege, among other
things, that the defendant made a definite promise and the plaintiff reasonably relied on that
promise to his detriment. See Alemu v. Dep’t of For-Hire Vehicles, 327 F. Supp. 3d 29, 44
(D.D.C. 2018); Headfirst Baseball LLC v. Elwood, 168 F. Supp. 3d 236, 248 (D.D.C. 2016). Mr.
De La Fuente claims that Defendants promised to act in a neutral manner—through the DNC’s
bylaws rather than through direct communication with him—and to provide “introductions to
State Party officials, logistical resources, and general political assistance.” Id. ¶¶ 15, 32–33.
8
B. Racial Discrimination
Next, the Court considers Mr. De La Fuente’s claim that Defendants violated 42 U.S.C. §
1981 in denying him the political assistance he believes he was owed. See Compl. ¶¶ 105–117
(Count III). Section 1981 “combats racial discrimination by protecting the equal right of ‘[a]ll
persons within the jurisdiction of the United States’ to ‘make and enforce contracts’ without
respect to race.” 7 Wilson, 315 F. Supp. 3d at 399 (alteration in original) (quoting 42 U.S.C. §
1981(a)). To state a claim under Section 1981, a plaintiff “must show that: (1) he is a member of
a racial minority group; (2) the defendant intended to discriminate on the basis of his race; and
(3) the discrimination pertained to one of the activities enumerated in the statute.” Kungle v.
State Farm, Fire & Cas. Co., 48 F. Supp. 3d 67, 77 (D.D.C. 2014) (quoting Dickerson v. District
of Columbia, 806 F. Supp. 2d 116, 119 (D.D.C. 2011)). As relevant here, among the activities
enumerated in the statute are “the making, performance, modification, and termination of
contracts.” 42 U.S.C. § 1981(b). While a plaintiff’s race is essential to Section 1981 liability,
“[i]n order to pursue a cause of action under § 1981, [a] plaintiff cannot merely invoke his race
However, Mr. De La Fuente identifies no specific party officials to whom Defendants offered to
introduce him, nor does he identify when these promised introductions were to take place. He
also does not provide any details about the types of logistical resources and political assistance
he was to receive, or when. Promises to act “neutral” and provide “resources” and “assistance,”
without more detail, are too vague and indefinite to have reasonably induced Mr. De La Fuente
to act in reliance on them. See Headfirst Baseball, 168 F. Supp. 3d at 248–50 (rejecting the
plaintiff’s promissory estoppel claim where the plaintiff failed to provide “evidence of a clear
promise”); In re U.S. Office Prods. Co. Sec. Litig., 251 F. Supp. 2d 58, 73 (D.D.C. 2003).
7
Section 1981 states:
All persons within the jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes, licenses, and exactions of every kind,
and to no other.
42 U.S.C. § 1981(a).
9
in the course of a claim’s narrative,” but rather “must allege some facts that demonstrate that his
race was the reason for defendant’s actions.” Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C. 1990)
(citing Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982); Jaffe v. Fed. Reserve Bank of Chi.,
586 F. Supp. 106, 109 (N.D. Ill. 1984)).
Mr. De La Fuente asserts that Defendants deprived him of the “statutory right[]” to
“make and enforce contracts on the same basis as White persons.” Compl. ¶ 116; see also Pls.’
Opp’n at 8. He identifies two possible factual bases for this claim: (1) DNC “staff members,
agents and/or employees’ communication with state party committees,” Compl. ¶ 111, caused
the South Carolina Democratic Party to deny Mr. De La Fuente access to the state’s ballot, and
the Nevada Democratic Party to withhold from Mr. De La Fuente the locations of caucus sites,
see id. ¶¶ 43–44, 51; and (2) Defendants “only selected White Democratic presidential
candidates to enter into Voter Data Licensing Agreements and corresponding use of DNC
National Voter File Data,” id. ¶ 80. Defendants respond that this claim cannot be sustained
because Mr. De La Fuente has failed to establish the existence of a contract or potential contract
that Defendants failed to honor. See Defs.’ Mot. at 23. Defendants further contend that Mr. De
La Fuente has failed to establish that Defendants declined to transact with him because of his
race. See id. 8 These arguments are well taken.
As with his implied-in-fact contract and promissory estoppel claims, Mr. De La Fuente
appears to have abandoned the Section 1981 claims arising from his interactions with state party
organizations. His opposition brief fails to address Defendants’ arguments for why those claims
are legally insufficient. See Pls.’ Opp’n at 7–10. Dismissal is appropriate on that basis alone.
8
It is uncontested that Mr. De La Fuente, who is Mexican-American, is a member of a
racial minority group. He has thus adequately pleaded the first element of a Section 1981 claim.
10
See Texas, 798 F.3d at 1110; Head, 86 F. Supp. 3d at 4; Stephenson v. Cox, 223 F. Supp. 2d 119,
121 (D.D.C. 2002).
Setting his concession aside, Mr. De La Fuente has failed to show that his interactions
with state party organizations support Section 1981 liability. To state a Section 1981 claim, a
plaintiff “must initially identify an impaired ‘contractual relationship’ under which [he] has
rights”; relief is appropriate when “racial discrimination blocks the creation of a contractual
relationship [or] . . . impairs an existing contractual relationship” involving the plaintiff.
Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) (citation omitted). Here, Mr. De
La Fuente has not adequately identified the contractual relationships underlying his interactions
with the state party organizations. He alleges that the Nevada organization “refused to provide”
him with the locations of its caucus sites because the DNC broadcasted that he was not an
“endorsed” or “sanctioned” candidate. See Compl. ¶¶ 43–46. But he does not allege that an
existing contractual relationship required Nevada to disclose the caucus site locations, or
required the DNC to “sanction” him. See id. ¶ 46. Nor does he allege that he sought a
contractual relationship that would have entitled him to those benefits. In fact, Mr. De La Fuente
provides no details at all regarding how he attempted to obtain Nevada’s caucus site locations, or
the significance of that information. Similarly, Mr. De La Fuente alleges that the South Carolina
organization denied him ballot access, but he admits that the state party’s executive committee
took this action because it “was not personally familiar with [him],” id. ¶ 51, rather than because
of his race. Mr. De La Fuente implies that the DNC had a contractual obligation to introduce
him to the relevant South Carolina officials, see id., but as discussed above he has failed to
plausibly allege—and in fact has waived—the existence of such a contract. And he does not
11
otherwise claim to have attempted to contract with the DNC or the South Carolina organization
for access to the ballot. 9
Put simply, the Court has no choice but to dismiss these allegations because Mr. De La
Fuente has not “presented a scintilla of evidence that he was prevented from entering into a
‘contractual’ relationship with” Defendants or the state organizations “due to his race.” 10 Bray,
748 F. Supp. at 5; cf. Morris v. Office Max, Inc., 89 F.3d 411, 414 (7th Cir. 1996) (rejecting the
9
Defendants invoke the doctrine of issue preclusion as an alternative to bar Mr. De La
Fuente’s claim involving the South Carolina organization. See Defs.’ Mot. at 25–26. The
doctrine dictates that “once a court has decided an issue of fact or law necessary to its judgment,
that decision may preclude relitigation of the issue in a suit on a different cause of action
involving a party to the first case.’” Sheppard v. District of Columbia, 791 F. Supp. 2d 1, 5
(D.D.C. 2011) (quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir.
1992)). Issue preclusion applies if three criteria are met: (1) in the prior litigation, the issue was
“contested by the parties and submitted for judicial determination;” (2) the issue was “actually
and necessarily determined by a court of competent jurisdiction;” and (3) “preclusion in the
second case [does] not work a basic unfairness to the party bound by the first determination.”
Canonsburg Gen. Hosp. v. Burwell, 807 F.3d 295, 301 (D.C. Cir. 2015) (quoting Yamaha, 961
F.2d at 254). In 2016, Mr. De La Fuente sued the South Carolina Democratic Party, alleging that
it discriminated against him on the basis of national origin by denying him access to the state’s
Democratic presidential primary ballot. See De La Fuente v. S.C. Democratic Party, No. 16-cv322, 2017 WL 3085750, at *1, 4 (D.S.C. July 20, 2017). As he does here, Mr. De La Fuente
argued that the organization denied him access because of the “political and electoral threat that
[his] Hispanic heritage posed to Hillary Clinton.” Id. at *4 (internal quotation marks omitted).
The district court dismissed his claim with prejudice at the summary judgment stage, holding
that he “provide[d] no evidence in support of this argument,” other than his conclusory assertion
of discrimination. Id. That court’s decision satisfies the requirements for issue preclusion as to
whether Mr. De La Fuente was denied access to the state’s ballot on discriminatory grounds: The
issue was contested and decided by a court of competent jurisdiction, and Mr. De La Fuente
provides no reason why application of the doctrine would be unfair. See Canonsburg Gen.
Hosp., 807 F.3d at 301. Mr. De La Fuente is thus precluded from relitigating his inability to gain
ballot access in South Carolina.
10
It is true that a plaintiff “need not rely on a contractual relationship to proceed with his
Section 1981 claim.” Mazloum v. D.C. Metro. Police Dep’t, 522 F. Supp. 2d 24, 39 (D.D.C.
2007). Mr. De La Fuente could, for instance, argue that he was deprived of “the full and equal
benefit of all laws and proceedings for the security of persons and property as is enjoyed by
white citizens.” 42 U.S.C. § 1981(a). Mr. De La Fuente has not raised that argument here,
however, and he has not explained how the actions of the DNC and the state party organizations
deprived him of the “full and equal benefit” of the law.
12
plaintiffs’ Section 1981 claim where they “never sought to enter into a contractual relationship”
with the defendant); Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989)
(holding that the plaintiff’s “vague and conclusory allegation” that the defendants “interfered
with his ‘prospective business opportunities’” did not state a Section 1981 claim); Williams v.
Fed. Nat’l Mortg. Ass’n, No. 05-cv-1483, 2006 WL 1774252, at *5 (D.D.C. June 26, 2006)
(holding that a “plaintiff’s allegations of general promises and assurances by defendants of a
future business relationship or opportunities to do business do not identify a contractual interest
under § 1981”). 11
It is a closer call, but Mr. De La Fuente has also failed to show that Defendants violated
Section 1981 by depriving him of access to the DNC’s Voter Data File. True, a Section 1981
claim may arise “when racial discrimination blocks the creation of a contractual relationship.”
Domino’s Pizza, 546 U.S. at 476. And Mr. De La Fuente has alleged that Defendants refused to
contract with him for access to the DNC’s Voter Data File, while granting access to white
candidates. See Compl. ¶¶ 80–82. However, Mr. De La Fuente has not alleged “facts that
demonstrate that his race was the reason for [Defendants’] action.” Morris v. Carter Glob. Lee,
Inc., 997 F. Supp. 2d 27, 37 (D.D.C. 2013) (quoting Bray, 748 F. Supp. at 5).
Mr. De La Fuente’s claim relies, for the most part, on his overall theory of the case:
Defendants “wanted to deprive Hispanic Democrats of the opportunity to cast ballots for anyone
other than their chosen White candidate—Hillary Clinton.” Compl. at 2. More specifically,
“Hillary Clinton could not be guaranteed the Democratic Party’s nomination without garnering a
11
Mr. De La Fuente also suggests that he was discriminatorily denied access to
“organized candidate meetings . . . debates and town hall meetings.” Compl. ¶ 52–53. But he
admits that that access was “contingent on objective factors” apart from race, id. ¶ 53, and again,
he fails to tie these conclusory allegations to any existing or prospective contractual relationship.
13
significant majority of Hispanic-American votes,” votes that “had nowhere to go but to [her] if
the DNC could successfully marginalize [Mr.] De La Fuente.” Id. ¶ 20. Mr. De La Fuente
argues that this motive drove Defendants to deny him access to the Voter Data File. See id. ¶¶
23, 83–84.
This theory, however, suffers from a major flaw: It is not supported by any factual
allegations. Mr. De La Fuente points to no statements made or actions taken by Defendants
indicating that they viewed him as a threat because of his race. Mr. De La Fuente alleges “on
information and belief” that “internal polling” in late-2015 indicated that Secretary Clinton
needed Hispanic-American votes to guarantee victory in the primary. Id. ¶ 20. But Mr. De La
Fuente identifies no facts indicating that Defendants acted on that information in a
discriminatory way. He also relies on a leaked memorandum “addressed to the DNC,” id. ¶ 65
(emphasis added), demonstrating “the pre-ordained elevation of Hillary Clinton as the DNC’s
2016 presidential nominee,” id. ¶¶ 69. But by Mr. De La Fuente’s own admission, the
memorandum was not generated by Defendants. See id. ¶ 65. And more importantly, Mr. De La
Fuente does not allege that the memorandum contained any discussion of marginalizing minority
candidates to secure more minority votes for Secretary Clinton. Rather, the memorandum
indicates “a bias in favor of only one candidate” over all others, minority and non-minority alike.
Id. ¶ 71. Mr. De La Fuente “merely invoke[s] his race in the course of [his] narrative” with
respect to these allegations, which is insufficient to state a Section 1981 claim. Bray, 748 F.
Supp. at 5; see also Mears v. Allstate Indemnity Co., 336 F. Supp. 3d 141, 150 (E.D.N.Y. 2018)
(“It is not enough merely to assert that the defendant took adverse action against the plaintiff,
and that the action was a product of racial animus.” (quoting Dickerson v. State Farm Fire &
Cas. Co., No. 95-cv-10733, 1996 WL 445076, at *3 (S.D.N.Y. Aug. 1, 1996))).
14
Perhaps recognizing that he lacks direct evidence of discrimination, Mr. De La Fuente
also alleges circumstantial evidence. He contends that Defendants granted “access to certain
information,” including, presumably, the Voter Data File, to “all similarly situated White
presidential candidates,” while depriving Mr. De La Fuente of that access. Compl. ¶ 48; see also
id. ¶ 80 (“Defendant DNC only selected Caucasian Democratic presidential candidates” for “use
of the DNC National Voter File Data”). Again, to state a claim under Section 1981, a plaintiff’s
allegations must give rise to an inference of intentional discrimination. A plaintiff may raise
such an inference by “showing that he was treated less favorably than another similarly situated
person of a different race.” Wilson, 315 F. Supp. 3d at 400 (citing Brown v. Sessions, 774 F.3d
1016, 1023 (D.C. Cir. 2014)).
To raise an inference of discrimination through that mechanism, the plaintiff must show
that the similarly situated comparator is “nearly identical” to the plaintiff. Neuren v. Adduci,
Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995) (quoting Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)). 12 “A person is similarly situated
to the plaintiff if he or she possesses all the relevant characteristics the plaintiff possesses except
for the characteristic about which the plaintiff alleges discrimination.” Lucke v. Solsvig, 912
F.3d 1084, 1087 (8th Cir. 2019) (citing Barstad v. Murray Cty., 420 F.3d 880, 886–87 (8th Cir.
2005)). “What constitutes a ‘relevant respect’ or characteristic varies based on the context.” Id.
(citing Barstad, 420 F.3d at 884–85; Chappell v. Bilco Co., 675 F.3d 1110, 1119 (8th Cir.
2012)). For instance, in the employment context—the area most ripe for Section 1981 claims—
12
While Neuren concerned racial discrimination under Title VII of the Civil Rights Act
of 1964, see id. at 1508, rather than under section 1981, the pleading standards for establishing
Section 1981 discrimination track those for establishing Title VII discrimination. See Nanko
Shipping, USA v. Alcoa, Inc., 850 F.3d 461, 467 (D.C. Cir. 2017); Brown, 774 F.3d at 1022.
15
similarly situated employees “must have dealt with the same supervisor [as the plaintiff], have
been subject to the same standards and have engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the
employer’s treatment of them for it.” Morris, 113 F. Supp. 3d 289, 296 (D.D.C. 2015)
(alteration in original) (quoting Childs-Pierce v. Util. Workers Union of Am., 383 F. Supp. 2d 60,
70 (D.D.C. 2005), aff’d, 187 Fed. App’x 1 (D.C. Cir. 2006)).
To support a comparator theory at the motion to dismiss stage, a plaintiff must allege
facts that plausibly support an inference of discrimination under that standard. Thus, the D.C.
Circuit held that a plaintiff raised an inference of discrimination when “she identified a similarlysituated employee who is not in her protected class and explained why she has equivalent
qualifications.” Brown, 774 F.3d at 1023; see also Nanko Shipping, USA v. Alcoa, Inc., 850 F.3d
461, 467, 469 (D.C. Cir. 2017) (holding that a minority-owned shipping company stated a
Section 1981 claim when it alleged that the defendant treated the plaintiff “less favorably than
similarly situated white-owned companies,” it identified one of those similarly situated
companies, and it alleged that the plaintiff “attained equal or lower shipping prices and similar
assurances regarding shipping security”); Dickerson v. District of Columbia, 315 F. Supp. 3d
446, 454 (D.D.C. 2018) (holding that the black plaintiff stated a Section 1981 claim when he
alleged that “a white woman with less education and experience than [him] was selected to fill
his position”). And the Fifth Circuit held the same when a minority-owned car repair shop
alleged that the defendant “told [it] that [the defendant] was not admitting body shops into its
Direct Repair Program but . . . then admitted a non-minority-owned body shop with inferior
equipment that did not meet [the defendant’s] ‘qualifications.’” Body by Cook, Inc. v. State
Farm Mut. Auto. Ins., 869 F.3d 381, 387 (5th Cir. 2017). But in the same case, the minority-
16
owned shop failed to plead discriminatory intent with respect to a different defendant when it did
not allege “specific instances when [it] was refused a contract but a similarly situated nonminority owned body shop was given a contract.” Id. (citing Hall v. Cont’l Airlines, Inc., 252 F.
App’x 650, 653–54 (5th Cir. 2007) (unpublished)); see also Mesumbe v. Howard Univ., 706 F.
Supp. 2d 86, 92 (D.D.C. 2010) (holding that the plaintiff’s “conclusory allegation that similarly
situated students of different national origin, ethnicity, and race [were] treated differently and
more favorably” was insufficient when the plaintiff did not describe those students or “indicat[e]
the intent behind these disparate outcomes.”). In short, a complaint “assert[ing] nothing more
than a ‘mere possibility of [discriminatory] misconduct’” is insufficient to state a Section 1981
claim. Ridley v. VMT Long Term Care Mgmt., Inc., 68 F. Supp. 3d 88, 91 (D.D.C. 2014)
(quoting Iqbal, 556 U.S. at 679).
Here, Mr. De La Fuente’s allegations fail to rise above the mere possibility of
discrimination. Mr. De La Fuente alleges that the DNC restricted access to the Voter Data File
“to candidates who entered into [joint fundraising agreements]” with the DNC. Compl. ¶ 75. He
further alleges that “[o]nly Caucasian candidates were informed of this requirement.” Id. ¶ 78.
And he makes the conclusory assertion that these candidates were “similarly situated” to him.
Id. ¶ 48. But apart from Secretary Clinton, he never identifies, or even nebulously describes, a
similarly situated white candidate who executed a joint fundraising agreement and received
access to the Voter Data File. Cf. Mpras v. District of Columbia, 74 F. Supp. 3d 265, 272
(D.D.C. 2014) (rejecting the plaintiff’s “conclusory allegation” that similarly situated individuals
received an identification card that he was denied, because the complaint “offere[ed] no facts
about who these other persons are or how they were similarly situated”). And as Defendants
note, public filings indicate that the DNC only executed joint fundraising agreements with
17
Hillary Clinton and Bernie Sanders. See Suppl. Decl. Elisabeth Frost Ex. C (listing, in the
DNC’s Statement of Organization filed with the FEC, organizations associated with Secretary
Clinton and Senator Sanders as “Joint Fundraising Representative[s]”), ECF No. 13-4. 13 Mr. De
La Fuente does not allege that he was similarly situated to Secretary Clinton or Senator Sanders.
Nor could he; Secretary Clinton and Senator Sanders had far greater political experience,
fundraising success, and public support (as reflected in polling data). Even taking Mr. De La
Fuente’s factual allegations as true, the Court cannot infer that Defendants acted with
discriminatory intent, because Mr. De La Fuente does not plausibly allege that he was treated
differently than similarly situated white candidates. 14
Mr. De La Fuente is understandably frustrated with Defendants’ favoritism towards
Secretary Clinton. However, favoritism is not synonymous with discrimination, particularly
where both minority and non-minority candidates are disfavored. See id. ¶ 41 (“The DNC
devoted its considerable resources to supporting Hillary Clinton above any of the other
Democratic candidates . . . .”); 15 cf McNair v. District of Columbia, 213 F. Supp. 3d 81, 87
13
As Defendants note, Defs.’ Reply at 10 n.5, ECF No. 13, this Court may take judicial
notice of the DNC’s public filings with the FEC, without converting Defendants’ motion to
dismiss to one for summary judgment. See Detroit Int’l Bridge Co. v. Gov’t of Canada, 133 F.
Supp. 3d 70, 84–85 (D.D.C. 2015).
14
Mr. De La Fuente refers in his briefing to a “[d]isfavored” white candidate,
“O’Malloy.” Pls.’ Opp’n at 9. The Court assumes that this is a reference to former Maryland
Governor Martin O’Malley. Along with Governor O’Malley, the Democratic primary race
involved other white candidates—including Lincoln Chafee and Jim Webb—who did not gain
the same traction as Secretary Clinton or Senator Sanders. See FEC Statement of Candidacy,
Lincoln Davenport Chafee (June 16, 2015), http://docquery.fec.gov/pdf/737/15951475737/
15951475737.pdf; FEC Statement of Candidacy, James Webb (Oct. 30, 2015), http://docquery
.fec.gov/pdf/994/201510309003259994/201510309003259994.pdf. Mr. De La Fuente does not
allege that these candidates were treated any differently than he was with respect to the DNC’s
Voter Data File.
15
Mr. De La Fuente alleges that Defendants became concerned with his candidacy only
upon “the emergence of Bernie Sanders as a significant threat to Hillary Clinton’s early
nomination.” Id. ¶ 21. At that point, Mr. De La Fuente’s “candidacy threatened to throw the
18
(D.D.C. 2016) (holding that the plaintiff failed to raise an inference of gender discrimination
where her allegations “suggest[ed] that, at best, she was treated differently from all other
employees—which presumably includes both men and women”). Mr. De La Fuente’s
allegations “are consistent with an arbitrary, but not racially discriminatory, decision-making
process.” Nanko, 850 F.3d at 469 (emphasis in original) (Brown, J., dissenting). They do not
support Section 1981 liability, thus the Court dismisses Count III. 16
C. Civil Conspiracy
The Court next considers Mr. De La Fuente’s claim that Defendants have violated 42
U.S.C. § 1985 by executing a conspiracy to “hamper, impede and sabotage [his campaign]
through intimidation and political threats.” Compl. ¶ 121 (Count IV). While Section 1985
establishes civil liability for multiple types of conspiracies, only Section 1985(3) is relevant
here. 17 That provision prohibits a conspiracy to deprive a person of “equal protection” or “equal
nomination to Bernie Sanders and thereby defeating [sic] the DNC’s intended nominee.” Id.
Thus, Mr. De La Fuente appears to concede that Defendants targeted him not solely because of
his race, or because he was a direct threat to win the nomination, but because he would help a
disfavored white candidate.
16
Both parties note that Judge McFadden recently allowed a Section 1981 claim to
proceed based on similar allegations. See Wilson, 315 F. Supp. 3d at 399–400. However, Wilson
involved a different plaintiff and, presumably, different briefing. Because of the case-by-case
nature of Section 1981 claims, it is not uncommon for different courts to reach different results
when faced with what appear to be similar circumstances. And to the extent Wilson may be read
to hold, as a general matter, that two candidates were “similarly situated” for Section 1981
purposes because they registered with the FEC and contacted the DNC, see id. at 400, this Court
respectfully disagrees.
17
Mr. De La Fuente does not specify in his complaint or briefing what type of conspiracy
he is alleging under Section 1985. But only Section 1985(3) is pertinent to the facts and claims
contained in his complaint. See Wilson, 315 F. Supp. 3d at 401 (addressing similar allegations
under Section 1985(3)). Section 1985’s other provisions cover conspiracies to prevent a federal
officer from performing his or her duties, see 42 U.S.C. § 1985(1), and to obstruct justice by
interfering with parties, witnesses, or jurors, see id. § 1985(2). Mr. De La Fuente has not alleged
that he held federal office at any time during the relevant period, nor does he allege any
obstruction of court proceedings.
19
privileges and immunities” under the law. 42 U.S.C. § 1985(3). 18 To state a claim under Section
1985(3), a plaintiff must allege “(1) a conspiracy; (2) for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States.” Wilson, 315 F. Supp. 3d at
400–01 (quoting Pope v. Bond, 641 F. Supp. 489, 498 (D.D.C. 1986)).
Mr. De La Fuente’s filings are unclear as to the precise bases for this claim, but the
complaint seems to indicate that Mr. De La Fuente believes Defendants’ conspiracy or
conspiracies “depriv[ed]” him “from competing in [Nevada’s] Presidential caucus,” see Compl.
¶¶ 44–46, caused him to be excluded from “one or more state Presidential primary election
ballots,” including the South Carolina ballot, see id. ¶ 47, and prevented him from accessing the
DNC’s Voter Data File, see id. ¶¶ 74–82. According to Mr. De La Fuente, these alleged actions
were part of Defendants’ broader scheme to “target[] minority candidates who threatened to
18
Section 1985(3) states that it is unlawful for:
two or more persons in any State or Territory [to] conspire . . . for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws; or for
the purpose of preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State or Territory the
equal protection of the laws . . . .
42 U.S.C. § 1985(3). Section 1985(3) also states that it is unlawful for:
two or more persons . . . to prevent by force, intimidation, or threat, any citizen who
is lawfully entitled to vote, from giving his support or advocacy in a legal manner,
toward or in favor of the election of any lawfully qualified person as an elector for
President or Vice President, or as a Member of Congress of the United States; or to
injure any citizen in person or property on account of such support or advocacy . .
..
Id.
20
decrease the number of minority votes cast for Hillary Clinton.” Id. ¶ 41. Defendants correctly
argue that these allegations, while possibly indicating favoritism on the part of Defendants,
“fail[] to plausibly allege a conspiracy . . . .” Defs.’ Mot. at 27.
The complaint lays out a general theory—Defendants targeted Mr. De La Fuente because
they believed he would steal Hispanic-American votes from Secretary Clinton—but it fails to
connect that theory to the elements of a Section 1985 claim. Most fundamentally, Mr. De La
Fuente does not adequately plead the existence of an agreement to harm him, an “essential
element of a conspiracy claim.” Acosta Orellana v. CropLife Int’l, 711 F. Supp. 2d 81, 113
(D.D.C. 2010) (quoting Graves v. United States, 961 F. Supp. 314, 320 (D.D.C. 1997)). He
simply makes the conclusory assertion that the DNC acted “in conjunction with Nevada party
officials,” Pls.’ Opp’n at 14, and that the DNC “communicated” with other “state party
affiliate[s],” Compl. ¶ 47. But a plaintiff must “set forth more than just conclusory allegations of
an agreement.” Brady v. Livingood, 360 F. Supp. 2d 94, 104 (D.D.C. 2004) (holding that the
plaintiff failed to plausibly allege the existence of a conspiracy where he stated that the
defendants “agreed among themselves to subject him to discriminatory acts,” but he “put[] forth
no facts suggesting that the defendants were acting in concert in furtherance of a shared goal”
(internal quotation marks omitted)). At the very least, the complaint must allege “when or how
such an agreement was brokered,” Acosta, 711 F. Supp. 2d at 113, information lacking here.
Even if the Court accepts Mr. De La Fuente’s facts as true (e.g. that the DNC declined to
“endorse” him as a candidate, to prevent him from campaigning in certain states), the Court still
could not infer an agreement among multiple entities or individuals to harm him. See Acosta,
711 F. Supp. 2d at 114 (rejecting the plaintiffs’ civil conspiracy claim where their allegations,
“even assuming that those allegations [we]re true, could just as easily be the result of [the
21
defendants’] independent actions”); Kurd v. Republic of Turkey, No. 18-cv-1117, 2019 WL
1243731, at *19 (D.D.C. Mar. 18, 2019) (holding that the plaintiffs failed to state a Section 1985
claim, even if the defendants “had the common goal” of “curtail[ing]” the plaintiffs’ rights,
because the plaintiffs “provide[d] no additional support for the existence of an agreement”). In
short, Mr. De La Fuente’s “general allegation of conspiracy” is not sufficiently detailed to state a
Section 1985 claim. 19 Wilson, 315 F. Supp. 3d at 401. For this reason, the Court dismisses
Count IV. 20
D. Fraudulent and Negligent Misrepresentation
Finally, the Court considers Mr. De La Fuente’s claims that Defendants made fraudulent
and negligent misrepresentations. 21 See Compl. ¶¶ 126–140 (Counts V and VI). To establish a
claim for fraudulent misrepresentation under District of Columbia law, a plaintiff must allege:
“(1) that a false representation was made, (2) in reference to a material fact, (3) with knowledge
of its falsity, (4) with intent to deceive, and (5) action taken in detrimental reliance upon the
representation.” Sibley v. St. Albans Sch., 134 A.3d 789, 808–09 (D.C. 2016) (citing Va. Acad.
19
Even if Mr. De La Fuente plausibly alleged the existence of a conspiracy, his Section
1985 claim would still fail because, as discussed regarding his Section 1981 claim, he has failed
to plausibly allege that Defendants’ actions arose from “some class-based, invidiously
discriminatory animus.” Atherton, 567 F.3d at 688.
20
Mr. De La Fuente argues that he has stated a Section 1985 claim “for the same reason
and on similar facts that Judge Trevor N. McFadden recently upheld Willie Wilson’s Section
1985 claims . . . .” Pls.’ Opp’n at 10; see Wilson, 315 F. Supp. 3d at 401–02. But, seemingly
recognizing that Mr. Wilson’s Section 1985 allegations differ substantially from his own, Mr. De
La Fuente also seeks to amend his complaint to add what appear to be identical allegations to Mr.
Wilson’s. Pls.’ Opp’n at 13. Mr. De La Fuente may add these allegations to a proposed
amended complaint, should he choose to seek leave to file one.
21
Mr. De La Fuente appears to have abandoned his fraudulent misrepresentation claim at
the briefing stage; he does not address it in his opposition brief. See generally Pls.’ Opp’n.
Regardless, the same deficiencies that are fatal to his negligent misrepresentation claim are fatal
to his fraudulent misrepresentation claim.
22
Clinical Psychologists v. Grp Hospitalization & Med. Servs., Inc., 878 A.2d 1226, 1233 (D.C.
2005)). “[T]he elements of a negligent misrepresentation claim are the same as those of a
fraudulent misrepresentation claim, except a negligent misrepresentation claim does not include
the state of mind requirements of fraud.” Regan v. Spicer HB, LLC, 134 F. Supp. 3d 21, 38
(D.D.C. 2015). And “[b]oth negligent misrepresentation and fraud require . . . reasonable
reliance.” Venable LLP v. Overseas Lease Grp., Inc., No. 14-cv-2010, 2015 WL 4555372, at *4
(D.D.C. July 28, 2015); see also In re U.S. Office Prods. Co. Sec. Litig., 251 F. Supp. 2d 58, 74
(D.D.C. 2003); Sundberg v. TTR Reality, LLC, 109 A.3d 1123, 1131 (D.C. 2015).
In addition, when a plaintiff alleges fraudulent or negligent misrepresentation, as Mr. De
La Fuente does here, the plaintiff must satisfy the more stringent pleading requirements of
Federal Rule of Civil Procedure 9(b). See Boomer Dev., LLC v. Nat’l Ass’n Home Builders U.S.,
325 F.R.D. 6, 12 (D.D.C. 2019); Jacobson v. Hofgard, 168 F. Supp. 3d 187, 206 (D.D.C. 2016).
Federal Rule 9(b) requires that a complaint “state with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b); see, e.g., Jefferson v. Collins, 905 F. Supp.
2d 269, 286 (D.D.C. 2012); 3D Glob. Sols., Inc. v. MVM, Inc., 552 F. Supp. 2d 1, 7–9 (D.D.C.
2008); Anderson v. USAA Cas. Ins. Co., 221 F.R.D. 250, 254 (D.D.C. 2004). Put simply, the
complaint must “state the time, place and content of the false misrepresentations, the fact
misrepresented and what was retained or given up as a consequence of the fraud.” United States
ex rel. Williams v. Martin–Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004) (internal
quotation marks omitted) (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1278 (D.C.
Cir. 1994)). The complaint must also “identify individuals allegedly involved in the fraud.” Id.
at 1256. Defendants argue that the complaint falls short of that standard, Defs.’ Mot. at 31–32,
and, again, the Court agrees.
23
Mr. De La Fuente has failed to satisfy Rule 9(b)’s particularity requirements. He alleges
that a DNC employee, “Ms. Dacey,” stated in “correspondence” with Mr. De La Fuente that the
DNC would provide “introductions to State Party officials, logistical resources, and general
political assistance.” Compl. ¶ 15. Mr. De La Fuente fails, however, to identify when this
correspondence occurred. And more fundamentally, he fails to sufficiently describe the
correspondence’s content. “Logistical resources” could cover anything from discounted rental
cars, to free office space and a Keurig machine, to a full secretarial team. Similarly, “general
political assistance” could refer to a “Campaigning for Dummies” brochure, or it could mean that
the DNC would provide Mr. De La Fuente access to its top political operatives. And it is unclear
when the promised “introductions” would occur, and to which level of “State Party officials” Mr.
De La Fuente would be given access. The complaint’s conclusory allegations are simply not
adequate under Rule 9(b). See Boomer Dev., LLC v. Nat’l Ass’n Home Builders U.S., 258 F.
Supp. 3d 1, 17 (D.D.C. 2017) (holding that allegations that the defendant promised “assurances,”
“assistance,” and “support,” could not support a misrepresentation claim).
Mr. De La Fuente’s allegation that the DNC “expressly agreed to provide all registered
Democratic Presidential candidates and campaigns access to the DNC’s voter data base [sic] and
other logistical assistance, guidance, [and] resources” is similarly deficient. Compl. ¶ 32. Mr.
De La Fuente does not identify who specifically made this representation, when it was made, and
what types of “guidance” and “resources” fell within its scope. Rule 9(b) requires more detail.
See, e.g., Carter v. Bank of Am., N.A., 888 F. Supp. 2d 1, 14 (D.D.C. 2012) (“[T]he plaintiff has
not stated with any particularity the circumstances constituting fraud, as required by Rule 9(b),
because she has not provided even approximate dates of when fraudulent statements were made
to her nor the specific nature of the assurances.”).
24
Finally, Mr. De La Fuente relies on the DNC’s statement—in Article 5, Section 4 of its
Charter and Bylaws—that its “National Chairperson” would “exercise impartiality and
evenhandedness” between campaigns; in Mr. De La Fuente’s words, a “strict policy of
neutrality.” Compl. ¶¶ 28, 33, 40; see also id. ¶¶ 36, 37, 40 (referencing “public declarations of
neutrality and impartiality” by DNC employees, including Ms. Schultz). While Mr. De La
Fuente does a better job of describing this alleged misrepresentation, he fails to plausibly allege
that his reliance on it was reasonable. He seems to claim that he believed, to the tune of $6.7
million dollars, that Defendants’ general policy of “neutrality” would afford him access to the
same tools in the DNC’s arsenal as all other candidates, and would ensure that the DNC would
not “endorse” certain candidates over him. See Compl. ¶¶ 28–34, 41, 48. But he fails to explain
why the DNC’s bylaw would reasonably induce that belief. “Neutrality” is a broad, vague term
that does not necessarily mean equality of opportunity. Mr. De La Fuente admits as much: He
states that “invitation[s] to certain specific debates and town hall meetings were contingent on
objective factors, such as previous polling results,” Id. ¶ 53, but he does not argue that he
believed, based on the DNC’s policy of neutrality, that he would be entitled to attend all debates.
That belief, based on such a general statement, would be unreasonable. Mr. De La Fuente’s
expectation that the DNC’s bylaw entitled him to the same resources as all other candidates is
equally unreasonable. See In re U.S. Office Prods., 251 F. Supp. 2d at 64, 74–75 (holding that
the plaintiffs’ “blind reliance” on the “indefinite” promise that they would be made financially
whole was not reasonable); Venable, 2015 WL 4555372, at *4–5 (holding that the defendant’s
statement that its “legal fees and expenses would be kept to a minimum” was a “generalized
statement[] of optimism” that could not support a misrepresentation claim); cf. Berg v. Obama,
25
574 F. Supp. 2d 509, 529 (E.D. Pa. 2008) (holding that a political party’s “statements of
principle and intent” are not enforceable promises).
In short, Mr. De La Fuente has failed to plead his claims with sufficient particularity. For
these reasons, the Court dismisses Counts V and VI. However, “[w]here a pleading does not
satisfy the heightened requirements of Rule 9(b), the court should freely grant leave to amend.”
Boomer, 325 F.R.D. at 15 (citing Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)).
The Court will afford Mr. De La Fuente another opportunity to remedy the complaint’s defects.
IV. MR. DE LA FUENTE’S MOTION TO CONSOLIDATE
While Defendants’ motion to dismiss was pending, and nearly one year after filing his
complaint, Mr. De La Fuente moved to consolidate this case with Wilson, No. 17-cv-730 (D.D.C.
Apr. 19, 2017), overseen by Judge McFadden. 22 See Pls.’ Mot. Consolidation, ECF No. 14.
“[C]onsolidation is a purely ministerial act which . . . relieves the parties and the Court of the
burden of duplicative pleadings and Court orders.” New York v. Microsoft Corp., 209 F. Supp.
2d 132, 148 (D.D.C. 2002). This Court has broad discretion in deciding whether to consolidate
actions that involve “common question[s] of law or fact.” Fed. R. Civ. P. 42(a); Clayton v.
District of Columbia, 36 F. Supp. 3d 91, 93 (D.D.C. 2014). Clayton summarized the factors a
court must weigh in determining whether to exercise that discretion:
[T]he court should consider whether judicial efficiency is best served by
consolidation. The court generally weighs the saving of time and effort that
consolidation would produce against any inconvenience, delay, or expense that
consolidation would cause. Courts also consider (1) whether the relief sought
varies substantially between the two actions; (2) whether defendants are being sued
22
Local Rule 40.5(d) dictates that “[m]otions to consolidate cases assigned to different
judges of this Court shall be heard and determined by the judge to whom the earlier-numbered
case is assigned.” LCvR 40.5(d). Wilson is the earlier-numbered case here, so Mr. De La Fuente
should have filed his motion to consolidate with Judge McFadden. He does not appear to have
done so. Thus, in the interest of judicial economy, this Court will rule on Mr. De La Fuente’s
motion.
26
in different capacities; and (3) what would be gained by consolidation and what
injury would be suffered by failure to consolidate.
36 F. Supp. 3d at 94 (quoting Frederick v. S. Star Cent. Gas Pipeline, Inc., No. 10-1063, 2010
WL 4386911, at *2 (D. Kan. Oct. 29, 2010)); see also Nat’l Ass’n of Mortg. Brokers v. Bd. of
Governors of Fed. Reserve Sys., 770 F. Supp. 2d 283, 286 (D.D.C. 2011) (“[D]istrict courts must
weigh the risk of prejudice and confusion wrought by consolidation against the risk of
inconsistent rulings on common factual and legal questions, the burden on the parties and the
court, the length of time, and the relative expense of proceeding with separate lawsuits if they are
not consolidated.”). Here, those factors weigh against consolidation.
Mr. De La Fuente asserts that this case and Wilson “involve identical facts and legal
issues,” Mot. Consolidation at 10, but that is an overstatement. It is true that the two cases may
have some factual issues in common. For instance, they both raise the question of whether the
DNC targeted minority candidates who it believed would steal votes from Secretary Clinton.
See, e.g., Compl. ¶ 20; Second Am. Compl. (“Wilson Compl.”) ¶ 7, Wilson, No. 17-cv-730, ECF
No. 25. And, as Mr. De La Fuente notes, the two cases share certain causes of action against the
DNC. See, e.g., Compl. ¶¶ 88–124 (asserting breach of contract, promissory estoppel, Section
1981, and Section 1985 claims); Wilson Compl. ¶¶ 67–104 (same).
But therein lies the problem with Mr. De La Fuente’s motion. Those causes of action
turn on facts unique to each plaintiff. The two claims currently at issue in Wilson are for racial
discrimination under Section 1981, and civil conspiracy under Section 1985. See Wilson, 315 F.
Supp. 3d at 402. Wilson’s Section 1981 claim arises from Mr. Wilson’s alleged attempt to
contract with the DNC for its Voter Data File. Id. Mr. Wilson’s actions towards the DNC, and
the DNC’s alleged rejection of Mr. Wilson’s overtures, have no bearing on whether Mr. De La
Fuente can meet the elements of a Section 1981 claim. Likewise, Wilson’s Section 1985 claim
27
arises from an alleged conspiracy between the Secret Service and the DNC to keep Mr. Wilson
from taking the stage at a specific campaign event in South Carolina. Id. at 401–02. While Mr.
De La Fuente suggests that he attended the same rally and suffered the same injury as Mr.
Wilson, he has not yet provided plausible allegations to that effect. And if he is able to state a
Section 1985 claim arising from that event, he must ultimately provide evidence that the DNC
conspired to harm him. 23 At this time, it is too speculative to conclude that the two Section 1985
claims share common issues of fact, or even that Mr. De La Fuente can pursue any such claim.
Thus unlike, for instance, two cases challenging the same agency decision based on the
same administrative record, see En Fuego Tobacco Shop LLC v. FDA, 356 F. Supp. 3d 1, 9–11
(D.D.C. 2019), this case and Wilson will likely involve different sets of facts. See Blasko v.
Wash. Metro. Area Transit Auth., 243 F.R.D. 13, 16–17 (D.D.C. 2007) (declining to consolidate
two cases for trial when “the plaintiffs’ damages claims may require distinct evidentiary
support”); Stewart v. O’Neill, 225 F. Supp. 2d 16, 21 (D.D.C. 2002) (declining to consolidate
three cases when the plaintiff argued merely that the cases involved similar types of
discrimination by agents under “the bureaucratic umbrella of the Department of the Treasury”).
The factual differences weigh against consolidation.
Not to mention, this case and Wilson are at different stages. Wilson is through discovery,
and the DNC has filed a motion for summary judgment in that case. See DNC’s Mot. Summ. J.,
Wilson, ECF No. 52; Joint Status Report, Wilson, ECF No. 47. Here, Mr. De La Fuente is stuck
at the pleading stage. To the extent Mr. De La Fuente believes that consolidating his case with
Wilson will allow him to piggyback on Mr. Wilson’s action and move straight through discovery,
23
Not to mention, as discussed above, he must establish that his South Carolina-related
claims are not barred by issue or claim preclusion. See n.9.
28
he is mistaken. “[C]onsolidation is permitted as a matter of convenience and economy in
administration, but does not merge the suits into a single cause, or change the rights of the
parties, or make those who are parties in one suit parties in another.” Johnson v. Manhattan Ry.
Co., 289 U.S. 479, 496–97 (1933); see also Bank Markazi v. Peterson, 136 S. Ct. 1310, 1327
(2016) (“[A]ctions do not lose their separate identity because of consolidation.” (quoting 9A C.
Wright & A. Miller, Federal Practice and Procedure § 2382 (3d ed. 2008))). It is thus unclear, at
least for now, how judicial economy would be enhanced by consolidation. See Klayman v.
Judicial Watch, Inc., 255 F. Supp. 3d 161, 174–75 (D.D.C. 2017) (holding that consolidation of
two cases was improper when one case was set for trial and the other had yet to proceed to
discovery); Stewart, 225 F. Supp. 2d at 21 (denying the plaintiffs’ motion to consolidate one case
involving a post-settlement dispute, one case in which “substantial discovery” had taken place,
and one case at the pleading stage, because consolidation of cases “in very different stages of
litigation” does not serve judicial efficiency). And consolidation, if it delays the Wilson
proceedings, could potentially prejudice the DNC. 24 Given these considerations, the Court
exercises its discretion under Federal Rule 42, and denies Mr. De La Fuente’s motion to
consolidate.
24
The Court is also sympathetic to Defendants’ argument that Mr. De La Fuente appears
to be engaging in gamesmanship (if not judge shopping) by filing his motion now. See Defs.’
Opp’n Mot. Consolidation at 10, ECF No. 17. Mr. De La Fuente has known of Wilson since at
least June 11, 2018, when Defendants referenced the case in their motion to dismiss. Defs.’ Mot.
at 1 n.1. Yet he waited to seek consolidation until Judge McFadden allowed certain of Mr.
Wilson’s claims to proceed to discovery. And Mr. De La Fuente’s briefing indicates that this
timing was not lost on him. See Pls.’ Mot. Consolidation at 12 (asserting that Judge McFadden
will “be in a position to quickly adjudicate Defendants’ pending motion to dismiss in a manner
consistent with” Wilson). Regardless of Mr. De La Fuente’s motives, however, consolidation is
inappropriate on more traditional Rule 42 grounds.
29
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 6) is GRANTED,
and Mr. De La Fuente’s Motion to Consolidate (ECF No. 14) is DENIED. Mr. De La Fuente’s
complaint is DISMISSED WITHOUT PREJUDICE. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: April 23, 2019
RUDOLPH CONTRERAS
United States District Judge
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