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Cockrum v. Donald J. Trump for President, Inc.

United States District Court, District of Columbia

July 3, 2018

ROY COCKRUM; SCOTT COMER; and ERIC SCHOENBERG, Plaintiffs,
v.
DONALD J. TRUMP FOR PRESIDENT, INC.; and ROGER STONE, Defendants.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE UNITED STATES DISTRICT JUDGE

         Before the Court are defendants' motions to dismiss and plaintiffs' motion for jurisdictional discovery. Plaintiffs are two Democratic National Committee (“DNC”) donors (Cockrum and Schoenberg) and a former DNC employee (Comer). Defendants are Donald J. Trump for President, Inc. (“the Trump Campaign”), and Roger Stone, who was employed by the Trump Campaign until November 9, 2015, and allegedly continued thereafter to advise the Trump Campaign informally. Plaintiffs assert that defendants engaged in a conspiracy with unidentified Russian agents and WikiLeaks to publish hacked emails. They bring two tort claims under D.C. law, one alleging a conspiracy to violate plaintiffs' privacy rights by publicly disclosing private facts and the other alleging a conspiracy to subject plaintiffs to intentional infliction of emotional distress. They also bring a federal claim under 42 U.S.C. § 1985(3), alleging a conspiracy to violate plaintiffs' right to give support or advocacy to their chosen political candidate. (Pls.' Am. Compl., ECF No. 17, (“Compl.”) ¶¶ 25-26.)[1]

         For the reasons stated below, the Court concludes that it lacks personal jurisdiction over defendants and, alternatively, that Washington D.C. is not the proper venue for plaintiffs' suit. The Court will grant defendants' motions to dismiss, deny plaintiffs' motion, and dismiss plaintiffs' suit without prejudice.[2] Given this ruling, the Court does not address defendants' arguments that the complaint fails to allege sufficient facts to sustain a claim for tortious civil conspiracies or a conspiracy under 42 U.S.C. § 1985(3).[3] Although the Court will explain the distinction between personal jurisdiction and the merits in detail below, it bears emphasizing that this Court's ruling is not based on a finding that there was no collusion between defendants and Russia during the 2016 presidential election.

         BACKGROUND

         I. FACTUAL BACKGROUND

         A. Plaintiffs

         Plaintiffs are two donors to the DNC and one former DNC employee. (Compl. ¶¶ 2-5, 32-34.) Plaintiff Roy Cockrum is a domiciliary of Tennessee who donated to the DNC and multiple candidates for public office in 2016. (Id. ¶¶ 3, 32.) Plaintiff Eric Schoenberg is a domiciliary of New Jersey who also contributed to the DNC in the 2016 election cycle. (Id. ¶¶ 4, 33.) Plaintiff Scott Comer is a domiciliary of Maryland and worked as the DNC Finance Office's Chief of Staff from April 2015 to October 2016, and as the DNC's LGBT Finance Chair from June 2016 to October 2016. (Id. ¶¶ 5, 34.)

         B. Hack of the DNC's Email Systems

         Plaintiffs allege that

[o]n one or more occasions before the summer of 2016, computer hackers working on behalf of the Russian government hacked into the email systems of the DNC in the District of Columbia and obtained voluminous amounts of data, including emails and other documents sent to and from thousands of individuals. Some of those individuals were staff members of the DNC; some were donors; and some were other supporters, members of the media, or other private citizens.

(Compl. ¶ 7.) The Russian hackers allegedly had access to DNC accounts “from July 2015 until at least mid-June 2016.” (Id. ¶ 86.) The voluminous material that the hackers obtained included thousands of Comer's emails; the social security numbers, dates of birth, home address, phone number, and banking relationships of Schoenberg and his wife; and the social security number, date of birth, address, and phone number of Cockrum. (Id. ¶ 8.)

         C. Conspiracies with Russian Agents

         Plaintiffs allege that Russian agents gained access to “DNC networks, Democratic Congressional Campaign Committee (‘DCCC') networks, and the personal email accounts of Democratic party officials and political figures” (Compl. ¶ 86), and did so “as part of a deliberate campaign to interfere in the U.S. election and tilt its outcome in favor of Donald Trump.” (Id. ¶ 9; see also Id. ¶¶ 83-85.) Plaintiffs attribute the hack to Russian agents and do not allege that defendants were involved in the hack. (Id. ¶¶ 86-87.) Importantly, plaintiffs' claims concern only the dissemination of emails hacked from the DNC and published by WikiLeaks on July 22, 2016. (Id. ¶¶ 16, 42.) Plaintiffs do not seek to impose liability on defendants for the publication of emails from the DCCC or John Podesta, Chairman of Hillary Clinton's 2016 presidential campaign.[4]

         Plaintiffs allege, on information and belief, that Russia “typically consults domestic political actors who act as Russia's partners to decide which extracted information to publish, how to time the release of the stolen information, and how to disseminate it in a way that would maximize the political impact.” (Id. ¶ 10.) As relevant to defendants, plaintiffs allege that

[a]gents of the Trump Campaign, acting on behalf of the Campaign, met with- and were otherwise in contact with-Russian officials or their agents on numerous occasions during the spring and summer of 2016. On at least one occasion, senior Trump Campaign officials met with a Kremlin-connected lawyer after being informed in an email that the meeting concerned information gathered as part of a Russian government effort to aid the Trump Campaign.

(Id. ¶ 12; see also Id. ¶ 79.) This meeting took place on June 9, 2016, at Trump Tower in New York. (Id. ¶ 98.) At this meeting,

Mr. Trump Jr., Mr. Kushner, and Mr. Manafort met with a Kremlin-connected Russian lawyer who was described in emails as a “Russian government attorney who is flying over from Moscow.” According to reports, Mr. Trump Jr. agreed to attend this meeting after being promised damaging material about his father's opponent. The Trump Campaign participants in the meeting expected that the lawyer, Natalia Veselnitskaya, would produce such material. Mr. Trump Jr. attended the meeting after receiving an email indicating that the material was part of a Russian government effort to aid the Trump Campaign. That email (released on July 11, 2017 on Mr. Trump Jr.'s Twitter account) stated, “This is obviously very high level and sensitive information but is part of Russia and its government's support for Mr. Trump.” Rather than refuse to be part of an effort by Russia to interfere in the election through the release of Russian-obtained information, Mr. Trump Jr. expressed enthusiasm for the idea in a responsive email, in which he stated: “If it's what you say I love it especially later in the summer.” According to reports, the formatting of the email chain suggests that it was forwarded to Mr. Manafort and Mr. Kushner before the meeting, meaning that they went to the meeting fully aware that it was part of Russian efforts to interfere with the election. Mr. Trump Jr. acknowledged in a tweet issued on July 10, 2017 that he took the “meeting to hear info about” Mr. Trump's opponent. Rinat Akhmetshin, a Russian-American lobbyist with suspected ties to Russian intelligence and the Kremlin who has previously been accused of involvement with computer hacking schemes, also attended the June 9 meeting. According to his account of the meeting, Ms. Veselnitskaya produced documents that she claimed would show illegal payments to the DNC.

(Id. ¶ 129.) By June 9, 2016, Russian agents already had access to the emails that concerned plaintiffs. (See Id. ¶ 130.) Although plaintiffs provide a detailed account about what happened at the June 9th meeting, there is no allegation that DNC emails were discussed. Besides the June 9th meeting at Trump Tower in New York, plaintiffs largely rely on conclusory allegations, based on information and belief, that defendants entered into an agreement with agents of Russia and WikiLeaks “to have information stolen from the DNC publicly disseminated in a strategic way that would benefit the campaign to elect Mr. Trump as President” (id. ¶ 13), and in return, defendants promised Russia that Mr. Trump would institute a more favorable policy toward Russia after assuming the presidency. (Id. ¶¶ 14-15; see also Id. ¶ 138-59.) Plaintiffs also cite evidence of long-standing financial and personal relationships between agents of the Trump Campaign and Russia as background evidence to support an inference that there was a foundation on which both parties could build a conspiratorial relationship. (Id. ¶¶ 102-118.)

         1. Meetings with Russian Agents in Spring and Summer 2016

         Plaintiffs allege, on information and belief, that Russian agents met with the Trump Campaign and its agents in Cleveland, D.C., New York, London, and Moscow to collaborate on publication of the hacked emails. (See Compl. ¶¶ 88, 161.) Plaintiffs also allege, on information and belief, that the Trump Campaign exchanged at least 18 undisclosed phone calls and emails with Russian agents between April and November 2016. (Id. ¶ 92; see also Id. ¶¶ 93-101, 129, 135-37.)[5]

         Plaintiffs ask the Court to infer that certain interactions could have been related to the alleged conspiracies when agents of the Trump Campaign met to discuss foreign policy towards Russia or communicated with a representative or agent of the Russian government, including the Russian Ambassador. (See Id. ¶ 139.) Most of the meetings that plaintiffs attempt to attribute to the conspiracies did not occur in the District, but allegedly took place in New York, at the Republican National Convention in Cleveland, or abroad. As for D.C., plaintiffs allege, on information and belief, that “agents and associates of the Campaign frequently conducted Campaign-related business in D.C., including at the Trump International Hotel in the District (even before it opened for business in September 2016) and on Capitol Hill.” (Id. ¶ 37.) On March 24, 2016, George Papadopoulos-then a member of President Trump's national security advisory committee-sent an email to “several high-ranking Campaign officials” about setting up a meeting between Russian leadership and President Trump. (Id. ¶ 94.) A week later President Trump held a meeting with his national security advisory committee at the Trump International Hotel in Washington D.C. (Id. ¶ 95.) Papadopoulos, Jeff Sessions, and J.D. Gordon, as well as other committee staff, attended. (Id.) The complaint does not allege what subjects were discussed at the meeting, but notes that “Mr. Gordon later stated that, because of the views that Mr. Trump expressed at this meeting, during the Republican National Convention, he pushed for the adoption of language more favorable to Russia in the Republican Party platform.” (Id.)

         Almost a month later, on April 27, 2016, at the Mayflower Hotel in D.C., President Trump gave a foreign-policy speech that was favorable to Russia. (Id. ¶ 96.) Russian Ambassador Kislyak attended the speech, and “[o]n information and belief, Mr. Trump, Mr. Kushner, Mr. Sessions, and Mr. Kislyak held a private conversation during that event.” (Id.) Even if such a conversation occurred, there is, however, no indication as to how it related to the conspiracies alleged in the complaint.

         Plaintiffs also allege that on July 7, 2016, Paul Manafort, while in Washington D.C., “sent an email through an intermediary to Oleg Deripaska, a Russian billionaire with close ties to Mr. Putin, offering to brief him about the campaign. The email stated: ‘If he needs private briefings we can accommodate.'” (Id. ¶ 99.) The complaint does not explain how, if at all, this email fits into the alleged conspiracies. But besides the two meetings discussed above, it is the only act alleged to have occurred in the District involving an agent of the Campaign that relates to the alleged conspiracies prior to the publication by WikiLeaks of the hacked DNC emails.

         2. Publication of Hacked DNC Emails

         On July 22, 2016, WikiLeaks published over 44, 000 hacked emails, most of which came from personnel on the DNC's finance team, including Comer. (Compl. ¶¶ 16, 42.) WikiLeaks did not redact information from the emails, which meant that a myriad of personal information about DNC employees and donors was published with the email dump. (Id. ¶¶ 43, 45, 47-48.) As of the filing of the complaint, the emails were still publicly available on the Internet. (Id. ¶ 44.) Plaintiffs allege, again on information and belief, that defendants “and those they conspired with arranged for the hacked information to be provided to WikiLeaks” and targeted the DNC finance team's emails . (Id. ¶ 16.)

         3. Events After the Email Publication

         Plaintiffs do not specifically allege that Stone met with Russian agents or had communications with any co-conspirators until after the DNC emails were published on July 22, 2016, except to note that Stone admitted in an interview shortly after the email publication that “he had communicated with WikiLeaks founder Julian Assange but that he was ‘not at liberty' to discuss aspects of those communications.” (Compl. ¶ 162.) As evidence that Stone was involved in the conspiracies, plaintiffs also cite Stone's public and private Twitter conversations, occurring shortly after the email publication, with “hacker Guccifer 2.0”- a person believed to be involved in the hack. (Id. ¶¶ 163-64, 170-72.)

         Plaintiffs also cite, as evidence to support an inference of conspiracy, instances after the July 22, 2016 publication when the Trump Campaign or Stone drew attention to the emails. (Id. ¶¶ 167-81.) In addition, plaintiffs note that after July 22, 2016, agents of the Trump Campaign met with Russian agents to discuss foreign policy. For example, Michael Flynn had a phone conversation with Ambassador Kislyak on December 29, 2016, which allegedly “took place while Mr. Flynn, Mr. Kislyak, or both were in Washington D.C.” (Id. ¶ 154.) Plaintiffs also claim that after the July 22, 2016 email dissemination, defendants have lied about or concealed their contacts with agents of the Russian government. (Id. ¶¶ 24, 182-219.)[6]

         D. Injury Resulting from Publication

         According to the plaintiffs, the publication of the hacked DNC emails caused the following injuries:

First, it intimidated and deterred existing donors from further supporting the DNC's financial efforts. Second, it intimidated and deterred existing or potential donors from communicating with Mr. Comer or others at the DNC to support the Democratic Party's candidate for President. Third, it intimidated and deterred individuals, including Mr. Comer, from using email to advocate the election of their preferred candidate for the Presidency, for fear that their communications would be publicly disclosed.

(Compl. ¶ 16.) In addition, plaintiffs suffered other harm from the publication of personal information. (See also Id. ¶ 61.) Specific to their § 1985(3) claim, plaintiffs allege that “[t]he injuries suffered by all three Plaintiffs were the result of their having taken steps to advocate for and support candidates running for federal office.” (Id. ¶ 78.)

         1.Comer

         WikiLeaks published “thousands” of Comer's emails. (Compl. ¶ 19.) Comer complains about the dissemination of emails relating to his sexuality, a medical condition, and gossip. (Id. ¶ 19-20.)

         Comer's hometown newspaper covered publication of the DNC emails, which led family members-including his grandparents-to search for and read emails about him. (Id. ¶ 51.) Comer admits that he had disclosed his sexuality to friends, colleagues, and other family members, but he had not shared it with his grandparents before the email publication. (Id. ¶¶ 69- 70.)[7] The emails indicated that Comer served as the LGBT Finance Director for the DNC, and some emails contained interoffice gossip. At a hearing before this Court, plaintiffs argued that this interoffice gossip contained innuendo and suggestive language that could allow Comer's grandparents to deduce that he was gay. (Hr'g Tr., May, 17, 2018, ECF No. 70, (“Tr.”) at 18- 19.) As described generally in the complaint, Comer's

emails . . . included frank and private discussions about other individuals. Those emails sometimes reflected frustration or conflict-unsurprising in a tight-knit office under a great deal of stress-or the kind of offhand remarks or gossip that many of us make in private but are never intended for sharing with the entire world.

(Compl. ¶ 53.)

These revelations strained relationships with coworkers, family, and friends, and ended some of Mr. Comer's relationships altogether. Publication of private statements about other individuals caused damage to his personal and professional reputation. Because his emails were disclosed, Mr. Comer received phone calls threatening violence, some calling him “faggot.” These circumstances led to severe emotional distress, anxiety, and depression. He found himself unable to sleep, haunted by nightmares, and unable to focus. He recognized the severity of the injury to his mental health and sought treatment, generating significant costs for medication and frequent visits with physicians and therapists.
In addition, Mr. Comer has felt intimidated regarding how he communicates with others in his advocacy for candidates for federal office out of a fear that his communications will be publicly disclosed.

(Id. ¶¶ 19-20.) One of the emails that were disclosed also contained information about Comer's health. “A May 17, 2016 email from Mr. Comer to his boss, with whom he was close, describes his bodily functions during a virus, a topic that Mr. Comer, like most people, would never raise in public communications.” (Id. ¶ 52.)

         Comer left the DNC in October 2016. (Tr. at 40.) Plaintiff attributes his decision to leave the DNC, the ending of a long-term romantic relationship, and damage to his professional reputation in the political finance industry to the publication of the emails. (Compl. ¶¶ 71-77.)

         2. Cockrum

         WikiLeaks published Cockrum's social security number, address, and phone number. (Compl. ¶¶ 17, 49.) He was required to provide most of this information to the DNC to be a donor and attend certain DNC events. (Id. ¶ 49); 11 C.F.R. § 104.8.[8]

As a result [of the email publication], Mr. Cockrum has seen multiple strangers attempt to obtain credit in his name, and at least one of these attempts was successful. Each new attempt requires a new round of extensive communications with creditors and credit agencies in an effort to prevent substantial financial loss. These circumstances have led to significant distress and anxiety and will require lifelong vigilance and expense. In addition, Mr. Cockrum has been chilled in the extent to which he supports and contributes to the DNC and political campaigns.

(Compl. ¶ 17; see also Id. ¶¶ 61-64.)

         3. Schoenberg

         Similarly, WikiLeaks published the social security numbers, address, phone number, and banking relationships of Schoenberg and his wife. See supra n. 8; (Compl. ¶¶ 18, 50.)

As a result, Mr. Schoenberg's identity was stolen and his information used in fraudulent attempts to get credit cards. In one instance, two new credit cards arrived together at his home-one in his wife's name, and the other in the name of an unknown woman. To this day, Mr. Schoenberg remains concerned that his and his family's credit and financial information are permanently in jeopardy. These circumstances led to significant distress and anxiety and will require lifelong vigilance and expense.

(Compl. ¶ 18; see also Id. ¶¶ 65-68.)

         II. PROCEDURAL HISTORY

         Plaintiffs filed their first complaint on July 12, 2017. On September 26, 2017, after defendants filed their first motions to dismiss, plaintiffs amended their complaint.

         Plaintiffs' current complaint contains three claims. The premise of these claims is that defendants conspired with Russian agents and WikiLeaks to publish the hacked emails, or aided and abetted Russian agents and WikiLeaks in publishing the hacked emails. Plaintiffs allege that defendants have committed two torts under D.C. law: (1) public disclosure of private facts, and (2) intentional infliction of emotional distress. (Compl. ¶¶ 223-39.) As for their federal claim, plaintiffs allege that defendants violated 42 U.S.C. § 1985(3) by conspiring to intimidate lawful voters from supporting or advocating for candidates for president and to injure citizens in person or property on account of such support or advocacy. (Id. ¶¶ 240-50.) Plaintiff seek compensatory damages and punitive damages “in an amount over $75, 000” to compensate them for their injuries. (Id. “Prayer for Relief” at 57.)

         On October 25, 2017, the Trump Campaign filed a motion to dismiss, citing (1) lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), (2) lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2), (3) improper venue, Fed.R.Civ.P. 12(b)(3), and (4) failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). Stone also filed a parallel motion to dismiss citing the same grounds and additionally arguing that plaintiffs lacked standing to bring their claims.[9] Plaintiffs filed their opposition on December 1, 2017, and defendants filed their replies on December 29, 2017. The Court granted plaintiffs leave to file a surreply, which plaintiffs filed on February 7, 2018.

         At a hearing on defendants' motions to dismiss on May 17, 2018, which focused on the issue of personal jurisdiction, plaintiffs never raised jurisdictional discovery. However, on May 24, 2018, plaintiffs filed a motion for such discovery. Prior to this motion the only notice plaintiffs had given the Court that they might seek jurisdictional discovery came in a footnote in their opposition, which stated: “Plaintiffs believe that the allegations in the Complaint are sufficient to establish that this Court may exercise personal jurisdiction over Defendants. If the Court disagrees, Plaintiffs should be allowed to take jurisdictional discovery.” (Pls.' Opp. to Defs.' Mots. to Dismiss, ECF No. 25, (“Pls.' Opp.”) at 18 n. 7.)

         Having received extensive briefing from all parties and three briefs from amicus curiae, [10]the Court is now in a position to rule on the motions.

         ANALYSIS

         I. LEGAL STANDARD

         A. Personal Jurisdiction

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing a basis for exercising personal jurisdiction over the defendant. Crane v. New York Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990). “In determining whether such a basis exists, factual discrepancies appearing in the record must be resolved in favor of the plaintiff.” Id.; see also Jacobsen v. Oliver, 201 F.Supp.2d 93, 104 (D.D.C. 2002). However, the Court “need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts.” Livnat v. Palestinian Auth., 851 F.3d 45, 57 (D.C. Cir. 2017) (citation omitted); see also Houlahan v. Brown, 979 F.Supp.2d 86, 88 (D.D.C. 2013). “Mere conclusions or ‘bare allegation[s]' do not constitute the prima facie case for jurisdiction that this standard requires.” Fawzi v. Al Jazeera Media Network, 273 F.Supp.3d 182, 186 (D.D.C. 2017) (alteration in original) (citation omitted). “Under District of Columbia law, personal jurisdiction is determined as of the commencement of an action.” Roz Trading Ltd v. Zeromax Grp., Inc., 517 F.Supp.2d 377, 384 (D.D.C. 2007).

         B. ...


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