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De La Fuente v. DNC Services Corp.

United States District Court, District of Columbia

April 23, 2019

ROQUE “ROCKY” DE LA FUENTE and ROCKY 2016 LLC, Plaintiffs,
v.
DNC SERVICES CORPORATION and DEBORAH WASSERMAN SCHULTZ, Defendants.

          MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION TO DISMISS; DENYING PLAINTIFFS' MOTION TO CONSOLIDATE

          Rudolph Contreras, United States District Judge.

         I. INTRODUCTION

         Plaintiff Roque De La Fuente, proceeding pro se, is a Mexican-American entrepreneur from California who unsuccessfully ran in the 2016 Democratic presidential primary. With the benefit of hindsight, he believes that the deck was stacked against his campaign from the start. He claims that Defendants, the Democratic National Committee (“DNC”) and its then-chairperson, [1] Deborah Wasserman Schultz, thwarted his campaign because he was a threat to steal Hispanic-American votes from Hillary Clinton, votes necessary to seal her nomination for the 2016 election. He seeks over $6 million in compensatory damages and $1 million in punitive damages, under breach of contract, promissory estoppel, race discrimination, conspiracy to violate civil rights, and misrepresentation theories. Mr. De La Fuente's breach of contract, promissory estoppel, and misrepresentation theories all fail for similar reasons: He has not adequately identified a definite promise or offer of contract terms, nor has he sufficiently explained why it was reasonable for him to take action based on the vague and indefinite communications he has identified. Mr. De La Fuente's discrimination theory fails because he has not plausibly alleged that Defendants thwarted his campaign efforts because of his race. And Mr. De La Fuente's conspiracy theory fails because he has not adequately identified an agreement between two or more people, or organizations, to deprive him of his civil rights. That said, the Court believes that Mr. De La Fuente is entitled to another bite at the apple. Thus, the Court will dismiss Mr. De La Fuente's complaint without prejudice.

         II. BACKGROUND

         Mr. De La Fuente is a Mexican-American “entrepreneur, businessman, and real estate developer” from San Diego, California. Compl. ¶ 5, ECF No. 1. On October 1, 2015, he registered a political campaign committee, “Rocky 2016, ” with the Federal Election Commission (“FEC”), and began a campaign to seek the Democratic Party nomination for the 2016 Presidential election. See Id. ¶ 9. He notified the DNC of his campaign in a December 2015 letter, in which he also sought “campaign support and general information on the Democratic Party's nominating process.” Id. ¶ 13.

         Mr. De La Fuente claims that Defendants made certain promises that caused him to pursue his unsuccessful campaign, which cost approximately $6.7 million when all was said and done. See Id. ¶ 16. First, Mr. De La Fuente alleges that he would not have entered the DNC's “nomination process” absent Article Five, Section Four of the DNC's Charter and Bylaws. See Id. ¶¶ 28, 34. That provision states, in relevant part, that the DNC's chairperson-at the time, Ms. Schultz-“shall exercise impartiality and evenhandedness as between Presidential candidates and campaigns.”[2] Id. ¶ 28. According to Mr. De La Fuente, the provision requires the DNC to “be an objective facilitator among candidates, ” and it forbids the DNC from “endors[ing]” or “differentiat[ing] between ‘sanctioned' and/or ‘unsanctioned' candidates.” Id. ¶ 31. Second, Mr. De La Fuente alleges that a DNC employee, “Ms. Dacey, ” sent “correspondence” to him in which the DNC promised to “provide assistance . . . through introductions to State Party officials, logistical resources, and general political assistance.” Id. ¶ 15. Third, Mr. De La Fuente alleges that the DNC “expressly agreed to provide all registered Democratic Presidential candidates and campaigns access to the DNC's voter data base [sic] and other logistical assistance, guidance, resources to permit candidates to build their campaigns . . . .” Id. ¶ 32.

         Mr. De La Fuente claims that despite these promises, Defendants did not help his campaign in any way. In fact, Mr. De La Fuente alleges, Defendants actively sabotaged him. The DNC told its “state affiliate party organs” that Mr. De La Fuente was not an “endorsed” or “sanctioned” candidate, which caused the Nevada State Democratic Party to withhold from him the locations of its Democratic caucus sites. See Id. ¶¶ 43-46.[3] The DNC also failed to make good on its promise to introduce Mr. De La Fuente to key state officials, which caused him to be denied access to South Carolina's primary ballot. See Id. ¶¶ 50-51. The DNC's conduct “ensure[d] that [Mr.] De La Fuente would not meet the required polling thresholds necessary to” secure invitations to “important debates and town hall meetings.” Id. ¶ 53. And the DNC refused to grant Mr. De La Fuente access to its Voter Data File, a “compilation of all registered Democrats in the United States, ” which included “vital voter information.” See Id. ¶¶ 59-62, 76-77, 81. Mr. De La Fuente alleges that “only selected Caucasian Democratic presidential candidates” were given that access. Id. ¶ 80.

         Mr. De La Fuente has a theory for why Defendants would want his campaign to fail, a theory that permeates his filings. Mr. De La Fuente is Hispanic-American, part of “a vital and growing constituency within the Democratic Party.” Id. ¶ 19. His “more moderate economic and social policy agenda aligns more closely to the experiences of Hispanic-America's religious and entrepreneurial instincts than the more radical policies advanced by any of the other candidates that sought the 2016 Democratic Party nomination.” Id. According to Mr. De La Fuente, Defendants recognized his “growing traction with Hispanic-American voters” in late 2015 and early 2016, voters that Hillary Clinton needed to secure the Democratic nomination. Id. ¶ 20. This was a problem for the DNC, as it was “biased in favor of” Secretary Clinton; it “devoted its considerable resources to supporting [her] over any of the other Democratic candidates . . . .” Id. ¶ 41. Defendants “thus considered [Mr.] De La Fuente's race and ethnicity as a threat to Hillary Clinton's campaign that needed to be curtailed and marginalized to save her candidacy.” Id. ¶ 23. At the same time, Defendants “desired the public trappings of a contested presidential nominating process, ” leading them to seek candidates like Mr. De La Fuente to enter the race in the first place. Id. ¶ 38.

         In February 2018, Mr. De La Fuente and his campaign, proceeding pro se, brought this lawsuit, asserting that Defendants engaged in actionable misrepresentations, contract- and promise-based violations, and constitutional violations.[4] Shortly thereafter, Defendants moved to dismiss the complaint.[5] See Defs.' Mot. Dismiss (“Defs.' Mot.”), ECF No. 6. More recently, Mr. De La Fuente moved to consolidate this case with Wilson v. DNC Services Corporation, No. 17-cv-730 (D.D.C. Apr. 19, 2017), overseen by Judge McFadden. See generally Pls.' Mot. Consolidation, ECF No. 14. Both of those motions are now ripe for the Court's consideration. The Court will consider Defendants' motion first, then Mr. De La Fuente's motion.

         III. DEFENDANTS' MOTION TO DISMISS

         Defendants have moved to dismiss Mr. De La Fuente's complaint under Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits, but instead whether a plaintiff has properly stated a claim. See, e.g., Skinner v. Switzer, 562 U.S. 521, 530 (2011). When considering such a motion, the Court accepts the complaint's factual allegations as true and construes them liberally in the plaintiff's favor. See, e.g., Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). However, the Court need not accept the complaint's legal conclusions as true, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), nor must it presume the veracity of legal conclusions that are couched as factual allegations, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, [the] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). In other words, the factual allegations “must be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555-56. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are insufficient. Iqbal, 556 U.S. at 678. At this stage, the Court is limited to considering “the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice.” Hurd v. D.C. Gov't, 864 F.3d 671, 678 (D.C. Cir. 2017) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).

         This Court construes pro se complaints liberally. See Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). Thus, Mr. De La Fuente's complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Even under this liberal standard, a pro se complainant must plead facts that allow the Court to infer “more than the mere possibility of misconduct.” Id. at 681-82 (quoting Iqbal, 556 U.S. at 679). A court considering a pro se plaintiff's complaint should look to “all filings, including filings responsive to a motion to dismiss, ” Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015), to discern whether the plaintiff has “nudged [his] claim[s] across the line from conceivable to plausible, ” id. (quoting Twombly, 550 U.S. at 570). “The Court need not, ” however, “assume the role of the pro se plaintiff's advocate.” Mehrbach v. Citibank, N.A., 316 F.Supp.3d 264, 268 (D.D.C. 2018). It need not stalk the record to find support for Mr. De La Fuente's claims. See Sun v. D.C. Gov't, 133 F.Supp.3d 155, 168 n.6 (D.D.C. 2015).

         Mr. De La Fuente asserts six causes of action against Defendants: breach of implied-in-fact contract (Count I), promissory estoppel (Count II), racial discrimination in violation of 42 U.S.C. § 1981 (Count III), civil conspiracy in violation of 42 U.S.C. § 1985 (Count IV), fraudulent misrepresentation (Count V), and negligent misrepresentation (Count VI). See Compl. ¶¶ 88-141. The Court addresses each in turn. It concludes that, even under the relaxed pro se standard, Mr. De La Fuente has failed to plausibly allege that Defendants violated the law in their treatment of him and his campaign. Mr. De La Fuente may have legitimate gripes with Defendants' apparent favoritism during the Democratic primary, but not every gripe deserves redress in federal court. For the reasons stated below, the Court thus grants Defendants' motion to dismiss and dismisses Mr. De La Fuente's complaint without prejudice.

         A. Implied-In-Fact Contract and Promissory Estoppel

         First, the Court considers Mr. De La Fuente's implied-in-fact contract and promissory estoppel claims. See Compl. ¶¶ 88-104 (Counts I and II). Defendants' motion argues, at great length, for the dismissal of these claims. See Defs.' Mot. at 7-23. And Mr. De La Fuente's opposition brief appears to accept Defendants' arguments. For instance, Mr. De La Fuente states that he “do[es] not believe that [an implied-in-fact contract] was created” by his interactions with Defendants. Pls.' Opp'n at 16 n.1, ECF No. 10. Mr. De La Fuente also notes that Judge McFadden recently dismissed implied-in-fact contract and promissory estoppel claims brought by a scorned political candidate under similar circumstances. See Id. at 21; Wilson v. DNC Servs. Corp., 315 F.Supp.3d 392, 398-99 (D.D.C. 2018). Mr. De La Fuente states that he “will not waste effort seeking to counter Judge McFadden's analysis.” Pls.' Opp'n at 21. Thus, while Mr. De La Fuente insists that he “do[es] not abandon these claims, ” id., he appears to have done just that.

         “It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” Xenophon Strategies, Inc. v. Jernigan Copeland & Anderson, PLLC, 268 F.Supp.3d 61, 72 (D.D.C. 2017) (quoting Hopkins v. Women's Div., Gen. Bd. of Glob. Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003)); see also Texas v. United States, 798 F.3d 1108, 1110 (D.C. Cir. 2015) (“[Local Rule 7(b) ] is understood to mean that if a party files an opposition to a motion and therein addresses only some of the movant's arguments, the court may treat the unaddressed arguments as conceded.” (quoting Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014))); Head v. Fed. Bureau of Prisons, 86 F.Supp.3d 1, 4 (D.D.C. 2015) (applying this principle to a pro se plaintiff's opposition brief). If Mr. De La Fuente will not expend the effort to support his claims, the Court will not expend the effort to evaluate them. It dismisses Counts I and II.[6]

         B. Racial Discrimination

         Next, the Court considers Mr. De La Fuente's claim that Defendants violated 42 U.S.C. § 1981 in denying him the political assistance he believes he was owed. See Compl. ¶¶ 105-117 (Count III). Section 1981 “combats racial discrimination by protecting the equal right of ‘[a]ll persons within the jurisdiction of the United States' to ‘make and enforce contracts' without respect to race.”[7] Wilson, 315 F.Supp.3d at 399 (alteration in original) (quoting 42 U.S.C. § 1981(a)). To state a claim under Section 1981, a plaintiff “must show that: (1) he is a member of a racial minority group; (2) the defendant intended to discriminate on the basis of his race; and (3) the discrimination pertained to one of the activities enumerated in the statute.” Kungle v. State Farm, Fire & Cas. Co., 48 F.Supp.3d 67, 77 (D.D.C. 2014) (quoting Dickerson v. District of Columbia, 806 F.Supp.2d 116, 119 (D.D.C. 2011)). As relevant here, among the activities enumerated in the statute are “the making, performance, modification, and termination of contracts.” 42 U.S.C. § 1981(b). While a plaintiff's race is essential to Section 1981 liability, “[i]n order to pursue a cause of action under § 1981, [a] plaintiff cannot merely invoke his race However, Mr. De La Fuente identifies no specific party officials to whom Defendants offered to introduce him, nor does he identify when these promised introductions were to take place. He also does not provide any details about the types of logistical resources and political assistance he was to receive, or when. Promises to act “neutral” and provide “resources” and “assistance, ” without more detail, are too vague and indefinite to have reasonably induced Mr. De La Fuente to act in reliance on them. See Headfirst Baseball, 168 F.Supp.3d at 248-50 (rejecting the plaintiff's promissory estoppel claim where the plaintiff failed to provide “evidence of a clear promise”); In re U.S. Office Prods. Co. Sec. Litig., 251 F.Supp.2d 58, 73 (D.D.C. 2003). in the course of a claim's narrative, ” but rather “must allege some facts that demonstrate that his race was the reason for defendant's actions.” Bray v. RHT, Inc., 748 F.Supp. 3, 5 (D.D.C. 1990) (citing Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982); Jaffe v. Fed. Reserve Bank of Chi., 586 F.Supp. 106, 109 (N.D. Ill. 1984)).

         Mr. De La Fuente asserts that Defendants deprived him of the “statutory right[]” to “make and enforce contracts on the same basis as White persons.” Compl. ¶ 116; see also Pls.' Opp'n at 8. He identifies two possible factual bases for this claim: (1) DNC “staff members, agents and/or employees' communication with state party committees, ” Compl. ¶ 111, caused the South Carolina Democratic Party to deny Mr. De La Fuente access to the state's ballot, and the Nevada Democratic Party to withhold from Mr. De La Fuente the locations of caucus sites, see Id. ¶¶ 43-44, 51; and (2) Defendants “only selected White Democratic presidential candidates to enter into Voter Data Licensing Agreements and corresponding use of DNC National Voter File Data, ” id. ¶ 80. Defendants respond that this claim cannot be sustained because Mr. De La Fuente has failed to establish the existence of a contract or potential contract that Defendants failed to honor. See Defs.' Mot. at 23. Defendants further contend that Mr. De La Fuente has failed to establish that Defendants declined to transact with him because of his race. See id.[8] These arguments are well taken.

         As with his implied-in-fact contract and promissory estoppel claims, Mr. De La Fuente appears to have abandoned the Section 1981 claims arising from his interactions with state party organizations. His opposition brief fails to address Defendants' arguments for why those claims are legally insufficient. See Pls.' Opp'n at 7-10. Dismissal is appropriate on that basis alone. See Texas, 798 F.3d at 1110; Head, 86 F.Supp.3d at 4; Stephenson v. Cox, 223 F.Supp.2d 119, 121 (D.D.C. 2002).

         Setting his concession aside, Mr. De La Fuente has failed to show that his interactions with state party organizations support Section 1981 liability. To state a Section 1981 claim, a plaintiff “must initially identify an impaired ‘contractual relationship' under which [he] has rights”; relief is appropriate when “racial discrimination blocks the creation of a contractual relationship [or] . . . impairs an existing contractual relationship” involving the plaintiff. Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) (citation omitted). Here, Mr. De La Fuente has not adequately identified the contractual relationships underlying his interactions with the state party organizations. He alleges that the Nevada organization “refused to provide” him with the locations of its caucus sites because the DNC broadcasted that he was not an “endorsed” or “sanctioned” candidate. See Compl. ¶¶ 43-46. But he does not allege that an existing contractual relationship required Nevada to disclose the caucus site locations, or required the DNC to “sanction” him. See Id. ¶ 46. Nor does he allege that he sought a contractual relationship that would have entitled him to those benefits. In fact, Mr. De La Fuente provides no details at all regarding how he attempted to obtain Nevada's caucus site locations, or the significance of that information. Similarly, Mr. De La Fuente alleges that the South Carolina organization denied him ballot access, but he admits that the state party's executive committee took this action because it “was not personally familiar with [him], ” id. ¶ 51, rather than because of his race. Mr. De La Fuente implies that the DNC had a contractual obligation to introduce him to the relevant South Carolina officials, see id., but as discussed above he has failed to plausibly allege-and in fact has waived-the existence of such a contract. And he does not otherwise claim to have attempted to contract with the DNC or the South Carolina organization for access to the ballot.[9]

         Put simply, the Court has no choice but to dismiss these allegations because Mr. De La Fuente has not “presented a scintilla of evidence that he was prevented from entering into a ‘contractual' relationship with” Defendants or the state organizations “due to his race.”[10] Bray, 748 F.Supp. at 5; cf. Morris v. Office Max, Inc., 89 F.3d 411, 414 (7th Cir. 1996) (rejecting the plaintiffs' Section 1981 claim where they “never sought to enter into a contractual relationship” with the defendant); Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989) (holding that the plaintiff's “vague and conclusory allegation” that the defendants “interfered with his ‘prospective business opportunities'” did not state a Section 1981 claim); Williams v. Fed. Nat'l Mortg. Ass'n, No. 05-cv-1483, 2006 WL 1774252, at *5 (D.D.C. June 26, 2006) (holding that a “plaintiff's allegations of general promises and assurances by defendants of a future business relationship or opportunities to do business do not identify a contractual interest under § 1981”).[11]

         It is a closer call, but Mr. De La Fuente has also failed to show that Defendants violated Section 1981 by depriving him of access to the DNC's Voter Data File. True, a Section 1981 claim may arise “when racial discrimination blocks the creation of a contractual relationship.” Domino's Pizza, 546 U.S. at 476. And Mr. De La Fuente has alleged that Defendants refused to contract with him for access to the DNC's Voter Data File, while granting access to white candidates. See Compl. ¶¶ 80-82. However, Mr. De La Fuente has not alleged “facts that demonstrate that his race was the reason for [Defendants'] action.” Morris v. Carter Glob. Lee, Inc., 997 F.Supp.2d 27, 37 (D.D.C. 2013) (quoting Bray, 748 F.Supp. at 5).

         Mr. De La Fuente's claim relies, for the most part, on his overall theory of the case: Defendants “wanted to deprive Hispanic Democrats of the opportunity to cast ballots for anyone other than their chosen White candidate-Hillary Clinton.” Compl. at 2. More specifically, “Hillary Clinton could not be guaranteed the Democratic Party's nomination without garnering a significant majority of Hispanic-American votes, ” votes that “had nowhere to go but to [her] if the DNC could successfully marginalize [Mr.] De La Fuente.” Id. ¶ 20. Mr. De La Fuente argues that this motive drove Defendants to deny him access to the Voter Data File. See Id. ¶¶ 23, 83-84.

         This theory, however, suffers from a major flaw: It is not supported by any factual allegations. Mr. De La Fuente points to no statements made or actions taken by Defendants indicating that they viewed him as a threat because of his race. Mr. De La Fuente alleges “on information and belief” that “internal polling” in late-2015 indicated that Secretary Clinton needed Hispanic-American votes to guarantee victory in the primary. Id. ¶ 20. But Mr. De La Fuente identifies no facts indicating that Defendants acted on that information in a discriminatory way. He also relies on a leaked memorandum “addressed to the DNC, ” id. ¶ 65 (emphasis added), demonstrating “the pre-ordained elevation of Hillary Clinton as the DNC's 2016 presidential nominee, ” id. ¶¶ 69. But by Mr. De La Fuente's own admission, the memorandum was not generated by Defendants. See Id. ¶ 65. And more importantly, Mr. De La Fuente does not allege that the memorandum contained any discussion of marginalizing minority candidates to secure more minority votes for Secretary Clinton. Rather, the memorandum indicates “a bias in favor of only one candidate” over all others, minority and non-minority alike. Id. ¶ 71. Mr. De La Fuente “merely invoke[s] his race in the course of [his] narrative” with respect to these allegations, which is insufficient to state a Section 1981 claim. Bray, 748 ...


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