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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