United States District Court, D. Maryland
Glen K. Allen
Heidi Beirich, et al,
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.
before the court is the Southern Poverty Law Center and Heidi
Beirich's (the "SPLC defendants") motion to
dismiss (ECF 9) and Mark Potok's motion to dismiss (ECF
10). Both motions have been fully briefed and no oral
argument is necessary. For the reasons stated below, the
motions to dismiss will be granted.
Allen is a lawyer, who, in February 2016, began working as an
independent contractor for the City of Baltimore Law
Department. Compl. ¶¶ 49, 51. Heidi Beirich is the
director of the Southern Poverty Law Center's
("SPLC") Intelligence Project. Id. ¶
3. Mark Potok worked for SPLC from 1997 to 2017 as
editor-in-chief of the Intelligence Project and a Senior
Fellow. Id. ¶ 4. This case arises from two
publications by the SPLC, Heidi Beirich, and Mark Potok (the
"defendants") regarding Allen's alleged ties to
the National Alliance ("NA"), an alleged white
of 2015, Randolph Dilloway, an accountant at NA, secretly
scanned thousands of NA documents onto thumb drives and,
according to Allen, sold them to SPLC for over $5, 000, in
violation of his confidentiality agreement with NA.
Id. ¶¶ 56, 59, 60, 62. Based on these
documents, the defendants published an article (the
"August 17, 2016, article") regarding Allen's
ties to NA. Id. ¶ 76. At the time, Allen was
working as an independent contractor at the Baltimore City
Law Department. Id. The article incorporated
information from the documents received from Dilloway,
including: 1) a 1987 letter from the founder of NA to his
attorney, on which Allen was copied (and which Allen claims
is privileged); 2) a receipt for Allen's subscription to
and a dues payment; 3) a receipt for Allen's dues
payments and a donation to NA; 4) a receipt for a
"Jailing Opinions DVD"; and 5) a receipt for
Allen's attendance at a "Holocaust Revisionist
Conference." Id. ¶ 78. The article also
alleged that a political party Allen donated to, the American
Eagle Party, was racist. Id. ¶ 89. After the
August 17th article - was published, Allen was fired from the
Baltimore City Law Department. Id. ¶ 96.
in 2017, the defendants published the 2016 Hate Map, which
featured a photograph of Allen and stated that "When the
City of Baltimore recently hired Glen Keith Allen, a
neo-Nazi, nobody knew of his involvement with white
supremacist groups, except for us." Id. ¶
84. The Hate Map displayed Allen's photograph next to a
caption reading "exposing racists who infiltrate public
institutions" and included text that "[b]ecause of
our investigation and expos[e], he was swiftly fired."
Id. ¶ 113.
complaint also contains general allegations against SPLC,
including that it improperly participated in partisan
political campaign activities in the 2016 election cycle
(id. ¶¶ 116-117), that it has engaged in
unethical actions prejudicial to the administration of
justice (id. ¶¶ 118-119), and that it has
provided slanted information to the FBI (id. ¶
120), all of which Allen contends is inconsistent with its
status as a law firm and as a 501(c)(3) organization.
brings the following claims: 1) a claim for declaratory
judgment that SPLC's improper and illegal actions
contravene and violate requirements for its 501(c)(3) status;
2) a claim under the Racketeer Influenced and Corrupt
Organizations (RICO) Act against Beirich and Potok; 3) a RICO
conspiracy claim against Beirich and Potok; 4) a tortious
interference with prospective advantage claim against Beirich
and SPLC; 5) a tortious interference with contract claim
against Beirich and SPLC; 6) a negligent training and
supervision claim against SPLC; 7) a restitution and unjust
enrichment claim against SPLC; 8) a defamation claim against
Beirich, Potok, and SPLC based on the 2016 Hate Map; and 9)
an aiding and abetting breach of contract claim against
Beirich, Potok, and SPLC.
survive a motion to dismiss, the factual allegations of a
complaint "must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citations omitted). "To satisfy
this standard, a plaintiff need not 'forecast'
evidence sufficient to prove the elements of the claim.
However, the complaint must allege sufficient facts to
establish those elements." Walters v. McMahen,
684 F.3d 435, 439 (4th Cir. 2012) (citation omitted).
"Thus, while a plaintiff does not need to demonstrate in
a complaint that the right to relief is 'probable,'
the complaint must advance the plaintiffs claim 'across
the line from conceivable to plausible.'"
Id. (quoting Twombly, 550 U.S. at 570).
Additionally, although courts "must view the facts
alleged in the light most favorable to the plaintiff,"
they "will not accept 'legal conclusions couched as
facts or unwarranted inferences, unreasonable conclusions, or
arguments'" in deciding whether a case should
survive a motion to dismiss. U.S. ex rel. Nathan v.
Takeda Pharm. North Am., Inc., 707 F.3d 451, 455 (4th
Cir. 2013) (quoting Wag More Dogs, LLC v. Cozart,
680 F.3d 359, 365 (4th Cir. 2012)).
Fourth Circuit has held that the RICO statute, through 18
U.S.C. § 1965(d), "authorizes nationwide service of
process and, thus, the exercise of personal jurisdiction in
any district court." D'Addario v. Geller,
264 F.Supp.2d 367, 386 (E.D. Va. 2003) (citing ESAB
Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 626
(4th Cir. 1997)). Therefore,
Because a federal statute provides the basis for personal
jurisdiction, the Fifth Amendment's Due Process Clause
applies to protect the liberty interests of individuals
against unfair burden and inconvenience. It is only in highly
unusual cases that inconvenience will rise to a level of
constitutional concern. The burden is on the defendant to
demonstrate that the assertion of jurisdiction in the forum
will make litigation so gravely difficult and inconvenient
that he unfairly is at a severe disadvantage in comparison to
Id. at 387 (internal quotations and citations
omitted). In order to challenge the use of the nationwide
service process in a-RICO case, the defendant must
demonstrate that the RICO claim is "not colorable"
i.e. "implausible, insubstantial, or frivolous."
Id. at 388.
argues that the RICO claim is "not colorable" and
that the exercise of personal jurisdiction over him would
violate due process as he has no contacts with Maryland, and
was not involved in receiving the NA documents from Dilloway
nor writing the August 17, 2016, article or 2016 Hate Map.
Declaration of Mark Potok, ECF 10-2.
discussed below, the RICO claim does not survive the motions
to dismiss, but it cannot be said that the RICO claim is
"frivolous." Allen's allegations to support his
RICO claim are not so implausible or insubstantial as to make
the claim not colorable. See Becker v. Noe, No.
ELH-18-00931, 2019 WL 1415483, at *18 (D. Md. March 27, 2019)
(a RICO claim can be colorable even if it does not satisfy
the pleading requirements of Rule 12(b)(6)). Although
Potok's affidavit asserts he has no contacts with
Maryland, the Fifth Amendment due process standard is not
based on an analysis of "minimum contacts" with the
forum state. Id. Rather, the defendant must show
extreme inconvenience or unfairness. As Potok has not done
that, the court may properly exercise personal jurisdiction
over him with respect to the RICO claim.
"[w]hen a federal statute authorizes nationwide service
of process, and the remaining state law claims arise from the
same nucleus of operative facts, the court may exercise
pendent personal jurisdiction to adjudicate state claims that
are properly within the court's subject matter
jurisdiction." D'Addario, 264 F.Supp.2d at
387; see ESAB, 126 F.3d at 628. Therefore, the court
may exercise jurisdiction over Potok in regard to all the
claims against him.
Amicus Brief from the Fitzgerald Griffin Foundation
is no Federal Rule of Civil Procedure that applies to motions
for leave to appear as amicus curiae in a federal district
court. District courts therefore have discretion whether to
grant or deny such leave and often look for guidance to Rule
29 of the Federal Rules of Appellate Procedure."
Doyle v. Hogan, No. DKC 19-0190, 2019 WL 3500924, at
*4 (D. Md. Aug. 1, 2019). Under Rule 29, an "amicus
curiae may file a brief only by leave of court or if the
brief states that all parties have consented to its
filing." Fed. R. App. P. 29(a)(2). The brief must be
filed "no later than 7 days after the principal brief of
the party being supported is filed." Fed. R. App. P.
Fitzgerald Griffin Foundation, joined by several other
organizations, filed an amicus brief in opposition to
dismissal of the case on April 10, 2019. This was nine days
after Allen filed his briefs in opposition to defendants'
motions to dismiss. Further, Fitzgerald Griffin Foundation
included in their brief that "all counsel in this case
were provided with a draft of this memorandum, containing
exactly the same arguments as the final version" and
"all counsel were given an opportunity to inform me if
they were going to object to its filing and none of them
answered in the affirmative." Amicus Brief at 23, ECF
20. Regardless of whether a non-answer is considered a
consent, defendants' counsel did not receive the draft
before it was filed because counsel for Fitzgerald Griffin
Foundation sent it to the wrong email addresses. SPLC
Defendants' Reply, Ex. A, ECF 21. Nor did Fitzgerald
Griffin Foundation file a motion for leave to file an amicus
brief, which is required under United States District Court
for the District of Maryland Standing Order 2018-07.
the amicus brief does not comport with Fed. R. App. P, 29 or
Standing Order 2018-07, the court will not consider it.