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Council On American-Islamic Relations Action Network, Inc., et al v. Paul David Gaubatz

June 24, 2011

COUNCIL ON AMERICAN-ISLAMIC RELATIONS ACTION NETWORK, INC., ET AL., PLAINTIFFS,
v.
PAUL DAVID GAUBATZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiffs Council on American-Islamic Relations Action Network, Inc. ("CAIR-AN") and CAIR-Foundation, Inc. ("CAIR-F") bring this action against two sets of defendants: Paul David Gaubatz and Chris Gaubatz (the "Gaubatz Defendants"); and the Center for Security Policy, Inc. ("CSP") and three of its employees, Christine Brim, Adam Savit, and Sarah Pavlis (collectively with CSP, the "CSP Defendants"). Plaintiffs allege that Defendants conceived and carried out a scheme to place Chris Gaubatz in an internship with CAIR-AN under an assumed identity, which allowed him to remove and copy thousands of Plaintiffs' internal documents and to record private conversations involving Plaintiffs' employees without consent or authorization. Plaintiffs contend that Defendants thereafter publicly disclosed and published the contents of those documents and recordings. In this action, Plaintiffs seek relief under Titles I and II of the Electronic Communications Privacy Act of 1986 (the "ECPA"), 18 U.S.C. §§ 2510-2712, and the common law of the District of Columbia.*fn1

There are three motions pending before the Court and addressed in this memorandum opinion: the Gaubatz Defendants' [34] Motion to Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Motion to Dismiss"); Plaintiffs' [43] Motion to Amend Complaint ("First Motion to Amend"); and Plaintiffs' [48] Motion for Leave to File Second Amended Complaint ("Second Motion to Amend"). Upon consideration of the submissions by Plaintiffs and the Gaubatz Defendants, the relevant authorities, and the record as a whole, the Court shall grant in part and deny in part the Gaubatz Defendants' Motion to Dismiss and grant Plaintiffs' First Motion to Amend and Second Motion to Amend.

I. BACKGROUND

A. Factual Background

CAIR-AN is a self-described national Muslim advocacy group with a mission that includes enhancing the understanding of Islam and promoting a positive image of Muslims in the United States. Second Am. Compl. ("2d Am. Compl."), ECF No. [48-4], ¶ 10.*fn2 CAIR-F is an organization supporting CAIR-AN and its mission. Id. ¶ 11. Both CAIR-AN and CAIR-F are non-profit corporations incorporated in the District of Columbia. Id. ¶¶ 10-11. They share physical office space in the District of Columbia that is generally closed to the public and accessible to third parties only upon invitation. Id. ¶¶ 10-11, 27.

Chris Gaubatz is Paul David Gaubatz's son. 2d Am. Compl. ¶¶ 12-13. CSP is a nonprofit corporation incorporated and located in the District of Columbia. Id. ¶ 14. Christine Brim, Adam Savit, and Sarah Pavlis are all employed by CSP. Id. ¶¶ 15-17.

Sometime prior to April 2008, Defendants conceived a plan to infiltrate Plaintiffs' offices with the aim of obtaining Plaintiffs' internal documents and recording conversations involving Plaintiffs' employees. 2d Am. Compl. ¶ 19. According to their plan, Chris Gaubatz would attempt to secure an internship with CAIR-AN under an assumed identity and deliver any materials that he was able to obtain from Plaintiffs' offices to Paul David Gaubatz and the CSP Defendants for further dissemination. Id. In furtherance of this plan, the Gaubatz Defendants entered into two written agreements with CSP to provide CSP with materials. Id. ¶ 35.

Consistent with the agreed-upon plan, Chris Gaubatz sought and obtained an internship with the office for CAIR-AN Maryland/Virginia in April 2008. 2d Am. Compl.¶ 20. However, in June 2008, after it was announced that the office for CAIR-AN Maryland/Virginia would be closing, Chris Gaubatz sought an internship at CAIR-AN's headquarters in the District of Columbia. Id. ¶¶ 10, 21.

Chris Gaubatz obtained his internship with CAIR-AN under false pretenses. During the application process, he made false statements and omitted important facts about his background, interests, and intentions. 2d Am. Compl. ¶¶ 22-23. Among other things, he used an assumed name and represented that he was a student at a liberal arts college, that his father was in the construction business, and that he was a practicing Muslim. Id. ¶ 22. When Chris Gaubatz made these representations, he knew them to be false, and he made them in order to induce Plaintiffs to repose trust and confidence in him so that he might obtain an internship with CAIR-AN. Id. ¶¶ 23-25. He succeeded and was hired as an intern. Id. ¶ 29.

As a condition of and in consideration for his internship, Chris Gaubatz signed a confidentiality and non-disclosure agreement (the "Confidentiality Agreement"). 2d Am. Compl. ¶¶ 29, 102. The other party to the agreement is identified as the "Council on American-Islamic Relations." Id. Ex. A (Confidentiality Agreement) at 1. The agreement provides:

Non-Disclosure of "Confidential Information"

I agree that I shall not at any time after the termination of my internship with CAIR, use for myself or others, or disclose or divulge to others . . . any trade secrets, confidential information, or any other proprietary data of CAIR in violation of this agreement . . . . The intern further agrees to take and protect the secrecy of, and to avoid disclosure or use of, the "Confidential Information" in order to prevent it from falling into public domain or into the possession of persons not bound to maintain the confidentiality of Confidential Information.

Id. Ex. A (Confidentiality Agreement) at 1-2. Paul David Gaubatz and the CSP Defendants were aware of the Confidentiality Agreement because Chris Gaubatz told them that he had signed the agreement. Id. ¶ 31.

Chris Gaubatz worked as an intern for CAIR-AN until August 2008, though he returned to perform additional work over a weekend in September 2008. 2d Am. Compl. ¶ 32. During the course of his internship, he sought to collect information about Plaintiffs and their employees with the intention of publicly disclosing that information for profit and in order to cast Plaintiffs in a negative light. Id. ¶ 36. To that end, he physically removed more than 12,000 of Plaintiffs' internal documents without authorization and delivered those documents to Paul David Gaubatz. Id. ¶¶ 37-38. Electronic documents, including e-mails and computer-generated spreadsheets, were obtained by accessing Plaintiffs' computers and computer systems with user-names and passwords that were not assigned to him. Id. ¶¶ 40-41.

Chris Gaubatz also used a concealed electronic device to make audio and video recordings of conversations involving Plaintiffs' employees without authorization and consent. 2d Am. Compl. ¶ 42. He was able to compile over fifty computer discs containing recordings of Plaintiffs' employees. Id. ¶ 44. The Gaubatz Defendants delivered the recordings to CSP and Christine Brim who, with the assistance of the other CSP Defendants, organized and edited the recordings. Id. ¶¶ 45-46.

Defendants publicly disclosed the documents and recordings that they obtained from Plaintiffs. The CSP Defendants provided a compilation of recordings to the third-party publisher of WND Books and a website identified as WorldNet Daily, http://www.wnd.com (last visited June 17, 2011). 2d Am. Compl. ¶ 47. Meanwhile, Paul David Gaubatz posted documents and recordings on his blog, David Gaubatz, http://dgaubatz.blogspot.com (last visited June 17, 2011). 2d Am. Compl. ¶¶ 56-57. In addition, Paul David Gaubatz and a co-author wrote a book about Chris Gaubatz's internship with CAIR-AN. Id. ¶ 48; see also P. David Gaubatz & Paul Sperry, Muslim Mafia: Inside the Secret World That's Conspiring to Islamize America (1st ed., WND Books 2009) ("Muslim Mafia"). In Muslim Mafia, the authors characterize Chris Gaubatz's internship as a "six-month counterintelligence operation," admitting that Chris Gaubatz "routinely load[ed] the trunk of his car with boxes of sensitive documents and deliver[ed] them into the custody of investigative project leader P. David Gaubatz." 2d Am. Compl. ¶ 50. The book references and quotes from materials obtained from Plaintiffs' offices, including internal memoranda, minutes of board meetings, budget reports, real estate records, bank statements, strategy papers, employee evaluations, and e-mails. Id. ¶ 51.

B. Procedural Background

The original Complaint was filed on October 29, 2009. See Compl., ECF No. [1]. The Complaint was filed in the name of the "Council on American-Islamic Relations," which for reasons that will soon become clear the Court will refer to as CAIR-AN. See infra Part III.A. The Complaint named as defendants the Gaubatz Defendants and ten John and Jane Does whose identities were then unknown but who were alleged to have participated in and benefitted from the activities alleged in the Complaint. 2d Am. Compl. ¶¶ 12-14. The original Complaint asserted a single claim under Title II of the ECPA and common law claims for conversion, breach of fiduciary duty, breach of contract, and trespass. Id. ¶¶ 49-77.

Contemporaneous with the filing of the Complaint, CAIR-AN moved for a temporary restraining order and a preliminary injunction. See Mem. in Supp. of Pl.'s Mot. for a TRO & Prelim. Inj., ECF No. [2-1]. On November 2, 2009, after repeated efforts to contact the Gaubatz Defendants proved fruitless, the Court held an ex parte hearing to address CAIR-AN's request for a temporary restraining order. See Min. Entry (Nov. 2, 2009). On November 3, 2009, the Court granted in part and denied in part CAIR-AN's motion for a temporary restraining order, temporarily prohibiting the Gaubatz Defendants from making certain uses of materials obtained from Plaintiffs' offices and requiring the return of such materials to CAIR-AN's counsel. See Council on American-Islamic Relations v. Gaubatz, 667 F. Supp. 2d 67 (D.D.C. 2009).

On November 19, 2009, CAIR-AN and the Gaubatz Defendants jointly moved for a consent order granting CAIR-AN's motion for a preliminary injunction. See Joint Mot. to Enter Consent Order Granting Prelim. Inj., ECF No. [19]. That same day, the Court entered the proposed consent order. See Consent Order Granting Prelim. Inj., ECF No. [22]. Pursuant to that order, the Gaubatz Defendants are (a) enjoined from making any use, disclosure, or publication of any document obtained from any office or facility of CAIR-AN, any recording of meetings of or conversations involving CAIR-AN's officials or employees, and any copies of such documents or recordings, (b) required to remove from any website or blog under their control any such documents or recordings, and (c) required to return any such documents or recordings, including any copies, to CAIR-AN's counsel. See id. ¶¶ 1-4. Subsequently, the Court clarified that its order permits the Gaubatz Defendants' counsel, but not the Gaubatz Defendants themselves, to retain copies of the documents at issue for indexing purposes. See Order (Dec. 10, 2009), ECF No. [30], at 2. Absent further action from the Court, the preliminary injunction will remain in effect throughout this action. See Consent Order Granting Prelim. Inj., ECF No. [22], ¶ 5.

Following resolution of CAIR-AN's motion for a preliminary injunction, the Court granted CAIR-AN leave to depose CSP based on CAIR-AN's representations that CSP was believed to be in possession of materials obtained from Plaintiffs' offices. See Order (Dec. 10, 2009), ECF No. [30], at 4. CAIR-AN subsequently deposed Christine Brim as CSP's designated agent under Rule 30(b)(6) of the Federal Rules of Civil Procedure. See Tr. of Dep. of Christine Brim, ECF No. [48-3]. To date, no other discovery has been authorized by the Court.

On December 20, 2009, the Gaubatz Defendants filed their [34] Motion to Dismiss. On March 1, 2010, after the Gaubatz Defendants' Motion to Dismiss was fully briefed, Plaintiffs filed their [43] First Motion to Amend. On April 12, 2011, after Plaintiffs' First Motion to Amend was fully briefed, Plaintiffs filed their [48] Second Motion to Amend. All three motions were fully briefed as of May 23, 2011 and remain pending. Because the three motions raise a number of overlapping issues, they are addressed together in this memorandum opinion. While the Court's decision is based on the record as a whole, its consideration of these three motions has focused on the following documents, listed in chronological order of their filing:

* The Gaubatz Defendants' Motion to Dismiss: Defs.' Mem. in Supp of Mot. to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) ("Defs.' MTD Mem."), ECF No. [34-1]; Pls.' Resp. in Opp'n to Mot. to Dismiss ("Pls.' MTD Opp'n"), ECF No. [37]; Defs.' Reply Br. on Mot. to Dismiss ("Defs.' MTD Reply."), ECF No. [39]. * Plaintiffs' First Motion to Amend: Pls.' Mem. of P. & A. in Supp. of Pls.' Mot. to Amend Compl. ("Pls.' MTA1 Mem."), ECF No. [43-1]; Defs.' Opp'n to Mot. to File Am. Compl. ("Defs.' MTA1 Opp'n"), ECF No. [44]; Pls.' Reply Mem. in Supp. of Pls.' Mot. to Amend Compl. ("Pls.' MTA1 Reply"), ECF No. [45].

* Plaintiffs' Second Motion to Amend: Pls.' Mem. in Supp. of Mot. for Leave to File Second Am. Compl. ("Pls.' MTA2 Mem."), ECF No. [48-2]; Defs.' Opp'n to Pls.' Mot. to File a Second Am. Compl. ("Defs.' MTA2 Opp'n"), ECF No. [62]; Pls.' Reply to Opp'n to Mot. for Leave to File a Second Am. Compl., ECF No. [64].

Recently, this action has focused on proceedings concerning Paul David Gaubatz's compliance with the preliminary injunction ordered by this Court. For the time being, those proceedings are being conducted under seal. See Sealed Order to Show Cause (Apr. 18, 2011), ECF No. [49]; Sealed Order (Apr. 28, 2011), ECF No. [57]; Sealed Order (May 3, 2011), ECF No. [59]; Sealed Order (June 2, 2011), ECF No. [68]. The proceedings remain ongoing.

II. LEGAL STANDARDS

Under the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. (8)(a), "in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 12(b)(6) provides a vehicle for parties to challenge the sufficiency of a complaint on the ground that it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When presented with a motion to dismiss for failure to state a claim, the district court must accept as true the well-pleaded factual allegations contained in the complaint. Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), cert. denied, __ U.S. __, 130 S. Ct. 2064 (2010). 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." Twombly, 550 U.S. at 555. "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. The plaintiff must provide more than just "a sheer possibility that a defendant has acted unlawfully." Id. at 1950. When a complaint's well-pleaded facts do not enable a court, "draw[ing] on its judicial experience and common sense," "to infer more than the mere possibility of misconduct," the complaint has not shown that the pleader is entitled to relief. Id.

Under the Federal Rules of Civil Procedure, a party may amend its pleadings once as a matter of course within a prescribed time period. See Fed. R. Civ. P. 15(a)(1). Where, as here, a party seeks to amend its pleadings outside that time period, it may do so only with the opposing party's written consent or the district court's leave. See Fed. R. Civ. P. 15(a)(2). The decision whether to grant leave to amend a complaint is entrusted to the sound discretion of the district court, but leave "should be freely given unless there is a good reason, such as futility, to the contrary." Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996), cert. denied, 520 U.S. 1197 (1997). As the Supreme Court has observed:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be "freely given."

Foman v. Davis, 371 U.S. 178, 182 (1962). "[A] district court has discretion to deny a motion to amend on grounds of futility where the proposed pleading would not survive a motion to dismiss." Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004), cert. denied, 545 U.S. 1104 (2005). Review for futility is practically "identical to review of a Rule 12(b)(6) dismissal based on the allegations in the amended complaint." In re Interbank Funding Corp. Secs. Litig., 629 F.3d 213, 215-16 (D.C. Cir. 2010) (quotation marks omitted). Because leave to amend should be liberally granted, the party opposing amendment bears the burden of coming forward with a colorable basis for denying leave to amend. Abdullah v. Washington, 530 F. Supp. 2d 112, 115 (D.D.C. 2008).

III. DISCUSSION

A. Plaintiffs' First Motion to Amend

Plaintiffs' First Motion to Amend is limited in scope. Plaintiffs request leave to amend the Complaint to (a) clarify that references to the "Council on American-Islamic Relations" in the Complaint are to CAIR-AN, (b) add CAIR-F as a second plaintiff, (c) include a claim for unjust enrichment, and (d) introduce a handful of supplemental factual allegations in support of claims already asserted. See Comparison of Compl. and Proposed First Am. Compl., ECF No. [50]. Because leave to amend is to be "freely given," and because the grounds stated for the Gaubatz Defendants' opposition are insufficient to warrant denying the relief sought, the Court shall grant Plaintiffs' First Motion to Amend.

1. Scope

Because granting leave to amend is especially favored where the proposed changes do not radically reshape the action, see Smith v. Cafe Asia, 598 F. Supp. 2d 45, 58 (D.D.C. 2009), the Court will begin by addressing each of the four proposed changes and how they relate to this case. As shown below, the scope of Plaintiffs' First Motion to Amend is limited.

First, Plaintiffs propose to make a technical correction to clarify that references to the "Council on American-Islamic Relations" in the caption and body of the original Complaint are intended to refer to CAIR-AN, or the Council on American-Islamic Relations Action Network, Inc. Despite the seemingly trivial nature of the proposed change, the Gaubatz Defendants spill a fair amount of ink arguing against it. See Defs.' MTD Mem. at 2-5, 25-26; Defs.' MTA1 Opp'n at 12-15. Their argument is difficult to follow, mostly because it seems to shift from one moment to the next, but its basic structure is this: (i) this action was brought in the name of the "Council on American-Islamic Relations"; (ii) the "Council on American-Islamic Relations" does not exist; (iii) something that does not exist cannot be a "real party in interest"; (iv) therefore, this action is not brought in the name of the real party in interest.

The argument is a strange one because the Gaubatz Defendants concede that the "Council on American-Islamic Relations" changed its name to CAIR-AN in June 2007 and they introduce documentary evidence showing as much. See Defs.' MTD Mem. at 2; Decl. of Daniel Horowitz, ECF No. [34-2], Ex. 7 (Articles of Amendment) & Ex. 8 (Certificate of Amendment). Entirely consistent with this showing, Plaintiffs maintain that the references to the "Council on American-Islamic Relations" in the original Complaint were the product of a simple mistake. See Pls.' MTA1 Mem. at 3-4; Pls.' MTA1 Reply at 6-7. They submit a sworn declaration by their counsel, who explains that at the time the original Complaint was prepared, counsel was "unaware that the organization had changed its formal legal name to 'Council on American-Islamic Relations Action Network, Inc.' in 2007." Decl. of Tillman Finley, ECF No. [45-1], ¶¶ 2-4. The Court accepts that "[t]his mistake was made unknowingly and unintentionally and was not intended to confuse or mislead Defendants, the Court, or anyone else." Id. ¶ 6. Given this state of affairs, the Court sees no good reason to deny Plaintiffs leave to clarify that references to the "Council on American-Islamic Relations" are intended to be references to CAIR-AN.*fn3

Second, Plaintiffs seek leave to add CAIR-F as a second plaintiff. Rule 21 allows a district court to add a party "at any time" and "on just terms." Fed. R. Civ. P. 21. Rule 20, in turn, defines the contours of permissive joinder, providing that parties may be joined as plaintiffs when (i) their claims "aris[e] out of the same transaction, occurrence, or series of transactions or occurrences" and (ii) "any question of law or fact common to all plaintiffs will arise in the action." Fed. R. Civ. P. 20. When asked to decide whether permissive joinder is appropriate, the district court should be guided by the underlying aims of joinder, which include promoting judicial economy, expediting the resolution of disputes, and eliminating unnecessary litigation. Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002). Because the general preference is "toward entertaining the broadest possible scope of action [that is] consistent with fairness to the parties," United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966), the joinder of plaintiffs is ordinarily allowed at the election of the plaintiffs so long as both prongs of the test under Rule 20 are met, Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010). Attempts to join a party who satisfies the test for permissive joinder should generally not be denied in the absence of undue prejudice, expense, or delay. Chavez v. Illinois State Police, 251 F.3d 612, 632 (7th Cir. 2001).

Applying these principles to this case is an easy matter. CAIR-AN and CAIR-F share physical office space in the District of Columbia, and it is at those offices that the events underlying this action were alleged to have transpired. See 2d Am. Compl. ¶¶ 10-11. Although Chris Gaubatz's internship is alleged to have formally been with CAIR-AN, both CAIR-AN and CAIR-F claim an interest in the documents and materials allegedly taken from their shared office space and employees of both organizations are alleged to have been the subjects of surreptitious recordings made by Chris Gaubatz. See id. ¶¶ 29, 38, 40, 42. Unsurprisingly, CAIR-AN and CAIR-F intend to pursue virtually identical legal claims in connection with these alleged events. See id. ¶¶ 69-131. Without a doubt, their claims arise out of the same series of transactions or occurrences and, as evidenced by the pages that follow, common questions of law and fact will arise in this action.

Third, Plaintiffs seek to add a claim for unjust enrichment based on the same set of facts underlying their other claims. The Gaubatz Defendants do not specifically respond to this aspect of Plaintiffs' First Motion to Amend. While they do offer a broader argument that granting leave to amend would be futile because the First Amendment bars Plaintiffs' claims or protects their conduct, see Defs.' MTA1 Opp'n at 2-8, an argument which presumably encompasses Plaintiffs' unjust enrichment claim, the Court rejects that argument. See infra Part III.C.1. Meanwhile, because Plaintiffs' unjust enrichment claim does "no more than state an alternative theory of recovery," Foman, 371 U.S. at 182, granting leave to amend to add this claim is appropriate.

Fourth, Plaintiffs seek to add a handful of allegations to the Complaint that are designed to flesh out the factual basis for the claims they have already asserted. For the most part, these facts pertain to the nature of the documents and materials at issue in this action, the non-public nature of Plaintiffs' offices, the basis for Chris Gaubatz's alleged fiduciary duties, and the injuries allegedly flowing from the Gaubatz Defendants' conduct. See Comparison of Compl. and Proposed First Am. Compl., ECF No. [50]. Responding to these proposed changes, the Gaubatz Defendants claim that "the new complaint is the old complaint" and suffers from the same defects as the original Complaint. See Defs.' MTA1 Opp'n at 2-8. Consistent with this view, the Gaubatz Defendants have taken the position that their legal arguments apply equally to the original Complaint and the proposed First Amended Complaint. See id.; Joint Status Report, ECF No. [52], at 9. While the Court is inclined to agree that the addition of these factual allegations is not likely to change the outcome of the legal issues presented, this certainly does not provide a basis for denying leave to amend. Plaintiffs' factual allegations merely fine-tune the basis for the relief Plaintiffs seek in this action. Factual allegations of this kind, which clarify but do not reshape the action, are rarely a bad thing.

2. Futility

The crux of the Gaubatz Defendants' opposition to Plaintiffs' First Motion to Amend is the contention that the proposed amendments fail to improve upon the original Complaint. See Defs.' MTA1 Opp'n at 2. Arguing that "the new complaint is the old complaint," the Gaubatz Defendants rehash and incorporate the arguments raised in their Motion to Dismiss. See id. at 2-8. The implication is that granting leave to amend would be futile (though the Gaubatz Defendants never actually use that word outside of stating the standard of review). The argument divides into three sub-parts.

First, the Gaubatz Defendants argue that leave to amend should be denied because the First Amendment either protects their conduct or precludes Plaintiffs from securing any relief. See Defs.' MTA1 Opp'n at 2-8, 10-12. The Court addresses this argument below in resolving the Gaubatz Defendants' Motion to Dismiss, in which the argument was first raised. See infra Part III.C.1. For present purposes, suffice it to say that the ...


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