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 presidеntial campaign.
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 andsummer 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 еlect 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
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 рrivate 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
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.)
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 suppоrt 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
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.)
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 viоlence, 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
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
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
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,
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,
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. ,
B. Venue
Under
The "question-whether venue is 'wrong' or 'improper'-is generally governed by
II. PERSONAL JURISDICTION
The Court's exercise of personal jurisdiction over nonresidents must satisfy both the Due Process Clause
"To show that the exercise of jurisdiction would comply with the constitutional requirements of due process, a plaintiff must demonstrate that there are 'minimum contacts between the defendant and the forum establishing that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.' " Swecker ,
Consistent with due process, this Court may "exercise either general or specific personal jurisdiction." Bigelow v. Garrett ,
A. General Jurisdiction and the Trump Campaign
"A court with general jurisdiction may hear any claim against that defendant." Bristol-Myers Squibb Co. ,
The Court lacks general jurisdiction over the Trump Campaign, which is incorporated in Virginia and has its principal place of business in New York. Plaintiffs argue that the Court has general jurisdiction over the Trump Campaign because it has a temporary home in D.C.-at least since President Trump was inaugurated-and the Trump Campaign's contacts with D.C. for purposes of electing President Trump are so continuous and systematic as to render the Campaign at home in D.C. First, "personal jurisdiction is determined as of the commencement of an action," not as of President Trump's inauguration. Roz Trading Ltd ,
Finding general jurisdiction over the Trump Campaign-with a place of incorporation and principal place of business outside D.C.-based on its election-related contacts within the forum would eviscerate the distinction between general and specific jurisdiction. See Bigelow ,
B. Specific Jurisdiction
Plaintiffs argue that specific jurisdiction exists due to defendants' contacts with the
But before the Court can address the two bases for specific jurisdiction, it is necessary to clearly delineate what is not at issue here. The Court's ruling does not represent a ruling on the merits of plaintiffs' claims. Plaintiffs seek to establish jurisdiction by citing events that happened outside the District, events that happened well before defendants allegedly joined the conspiracies, and events after the conspiracies achieved their objective on July 22, 2016. These events may have relevance to determining whether plaintiffs' claims are meritorious for purposes of a Rule 12(b)(6) inquiry. But that is not the issue before the Court in ruling on personal jurisdiction, for the focus of a Rule 12(b)(2) inquiry is far different. Specific personal jurisdiction must focus on defendants ' contacts with the forum related to the specific claims raised in plaintiffs' complaint.
1. Suit-Related Contacts with the Forum
i. Legal Principles
In order to meet the test for specific jurisdiction, "the plaintiff must allege some specific facts evidencing purposeful activity by the defendants in the District of Columbia by which they invoked the benefits and protections of the laws of the District of Columbia." Bigelow ,
For this Court to exercise specific personal jurisdiction over defendants their "suit-related conduct must create a substantial cоnnection with" the District. Walden v. Fiore ,
Plaintiffs' claims are based on a conspiracy theory of liability. Importantly though, plaintiffs' claims define the parameters of what constitutes suit-related contacts, and the scope of the civil conspiracies is tethered to the injuries for which they may recover. See Graves v. United States ,
"Civil conspiracy" is not a boundless concept that empowers this
Plaintiffs' federal claim rests on a conspiracy (1) to prevent a "citizen who is lawfully entitled to vote" from giving support and advocacy or (2) to "injure any citizen in person or property on account of such support or advocacy."
Similarly, the scope of the conspiracies relevant to plaintiffs' tort law claims depends on the underlying tortious acts, see Richards v. Duke Univ. ,
Plaintiffs urge this Court to adopt a theory of specific jurisdiction that requires no causal link between defendants' contacts and plaintiffs' claims. Relying on the D.C. Court of Appeals' precedent in Shoppers Food Warehouse v. Moreno ,
At the most restrictive end of the spectrum, courts require the defendant's contacts to have been the "proximate cause"-or at least something similar to the proximate cause-of the plaintiff's alleged injury. Other courts are satisfied if the contacts are merely a "but-for cause" of the injury. And a third category of courts, including, notably, the D.C. Court of Appeals, require only a "discernable relationship" between the contacts and the plaintiff's cause of action. Unlike the other tests, the "discernable relationship" test does "not ... require a causal connection between the defendant's [activities] and the plaintiffs' lawsuit." Instead, "courts that follow this approach consider the totality of the circumstances," and from that attempt to infer whether the exercise of jurisdiction in the forum was "reasonably foreseeable."
For present purposes, it is sufficient to hold, as did Judge Moss in Triple Up Limited ,
Holding otherwise would eviscerate the due process limitations on specific jurisdiction. First, plaintiffs' theory ignores the distinction between conduct that relates to a finding of liability for civil conspiracy and contacts that relate to specific jurisdiction. Only the latter represent the "suit-related conduct" that the Court can consider in determining specific personal jurisdiction. See Kopff v. Battaglia ,
Plaintiffs' approach also contravenes the Supreme Court's holding that specific jurisdiction depends on contacts that the "defendant himself " created with the forum. Walden ,
ii. The Trump Campaign
In their opposition, plaintiffs focus on five categories of contacts to support a claim of specific jurisdiction over the Trump Campaign: (1) campaign activity in D.C., (2) meetings in D.C., (3) email communications from the Trump Campaign, (4) acts by the Trump Campaign in D.C. after the email dissemination occurred on July 22, 2016, and (5) harms allegedly suffered in D.C. by plaintiffs. None of these contacts establishes suit-related contacts that give rise to specific jurisdiction.
a. Campaign Activity in D.C.
In their opposition, plaintiffs argue that, in conducting a specific jurisdiction analysis, the Court should consider the (1) Trump Campaign's electioneering in D.C. and (2) the fact that its foreign
The Trump Campaign's efforts to elect President Trump in D.C. are not suit-related contacts for those efforts did not involve acts taken in furtherance of the conspiracies to disseminate emails that harmed plaintiffs. Campaign meetings, canvassing voters, and other regular business activities of a political campaign do not constitute activities related to the conspiracies alleged in the complaint. See
b. Meetings in D.C.
Plaintiffs also argue that the Trump Campaign planned and negotiated at least part of the conspiracies through meetings that took place in D.C. (Pls.' Opp. at 19.) There are two meetings in the District that occurred prior to the July 22, 2016 email publication: (1) the Trump Campaign's March 31, 2016 meeting at the Trump International Hotel in Washington D.C., and (2) the April 27, 2016 foreign-policy speech President Trump gave at the Mayflower Hotel in D.C.-where agents of the Trump Campaign may have had a conversation with Russian Ambassador Kislyak. Plaintiffs attempt to suggest that these activities should be treated as overt acts in furtherance of the conspiracies. Yet, plaintiffs do not allege anything more than that there was a March meeting at a D.C. hotel where the Trump Campaign adopted a favorаble approach to Russia and an April meeting at another D.C. hotel where high-level Trump Campaign officials talked to the Russian Ambassador.
These contacts, as alleged, do not establish specific jurisdiction over the Trump Campaign. At some point, agents of the Trump Campaign, such as George Papadopoulos may have learned-at a meeting in London on April 26, 2016-that Russians had emails concerning Hillary Clinton.
Without more specific allegations, the Court cannot assume that meetings in the District in March and April involving the Trump Campaign's national security team or the Russian Ambassador related to plaintiffs' claims. Take, for instance, Second Amendment Foundation v. United States Conference of Mayors ,
The mayors, pointing out that none of them lives in the District of Columbia, moved to dismiss for lack of personal jurisdiction. In response, SAF asserted that the district court had jurisdiction under the District of Columbia long-arm statute, which accords jurisdiction over persons who "transact[ ] business" in the District "directly or by an agent[.]"D.C. Code Ann. § 13-423 (a)(1) (West 2001). As evidence that the mayors transacted business here, SAF pointed to the United States Conference of Mayors' web site, which reports that at the Conference's 67th Winter Meeting, held in the District of Columbia, the mayors discussed their litigation against gun manufacturers. According to the web site, "[i]n a session closed to the public, Philadelphia Mayor Edward Rendell led mayors in a discussion of gun-related legislative and litigation strategies." In another session, the mayors "focused on lawsuits previously brought against the gun industry by the cities of New Orleans and Chicago, and two new suits filed by Miami-Dade County and Bridgeport."Id. The web site identifies four of the twenty-two mayors sued in this case as having participated in this session.
The D.C. Circuit affirmed, explaining that the plaintiffs' allegations-that the mayors had met in D.C. and possibly discussed gun-related litigation strategies in closed sessions-were not sufficient to support a theory that those closed sessions were in furtherance of the conspiracy as alleged by the plaintiffs.
Unlike plaintiffs here, the plaintiffs in Second Amendment Foundation alleged that the Conference of Mayors actually
c. Emails from the Trump Campaign
Plaintiffs also point to "communications during which at least one party was in D.C." (Pls.' Opp. at 19.) But the Court is unable to identify from plaintiffs' complaint any communications based in the District or sent to the District that establish suit-related contacts.
Plaintiffs' complaint is far from a model of clarity, but they allege, on information and belief, that the "Trump Campaign associates exchanged at least 18 undisclosed calls and emails with Russian officials and agents between April and November 2016, including at least six with Russian Ambassador the United States Sergey Kislyak, whose U.S. office and residence is in Washington D.C." (Compl. ¶ 92.) Calls and emails occurring after July 22, 2016, do not have a suit-related connection to the conspiracies that plaintiffs allege. See infra Part II.B.1.ii.d. As to plaintiffs' reference to the Russian Ambassador, plaintiffs fail to specify the time frame that he was contacted, and they have provided no basis to infer that the Russian Ambassador's conversations were in furtherance of the conspiracies alleged in the complaint or that he was a participant in those conspiracies.
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.' " (Compl. ¶ 99.) The complaint fails to tie this email to the alleged conspiracies, but more importantly, the complaint cites allegations about Paul Manafort's personal and business ties to Russian interests, including the claim that "Mr. Manafort was in debt to Russian interests by as much as $ 17 million just months before he joined the Trump Campaign." (Id. ¶ 127; see also id. ¶ 97 ("While
d. Post-Conspiracy Acts in D.C.
Moreover, plaintiffs cannot establish personal jurisdiction over the Trump Campaign by alleging that agents of the Trump Campaign may have had foreign-policy conversations or conversations about further email disclosures with Russian agents after the DNC email publication relevant to plaintiffs' claims was complete, even if discussions between agents of the Trump Campaign and Russian agents are arguably probative of a conspiracy. (See, e.g. , Compl. ¶¶ 152-54 (describing a December 2016 phone conversation between Michael Flynn and Russian Ambassador Kislyak).) Similarly, plaintiffs cannot establish personal jurisdiction over the Trump Campaign by alleging that agents of the Trump Campaign sought to lie or conceal evidence of their contacts with Russian agents.
While civil conspiracies share some similarities with criminal conspiracies, they are principally distinct in that, for a Court to impose liability, the underlying unlawful act must cause some injury. See
The same conclusion follows for acts of concealment that postdate the conclusion of the conspiracies. Even in the context of criminal conspiracies, acts of concealment that follow completion of the conspiracies' main objective are generally not considered to be part of the conspiracy, see Grunewald v. United States ,
In short, federal courts can only redress injuries that arise from cognizable cases and controversies. U.S. Const. Art. III. A plaintiff essentially defines the parameters of his case or controversy by virtue of his complaint. Plaintiffs' tort claims cannot arise from events that occurred after the torts were committed, and plaintiffs' § 1985(3) claim cannot arise out of events that occurred after plaintiffs were intimidated or injured on account of their support and advocacy.
e. Plaintiffs' Harm in D.C.
Lastly, plaintiffs attempt to connect the Trump Campaign to the District by reference to alleged harms suffered by plaintiffs in the District:
This Court may also exercise specific personal jurisdiction over Defendants because their actions foreseeably caused harm in D.C., and that harm is the basis of Plaintiffs' claims. First, Defendants harmed Mr. Comer's professional reputation in D.C. Second, Defendants harmed Plaintiffs' ability to support their preferred candidates for elected office, and D.C. was the locus of Plaintiffs' political advocacy.
(Pls.' Opp. at 21.) This argument fails for two related reasons.
First, the harm to plaintiffs was not suffered in the forum. No plaintiff is domiciled in the District. Cockrum and Schoenberg suffered emotional injury related to disclosure of their social security numbers at home, outside of the District. See Masterson-Cook v. Criss Bros. Iron Works ,
Moreover, assuming arguendo that some of plaintiffs' injuries were suffered in the District, these injuries cannot serve as an independent basis for exercising personal jurisdiction over an out-of-state defendant that does not have sufficient in-forum contacts, as the Supreme Court has held, "the plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him." Walden ,
iii. Roger Stone
According to plaintiffs' statements at the hearing, they "are primarily relying on" conspiratorial personal jurisdiction to establish specific jurisdiction over Stone. (Tr. at 22.) But to the extent that plaintiffs have raised the possibility of relying on suit-related contacts by Stone in D.C., the Court can quickly dispense with such a suggestion. In the complaint it is alleged that Stone has suit-related contacts with D.C. because of his employment with the Trump Campaign. (Compl. ¶ 41.)
The flaws in plaintiffs' definition of the scope of the conspiracies also apply to plaintiffs' arguments about other actions by Stone. See supra Part II.B.1.ii; (see also Compl. ¶¶ 163-64, 170-72 (discussing twitter public and private conversations Stone had with an alleged Russian hacker after July 22, 2016); id. ¶ 216 (citing Stone's July 11, 2017 denial of Russian interference in the 2016 election) ); Atlantigas Corp. ,
2. Conspiratorial Theory of Personal Jurisdiction
Plaintiffs' remaining argument is based on a theory of conspiratorial jurisdiction, which uses the overt acts of co-conspirators in the forum as a basis for exercising specific jurisdiction over a defendant who otherwise has insufficient in-forum contacts.
Some cases in this Circuit, predating the Supreme Court's 2014 decision in Walden v. Fiore , discussed a conspiracy theory of personal jurisdiction, and those cases required "a prima facie showing of (1) a conspiracy (2) in which the defendant participated and (3) a coconspirator's overt act within the forum, subject to the long-arm statute and in furtherance of the conspiracy." Youming Jin v. Ministry of State Sec. ,
In Youming Jin v. Ministry of State Security , Judge Urbina presciently noted:
without [imposing additional requirements besides the three listed above], one might wonder what happened to the due process requirement regarding "the foreseeability that is critical to due process analysis ... that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." In fact, it is not entirely clear whether the doctrine of conspiracy jurisdiction seeks to sidestep an expliсit due process analysis altogether or whether due process is the second step in an analysis that begins with the three elements listed above
The Supreme cast further doubt on a broad-reaching theory of conspiratorial jurisdiction in its 2014 decision in Walden . As already explained, in Walden , the Supreme Court made clear that, for purposes of determining specific jurisdiction, "it is the defendant, not the plaintiff or third parties, who must create contacts with the forum State." Walden ,
After Walden , very few cases have discussed a theory of specific jurisdiction based on acts of co-conspirators. A notable exception is Judge Mehta's decision in EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro S.A. , where he noted that "[c]ourts in this Circuit ... have applied the test for co-conspirator jurisdiction 'warily' in order 'to prevent a broad extension of long-arm jurisdiction.' "
Adopting the approach taken by Judge Mehta, this Court concludes that if any conspiratorial jurisdiction survives Walden , a plaintiff pursuing such a theory must allege that the defendant knew of the co-conspirator's acts in the forum. Furthermore, at the very least, a plaintiff needs to meet the Circuit's strict particularity requirement to comport with due process.
ii. The Trump Campaign and Stone
Thus, for purposes of specific jurisdiction, the Court must focus on when defendants began taking steps to join the conspiracies or themselves committed acts that were in furtherance of the conspiracies. Plaintiffs' theory of the case is that the Trump Campaign became aware, sometime in spring of 2016, at the earliest, that Russian agents had hacked into DNC servers and obtained information that would be damaging to Hillary Clinton and the Democratic Party. As for Stone, plaintiffs have no allegations suggesting he even became privy to this information pre-July 22, 2016, much less that he joined conspiracies whose objective it was to disseminate the DNC emails.
Plaintiffs do not allege that defendants directed the Russian hackers to target servers or locations in the District, nor do they allege that defendants joined a conspiracy the purpose of which was to hack the DNC servers. See Kopff ,
As for other in-forum acts by co-conspirators, plaintiffs have not met the exacting particularity requirement for pleading conspiratorial personal jurisdiction. See Mensah-Yawson ,
On the contrary, plaintiffs broadly rely on allegations that defendants conspired with WikiLeaks and Russian agents. But these amorphous allegations are not sufficient.
First, WikiLeaks did not subject itself to personal jurisdiction in the District simply by posting material on the Internet that could be read by District residents. See, e.g. , Hourani v. Psybersolutions LLC ,
As for Russian agents, plaintiffs' complaint fails to identify who these Russian agents are. At the hearing, when asked to identify the Russian co-conspirators, plaintiffs' counsel stated: "We don't name anyone [of the Russian agents]-we don't name any other coconspirators, nor are we required to name all coconspirators. We have the campaign, Mr. Stone, of course, and WikiLeaks." (Tr. at 10.) Apparently, plaintiffs are content to rely on Stone and WikiLeaks, neither of whom committed any in-forum overt acts in furtherance of the conspiracies. Alternatively, as plaintiffs seem to implicitly recognize, subjecting defendants to personal jurisdiction based on unspecified acts by unidentified third parties would offend traditional notions of fair play and substantial justice. See North ,
Finally, the Court cannot subject Stone to personal jurisdiction by reference to a conspiracy with the Trump Campaign when the Trump Campaign's suit-related contacts themselves failed to subject the Trump Campaign to specific jurisdiction. See supra Part II.B.1.ii.
C. Jurisdictional Discovery
The D.C. Circuit has consistently held that district courts exercise broad discretion in resolving jurisdictional discovery disputes. Naartex Consulting Corp. v. Watt ,
1. Untimely
Plaintiffs' motion for jurisdictional discovery is untimely. When a defendant has moved to dismiss a complaint on jurisdictional grounds, the appropriate time to request jurisdictional discovery is in opposition to the defendant's motion-whether a plaintiff files a separate motion for jurisdictional discovery or puts the Court on notice by requesting jurisdictional discovery in a detailed manner in the opposition to the motion to dismiss. See City of Moundridge ,
Plaintiffs knew that defendants were opposing plaintiffs' complaint on jurisdictional grounds when defendants first moved to dismiss in September 2017. After plaintiffs amended their comрlaint, defendants again moved to dismiss on jurisdictional grounds in October 2017.
Yet, despite notice that they were defending their complaint against a motion to dismiss on jurisdictional grounds, plaintiffs only briefly mentioned discovery in a couple of sentences tucked away in a footnote of an 84-page opposition: "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. at 18 n. 7.)
"[E]ven if that footnote had constituted a request for jurisdictional discovery-which it most certainly did not-that request would have been woefully deficient."
Plaintiffs had ample opportunity to address jurisdictional discovery not only in their opposition, but also in their surreply. In its reply filed on December 29, 2017, the Trump Campaign put forth a sound argument for why plaintiffs were not entitled to jurisdictional discovery (Trump Campaign Reply, ECF No. 42, at 6), but plaintiffs made no mention of jurisdictional discovery in their surreply filed on February 7, 2018. Likewise, plaintiffs remained mute on the subject of jurisdictional discovery during the Court's May 17, 2018 hearing, despite the fact that the over 3-hour hearing focused оn personal jurisdiction and the flaws in plaintiffs' jurisdictional allegations.
2. Ill-defined
Plaintiffs waited until after the Court's hearing to file a 24-page motion for jurisdictional discovery, presumably because the Court's extensive questioning on personal jurisdictional alerted plaintiffs to the risk of relying on their complaint. This motion came too late, but even this late-filed motion is ill-defined and overly broad. See Atlantigas Corp. ,
Instead, they are seeking merits discovery. Plaintiffs want to serve defendants with discovery requests for material related to "Relevant Forum Contact" defined as
any in-person meeting, telephone conversation, or other communication, including electronic communications, conducted in the District of Columbia involving any Defendant, or between any Defendant and any Russian or Russian agent or any agent of WikiLeaks, in which any form of assistance by Russia or Russian agents to the Trump Campaign was discussed or facilitated, including but not limited to any discussions of the DNC emails, publication of the DNC emails by WikiLeaks, or the resulting impact on the Clinton campaign.
(Pls.' Mot. for Jurisdictional Disc., ECF No. 62, at 16.) Plaintiffs request: (1) all initial disclosures required under Federal Rule of Civil Procedure 26(a) ; (2) interrogatories to identify all persons with knowledge of, or possession of, materials pertaining to Relevant Forum Contacts; (3) materials relating to the date, time, location, participants, and subject matter of any Relevant Forum Contacts (including the D.C. meetings of the Trump Campaign on March 31, 2016 and April 27, 2016, but not limited to these meetings); and (4) depositions of all persons with knowledge relating to any Relevant Forum Contacts or the location and condition of evidence relating to Relevant Forum Contacts. (
all contacts in the District of Columbia (1) between the Defendants, (2) between the Defendants and Russians or Russian agents or agents of WikiLeaks, or (3) attended by Russians, Russian agents, agents of WikiLeaks, or others acting in concert with them, in which any form of assistance by Russians or Russian agents to the Trump Campaign was discussed or facilitated including but not limited to any discussions of the DNC emails, publication of the DNC emails by WikiLeaks, or the resulting impact on the Clinton campaign.
(Id. at 18.)
These requests "do[ ] not constitute the required 'detailed showing of what discovery [plaintiffs] wish to conduct or what result [plaintiffs] think such discovery would produce.' " App Dynamic EHF v. Vignisson ,
Granting plaintiffs' overreaching and ill-defined jurisdictional-discovery motion would also draw this Court into endless discovery disputes. For example, plaintiffs' request for depositions would include Trump Campaign officials who are now high-level officials in the Executive Branch, possibly even the President. See Cheney v. U.S. Dist. Court for D.C. ,
The Court will not lightly set "coequal branches of the government" onto "a collision course,"
III. VENUE
In addition, the District of Columbia is an improper venue for plaintiffs' lawsuit. The parties have not sufficiently briefed or argued the issue of transfer, but at a minimum, the Court finds that dismissal for improper venue is both warranted and within this Court's discretion.
The Court's venue analysis is governed by
That leaves the Court with § 1391(b)(2), which provides that "[a] civil action may be brought in ... a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated."
Venue is improper in the District because plaintiffs have not sufficiently alleged that a substantial part of the events giving rise to plaintiffs' claim occurred here. As plaintiffs acknowledge, "the venue inquiry overlaps pretty closely with the personal jurisdiction inquiry [in this case] because venue is based on conduct in furtherance of the conspiracy." (Tr. at 63.) Here, plaintiffs' claims arose from alleged conspiracies to harm plaintiffs by publishing the emails on July 22, 2016, and plaintiffs have alleged at most two meetings and some emails involving a sender or recipient in the District that could possibly be linked to their alleged conspiracies. Otherwise, plaintiffs rely on vague allegations of conspiratorial activity possibly occurring in the District. (See, e.g. , Compl. ¶ 37 ("Many of the Campaign's agents and associates were based in or near D.C. and spent a substantial amount of time in D.C. working on behalf of the Campaign. Meetings and other conduct relevant to the conspiracy occurred in D.C.").) Plaintiffs' own allegations suggest that defendants largely orchestrated the alleged conspiracies from New York-where the Trump Campaign was headquartered and where Trump Campaign officials met with Russian agents in May and June. (See id. ¶¶ 97-98; see also id. ¶ 41 (noting that Stone rents an apartment located in New York).)
Plaintiffs' reticence to file in New York is understandable given their concession that New York does not recognize their tort claims. (Tr. at 64.) But this Court must consider only the statutory
CONCLUSION
In summation, this is the wrong forum for plaintiffs' lawsuit. The Court takes no position on the merits of plaintiffs' claims. It holds only that plaintiffs have failed to carry their burden to demonstrate that this Court has jurisdiction and is the appropriate venue. Nor are plaintiffs entitled to jurisdictional discovery. Therefore, the Court denies plaintiffs' motion for jurisdictional discovery and dismisses their suit without prejudice.
Notes
According to the complaint, the Russian General Staff Main Intelligence obtained access to the DCCC and Podesta emails by March 2016. (Compl. ¶ 86.) Hacker Guccifer 2.0 began releasing documents from the DCCC on August 12, 2016. (Id. ¶ 172.) WikiLeaks began publishing the Podesta emails on October 7, 2016. (Id. ¶ 179.)
Plaintiffs allege that at least six of these contacts included Sergey Kislyak, the Russian Ambassador to the United States (Compl. ¶ 92), but plaintiffs' complaint does not explain what role-if any-he played in the conspiracies, does not identify the dates when these contacts took place, or otherwise link these contacts to D.C. other than stating that the Ambassador has an office and residence in the District. (Id. )
For example, plaintiffs point to conversations in D.C. that Michael Flynn had with the Russian Ambassador in December 2016 when Flynn urged Russia not to respond to recent U.S.-imposed sanctions. (Compl. ¶¶ 152-55.) Flynn later lied to the FBI about the existence and substance of these conversations. (Id. ¶ 153.)
According to the complaint:
In 2011, Mr. Comer came out as gay to his mother and close friends. He came out to his father a couple years later. But he did not tell most of his family, including his siblings and his grandparents. He knew that his grandparents viewed homosexuality as inconsistent with their deeply held religious beliefs. For the next five years, Mr. Comer kept his sexual orientation from his grandparents (as well as certain other close friends and relatives) so as not to upset them or disrupt his relationship with them, which he cherished.
(Compl. ¶ 5.)
Federal regulation requires that the DNC report donor contributions in excess of $200.
Both defendants also filed a motion to dismiss under the D.C. Anti-SLAPP Act. See supra n.2.
Former National Security Officials filed an amicus curiae to offer a perspective on "whether and how Russia uses local actors inside a country to facilitate disinformation campaigns." (ECF No. 37, at 4.) Campaign Legal Center and Professor Theodore M. Shaw filed an amicus curiae in opposition to defendants' motion to dismiss addressing the merits of plaintiffs' § 1985(3) claims. (ECF No. 38.) Bipartisan Campaign Officials filed an amicus curiae in opposition to defendants' motion to address the harms posed to electoral democracy from conspiracies to hinder political participation by members of the electorate. (ECF No. 40.)
The D.C. Circuit does not draw a legally operative distinction between Fourteenth Amendment due-process precedent and Fifth Amendment due-process precedent for purposes of deciding this case. See Livnat ,
The inability of this Court to exercise personal jurisdiction over defendants consistent with due process renders discussion of D.C.'s long-arm statute unnecessary. Suffice it to say that plaintiffs argue their strongest personal jurisdiction argument involves specific personal jurisdiction under (a)(1) of the D.C. long-arm statute, which is coextensive with the Due Process Clause. See Shoppers Food Warehouse v. Moreno ,
Plaintiffs do not argue that the Court has general jurisdiction over Stone, who is not a domiciliary of D.C.
Plaintiffs also rely on Daimler AG v. Bauman , for the proposition that jurisdiction is proper "over a foreign corporation temporarily headquartered in the forum state." (Pls.' Opp. at 23.) This case is also inapposite. Daimler concerned a foreign corporation with continuous and systematic affiliations inside a forum state "comparable to a domestic enterprise in that State," Daimler AG ,
To the extent D.C. Court of Appeals jurisprudence represents an interpretation of due process principles-as opposed to an interpretation of the D.C. long-arm statute-it is federal precedent, not D.C. Court of Appeals case law, which controls the Court's due process inquiry. See Triple Up Ltd. ,
As of the March meeting at the Trump Hotel, there is no suggestion that any Trump Campaign official knew of the existence of the hacked emails. The April 26th Papadopoulos meeting in London is not mentioned in the complaint, but plaintiffs reference it in their motion for jurisdictional discovery. (Pls.' Mot. for Jurisdictional Disc., ECF No. 62, at 11.)
Admittedly, if the Trump Campaign took a favorable approach to Russia in exchange for help from the Russian government in defeating Hillary Clinton's candidacy, this may have violated federal election law, but such conduct alone could not be the subject of a lawsuit brought by these plaintiffs. Rather, plaintiffs can only vindicate harms that are done to them by the defendants or their co-conspirators.
Plaintiffs cite Dooley v. United Technologies Corporation , for the proposition that a court in the District has specific jurisdiction where a "conspiracy allegedly came to its inception" in D.C.
[P]laintiff Dooley has set forth, in extraordinary detail, his allegations of conspiracy and each defendant's alleged involvement. He has cataloged numerous meetings allegedly held by the co-conspirators, and in many instances, described discussions which took place. Additionally, he has set forth a number of overt acts within the District of Columbia allegedly committed by co-conspirators.
Id. at 78.
Plaintiffs' complaint does refer to meetings that Manafort had with а Russian-Ukrainian operative-Konstantin Kilimnik. (Compl. ¶ 97.) But these meetings occurred outside the district, one in New York in May 2016 and one in Cleveland in August 2016. (Id. ) It appears from the complaint that any conversation about emails between Manafort and Kilimnik occurred in Cleveland in August, after the publication of the emails, since the conversation about emails also references the Republican Convention which had already occurred in July:
On information and belief, around the time Mr. Manafort took over as Campaign Chairman in May of 2016, he met in New York with Konstantin Kilimnik, a Russian-Ukrainian operative with suspected ties to Russian intelligence who traveled from the Ukraine to the U.S. for that meeting. Mr. Manafort met with Mr. Kilimnik again in Cleveland in August of 2016. Mr. Manafort discussed the hacking of DNC emails with Mr. Kilimnik, and Mr. Kilimnik has claimed that he played a role in preventing adoption of a version of an amendment to the Republican Party platform regarding military aid to Ukraine .
(Id. (emphasis added).)
Taken to its logical conclusion, this argument would give the District personal jurisdiction over all claims brought under § 1985(3). For example, under plaintiffs' theory, this Court would have personal jurisdiction in a suit brought by an Alaskan citizen based on an alleged conspiracy that threatened the Alaskan citizen's right to send money to the DNC to support national election efforts. When confronted with similar "national connection" theories of personal jurisdiction in other contexts, courts in this Circuit have refused to allow personal jurisdiction over nonresidents whose only contacts with the District arise from its role as the epicenter of national politics. See, e.g. , Bigelow ,
Although plaintiffs do not cite Calder v. Jones ,
Stone ended his official employment with the Trump Campaign in August 2015, but plaintiffs allege that he "continued to play an important role in the Trump Campaign as an advisor even after his departure, and he remained in regular contact with Mr. Trump throughout the campaign." (Compl. ¶ 41.)
Recent news reports published since the Court's hearing suggest that Stone may have met with a Russian who may have had damaging information about Hillary Clinton in May 2016. See, e.g. , Manuel Roig-Franzia & Rosalind S. Helderman, "Trump Associate Roger Stone Reveals New Contact with Russian National During 2016 Campaign", Washington Post (June 17, 2018), https://www.washingtonpost.com/politics/trump-associate-roger-stone-reveals-new-contact-with-russian-national-during-2016-campaign/2018/06/17/4a8123c8-6fd0-11e8-bd50-b80389a4e569_story.html?utm_term=.76a839ea96f1. However, this meeting occurred in Florida. Id.
Plaintiffs appeared to cоncede at the hearing that they were relying on a theory of conspiratorial jurisdiction to establish jurisdiction over Stone, but not the Trump Campaign:
So let me be clear about this. We are alleging that the campaign engaged in acts in furtherance of the conspiracy in the forum. We are not relying on the acts of the campaign's coconspirators. We're saying the campaign itself engaged in acts in furtherance of the conspiracy in the forum.
(Tr. at 14.) Despite this unambiguous statement, plaintiffs addressed this theory in their opposition to the motion to dismiss (Pls.' Opp. at 20), and in their motion for jurisdictional discovery. (Pls.' Mot. for Jurisdictional Disc., ECF No. 62, at 1.) The Court, out of an abundance of caution, will therefore address the theory of conspiratorial jurisdiction as it relates to the Trump Campaign and Stone.
This Court's survey of out-of-Circuit precedent revealed that most courts addressing the issue of conspiratorial jurisdiction post-Walden have refused to apply the theory or have limited it. See, e.g. , Wescott v. Reisner , No. 17-cv-06271,
The Trump Campaign remarked at the Court's hearing that "[a]t this juncture, I can't think of a reason [venue would not lie in New York] in all candor." (Tr. at 60.)