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Declaration of Daniel Stevens-Signed

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Declaration of Daniel Stevens-Signed UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA DEVIN G. NUNES Plaintiff, v. Civil Case No. 1:19-cv-1148 FUSION GPS A/KA BEAN LLC, GLENN SIMPSON, and CAMPAIGN FOR ACCOUNTABILITY, INC. Defendants. DEFENDANT CAMPAIGN FOR ACCOUNTABILITY’S MOTION TO DISMISS Defendant Campaign for Accountability, by and through counsel, hereby respectfully moves this Court for an order dismissing the Complaint filed by Plaintiff Devin Nunes pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure. The Complaint should be dismissed on the grounds that (1) the Court lacks subject matter jurisdiction because the Plaintiff does not have standing; (2) the Court lacks personal jurisdiction over Defendant CfA; and (3) the Complaint fails to state a plausible claim for relief under 18 U.S.C. §§ 1962 and 1964, and fails to state a plausible claim for common law conspiracy. For the reasons above and those in the accompanying Memorandum of Law in Support of Campaign for Accountability’s Motion to Dismiss, Defendant respectfully requests that the Court grant this Motion, enter the attached Proposed Order dismissing the Complaint with prejudice, and award the Defendant such other and further relief as the Court deems just and proper. Dated: November 22, 2019 Respectfully submitted, /s/ Kerry Brainard Verdi_________ Kerry Brainard Verdi Verdi & Ogletree PLLC 1325 G Street, NW Suite 500 Washington, DC 20005 Tel: (202) 449-7703 Fax: (202) 449-7701 [email protected] Counsel for Defendant Campaign for Accountability 2 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served through the Court’s electronic filing system on November 22, 2019 to counsel of record. ______________________ Kerry Brainard Verdi 3 Case 1:19-cv-01148-LO-TCB Document 7 Filed 11/22/19 Page 1 of 39 PageID# 56 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA DEVIN G. NUNES Plaintiff, v. Civil Case No. 1:19-cv-1148 FUSION GPS A/KA BEAN LLC, GLENN SIMPSON, and CAMPAIGN FOR ACCOUNTABILITY, INC. Defendants. MEMORANDUM OF LAW IN SUPPORT OF THE MOTION TO DISMISS OF DEFENDANT CAMPAIGN FOR ACCOUNTABILITY Case 1:19-cv-01148-LO-TCB Document 7 Filed 11/22/19 Page 2 of 39 PageID# 57 TABLE OF CONTENTS INTRODUCTION......................................................................................................................1 BACKGROUND ........................................................................................................................2 ARGUMENT ..............................................................................................................................7 I. PLAINTIFF DOES NOT HAVE STANDING .................................................................7 II. THE COURT LACKS PERSONAL JURISDICTION OVER CFA ............................9 III. THE COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF UNDER RICO .11 A. STANDARDS OF LAW ..............................................................................................11 B. PLAINTIFF FAILS TO PLAUSIBLY PLEAD EITHER A COGNIZABLE INJURY, OR THAT SUCH INJURY WAS PROXIMATELY CAUSED BY THE ALLEGED RICO VIOLATION .....................................................................................13 C. THE COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF UNDER RICO § 1962(a)-(c) .......................................................................................................................15 1. The Complaint Fails to Plausibly Plead That Defendants “Received Any Income” Derived from A Pattern Of Racketeering Activity under Section 1962(a) .........15 2. The Complaint Fails to Plausibly Plead That Defendants Acquired Or Maintained Any Interest Or Control of An Enterprise through A Pattern of Racketeering Activity under Section 1962(b) ...............................................................................16 3. The Complaint Fails to Plausibly Plead An Enterprise Distinct from Defendants under Section 1962(c) ..............................................................................................16 4. Plaintiff Fails to Plead A “Pattern” of Racketeering Activity .............................17 a. The Complaint Does Not Plausibly Plead Continuity .........................................18 b. The Complaint Fails to Plausibly Plead Relatedness ...........................................21 5. The Complaint Does Not Adequately Plead Predicate Acts ................................22 a. Plaintiff Fails to Plausibly Plead a Violation of Section 1503(a) ........................22 b. Plaintiff Fails to Plausibly Plead a Violation of §§ 1512(b)(1) or (b)(2).............23 c. Plaintiff Fails to Plausibly Plead a Violation of § 1512(d)(2)-(4) .......................25 d. Plaintiff Fails to Plausibly Plead a Violation of § 1513(e) ..................................25 e. Plaintiff Fails to Plausibly Plead a Violation of § 1343.......................................27 f. Defendants’ Alleged Criminal Conduct Constitutes Protected First Amendment Activity ................................................................................................................27 i Case 1:19-cv-01148-LO-TCB Document 7 Filed 11/22/19 Page 3 of 39 PageID# 58 D. PLAINTIFF FAILS TO PLAUSIBLY PLEAD A VIOLATION OF THE RICO CONSPIRACY PROVISION ..........................................................................................28 IV. THE COMMON LAW CONSPIRACY CLAIM SHOULD BE DISMISSED ...........29 CONCLUSION ..........................................................................................................................30 ii Case 1:19-cv-01148-LO-TCB Document 7 Filed 11/22/19 Page 4 of 39 PageID# 59 TABLE OF AUTHORITIES CASES Aggarwal v. Sikka, No. 1:12-CV-60, 2012 WL 12870349 (E.D. Va. June 12, 2012) ..............................28 Al-Abood ex rel. Al-Abood v. El-Shamari, 217 F.3d 225 (4th Cir. 2000) .....................................................................................17, 18, 20 Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006) ...................................................................................................14 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................................11, 12, 13 Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) ...................................................................................................8 Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761 (4th Cir. 2003) .....................................................................................12 Bast v. Cohen, Dunn & Sinclair, PC, 59 F.3d 492 (4th Cir. 1995) .......................................................................................13 Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017) .....................................................................................8, 13 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................................................11 Brown v. R & B Corp. of Virginia, 267 F. Supp. 3d 691 (E.D. Va. 2017) ........................................................................7 Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009) ...................................................................................................29 Carroll v. Washington Gas Light Fed. Credit Union, No. 1:17-CV-1201, 2018 WL 2933412 (E.D. Va. Apr. 4, 2018) (O’Grady, J.) .......8, 12 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001) ...................................................................................................16 Comm. to Protect our Agric. Water v. Occidental Oil & Gas Corp., 235 F. Supp. 3d 1132 (E.D. Cal. 2017)......................................................................28 Cooksey v. Futrell, 721 F.3d 226 (4th Cir. 2013) .....................................................................................8 Curry v. Trans Union, LLC, No. 3:16-cv-824, 2017 WL 2058266 (E.D. Va. Apr. 26, 2017), report and recommendation adopted, 2017 WL 2056176 (E.D. Va. May 12, 2017) .............................................11 Daimler AG v. Bauman, 571 U.S. 117 (2014) ...................................................................................................9, 10 Davis v. Hudgins, iii Case 1:19-cv-01148-LO-TCB Document 7 Filed 11/22/19 Page 5 of 39 PageID# 60 896 F. Supp. 561 (E.D. Va. 1995), aff’d, 87 F.3d 1308 (4th Cir. 1996) ....................17 Dreher v. Experian Info. Sols., Inc., 856 F.3d 337 (4th Cir. 2017) .....................................................................................7 Efron v. Embassy Suites (Puerto Rico), Inc., 223 F.3d 12 (1st Cir. 2000) ........................................................................................29 First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159 (2d Cir. 2004).......................................................................................29 Field v. GMAC LLC, 660 F. Supp. 2d 679 (E.D. Va. 2008) ........................................................................29 Flip Mortg. Corp. v. McElhone, 841 F.2d 531 (4th Cir. 1988) .....................................................................................19 GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543 (4th Cir. 2001) .....................................................................................17, 18, 19, 20 Gibbs v. Haynes Investments, LLC, 368 F. Supp. 3d 901 (E.D. Va. 2019) ........................................................................12
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