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Bauman v. Butowsky

United States District Court, District of Columbia

March 28, 2019

BRAD BAUMAN, Plaintiff,
EDWARD BUTOWSKY, et al. Defendants.

          MEMORANDUM OPINION [DKT. ## 12, 14]


         Brad Bauman ("Bauman" or ''plaintiff') brought this tort action for defamation, defamation per se, false light, and publication of private facts against defendants Edward Butowsky ("Butowsky"), Howard Gary Heavin ("Heavin"), Matthew Couch, and Couch's company America First Media ("AFM"). Pending before me are Butowsky's and Heavin's separate motions to dismiss the claims against them under Federal Rules of Civil Procedure 12(b)(2) for lack of personal jurisdiction and 12(b)(6) for failure to state a claim. Upon consideration of the pleadings and the relevant law, and for the reasons stated below, Heavin's 12(b)(2) motion to dismiss and Butowsky's 12(b)(6) motion to dismiss are GRANTED, and this case is DISMISSED as to those defendants.[1]


         Seth Rich, a Democratic National Committee ("DNC") staffer, was murdered in Washington, D.C. in the early morning of July 10, 2016. Compl. at ¶ 26 [Dkt. # 1]. Soon after the murder, Bauman, a D.C. resident and public relations and communications consultant, see Id. at ¶¶ 14, 22, 51, was referred to the Rich family by friends of Seth Rich and volunteered to act as the family's spokesperson, id. at ¶ 27. To this day, Seth Rich's murder remains unsolved, but D.C. law enforcement officials have stated their belief that he was killed during a botched robbery. Id. at ¶¶ 2, 29. Nevertheless, the murder spawned a number of conspiracy theories aiming to connect Seth Rich's death to the hack and leak of DNC emails to Wikileaks during the run-up to the 2016 presidential election. Id. at ¶¶ 2. Indeed, on August 10, 2016, Wikileaks released a statement addressing, if not inflaming, these conspiracy theories, noting that its policy of neither confirming nor denying its sources should not be inferred to suggest that Seth Rich was a Wikileaks source or that his murder was connected to Wikileaks' activities. Id. at ¶¶ 3, 32.

         Months later, in early 2017, defendant Butowsky, a Texas resident and businessman and cable news commentator, id. at ¶¶ 15, 40, contacted the Rich family and offered to hire and pay a private investigator to investigate Seth Rich's murder, id. at ¶ 30. The family apparently agreed, and Butowsky hired former D.C. police investigator (and fellow cable news commentator) Rod Wheeler. Id. at ¶ 10. At the same time, Butowsky allegedly was pressing Fox News to report on supposed evidence linking Seth Rich to Wikileaks and the leaked DNC emails. Id. at ¶¶ 31, 50. Fox News ultimately ran such a story on May 16, 2017, entitled "Slain DNC staffer had contact with Wikileaks, investigator says." Id. at ¶ 33. According to the article, Wheeler believed that the D.C. police were covering up the true circumstances of the murder. Id. at ¶ 35. Wheeler immediately denied the attribution in the Fox News article and publicly stated that he did not personally have evidence of a cover up. Id. at ¶¶ 37-38. In response, Bauman released a statement on the Rich family's behalf denying any link between Seth Rich and Wikileaks and condemning as politically motivated the conspiracy theories suggesting the same. Id. at ¶ 40. On May 23, 2017, Fox News retracted its reporting about a Seth Rich murder coverup. Id. at ¶¶ 43-44.

         Over the ensuing months, Butowsky allegedly made a series of public statements about Bauman's role in the controversy surrounding Seth Rich's murder. For example, on the same day that Fox News retracted its article, Butowsky stated in an online World Net Daily interview that the DNC "assigned" Bauman to act as the Rich family spokesman, that Bauman was a "Democrat crisis management person," and that he "finds Bauman's involvement with the family extremely suspicious." Id. at ¶ 53. A few days later, Butowsky gave an interview to New York Magazine's Daily Intelligencer, during which he observed that "it seemed like Bauman's job is just to discredit and try to go after people." Id. at ¶ 56. And on August 2, 2017, Butowsky told CNN that "Bauman is simply a hired guy who will say anything" and that he "should apologize to the country for crafting a lie." Id. at ¶ 74.

         Like Butowsky, defendant Heavin, a fellow Texas resident and frequent news commentator, id. at ¶ 18, made public statements about Bauman's involvement in the Seth Rich matter. On May 28, 2017, Heavin appeared on a radio program and claimed that Bauman is a "DNC cleaner" brought in to "propagandize" and who "would lie, cheat, and steal to ... avoid the truth." Id. at ¶ 57. A month later, Heavin appeared on Info Wars' The Alex Jones Show and accused Bauman of being "a Democratic hitman" who "cover[s] up media issues around the Democratic Party" and stated that Bauman's involvement was "very very suspicious." Id. at ¶¶ 61-62. Info Wars aired the episode online and on social media and radio platforms. Id. at ¶¶ 66-69.

         On May 21, 2018, Bauman sued, inter alia, Butowsky and Heavin for defamation, defamation per se, and false light. Id. at ¶¶ 128-55. Bauman alleges that Butowsky's and Heavin's statements about his involvement in the Seth Rich matter are false and have harmed his professional reputation and his physical and emotional health. Id. On June 15 and 19, 2018, respectively, Butowsky and Heavin moved separately to dismiss Bauman's claims for lack of personal jurisdiction under Rule 12(b)(2) and failure to state a claim under Rule 12(b)(6). [Dkt. ## 12, 14].


         To survive a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing of the factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y.Zoological Soc 'y, 894 F.2d 454, 456 (D.C. Cir. 1990); Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). To make such a showing, the plaintiff "must allege specific acts connecting [the] defendant with the forum"; it is not enough to rely on bare allegations or conclusory statements. Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (internal quotation marks omitted). That does not mean that the plaintiff is "required to adduce evidence that meets the standards of admissibility reserved for summary judgment and trial." Urban Inst. v. FINCON Servs., 681 F.Supp.2d 41, 44 (D.D.C. 2010). The plaintiff is permitted to rely on "arguments on the pleadings, 'bolstered by such affidavits and other written materials as [the plaintiff] can otherwise obtain.'" Id. (quoting Mwani, 417 F.3d at 7).

         A Rule 12(b)(6) motion "tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A claim is facially plausible when the complaint allegations allow the Court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although the standard does not amount to a "probability requirement," it does require more than a "sheer possibility that a defendant has acted unlawfully." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not sufficient to state a claim. Id. In resolving a Rule 12(b)(6) motion, the Court "assumes the truth of all well-pleaded factual allegations in the complaint and construes reasonable inferences from those allegations in the plaintiffs favor[.]" Sissel v. U.S. Dep't of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014). In addition to the complaint's factual allegations, the Court may consider "documents attached to or incorporated in the complaint, matters of which courts may take judicial notice, and documents appended to a motion to dismiss whose authenticity is not disputed, if they are referred to in the complaint and integral to a claim." Harris v. Amalgamated Transit Union Local 689, 825 F.Supp.2d 82, 85 (D.D.C. 2011).


         I. Defendant Howard Gary Heavin

         Heavin first claims that Bauman has not alleged sufficient facts to show that the Court can assert personal jurisdiction over him. As Heavin is a non-resident defendant, the existence vel non of personal jurisdiction is governed by a familiar two-part framework, under which I must determine (1) whether Bauman has satisfied the District's long-arm statute, D.C. Code § 13-423, and (2) if he has, whether the exercise of jurisdiction would comport with constitutional due process. See Forras v. Rauf, 812 F.3d 1102, 1106 (D.C. Cir. 2016); Kopff v. Battaglia, 425 F.Supp.2d 76, 81 (D.D.C. 2006). As set forth below, Bauman has not satisfied the D.C. long-arm statute, and I therefore need not reach the constitutional portion of the analysis.

         While D.C.'s long-arm statute enumerates over a half-dozen bases for the exercise of personal jurisdiction, see D.C. Code § 13-423(a), as to Heavin plaintiff contends that personal jurisdiction exists only under § 13-423(a)(4), Compl. ¶ 24; Pl's Opp'n to Def. Heavin's Mot. to Dismiss at 6-18 [Dkt. # 24]. That provision confers personal jurisdiction over persons who commit tortious acts outside of D.C. that cause injury in the District "if, and only if, the defendant 'regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from [goods used or consumed, or] services rendered' in the District." Forras, 812 F.3d at 1107 (quoting D.C. Code § 13-423(a)(4)). Section (a)(4) does not reach to the limits of the Constitution's Due Process Clause: "the District government has made a deliberate decision not to allow access to D.C. courts to every person who is injured here and otherwise could bring a claim for civil redress." Kopff, 425 F.Supp.2d at 82; see also Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987) (section (a)(4) does "not occupy all of the constitutionally available space"). Instead, in addition to injury within the District, D.C.'s long-arm statute requires what courts refer to as a "plus factor"-i.e., the tortfeasor regularly does business or engages in persistent conduct in, or derives substantial revenue from, the District.

         According to Bauman, Heavin's "plus factor" is his alleged persistent course of D.C. conduct, which is shown by Heavin: (1) "broadcast[ing] his defamatory statements via websites that were directed at D.C. and could interact with its residents"; (2) holding a leadership position in a company called Curves North America, which Heavin founded and which maintains "an active corporate registration in D.C." but no operating franchises; (3) traveling to D.C. for President Donald Trump's inauguration and perhaps also on one other occasion; (4) causing a 2012 corporate donation by Curves International-the parent company of Curves North America-to American Crossroads, a D.C.-based political action committee, and personally contributing to other D.C.-based political organizations; (5) "routinely promot[ing] his status as a 'mover-and-shaker'" who is in regular communication with Senator Rand Paul of Kentucky; (6) claiming to be under consideration to be U.S. Ambassador to Haiti and otherwise attempting to obtain a political appointment to federal office; (7) producing and acting in a film that concerns the federal government and maintains ...

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