United States District Court, District of Columbia
MEMORANDUM OPINION [DKT. ## 12, 14]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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. ##
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).
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).
Defendant Howard Gary 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.
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.
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