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Allen v. Beirich

United States District Court, D. Maryland

November 13, 2019

Glen K. Allen
v.
Heidi Beirich, et al,

          MEMORANDUM

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.

         Pending 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.

         FACTS[1]

         Glen K. 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 supremacist group.

         In May 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 NVM[2] 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.

         Sometime 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.

         The 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.

         Allen 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.

         STANDARD OF REVIEW

         To 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)).

         DISCUSSION

         I. Personal Jurisdiction

         The 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 his opponent.

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.

         Potok 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.

         As 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)).[3] 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.

         Additionally, "[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.[4]

         II. Amicus Brief from the Fitzgerald Griffin Foundation

         "There 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. 29(a)(6).

         The 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.

         Because the amicus brief does not comport with Fed. R. App. P, 29 or Standing Order 2018-07, the court will not consider it.

         III. Declaratory ...


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