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

September 17, 2012

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 AND ORDER

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: David Gaubatz and Chris Gaubatz (together, 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 the Federal Wiretap Act, 18 U.S.C. §§ 2510-2522, the District of Columbia analog (the "D.C. Wiretap Act"), D.C. CODE §§ 23-541-23-556, the Stored Communications Act, 18 U.S.C. §§ 2701-2712, and the common law of the District of Columbia.*fn1

There are two motions pending before the Court: the CSP Defendants' [97] Motion to Dismiss Certain Claims ("Motion to Dismiss"); and Plaintiffs' [112] Motion for Leave to File Third Amended Complaint ("Motion to Amend"). Through their Motion to Dismiss, the CSP Defendants argue that Plaintiffs cannot recover against them under the Federal and D.C. Wiretap Acts or the Stored Communications Act. Through their Motion to Amend, Plaintiffs seek to add a third set of Defendants-namely, the Society of Americans for National Existence ("SANE") and its President, David Yerushalmi ("Yerushalmi"). Plaintiffs also look to assert additional claims against all Defendants, narrow the scope of their demand for damages, and add certain clarifying allegations in support of extant claims. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole, the CSP Defendants' Motion to Dismiss shall be GRANTED IN PART and DENIED IN PART and Plaintiffs' Motion to Amend shall also be GRANTED IN PART and DENIED IN PART. (See infra Part IV.)

I. BACKGROUND

A. Factual Background

The following factual background is derived from the well-pleaded factual allegations in the Second Amended Complaint. SeeErickson v. Pardus, 551 U.S. 89, 94 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint."). The Court shall also provide parallel citations to, and relevant allegations from, Plaintiffs' proposed Third Amended Complaint.

1. The Parties

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., ECF No. [76], ¶ 10; Third Am. Compl., ECF No. [112-1], ¶ 10.) CAIR-F is an organization supporting CAIR-AN and its mission. (Second Am. Compl. ¶ 11; Third Am. Compl. ¶ 11.) Both CAIR-AN and CAIR-F are non-profit corporations incorporated in the District of Columbia. (Second Am. Compl. ¶¶ 10-11; Third Am. Compl. ¶¶ 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. (Second Am. Compl. ¶¶ 10-11, 27; Third Am. Compl. ¶¶ 10-11, 34.)

Chris Gaubatz is David Gaubatz's son. (Second Am. Compl. ¶¶ 12-13; Third Am. Compl. ¶¶ 12-13.) CSP is a non-profit corporation incorporated and located in the District of Columbia. (Second Am. Compl. ¶ 14; Third Am. Compl. ¶ 14.) Christine Brim, Adam Savit, and Sarah Pavlis are all employed by CSP. (Second Am. Compl. ¶¶ 15-17; Third Am. Compl. ¶¶ 15-17.) SANE is a non-profit corporation incorporated and located in Arizona. (Third Am. Compl. ¶ 19.) Yerushalmi is SANE's President and CSP's General Counsel. (Id. ¶ 18.)

2. Chris Gaubatz's Internship with CAIR-AN

Sometime prior to April 2008, Defendants*fn2 conceived a plan to infiltrate Plaintiffs' offices with the aim of obtaining Plaintiffs' internal documents and recording conversations involving Plaintiffs' employees. (Second Am. Compl. ¶ 19; Third Am. Compl. ¶ 21.) 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 David Gaubatz and the CSP Defendants for further dissemination. (Second Am. Compl. ¶ 19; Third Am. Compl. ¶ 21.)

Consistent with the agreed-upon plan, Chris Gaubatz sought and obtained an internship with the office for CAIR-AN Maryland/Virginia in April 2008. (Second Am. Compl. ¶ 20; Third Am. Compl. ¶ 26.) But 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. (Second Am. Compl. ¶¶ 10, 21; Third Am. Compl. ¶¶ 10, 27.)

Chris Gaubatz obtained his internship with CAIR-AN under false pretenses. During the application process, Chris Gaubatz, acting on Yerushalmi's advice, made false statements and omitted important facts about his background, interests, and intentions. (Second Am. Compl. ¶¶ 22-23; Third Am. Compl. ¶¶ 28-30.) 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. (Second Am. Compl. ¶ 22; Third Am. Compl. ¶

28.) 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. (Second Am. Compl. ¶¶ 23-25; Third Am. Compl. ¶¶ 30-32.) He succeeded and was hired as an intern. (Second Am. Compl. ¶ 29; Third Am. Compl. ¶ 36.)

As a condition of, and in consideration for, his internship, Chris Gaubatz signed a confidentiality and non-disclosure agreement. (Second Am. Compl. ¶¶ 29, 102; Third Am. Compl. ¶¶ 36, 112.) 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. (Second Am. Compl., Ex. A at 1-2.) Defendants were aware of the confidentiality agreement because Chris Gaubatz told them that he had signed it. (Id. ¶ 31; Third Am. Compl. ¶ 38.)

3. The Collection of Materials

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. (Second Am. Compl. ¶ 32; Third Am. Compl. ¶ 39.) 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. (Second Am. Compl. ¶ 36; Third Am. Compl. ¶ 45.) To that end, he physically removed more than twelve thousand of Plaintiffs' internal documents without authorization and delivered those documents to David Gaubatz. (Second Am. Compl. ¶¶ 37-38; Third Am. Compl. ¶¶ 46-47.) 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. (Second Am. Compl. ¶¶ 40-41; Third Am. Compl. ¶¶ 49-50.)

Chris Gaubatz also used a concealed electronic device to make audio and video recordings of conversations involving Plaintiffs' employees without authorization and consent. (Second Am. Compl. ¶ 42; Third Am. Compl. ¶ 51.) He was able to compile over fifty computer discs containing recordings of Plaintiffs' employees. (Second Am. Compl. ¶ 44; Third Am. Compl. ¶ 53.) 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. (Second Am. Compl. ¶¶ 44-46; Third Am. Compl. ¶¶ 53, 55-56.)

4. Agreements Between Defendants

In June 2007, before Chris Gaubatz sought an internship with CAIR-AN, David Gaubatz entered into a written agreement with SANE. (Third Am. Compl. ¶ 22.) Pursuant to this agreement, executed by Yerushalmi on SANE's behalf, SANE engaged David Gaubatz to "serve as the Director of the Mapping Shari'a in America: Knowing the Enemy Project." (Id., Ex. A at PDG000010.) The two-page agreement does not specify the nature of the services David Gaubatz was expected to provide or the contours of the referenced project. (Id., Ex. A at PDG000010-11.) It does, however, speak of "field work" and contemplate that David Gaubatz would oversee the collection of "field data." (Id., Ex. A at PDG000010.) "All work product, including written, electronic, and digital material collected . . . [would] be the exclusive property of SANE." (Id.) Subsequently, although it is not entirely clear when, David Gaubatz and SANE terminated their original agreement through a settlement. (Id. ¶ 54.) In their written settlement agreement, David Gaubatz represented that he was "in possession of the materials collected during and in furtherance of the [Mapping Shari'a] Project, including the printed materials, video, and audio tapes." (Id., Ex. C at PDG000012.) David Gaubatz agreed to deliver all such materials to CSP. (Id., Ex. C at PDG000013.)

David Gaubatz also entered into two written agreements with CSP. (Second Am. Compl. ¶ 35; Third Am. Compl. ¶ 42.) One of these agreements, entered into in September 2008, contemplated that members of David Gaubatz's "team" would "secure volunteer positions within The Council on American-Islamic Relations" and "secretly record (using audio and video recording devices) activities they observe within CAIR offices and other locations or events, as directed by [CSP] in its sole discretion." (Third Am. Compl., Ex. B at CSP000176.)

5. The Public Disclosure of Materials

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 September 4, 2012). (Second Am. Compl. ¶ 47; Third Am. Compl. ¶ 57.) Meanwhile, David Gaubatz posted documents and recordings on his blog, David Gaubatz, http://dgaubatz.blogspot.com (last visited September 4, 2012). (Second Am. Compl. ¶¶ 56-57; Third Am. Compl. ¶¶ 66-67.) In addition, David Gaubatz and a co-author wrote a book about Chris Gaubatz's internship with CAIR-AN. (Second Am. Compl. ¶ 48; Third Am. Compl. ¶ 58 see also P. David Gaubatz & Paul Sperry, Muslim Mafia: Inside the Secret World That's Conspiring to Islamize America (1st ed., WND Books 2009).) In that book, 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." (Second Am. Compl. ¶ 50; Third Am. Compl. ¶ 60.) 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. (Second Am. Compl. ¶ 51; Third Am. Compl. ¶ 61.)

B. Procedural Background

CAIR-AN filed its original Complaint on October 29, 2009, naming 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. (See Compl., ECF No. [1], ¶¶ 12-14.) CAIR-AN asserted a single claim under the Stored Communications Act and common law claims for conversion, breach of fiduciary duty, breach of contract, and trespass. (See 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 (1) 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, (2) required to remove from any website or blog under their control any such documents or recordings, and (3) 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 Federal Rule of Civil Procedure 30(b)(6). (See Tr. of Dep. of Christine Brim, ECF No. [48-3].)

On December 20, 2009, the Gaubatz Defendants moved to dismiss the original Complaint. On March 1, 2010 and April 12, 2011, Plaintiffs moved to amend the Complaint. The Court resolved all these motions on June 24, 2011, granting in part and denying in part the Gaubatz Defendants' motion to dismiss and granting both of Plaintiffs' motion to amend. SeeCouncil on American-Islamic Relations Action Network, Inc. v. Gaubatz, 793 F. Supp. 2d 311 (D.D.C. 2011). First, the Court granted Plaintiffs leave to amend the Complaint to (1) clarify that references to the "Council of American Islamic Relations" in the Complaint are to CAIRAN, (2) add CAIR-F as a second plaintiff, (3) add the CSP Defendants as defendants, (4) assert statutory claims under the Federal Wiretap Act, the D.C. Wiretap Act, and common law claims for unjust enrichment and tortious interference with contract, and (5) introduce a handful of supplemental factual allegations in support of extant claims. See id. at 322-30. Second, the Court granted the Gaubatz Defendants' motion to dismiss insofar as it sought dismissal of Plaintiffs' claim for the conversion of electronic data (one component of Count Three of the Second Amended Complaint) and otherwise denied the motion, including insofar as it sought dismissal of Plaintiffs' claim for the conversion of physical documents (the remainder of Count Three of the Second Amended Complaint). See id. at 330-45.

After the CSP Defendants filed an Answer to the Second Amended Complaint, the Court held a scheduling conference. (See Scheduling and Procedures Order (Sept. 1, 2011), ECF No. [99].) The Court set a schedule for discovery, which remains ongoing, and for the briefing of the CSP Defendants' pending Motion to Dismiss. (See id. at 5-6.) The parties briefed the Motion to Dismiss between September 1, 2011 and November 8, 2011. (See Mem. of P. & A. in Supp. of Mot. to Dismiss Counts I & II ("CSP Defs.' MTD Mem."), ECF No. [97]; Mem. of P. & A. in Opp'n to Mot. to Dismiss Counts I & II ("Pls.' MTD Opp'n"), ECF No. [102]; Reply Br. Mem. of P. & A. in Supp. of Mot. to Dismiss Counts I & II, ECF No. [108].)

On March 2, 2012, within the Court-ordered deadline for amendments to pleadings, Plaintiffs filed another motion to amend their Complaint. (See Pls.' Mot. for Leave to File Third Am. Compl. & Mem. in Supp. of Mot. for Leave to File Third Am. Compl., ECF No. [111].) Before receiving a response from Defendants, the Court denied the motion without prejudice, with leave to renew after certifying compliance with the meet-and-confer requirements of Local Civil Rule 7(m) and providing "a more particularized discussion as to why leave to amend should be granted as to each of the five principal changes identified." (Min. Order (Mar. 5, 2012).) The parties then briefed the pending Motion to Amend between March 5, 2012 and April 12, 2012. (See Pls.' Mot. for Leave to File Third Am. Compl. & Mem. in Supp. of Mot. for Leave to File Third Am. Compl. ("Pls.' MTA Mem."), ECF No. [112]; Resp. Br. Mem. of P. & A. in Opp'n to Pls.' Mot. for Leave to File Third Am. Compl. ("Defs.' MTA Opp'n"), ECF Nos. [113, 116]; Pls.' Reply to Defs.' Opp'n to the Mot. for Leave to File the Third Am. Compl., ECF Nos. [118, 119].)

Both pending motions are fully briefed and ripe for a decision. In an exercise of its discretion, the Court finds that holding oral argument on the pending motions would not be of assistance in rendering a decision. See LCvR 7(f).

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, 556 U.S. 662, 678 (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 ...


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