Pennsylvania Democratic Party et al v. Donald J. Trump For President, Inc. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.November 6, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA -------------------------------------------------------: : : : : : : : : : : : PENNSYLVANIA DEMOCRATIC PARTY, Plaintiff, -versus- REPUBLICAN PARTY OF PENNSYLVANIA, DONALD J. TRUMP FOR PRESIDENT, INC., ROGER J. STONE, JR., and STOP THE STEAL, INC, Defendants. Civil Action No. 2:16-cv-05664 ------------------------------------------------------- DEFENDANT REPUBLICAN PARTY OF PENNSYLVANIA MOTION TO DISMISS AND OBJECTION TO PROPOSED ORDER Now comes Defendant Republican Party of Pennsylvania (“RPP”), by and through counsel, and pursuant to Fed. R. Civ. P. 12(b)(6), respectfully moves the Court for an order dismissing it from this action. This motion is supported by the attached memorandum in support. Respectfully submitted, /s/ Lawrence J. Tabas Lawrence J. Tabas, I.D. No. 27815 OBERMAYER REBMANN MAXWELL & HIPPEL LLP Centre Square West Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 1 of 19 2 1500 Market Street, Suite 3400 Philadelphia, PA 19102 Phone: 215 665 3158 Attorney for Republican Party of Pennsylvania /s/ Rebecca L. Warren Rebecca L. Warren, I.D. No. 63669 OBERMAYER REBMANN MAXWELL & HIPPEL LLP Centre Square West 1500 Market Street, Suite 3400 Philadelphia, PA 19102 Phone: 717 221 1602 Attorney for Republican Party of Pennsylvania /s/ Matthew B Banks Matthew B. Banks, I.D. No. 312355 THE BANKS LAW GROUP 845 North Park Road, Suite 102 Wyomissing, PA 19610 Phone: 610 816 6414 November 6, 2016 Attorney for Republican Party of Pennsylvania Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 2 of 19 1 TABLE OF CONTENTS I. Introduction………………………………………………………………………1 II. Standard for 12(b)(6) Motion to Dismiss……………………………………......2 III. Argument……………………………………………………………………….4 A. Plaintiff Fails to Allege Sufficient Facts That RPP Violated 42 U.S.C. § 1985(3)………………………………………………………………...4 B. Plaintiff Fails to Allege Sufficient Facts That RPP Violated 52 U.S.C. § 10307(b) of That Plaintiff has Standing……………………………….6 C. Plaintiff’s Claims are not Ripe for Review and Should be Dismissed…..8 D. Plaintiff Fails to Allege Sufficient Facts That Injunctive Relief Should be Granted…………………………………………………………………...8 IV. Conclusion…………………………………………………………………….10 Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 3 of 19 1 TABLE OF AUTHORITIES Federal Cases Abbott Labs. v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681 (1967) 10 Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984) 8 Arrowpoint Capital Corp. v. Arrowpoint Asset Mgmt., L.L.C., 793 F.3d 313 (3d Cir. 2015) 11 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) 5, 6, 7, 9 Ashcroft v. Iqbal, 556 U.S. 662 (2009) 4, 7 AT&T v. Winback & Conserve Program, 42 F.3d 1421 (3d Cir. 1994) 11 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) 5 Columbia Nat. Res. v. Tatum, 58 F.3d 1101 (6th Cir. 1995) 5, 7, 9 FMC Corp. v. Control Solutions, Inc., 369 F. Supp. 2d 539 (E.D. Pa. 2005) 11- 12 L.A. v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) 9 Morgan v. Church's Fried Chicken, 829 F.2d 10 (6th Cir. 1987) 5, 7, 9 North Carolina v. Rice, 92 S. Ct. 402 (1971) 10 North Carolina v. Rice, 404 U.S. 244 (1971) 10 Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 4 of 19 2 Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982) 8 Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 343 (1975) 10 Federal Statutes 42 U.S.C. § 1985(3) (2012) 6, 11 52 U.S.C. § 10307(b) (2012) 8, 9, 11 Other Fed. R. Civ. P. 12(b)(6) 1, 3, 4 Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 5 of 19 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA -------------------------------------------------------: : : : : : : : : : : : PENNSYLVANIA DEMOCRATIC PARTY, Plaintiff, -versus- REPUBLICAN PARTY OF PENNSYLVANIA, DONALD J. TRUMP FOR PRESIDENT, INC., ROGER J. STONE, JR., and STOP THE STEAL, INC, Defendants. Civil Action No. 2:16-cv-05664 ------------------------------------------------------- MEMORANDUM IN SUPPORT I. INTRODUCTION Now comes Defendant Republican Party of Pennsylvania (“RPP”) and files its objections to an order by this Court as against the RPP and moves this Court, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss the RPP with prejudice from this litigation. The Plaintiff’s complaint (“Complaint”), despite its length and twenty four (24) exhibits (two hundred plus pages), fails to state a claim against the RPP. Pennsylvania law regulates all of the procedures and processes that Plaintiff raises Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 6 of 19 2 as alleged concerns, and prohibits the activity Plaintiff seeks to have regulated by this Court. There is simply no allegation, whatsoever, that the RPP has violated or plans to violate any of these laws. Furthermore, the RPP has not violated these laws, and it has no intention of violating these laws. For these reasons, an Order against the RPP is unwarranted, unnecessary, and a waste of this Court’s resources. II. STANDARD FOR 12(b)(6) MOTION TO DISMISS Under Fed. R. Civ. P. 12(b)(6), the cause of action may be dismissed by the Court if the complaint fails to state a claim upon which relief can be granted. To survive a Rule 12(b) (6) motion to dismiss, the complaint must assert a plausible claim and set forth sufficient factual allegations to support the claim. See Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In Iqbal, the Supreme Court notes that the plausibility standard is not “akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ashcroft, 556 U.S. 662, 129 S. Ct. 1937, at 1949 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct. . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 7 of 19 3 Moreover, a plaintiff must provide sufficient factual allegations that “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A court does not accept “bare assertion of legal conclusions”, Columbia Nat. Res. Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995), “unwarranted factual inferences”, Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987), “unadorned the-defendant-unlawfully-harmed me accusation,” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (citing Bell Atl. Corp. v. Twombly 550 U.S. 544, 555 (2007)), or “naked assertions [of fact] devoid of further factual enhancement.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). As such, “[a] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. Plaintiff has completely failed to establish the required elements for each of its claims and establish necessary factual allegations against the RPP. Instead, the Complaint is filled with “bare assertion of legal conclusions,” Columbia Nat. Res. Inc., 58 F.3d at 1109 (6th Cir. 1995), “unwarranted factual inferences,” Morgan, 829 F.2d at 12, “unadorned the-defendant-unlawfully-harmed me accusation,” Ashcroft, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), or “naked assertions [of fact] devoid of further factual enhancement,” Id. Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 8 of 19 4 at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)), all of which utterly fail to meet the well-established pleading standards. III. ARGUMENT A. Plaintiff Fails to Allege Sufficient Facts That the RPP Violated 42 U.S.C. § 1985(3) Count I of Plaintiff’s Complaint fails to allege a sufficient factual basis to support its claim that the RPP has violated 42 U.S.C. § 1985(3). Plaintiff’s complaint is entirely based on baseless factual inferences designed intentionally to harass and deny the RPP its constitutional rights to conduct its legitimate campaign activities. There is not a single factual allegation contained within the Complaint that alleges any violation of 42 U.S.C. § 1985(3) by the RPP. To succeed under 42 U.S.C. § 1985(3), a plaintiff must prove four elements: (1) a conspiracy; (2) for purposes of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or for equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Plaintiffs allegations of a violation of 42 U.S.C. § 1985(3) are frivolous and meritless. Plaintiff has failed to provide any evidence, allegation, or factual support of a “conspiracy” arising under 42 U.S.C. § 1985(3). Plaintiff has failed to provide Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 9 of 19 5 any evidence, allegation, or factual support to establish that there is a “purpose” to “deprive any person.” Plaintiff has failed to provide any evidence, allegation, or factual support to establish that the RPP has taken an “act in furtherance of the [alleged] conspiracy.” Plaintiff has failed to provide any evidence, allegation, or factual support that any “person” has been “deprived of any right or privilege of a citizen of the United States.” As required under Twombly, the plaintiff must assert a plausible claim and set forth sufficient factual allegations to support the claim. See Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Plaintiff has simply failed to assert anything other than “bare assertion of legal conclusions”, Columbia Nat. Res. Inc. v Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995), “unwarranted factual inferences,” Morgan v Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987), “unadorned the-defendant-unlawfully-harmed me accusation,” Iqbal, 129 S. Ct. at 1949 (citing Twombly 550 U.S. at 555), or “naked assertions [of fact] devoid of further factual enhancement.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555). For the aforementioned reasons, the Court should dismiss Count I of the Complaint. Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 10 of 19 6 B. Plaintiff Fails to Allege Sufficient Facts That the RPP Violated 52 U.S.C. § 10307(b) or That Plaintiff has Standing The Plaintiff has failed to allege in its Complaint any facts in support of an actual violation of 52 U.S.C. § 10307(b) nor has it alleged any facts that support Plaintiff’s standing to bring such a claim. It is well established that a plaintiff alleging violations of 52 U.S.C. § 10307(b) must demonstrate standing under the Voting Rights Act, and a plaintiff must prove: “(1) he has personally suffered or will suffer some distinct injury-in- fact as a result of defendant's putatively illegal conduct; (2) the injury can be traced with some degree of causal certainty to defendant's conduct; (3) the injury is likely to be redressed by the requested relief; (4) the plaintiff must assert his own legal rights and interests, not those of a third party; (5) the injury must consist of more than a generalized grievance that is shared by many; and (6) the plaintiff's complaint must fall within the zone of interests to be regulated or protected by the rule of law in question.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-77, 102 S.Ct. 752, 757-61, 70 L.Ed.2d 700 (1982); see also Allen v. Wright, 468 U.S. 737, 751-52, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). Additionally, when a plaintiff is seeking injunctive relief “he must establish that he personally faces a realistic, immediate, and non-speculative threat of being Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 11 of 19 7 prospectively subjected to or harmed by the particular conduct at issue.” City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). Plaintiff has completely failed to demonstrate standing because it has alleged no evidence, allegations, or factual support to establish that it will personally “face[] a realistic, immediate, and non-speculative threat of being prospectively subjected to or harmed” by the RPP. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). Additionally, Plaintiff has provided no factual allegation supporting any of the elements of standing outlined by the Court in Valley Forge Christian College. See supra. Other than the “bare assertion of legal conclusions,” Columbia Nat. Res. Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995), “unwarranted factual inferences,” Morgan v Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987), “unadorned the-defendant-unlawfully-harmed me accusation,” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555), or “naked assertions [of fact] devoid of further factual enhancement,” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555), the Plaintiff has failed to plead any facts in support of its claim that the RPP has violated 52 U.S.C. § 10307(b). For the aforementioned reasons, the Court should dismiss Count II of the Complaint. Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 12 of 19 8 C. Plaintiff’s Claims are Not ripe for Review and Should be Dismissed The claims contained within the Complaint are not ripe for adjudication. Ripeness is designed to prevent courts from “entangling themselves in abstract disagreements.” Abbott Labs v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681 (1967). A determination of ripeness “evaluates both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs., 387 U.S. at 149. The case must involve “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished form an opinion advising what the law would be upon a hypothetical state of facts.” North Carolina v. Rice, 404 U.S. 244, 246, 30 L. 2d. 413, 92 S. Ct. 402 (1971). “A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered some threatened or actual injury resulting from the putatively illegal action . . . .” Warth v. Seldin, 422 U.S. 490, 499, 45 L. Ed. 343. 95 S. Ct. 2197 (1975). D. Plaintiff Fails to Allege Sufficient Facts That Injunctive Relief Should be Granted Plaintiff filed this action ten (10) days before a national election to be held on November 8, 2016 (the “Election”), and it has failed to allege specific allegations for each and every count, and has based its entire action on baseless allegations of speculative conclusory hypotheticals. Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 13 of 19 9 Preliminary injunctive relief is “an extraordinary remedy” and “should be granted only in limited circumstances.” Am. Tel. & Tel. Co. v Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-72 (3rd. Cir. 1994) (internal quotation marks omitted). “A party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Arrowpoint Capital Corp. v Arrowpoint Asset Mgmt., LLC, 793 F.3d, 318-19 (3d. Cir. 2015). “The failure to establish any element of that test renders a preliminary injunction inappropriate.” Id. (internal quotations and alterations removed). Plaintiff alleges absent injunctive relief “voters will be subjected to intimidation, threats, and perhaps even force at the hands of vigilante “poll watcher” and “ballot integrity” volunteers on election day.” (Comp. ¶ 80.) Yet the Complaint fails to allege any facts that support actual intimidation, threats, harassment or a single fact pertaining to the RPP’s violation of either 42 U.S.C. § § 1985(3) or 52 U.S.C. § 10307(b). While Plaintiff’s allegations are from multiple sources spanning multiple months, they decided to file this action ten (10) days before the Election. “An unreasonable delay in seeking an injunction negates the presumption of irreparable harm.” FMC Corp. v Control Solutions Inc., 369 F.Supp 2d. 539, 582 (E.D.Pa. Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 14 of 19 10 2005). Moreover, “any claim against a state elector procedure must be expressed expeditiously.” Bowes v. Indiana Secretary of State, 2014 WL 6474097, *3 (S.D. Ind., Nov. 19, 2014) (citing Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990)(citing, in turn, Williams v. Rhodes, 393 U.S. 23 (1968)). Again, the Plaintiff has failed to assert a plausible claim and set forth sufficient factual allegations to support the claim. For the aforementioned reasons, the Court should dismiss Count III of the Complaint. IV. CONCLUSION Defendant Republican Party of Pennsylvania respectfully requests that the Court dismiss the Plaintiff’s claims against it in their entirety, deny the Plaintiff’s request for a temporary restraining order and injunctive relief, and enter judgement in the Republican Party of Pennsylvania’s favor. Respectfully submitted, /s/ Lawrence J. Tabas Lawrence J. Tabas, I.D. No. 27815 OBERMAYER REBMANN MAXWELL & HIPPEL LLP Centre Square West 1500 Market Street, Suite 3400 Philadelphia, PA 19102 Phone: 215 665 3158 Attorney for Republican Party of Pennsylvania Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 15 of 19 11 /s/ Rebecca L. Warren Rebecca L. Warren, I.D. No. 63669 OBERMAYER REBMANN MAXWELL & HIPPEL LLP Centre Square West 1500 Market Street, Suite 3400 Philadelphia, PA 19102 Phone: 717 221 1602 Attorney for Republican Party of Pennsylvania /s/ Matthew B Banks Matthew B. Banks, I.D. No. 312355 THE BANKS LAW GROUP 845 North Park Road, Suite 102 Wyomissing, PA 19610 Phone: 610 816 6414 November 6, 2016 Attorney for Republican Party of Pennsylvania Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 16 of 19 12 CERTIFICATE OF SERVICE I certify that on this date I electronically filed the foregoing Motion to Dismiss and Objection to Proposed Order and Memorandum of Support using the Court’s electronic filing system, making it available for download to counsel of record as indicated below: DAWN L. SMALLS BOIES SCHILLER & FLEXNER LLP 575 LEXINGTON AVE 7TH FL NEW YORK, NY 10022 212-754-4216 Email: dsmalls@bsfllp.com MARC E. ELIAS PERKINS COIE LLP 700 - 13TH ST NW SUITE 600 WASHINGTON, DC 20005 202-654-6200 Email: melias@perkinscole.com MARK A. ARONCHICK HANGLEY ARONCHICK SEGAL & PUDLIN ONE LOGAN SQ., 27TH FL. PHILADELPHIA, PA 19103 215-568-6200 Email: maronchick@hangley.com MICHAEL JULIAN GOTTLIEB BOIES SCHILLER & FLEXNER LLP 5301 WISCONSIN AVE NW SUITE 800 WASHINGTON, DC 20015 202-237-9617 Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 17 of 19 13 Email: mgottlieb@bsfllp.com THOMAS C. SULLIVAN MARKS & SOKOLOV, LLC 1835 MARKET STREET, 17TH FLOOR PHILADELPHIA, PA 19103 (215) 569-8901 tsullivan@mslegal.com BRUCE S. MARKS MARKS & SOKOLOV, LLC 1835 MARKET STREET, 17TH FLOOR PHILADELPHIA, PA 19103 (215) 569-8901 marks@mslegal.com CHAD A. READLER JONES DAY 325 JOHN MCCONNELL BLVD SUITE 600 COLUMBUS, OH 43215 614 281 3891 careadler@jonesday.com I certify that on this date I sent the foregoing Motion to Dismiss and Objection to Proposed Order and Memorandum of Support to all parties without counsel of record via overnight mail and to the listed email address on the Stop the Steal, Inc. website. ROGER J. STONE, JR. 3843 SOUTH BRISTOL STREET, #312 SANTA ANA, CA 92704 info@stopthesteal.org Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 18 of 19 14 STOP THE STEAL, INC. 3843 SOUTH BRISTOL STREET, #312 SANTA ANA, CA 92704 info@stopthesteal.org /s/ Lawrence J. Tabas Lawrence J. Tabas, I.D. No. 27815 OBERMAYER REBMANN MAXWELL & HIPPEL LLP Centre Square West 1500 Market Street, Suite 3400 Philadelphia, PA 19102 Phone: 215 665 3158 Attorney for Republican Party of Pennsylvania /s/ Matthew B Banks Matthew B. Banks, I.D. No. 312355 THE BANKS LAW GROUP 845 North Park Road, Suite 102 Wyomissing, PA 19610 Phone: 610 816 6414 Attorney for Republican Party of Pennsylvania /s/ Rebecca L. Warren Rebecca L. Warren, I.D. No. 63669 OBERMAYER REBMANN MAXWELL & HIPPEL LLP Centre Square West 1500 Market Street, Suite 3400 Philadelphia, PA 19102 Phone: 717 221 1602 November 6, 2016 Attorney for Republican Party of Pennsylvania Case 2:16-cv-05664-PD Document 31 Filed 11/06/16 Page 19 of 19