Ridgeway Unified Courts

JUDICIAL COUNCIL OF RIDGEWAY

Searchable full text

325,141 characters extracted

—

This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. SUPERIOR COURT OF THE STATE OF RIDGEWAY FINDKILLREPEAT, Plaintiff/Counter-Defendant, v. BETATHEWOLFGAMER, Defendant/Counter-Plaintiff. No. RSC-CV-412 ORAL ARGUMENT REQUESTED DEFENSE’S MOTION FOR SUMMARY JUDGMENT Defendant BetaTheWolfGamer, by and through undersigned counsel, hereby, pursuant to Ridgeway Rule of Civil Procedure 38, moves for summary judgment on all of the parties’ claims, or in the alternative, for dismissal of all of the parties’ claims. Defendant/Counter-Plaintiff requests oral argument. A memorandum of law in support is attached hereto. Respectfully submitted. Dated: July 6th, 2022 Palmer, Ridgeway /s/ DorkJacob ——————————————————————————— DORKJACOB Ridgeway Bar No. 17135 Counsel of Record DorkJacob Law 1B Palm View Palmer, Ridgeway JacobInAustin#0001 [email protected] Attorney for Defendant/Counter-Plaintiff This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. SUPERIOR COURT OF THE STATE OF RIDGEWAY FINDKILLREPEAT, Plaintiff/Counter-Defendant, v. BETATHEWOLFGAMER, Defendant/Counter-Plaintiff. No. RSC-CV-412 MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT DORKJACOB Ridgeway Bar No. 17135 Counsel of Record DorkJacob Law 1B Palm View Palmer, Ridgeway JacobInAustin#0001 [email protected] Attorney for Defendant/Counter-Plaintiff This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. TABLE OF CONTENTS Statement 1 Legal Standard Summary Judgment 1 Motion to Dismiss 2 False Imprisonment 3 Assault 3 Battery 4 Unclean Hands 4 In Pari Delicto 4 Argument FKR assaulted Beta 5 Beta lawfully arrested FKR 9 Beta battered FKR 9 Both parties have unclean hands 10 Conclusion 11 TABLE OF AUTHORITIES Authorities principally relied upon are marked with an asterisk. Statutes 1 R. Stat. § 202 4 1 R. Stat. § 204 3 Rid. Crim. Code § 2.04 8 Federal Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) 2 n.3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 2 n.3 Katz v. United States, 389 U.S. 347 (1967) 11 n.9 Olmstead v. United States, 277 U.S. 438 (1928) 11 The Florida, 101 U.S. (11 Otto) 37 (1879) 10 This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. Republican Nat’l Comm. v. Pelosi, No. CV 22-659 (TJK), ___ F. Supp. 3d. ___, 2022 WL 1294509 (D.D.C. May 1, 2022) 2 Colella v. Androus, No. CV 20-813 (RC), 2022 WL 888182 (D.D.C. Mar. 25, 2022) 10 Xingru Lin v. Dist. of Columbia, 268 F. Supp. 3d 91 (D.D.C. 2017) 8 n.6 McLaurin v. Waffle House, Inc., 178 F. Supp. 3d 536 (S.D. Tex. 2016) 4 Mills v. Barnard, No. 1:14-CV-00150, 2016 WL 5819787 (M.D. Tenn. Sept. 30, 2016), rev’d on other grounds, 869 F.3d 473 (6th. Cir. 2017) 3 Scott v. United States, 952 F. Supp. 2d 13 (D.D.C. 2013) 3 Rude v. Adeboyeku, 552 F. Supp. 2d 32 (D.D.C. 2008) 3 United States v. Philip Morris Inc., 300 F. Supp. 2d 61 (D.D.C. 2004) 4, ## Rogers v. Loews L'Enfant Plaza Hotel, 526 F. Supp. 523 (D.D.C. 1981) 3 State Cases Greenwald v. Van Handel, 88 A.3d 467 (Conn. 2014) 11 Tex. Dept. of Public Safety v. Cox Texas Newspapers, L.P., 343 S.W.3d 112 (Tex. 2011) 4 Enders v. Dist. of Columbia, 4 A.3d 457 (D.C. 2010) 3 Hines v. Dist. of Columbia, 580 A.2d 133 (D.C. 1990) 8 n.6 International Cases McLaughlin v Morrison, [2013] CSOH 163, [2014] S.L.T. 111 10 n.8 Jones v Commerzbank AG, [2003] EWCA Civ 1663 9 Revill v Newbery, [1996] Q.B. 567, [1995] EWCA Civ 10 10 Pitts v Hunt, [1989] R.T.R. 365 (Q.B.) 10 Dering v Earl of Winchelsea, (1787) 29 Eng. Rep. 1184 9 Court Rules Rid. R. Civ. P. 38 1 This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. Secondary Sources Restatement (Second) of Torts (1965) § 13 4 § 21 3 § 24 4 § 29, cmt. b 7 32 Am. Jur. 2d False Imprisonment § 7 (2007) 3 DNC, Drinking Tespians, DNC, Urban Dictionary (Sep. 18, 2020), https://urbandictionary.com/define.php?term=DNC [https://web.archive.org/web/20220706195416/https://www.urbandict ionary.com/define.php?term=DNC] 6 n.5 GLOSSARY FKR Plaintiff/Counter-Defendant FindKillRepeat Comp. Complaint Q.B. Queen’s Bench EWCA Court of Appeal (England & Wales) Her Majesty’s Court of Appeal in England CSOH Court of Session of Scotland, Outer House TABLE OF EXHIBITS Exhibit A Republican Nat’l Comm. v. Pelosi, No. CV 22-659 (TJK), ___ F. Supp. 3d. ___, 2022 WL 1294509 (D.D.C. May 1, 2022) Exhibit B Mills v. Barnard, No. 1:14-CV-00150, 2016 WL 5819787 (M.D. Tenn. Sept. 30, 2016) Exhibit C Colella v. Androus, No. CV 20-813 (RC), 2022 WL 888182 (D.D.C. Mar. 25, 2022) This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. STATEMENT Plaintiff FindKillRepeat (FKR) commenced this action on May 28th, 2022, alleging that Defendant BetaTheWolfGamer (Beta) had falsely imprisoned, assaulted, and battered FKR. FKR alleges that FKR was standing outside the Palmer Car Dealership when Beta approached FKR and then FKR “engaged in conversation with” Beta.1 Comp. ¶ 3. Thereafter, Beta “allegedly assault[ed] and batter[ed] Plaintiff with a baton. Plaintiff does not move and continues the conversation. After being beaten to roughly half health, Defendant takes Plaintiff into custody. Plaintiff is arrested by Defendant for ‘Failure to Comply.’” Comp. ¶ 4-6. For the reasons set herein, Plaintiff moves for summary judgment on all of Plaintiff’s claims and the Counter-Plaintiff’s claim, or in the alternative for dismissal of all claims brought by FKR and/or Beta under the doctrines of unclean hands and in pari delicto (in equal fault). LEGAL STANDARD I. Summary Judgment “A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” Rid. R. Civ. P. 38(b). “The Court must grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A dispute is genuine if the evidence is such that a reasonable factfinder could return a verdict for the non-moving party. A fact is material if it is capable of affecting the outcome of the litigation under the 1 FKR conveniently left out that the conversation was hostile and amounted to assault. See Counter Comp. ¶ 2 (“FKR then immediately got into Beta’s face and said aggressively ‘what are you looking at’, posing an immediate threat of possible physical harm.”) MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 1 - DorkJacob Law 1B Palm View Palmer, Ridgeway This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. applicable substantive law.” Republican Nat’l Comm. v. Pelosi, No. CV 22-659 (TJK), ___ F. Supp. 3d. ___, ___, 2022 WL 1294509, at *6 (D.D.C. May 1, 2022) (cleaned up) (Exh. A).2 II. Motion to Dismiss The Twiqbal3 standard states as follows– “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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 alleged. 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. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Two working principles underlie [the Supreme Court’s] decision in Twombly, First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will [] be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief. In keeping with these principles, 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. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual 3 Twiqbal is a portmanteau of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). 2 Print-outs of relevant cases that have been cited using Westlaw’s database are linked in the table of authorities and are also attached as Exhibits. MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 2 - DorkJacob Law 1B Palm View Palmer, Ridgeway This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief.” Mills v. Barnard, No. 1:14-CV-00150, 2016 WL 5819787, at *8-9 (M.D. Tenn. Sept. 30, 2016) (cleaned up) (Exh. B), rev’d on other grounds, 869 F.3d 473 (6th. Cir. 2017). III. False Imprisonment To prove false imprisonment, FKR must prove that Beta either without legal authority or justification, restrained or restricted FKR’s movement, or restrained FKR’s permission. See 1 R. Stat. § 204. “The essential elements of false imprisonment are: (1) the detention or restraint of one against his or her will, and (2) the unlawfulness of the detention or restraint.” Scott v. United States, 952 F. Supp. 2d 13, 18 (D.D.C. 2013) (citing Enders v. District of Columbia, 4 A.3d 457, 461 (D.C. 2010)) (quoting 32 Am. Jur. 2d False Imprisonment § 7 (2007)).4 IV. Assault To prove assault, FKR must prove that Beta “intentionally and voluntarily caused reasonable apprehension of an immediate harmful or offensive contact.” 1 R. Stat. § 203. In other words, “[a] defendant may be held liable for assault against another if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” Rude v. Adeboyeku, 552 F. Supp. 2d 32, 35 (D.D.C. 2008) (citing Rogers v. Loews L'Enfant Plaza Hotel, 526 F. Supp. 523, 529 (D.D.C. 1981)) (quoting Restatement (Second) of Torts § 21 (1979)). 4 For the purposes of this motion, we will use the following false imprisonment standard: (1) the arrest was made without legal authority or justification, and (2) the arrest was against FKR’s will. Plaintiff concedes the second prong has been met. MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 3 - DorkJacob Law 1B Palm View Palmer, Ridgeway This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. “In order that the other may be put in the apprehension necessary to make the actor liable for an assault, the other must believe that the act may result in imminent contact unless prevented from so resulting by the other's self-defensive action or by his flight or by the intervention of some outside force.” Restatement (Second) of Torts § 24 (1965). V. Battery To prove battery, FKR must prove that Beta brought “unconsented harmful or offensive contact against” FKR. 1 R. Stat. § 202. “The tort of battery is when a person (a) acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.” McLaurin v. Waffle House, Inc., 178 F. Supp. 3d 536, 556 (S.D. Tex. 2016) (citing Tex. Dept. of Public Safety v. Cox Texas Newspapers, L.P., 343 S.W.3d 112, 126-27 (Tex. 2011) (Wainwright, J., concurring)) (quoting Restatement (Second) of Torts § 13 (1965)). VI. Unclean Hands “The unclean hands doctrine derives from the equitable maxim that ‘he who comes into equity must come with clean hands.’ The doctrine closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.” United States v. Philip Morris Inc., 300 F. Supp. 2d 61, 74-75 (D.D.C. 2004) (cleaned up). VII. In Pari Delicto “In pari delicto literally means ‘in equal fault’ and is based on the common-law notion that a plaintiff's recovery may be barred by his own wrongful conduct. Historically the doctrine has been limited to situations where the plaintiff bore at least substantially equal responsibility for his injury, and where the parties' culpability arose out of the same illegal act.” Id., at 75. MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 4 - DorkJacob Law 1B Palm View Palmer, Ridgeway This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. ARGUMENT I. FKR assaulted Beta The incident started off with FKR assaulting Beta. We need not explain exactly what happened – a picture is worth a thousand words: FKR got in Beta’s face, aggressively asked “what you lo[o]king at” and tried to intimidate Beta away from the car dealership and their friends. Of course Beta told FKR in no uncertain terms to back away– LEFT INTENTIONALLY BLANK MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 5 - DorkJacob Law 1B Palm View Palmer, Ridgeway This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. No reasonable finder of fact could find that FKR did not assault Beta: FKR clearly “intentionally and voluntarily caused reasonable apprehension of an immediate harmful or offensive contact”. FKR’s friends didn’t encourage them, even one of them (Lootrate) said “do not care”5 and to “back up”. Another friend said “POLICE BRUTALITY” and “BLM” (Black Lives Matter). After that, Beta yelled “BACK” at FKR and arrested FKR when they failed to do so– 5 “dnc” means “Do not care. Used mostly on Roblox as a comeback to a toxic message or just for the fun of saying it.” DNC, Drinking Tespians, DNC, Urban Dictionary (Sep. 18, 2020), https://urbandictionary.com/define.php?term=DNC [https://web.archive.org/web/20220706195416/https://www.urbandictionary.com/define.php?ter m=DNC]. MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 6 - DorkJacob Law 1B Palm View Palmer, Ridgeway This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. Reasonable apprehension is when there is no significant delay that would prevent a person within striking distance from striking the person. Cf. Restatement (Second) of Torts § 29, cmt. b (1965) (“The apprehension created must be one of imminent contact, as distinguished from any contact in the future. ‘Imminent’ does not mean immediate, in the sense of instantaneous contact, as where the other sees the actor's fist about to strike his nose. It means rather that there will be no significant delay. It is not necessary that one shall be within striking distance of the other, or that a weapon pointed at the other shall be in a condition for instant discharge. It is enough that one is so close to striking distance that he can reach the other almost at once, or that he can make the weapon ready for discharge in a very short interval of time.”) Beta didn’t know whether or not FKR had a knife on their person: they could have. While it “is not necessary that one shall be within striking distance of the other,” it is necessary that “one is so close to striking distance that he can reach the other almost at once”. Ibid. FKR was within close striking distance and could have MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 7 - DorkJacob Law 1B Palm View Palmer, Ridgeway This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. pulled a knife and stabbed Beta to death. Thus, FKR caused reasonable apprehension of immediate offensive conduct and is unquestionably liable for assault. If a jury found that FKR was not liable, any good plaintiff’s lawyer would get up and move for a judgment notwithstanding the verdict and win with a mere strike of the gavel. II. Beta lawfully arrested FKR We have established that FKR assaulted Beta. However, did Beta unlawfully arrest FKR? Beta did not. Beta was trying to prevent assault, and under the public duty doctrine,6 Beta has a duty to protect the public at large. Several members of the public were present and Beta was clearly trying to prevent violence or civil unrest from breaking out. Failure to comply is “the act of disobeying a lawful order which has been given by a peace officer prior.” Rid. Crim. Code § 2.04. FKR cannot prove that Beta gave an unlawful order, thus FKR clearly committed failure to comply.7 III. Beta battered FKR Beta concedes that they battered FKR unnecessarily and used excessive force. However, Beta did not form the requisite mens rea to commit battery: Beta was trying to use law enforcement techniques to get FKR away from them. Beta used their voice, and when that didn’t work, Beta used a baton four times. The Law 7 While the Court cannot determine criminal liability, the Court can determine that probable cause existed to arrest FKR for failure to comply – and it clearly exists. 6 “‘Under [tjhe public duty] doctrine, a government and its agents owe no duty to provide public services to particular citizens as individuals. Instead, absent some ‘special relationship’ between the government and the individual, the [Government’s] duty is to provide public services to the public at large.’” Xingru Lin v. Dist. of Columbia, 268 F. Supp. 3d 91, 101 (D.D.C. 2017) (citing Hines v. Dist. of Columbia, 580 A.2d 133, 136 (D.C. 1990)). MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 8 - DorkJacob Law 1B Palm View Palmer, Ridgeway This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. Enforcement Training Center (LETC) curriculum generally taught Beta the following levels of force to use in any given circumstances– FKR was clearly actively resistant. While Beta is liable for battery, Beta should not be subjected to the outrageous damages that FKR is claiming. A simple apology for Beta’s actions is more than warranted, but thousands upon thousands of dollars in damages are not warranted nor equitable to award to FKR. Even so, the Court cannot award damages to either party: they are at equal fault and come with unclean hands. IV. FKR has unclean hands “‘He who comes into equity must come with clean hands’, where what has to be shown is misconduct which has ‘an immediate and necessary relation to the equity sued for.’” Jones v Commerzbank AG, [2003] EWCA Civ 1663 ¶ 59 (Mummery, J.) (appeal taken from Eng.) (citing Dering v Earl of Winchelsea, (1787) 29 Eng. Rep. 1184, 1185 (Exch.) (Lord Eyre)). Cf. Philip Morris Inc., supra. FKR does not come with clean hands: they clearly committed assault. Thus, their claim against Beta must be dismissed. MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 9 - DorkJacob Law 1B Palm View Palmer, Ridgeway This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. V. Both parties are equally at fault Under the doctrine of in pari delicto, the parties are equally at fault because FKR assaulted Beta, and Beta battered FKR out of the same conduct. Thus, neither of them may pursue claims. In pari delicto is “an affirmative defense that precludes a plaintiff who participated in the same wrongdoing as the defendant from recovering damages from that wrongdoing … the fact-intensive defense of in pari delicto is suitable for resolution at the pleading stage, if at all, only when there is no set of facts under which [the opposing party] would not be subject to the defense.” Colella v. Androus, No. CV 20-813 (RC), 2022 WL 888182, at *11 (D.D.C. Mar. 25, 2022) (cleaned up). VI. FKR’s claims are founded on an illegal act FKR’s claims are also barred by the doctrine of ex turpi causa non oritur actio (no cause of action may be founded on an immoral or illegal act), which bars these claims altogether in the first instance with no further discussion necessary. See generally Revill v Newbery, [1996] Q.B. 567, 576, [1995] EWCA Civ 10 (Lord Neill); Pitts v Hunt, [1989] R.T.R. 365, 370 (Q.B.) (Fallon, J.) (“[T]he law of England does not recognise that participants in a criminal enterprise owe each other a duty of care in relation to any act done in connection with the commission of that crime. As a matter of general public policy the law applies the maxim ex turpi causa non oritur actio.”)8 “[T]he maxim, ‘ex turpi causa non oritur actio,’ applies with full force. No court will lend its aid to a party who founds his claim for redress upon an illegal act.” The Florida, 101 U.S. (11 Otto) 37, 43 (1879). “‘The Court's aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. 8 See also McLaughlin v Morrison, [2013] CSOH 163 ¶ 19, [2014] S.L.T. 111, 117 (Lord Jones) (agreeing that public policy precluded the recovery of losses arising out of manslaughter). MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 10 - DorkJacob Law 1B Palm View Palmer, Ridgeway This document is a document filed in a mock court in the State of Ridgeway on Roblox.com. I am a notary public of the State of Texas in real life. A notary public cannot give legal advice or accept fees for legal advice. See Tex. Gov't Code § 406.017. This document does not constitute legal advice in any way, shape, or form. Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination.’” Greenwald v. Van Handel, 88 A.3d 467, 477 (Conn. 2014) (citing Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting)).9 CONCLUSION The motion should be granted, and judgment should be entered in favor of Defendant and against Plaintiff, and for Counter-Defendant against Counter-Plaintiff, or in the alternative, both parties’ claims should be dismissed. Respectfully submitted. Dated: July 6th, 2022 Palmer, Ridgeway /s/ DorkJacob ——————————————————————————— DORKJACOB Ridgeway Bar No. 17135 Counsel of Record DorkJacob Law 1B Palm View Palmer, Ridgeway JacobInAustin#0001 [email protected] Attorney for Defendant/Counter-Plaintiff 9 Olmstead was later overruled on other grounds unrelated to the doctrine. See Katz v. United States, 389 U.S. 347 (1967). MEMORANDUM OF LAW IN SUPPORT OF DEFENSE’S MOTION FOR SUMMARY JUDGMENT - 11 - DorkJacob Law 1B Palm View Palmer, Ridgeway EXHIBIT A Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 2022 WL 1294509 Only the Westlaw citation is currently available. United States District Court, District of Columbia. REPUBLICAN NATIONAL COMMITTEE, Plaintiff, v. Nancy PELOSI et al., Defendants. Civil Action No. 22-659 (TJK) | Signed 05/01/2022 Synopsis Background: Republican National Committee (RNC) filed suit against Speaker of House of Representatives, House Select Committee investigating mob attack on United States Capitol, committee members, and third-party vendor for RNC, claiming violation of First Amendment, Fourth Amendment, and Stored Communications Act by committee's subpoena issued to vendor for documents and testimony related to claims that presidential election was fraudulent or stolen, as advanced in emails sent by RNC and former President's campaign. Defendants moved to dismiss for lack of subject matter jurisdiction and for summary judgment, and RNC moved for preliminary injunction. Holdings: The District Court, Timothy J. Kelly, J., held that: House members were immune from suit under Speech or Debate Clause; RNC had standing to pursue claims against vendor; Select Committee had necessary congressional authorization; subpoena had valid legislative purpose; subpoena did not violate First Amendment associational rights; subpoena did not violate Fourth Amendment; subpoena was not overbroad and unduly burdensome; and Stored Communications Act claim was moot. Motions granted in part and denied in part. Procedural Posture(s): Motion to Dismiss for Lack of Subject Matter Jurisdiction; Motion for Summary Judgment; Motion for Preliminary Injunction. Attorneys and Law Firms Julian Ellis, Pro Hac Vice, Brownstein Hyatt Farber Schreck, LLP, Denver, CO, Christopher O. Murray, Statecraft PLLC, Denver, CO, for Plaintiff. Douglas N. Letter, Eric Randal Columbus, U.S. House of Representatives Office of General Counsel, Washington, DC, for Defendants Nancy Pelosi, Bennie G. Thompson, Elizabeth L. Cheney, Adam B. Schiff, Jamie B. Raskin, Susan E. Lofgren, Elaine G. Luria, Peter R. Aguilar, Stephanie Murphy, Adam D. Kinzinger, Select Committee to Investigatee The January 6th Attack on the United States Capitol. Jacob Alan Sommer, Marc J. Zwillinger, Zwillgen PLLC, Washington, DC, for Defendant Salesforce.com, Inc. MEMORANDUM OPINION TIMOTHY J. KELLY, United States District Judge *1 On January 6, 2021, a mob attacked the U.S. Capitol as the House of Representatives and Senate were set to count and certify the Electoral College vote for the 2020 presidential election. Later that year, the House established the Select Committee to Investigate the January 6th Attack on the United States Capitol and tasked it with investigating, among other things, the causes of the attack. The Select Committee asserts that some in the mob that day were motivated by claims that the 2020 presidential election was fraudulent or stolen—claims advanced in emails sent by the Republican National Committee and former President Trump's campaign. For that reason, the Select Committee issued a subpoena for related documents and testimony to a third-party vendor for the RNC. The RNC, in turn, sued Speaker Nancy Pelosi, the Select Committee, its members, and the third-party vendor, to challenge the subpoena on several grounds. This case presents an unusual thicket of procedural and substantive issues, in part because of the way the Select Committee decided to defend the case; in part because of the exceedingly rare spectacle of a congressional committee subpoenaing the records of one of our country's two major Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2 political parties; and in part because those records reside with the RNC's third-party vendor, rather than the RNC itself. After navigating the thicket, for the reasons explained below, the Court will dismiss the claims against all defendants except the third-party vendor as barred by the Constitution's Speech or Debate Clause, dismiss as moot one of the claims against the third-party vendor, and enter judgment against the RNC on the rest of its claims against the third-party vendor. I. Factual Background A. The January 6, 2021 Attack on the U.S. Capitol The 2020 presidential election was held on November 3, 2020. On December 14, 2020, the Electoral College met, and a majority of the electors cast their votes for Joseph R. Biden and Kamala D. Harris. See ECF No. 17 at 19. On January 6, 2021, a mob attacked the U.S. Capitol, where the House and Senate were set to count and certify the Electoral College vote. According to the RNC, “[m]any in the mob intended to interfere” with Congress's counting and certification. ECF No. 8-1 at 9–10. And some “attacked Capitol police officers, vandalized portions of the Capitol itself, and forced their way into the Senate chamber.” Id. at 10. At the time, the RNC described the events of the day as “an attack on our country and its founding principles.” Id. B. House Resolution 503 and the Select Committee On June 30, 2021, the House of Representatives established the Select Committee to Investigate the January 6th Attack on the United States Capitol (“Select Committee”). See H.R. Res. 503, § 1, 167 Cong. Rec. H3322–24, H3335 (June 30, 2021). The House instructed the Select Committee to “investigate and report upon the facts, circumstances, and causes relating to” the attack, including “the influencing factors that fomented” it. Id. § 3(1). To fulfill that task, the House empowered the Select Committee to investigate “how technology ... may have factored into the motivation, organization, and execution” of the attack, id. § 4(a)(1)(B), including by examining the roles of any relevant “public and private” entities, id. § 4(a)(1)(C). The Select Committee must issue a “final report” to the House containing “such findings, conclusions, and recommendations for corrective measures ... as it may deem necessary.” Id. § 4(a)(3). These “corrective measures” include any “changes in law, policy, procedures, rules, or regulations that could be taken” to prevent “future acts of violence ... including acts targeted at American democratic institutions.” Id. § 4(c)(1). *2 The authorizing resolution states that the Speaker of the House “shall appoint 13 members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.” H.R. Res. 503, § 2(a). And it empowers the Speaker to designate “one member to serve as chair of the Select Committee.” Id. § 2(b). On July 1, 2021, Speaker of the House Nancy Pelosi appointed eight members to the Select Committee —Representative Bennie Thompson as Chair and Representatives Zoe Lofgren, Adam Schiff, Pete Aguilar, Liz Cheney, Stephanie Murphy, Jamie Raskin, and Elaine Luria as members. See 167 Cong. Rec. H3597 (July 1, 2021). House Minority Leader Kevin McCarthy recommended five more members to Speaker Pelosi: Representative Jim Banks (to serve as Ranking Member) along with Representatives Rodney Davis, Jim Jordan, Kelly Armstrong, and Troy Nehls. See ECF No. 6 ¶ 68; ECF No. 17 at 24. Speaker Pelosi agreed to appoint Representatives Davis, Armstrong, and Nehls but declined to appoint Representatives Banks and Jordan, and she asked Minority Leader McCarthy to recommend two other members. ECF No. 6 ¶ 69; ECF No. 17 at 24–25 & n.39. That same day, Minority Leader McCarthy decided to withdraw all five of his recommended appointees in protest. ECF No. 6 ¶ 70; ECF No. 17 at 25 & n.40. A few days later, Speaker Pelosi appointed Representative Adam Kinzinger as the ninth member of the Select Committee. See ECF No. 6 ¶ 70; 167 Cong. Rec. H3885 (July 26, 2021). Since then, the Select Committee has operated as a nine-member body. See ECF No. 6 ¶¶ 67, 70, 86, 118; ECF No. 17 at 25. On September 2, 2021, Chairman Thompson named Representative Cheney “Vice Chair” of the Select Committee. ECF No. 6 ¶ 71; ECF No. 17 at 25. C. The Select Committee's Subpoena Procedures The Select Committee's authorizing resolution establishes its procedures, including those procedures relating to the issuance of subpoenas. See H.R. Res. 503, § 5. Among other things, it makes Rule XI of the Rules of the House of Representatives applicable to the Select Committee. See id. § 5(c). Rule XI, Clause 2(m)(3)(A)–(D) permits a House committee to issue investigative subpoenas for documents or testimony to “any person or entity.” See Rules of the House of Representatives, 117th Cong. (Feb. 2, 2021). The authorizing resolution also provides that the Chair of the Select Committee, “upon consultation with the ranking minority member, may order the taking of a deposition, including pursuant to a subpoena, by a Member or counsel of the Select Committee.” See id. § 5(c)(6)(A). Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 3 D. The Salesforce Subpoena On February 23, 2022, Chairman Thompson issued a subpoena to Salesforce.com, Inc. (“Salesforce”). See ECF No. 6 ¶ 2; ECF No. 8-3 at 2. The subpoena ordered Salesforce to produce documents by March 9, 2022 and to testify at a Select Committee deposition on March 16, 2022. See ECF No. 8-3 at 2. In a cover letter accompanying the subpoena, Chairman Thompson laid out the Select Committee's rationale for issuing it to Salesforce. According to the letter, “[i]nformation provided to the Select Committee and public reporting indicate that during the 2020 election cycle, Salesforce provided its services to President Donald Trump's reelection campaign and to the [RNC]” and that between November 3, 2020 and January 6, 2021, “the Trump campaign and the RNC jointly sent out hundreds of emails to supporters using a Salesforce-owned tool.” ECF No. 6-1 at 4. The letter cited public reports characterizing the tenor of the emails as “inflammatory, with nearly every email suggesting that the election was fraudulent, that Democrats had stolen the election, and that Congress needed to be pressured to overturn the results to keep Trump in power.” Id. The letter also stated that those same reports noted that nearly every email asked supporters to donate money. Id. at 4–5. The letter highlighted one email, allegedly sent on January 6, that read: *3 We have the TRUTH ... TODAY will be a historic day in our Nation's history.... Every single Patriot from across the Country must step up RIGHT NOW if we're going to successfully DEFEND the integrity of this Election. President Trump is calling on YOU to bolster our Official Defend America Fund. Id. at 5. The letter asserted that the Select Committee had evidence that “numerous defendants” facing January 6- related charges were motivated by “false claims about the election.” Id. at 5. And it noted that, according to public reports, Salesforce itself had acknowledged that, because “there remain[ed] a risk of politically incited violence across the country,” it had taken “action to prevent [the RNC's] use of our services in any way that could lead to violence.” Id. For these reasons, the Select Committee informed Salesforce that it was subpoenaing information “regarding whether and how the Trump campaign used Salesforce's platform to disseminate false statements about the 2020 election” in the lead-up to January 6. ECF No. 6-1 at 5. The schedule accompanying the subpoena specified five categories of records demanded. See id. at 6. Specifically, the subpoena demanded information “referring or relating to” these topics: 1. [For the time period of November 3, 2020, to January 6, 2021, a]ll performance metrics and analytics related to email campaigns by or on behalf of Donald Trump for President, Inc. (“Trump Campaign”), the Republican National Committee (“RNC”), or the Trump Make America Great Again Committee (“TMAGAC”), including but not limited to delivery metrics (send rates and bounce rates), engagement metrics (opens, open rates, clicks, click rates, and click-to-open rates), time attributes, and message attributes. 2. [For the time period of November 3, 2020, to January 6, 2021, a]ll records related to login sessions by individuals associated with the Trump Campaign or the RNC into Salesforce's Marketing Cloud platform, including all related metadata. 3. For the time period of January 1, 2021, to January 31, 2021, all documents and communications concerning investigative reports or analyses conducted by Salesforce regarding the protests, marches, public assemblies, rallies, or speeches in Washington, D.C. on January 5, 2021, or January 6, 2021 (collectively, the “Washington Rallies”). 4. For the time period of November 3, 2020, to January 31, 2021, all documents and communications concerning investigative reports or analyses conducted by Salesforce regarding the use of Salesforce's platforms by the RNC or the Trump Campaign and related materials. 5. For the time period of November 3, 2020, to January 31, 2021, all communications between Salesforce representatives and representatives of the RNC or the Trump Campaign concerning the 2020 Presidential election, the continued use of Salesforce's platforms by the RNC or the Trump Campaign, the Washington Rallies, or any of the facts and circumstances of the topics that are the subject of any of the above requests. Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 4 Id. On February 24, Salesforce notified the RNC of the subpoena. See ECF No. 6 ¶ 41. E. The Materials at Issue After issuing the subpoena, the Select Committee engaged with Salesforce to clarify what information, exactly, the subpoena demanded. See ECF No. 17-3 at 2. In a March 21, 2022 letter memorializing these conversations, the Select Committee “stress[ed]” to Salesforce that these topics did not seek “any individual records or information on donors to the RNC or those whom the RNC solicited” or “any disaggregated information about donors to the RNC, disaggregated information about recipients of solicitations from the RNC, or email addresses acquired by the RNC through voter registration drives, GOTV efforts, or coalition signups.” Id. at 2–3. Further, in light of objections Salesforce had raised about the subpoena demanding content protected by the Stored Communications Act, 18 U.S.C. § 2701 et seq., the Select Committee told Salesforce that it was not “seeking communications content covered” by the Act and that it did not expect Salesforce to produce the portion of any responsive record revealing such content. See ECF No. 6 ¶ 137; ECF No. 17-3 at 3 & n.1. *4 The Select Committee and Salesforce have made additional representations to the Court about the materials the Select Committee is demanding from Salesforce in connection with the subpoena and what Salesforce is preparing to produce. The Select Committee has emphasized that it is “not seeking any information that would individually identify” any of the RNC's donors, volunteers, or email recipients, such as names, home addresses, email addresses, giving history, or the like. See ECF No. 24 at 73–74. And Salesforce confirmed that it would not be producing any such information. Id. at 117, 121. For the first topic identified by the subpoena, the Select Committee explained that it seeks data by which it can learn how well the RNC's email campaigns performed in engaging their recipients from November 3, 2020 to January 6, 2021. See ECF No. 24 at 75–76. In response, Salesforce is preparing to produce reports that it creates and sends to the RNC containing the specified metrics for each email (i.e., send rates, bounce rates, opens, open rates, clicks, click rates, and click-to-open rates), the date each email was sent (i.e., time attributes), and the RNC's internal name for each email campaign (i.e., message attributes). See id. at 61–63, 67, 118. The RNC's internal name often reflects general details about who among the RNC's email recipients the email campaign is targeting—for example, “Detroit Volunteers June 2020”— thus shedding some light on how the RNC targets its email campaigns. See, e.g., ECF No. 8-2 ¶ 17(j); ECF No. 21 at 16; ECF No. 24 at 61, 91–92. For the second topic, the Select Committee represented that it is seeking information to determine who at the RNC worked on these email campaigns, and when they did, to discover who might have more information about them. See ECF No. 24 at 76–77. In response, Salesforce is preparing to produce its login-session logs that identify individuals who logged in to its platform and contain technical information about each login session such as login and logout times as well as user activity during the login session. See id. at 118–19. For the third and fourth topics, the Select Committee stated that it seeks any reports and analyses that Salesforce itself conducted about the rallies in Washington, D.C. on January 5th and 6th, the RNC's and Trump campaign's use of its platforms, and Salesforce's own internal communications related to any such reports and analyses. See ECF No. 24 at 77–79. Salesforce plans to assert its own privilege objections to a “large amount” of the materials responsive to this topic because much of the material that exists was prepared by Salesforce's counsel. See id. at 119–20. But it is preparing to produce some ancillary records responsive to this topic, such as “abuse reports,” which are reports about email recipients complaining about email solicitations, with all personally identifiable information redacted from those reports. Id. For the fifth topic, the Select Committee explained that it is seeking communications between Salesforce and the RNC or the Trump campaign about the 2020 presidential election, their continued use of Salesforce's platforms, the rallies in Washington, D.C. on January 5th and 6th, or any of the other topics in the subpoena. See ECF No. 24 at 80. In response, Salesforce is preparing to produce some emails between itself and @gop.com email addresses, which “may” contain “some data about the RNC's use of the platform” but have no donor information or personally identifiable information of the RNC's email recipients. See id. at 120. Neither Salesforce nor the RNC, which presumably has copies of these emails, has further described their contents. *5 In summary, none of the materials at issue contains personally identifiable information of RNC donors, volunteers, or email recipients. But the subpoena does seek Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 5 some of the RNC's confidential information about its email campaigns from November 3, 2020 to January 6, 2021. II. Procedural History On March 9, 2022, the RNC—the national party committee of the Republican Party—sued Speaker Pelosi, the Select Committee, and each member of the Select Committee (“House Defendants”), to challenge the subpoena. See ECF No. 1 ¶¶ 11–22. On March 15, the RNC filed an amended complaint, adding Salesforce as a defendant while explaining that it did so merely “to ensure [the RNC] can obtain effective and complete emergency relief until this dispute is finally resolved on the merits,” and not because it believed that “Salesforce has breached any contractual or other duty to the RNC.” See ECF No. 6 ¶¶ 23, 49–50. In its amended complaint, the RNC also explained that the Select Committee had extended the subpoena return date (i.e., the production deadline) to March 16. Id. ¶ 47. The RNC's amended complaint asserts six claims against all defendants: that (1) the subpoena violates the First Amendment; (2) the subpoena violates the Fourth Amendment; (3) the subpoena does not advance a valid legislative purpose; (4) the Select Committee lacks the necessary congressional authorization to issue the subpoena; (5) the subpoena is excessively broad and unduly burdensome; and (6) the subpoena violates the Stored Communications Act. See ECF No. 6 ¶¶ 74–142; see also ECF No. 24 at 49; ECF No. 27 at 9 n.1. For relief, the RNC seeks a multitude of different declarations and injunctions, some in the alternative. See ECF No. 6 at 29–30. The RNC seeks to enjoin both Salesforce's production of materials and its deposition testimony in response to the subpoena, but the RNC does not identify any pertinent distinctions between the two for purposes of its claims. See id. ¶¶ 38, 74–142; id. at 29–30; ECF No. 24 at 120–21. At the same time the RNC filed its amended complaint, it also filed a motion for preliminary injunction. 1 See generally ECF No. 8. The next day, the Court held a status conference, during which House Defendants agreed to postpone the subpoena's return date to April 6. See Minute Order of March 16, 2022; Minute Entry of March 16, 2022. The Court also set a briefing schedule and ordered a hearing on the motion on April 1. See Minute Order of March 16, 2022. 1 The National Republican Senatorial Committee (“NRSC”) filed an amicus brief in support of the RNC's motion. See ECF No. 18. Salesforce responded to the motion, mainly to note that it is “essentially a third-party to this dispute.” See ECF No. 15 at 1–2. House Defendants opposed the motion, arguing both that their legislative immunity under the Speech or Debate Clause, see U.S. Const. art. I, § 6, cl. 1, barred the RNC's lawsuit and that the RNC's claims failed on the merits. See ECF No. 17 at 28–49. House Defendants also asked the Court to “ ‘advance the trial on the merits and consolidate it with the hearing.’ ” Id. at 13 (quoting Fed. R. Civ. P. 65(a)(2)). The RNC replied. ECF No. 21. On April 1, the Court held a hearing on the motion. See ECF No. 24 at 1. During that hearing, the RNC agreed to House Defendants’ proposal to proceed immediately to the “trial on the merits.” See id. at 5. For that reason, House Defendants then agreed not to enforce the subpoena, and Salesforce agreed not to comply with it, until April 20, 2022, when the Court anticipated resolving the merits. See id. at 70– 71, 118. *6 As the hearing progressed, previously unbriefed issues emerged affecting the Court's ability to proceed immediately to a final judgment. House Defendants retreated from what appeared to be their position in their briefing that the Speech or Debate Clause barred the entire lawsuit, arguing instead that the Clause barred only the claims against them. See ECF No. 23 at 2; ECF No. 24 at 83–84, 94–97. And the RNC contended that even if the Court dismissed House Defendants on that basis, it could still assert all the claims in the amended complaint against Salesforce as a standalone defendant. See ECF No. 24 at 125–28. Thus, the Court ordered the RNC and House Defendants—and “invited” Salesforce—to file supplemental briefs addressing questions potentially bearing on those issues. 2 See ECF No. 23. The parties have since filed those briefs. See ECF Nos. 25–29. House Defendants later agreed to postpone the return date of the subpoena to May 2 to allow the Court to fully consider those issues. 2 The Court asked the parties to address whether (1) the RNC had standing to assert its claims against Salesforce; (2) whether Rule 19 of the Federal Rules of Civil Procedure required dismissal of the entire lawsuit if the Speech or Debate Clause required dismissal of House Defendants; and (3) assuming the entire case should not be dismissed Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 6 for one reason or another, how the RNC could assert its claims (almost all of which depend on state action) against Salesforce, a private party that had no role in issuing the subpoena. See ECF No. 23 at 2–3. The RNC appears to fault the Court for raising these questions. See ECF No. 27 at 11–12, 21. But the Court had an independent duty to raise both standing and Rule 19. See, e.g., Schindler Elevator Corp. v. WMATA, 514 F. Supp. 3d 197, 202 (D.D.C. 2020); Eco Tour Adventures, Inc. v. Zinke, 249 F. Supp. 3d 360, 390 (D.D.C. 2017). As for the question about proceeding on the merits against only Salesforce, the Court sought to ensure that Salesforce—which to that point the parties had treated as almost a neutral third-party —had a “full opportunity to present [its] respective case[ ]” before the Court entered a final judgment, potentially against it alone. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (internal quotation marks omitted). III. Legal Standards The Court must dismiss an action—or any portion of it—if it lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1), (h)(3). The plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. See Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Moran v. U.S. Capitol Police Bd., 820 F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Def. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). When a defendant raises a jurisdictional immunity from suit as a bar to claims, the plaintiff must overcome that defense to avoid dismissal. See Jackson v. Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006). Further, a plaintiff has the burden of establishing “ ‘the irreducible constitutional minimum of standing,’ ” a jurisdictional requirement. G.Y.J.P. ex rel. M.R.P.S. v. Wolf, No. 20-cv-1511 (TNM), 2020 WL 7318009, at *2 (D.D.C. Dec. 11, 2020) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). When “deciding questions of jurisdiction under Rule 12(b)(1),” the Court “is not confined to the pleadings and may consider outside matters.” See Jackson, 448 F. Supp. 2d at 200. The Court must grant summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the evidence is such that a reasonable factfinder could return a verdict for the non-moving party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). A fact is “material” if it is capable of affecting the outcome of the litigation under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 3 3 The Court finds that “the record is sufficient for a determination on the merits under the summary judgment standard, or, where reliance on the record is unnecessary, under the motion to dismiss standard.” See March for Life v. Burwell, 128 F. Supp. 3d 116, 124 (D.D.C. 2015). Thus, with the consent of the parties, the Court consolidates the preliminary injunction motion with the trial on the merits on all claims under Federal Rule of Civil Procedure 65(a)(2). See id.; cf. Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 511 n.17, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975) (instructing district courts to give “the most expeditious treatment” to cases in which “one branch of Government is being asked to halt the functions of a coordinate branch”). IV. Analysis *7 The Court now proceeds into the thicket. To begin with, the RNC's claims against House Defendants must be dismissed. As the Framers intended, House Defendants are immune from suit under the Speech or Debate Clause. Further, the Court lacks subject matter jurisdiction to pass on the merits of the claims against them in the alternative, as they urge. Turning next to the RNC's claims against Salesforce, the Court finds that the RNC has standing to pursue them. But on the merits, those claims come up short—except one, which is moot—given the highly deferential review the Court must give Congress's investigative power and the nature of the materials at issue. Even so, the RNC identified important First Amendment interests implicated by the subpoena that would have presented a much different question for the Court had the materials at issue not been narrowed after discussions between the Select Committee and Salesforce. A. The Court Lacks Subject Matter Jurisdiction over the RNC's Claims Against House Defendants Because They Are Immune from Suit Under the Speech or Debate Clause Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 7 The Speech or Debate Clause provides that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. Its purpose is “to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process.” United States v. Brewster, 408 U.S. 501, 524, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). The Clause “serves the additional function of reinforcing the separation of powers so deliberately established by the Founders.” Eastland, 421 U.S. at 502, 95 S.Ct. 1813 (quoting United States v. Johnson, 383 U.S. 169, 178, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966)). When it applies, the Clause provides immunity from both criminal and civil suits. See id. at 502–03, 95 S.Ct. 1813. And, in our Circuit, it is a jurisdictional bar. See, e.g., Howard v. Off. of Chief Admin. Officer of U.S. House of Reps., 720 F.3d 939, 941 (D.C. Cir. 2013). It may be invoked as a defense to suit where, as here, congresspersons or their adjuncts are sued —that is, “made a defendant in a judicial proceeding.” See United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 130 (D.C. Cir. 1977); see also Eastland, 421 U.S. at 495, 512, 95 S.Ct. 1813; Judicial Watch, Inc. v. Schiff, 998 F.3d 989, 990, 993 (D.C. Cir. 2021). “The Supreme Court has consistently read the Speech or Debate Clause ‘broadly’ to achieve its purposes.” Rangel v. Boehner, 785 F.3d 19, 23 (D.C. Cir. 2015) (quoting Eastland, 421 U.S. at 501, 95 S.Ct. 1813). Thus, although the Clause speaks of “Speech or Debate,” it protects all “legislative acts.” Doe v. McMillan, 412 U.S. 306, 312, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). An act is “legislative” if it is “generally done in a session of the House by one of its members in relation to the business before it.” Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880). More specifically, the Clause covers matters that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). The “act ‘of authorizing an investigation pursuant to which ... materials [may be] gathered’ is an integral part of the legislative process.” Eastland, 421 U.S. at 505, 95 S.Ct. 1813 (citing McMillan, 412 U.S. at 313, 93 S.Ct. 2018). And the “[i]ssuance of subpoenas ... has long been held to be a legitimate use by Congress of its power to investigate,” which “plainly” meets the test laid out in Gravel. Id. at 504, 95 S.Ct. 1813. Applying these principles here, the Court has little trouble concluding that the Speech or Debate Clause immunizes House Defendants from this suit and that they must be dismissed for that reason. Eastland, in which the Supreme Court resolved a challenge to a subpoena issued by a Senate subcommittee, provides a useful analytical template. *8 First, the Eastland Court considered whether a Senate subcommittee investigation was “related to and in furtherance of a legitimate task of Congress.” See 421 U.S. at 505, 95 S.Ct. 1813. The Court examined the Senate resolution authorizing the subcommittee and found that it was enough to show that the investigation “concerned a subject on which ‘legislation could be had.’ ” Id. at 506, 95 S.Ct. 1813 (quoting McGrain v. Daugherty, 273 U.S. 135, 177, 47 S.Ct. 319, 71 L.Ed. 580 (1927)). Thus, the Court held that the subcommittee's investigation fell “within the sphere of legitimate legislative activity.” Id. (internal quotation marks omitted). Here, the D.C. Circuit has already held that the Select Committee's investigation has a “ ‘valid legislative purpose’ and its inquiry ‘concern[s] a subject on which legislation could be had,’ ” as laid out in its authorizing resolution. See Trump v. Thompson, 20 F.4th 10, 41–42 (D.C. Cir. 2021) (quoting Trump v. Mazars USA, LLP, ––– U.S. ––––, 140 S. Ct. 2019, 2031–32, 207 L.Ed.2d 951 (2020)). The parties agree that these determinations bind the Court. See ECF No. 17 at 12, 33; ECF No. 21 at 9; ECF No. 24 at 40, 42. Second, the Eastland Court then inquired into “the propriety of making [the subpoena target whose bank records were demanded] a subject of the investigation and subpoena.” See 421 U.S. at 506, 95 S.Ct. 1813. But the Court stressed that “the scope of [its] inquiry [was] narrow.” Id. And it reaffirmed that, in conducting this inquiry, “courts should not go beyond the narrow confines of determining that a committee's inquiry may fairly be deemed within its province.” Id. (quoting Tenney v. Brandhove, 341 U.S. 367, 378, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)). The House instructed the Select Committee to “investigate and report upon the facts, circumstances, and causes relating to” the January 6 attack, including “the influencing factors that fomented” it. H.R. Res. 503, § 3(1). The House also empowered the Select Committee to investigate “how technology ... may have factored into the motivation” for the attack, id. § 4(a)(1)(B), including by examining the roles of any relevant “public and private” entities, id. § 4(a)(1)(C). And it tasked the Select Committee with reporting to the Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 8 House its “findings, conclusions, and recommendations” for legislative remedial measures. Id. § 4(a)(3), (c). Now, according to the unchallenged assertions of the Select Committee: (1) its investigation and public reporting suggest that the RNC and the Trump campaign used Salesforce's platform and tools to send emails between November 3, 2020 and January 6, 2021 asserting that the 2020 presidential election was fraudulent or stolen; (2) those claims, in turn, motivated some who participated in the January 6 attack on the Capitol; and (3) Salesforce itself acknowledged that, because “there remain[ed] a risk of politically incited violence across the country,” it had taken “action to prevent [the RNC's] use of [its] services in any way that could lead to violence.” ECF No. 6-1 at 4–5. Through the subpoena, House Defendants seek, and Salesforce has agreed to provide, information—limited to a few months’ time—about whether and how successfully the RNC used Salesforce's platform to spread these claims about the 2020 presidential election. See id. at 5–6. Given all the above, the Select Committee's decision to subpoena the RNC's Salesforce-held information may fairly be deemed within its province and thus falls within the scope of the Clause. See Eastland, 421 U.S. at 506, 95 S.Ct. 1813; Rangel, 785 F.3d at 24. The RNC argues that the Speech or Debate Clause does not apply for several reasons, but none are persuasive. First, it argues that the subpoena serves no legitimate legislative purpose, and thus falls outside the Clause's protection, because the information sought is irrelevant to the Select Committee's investigation. Given the above and the narrow scope of the Court's review under the Clause, the Court cannot agree. In these circumstances, the “wisdom of congressional approach or methodology is not open to judicial veto.” Eastland, 421 U.S. at 509, 95 S.Ct. 1813 (citing McMillan, 412 U.S. at 313, 93 S.Ct. 2018). Courts routinely reject similar arguments against subpoenas issued by members of Congress that are shielded by the Clause. See, e.g., Judicial Watch, 998 F.3d at 992. *9 The RNC refines this argument a bit by asserting that the subpoena is impermissibly overbroad and that this overbreadth places it outside the immunity conferred by the Clause. The Court notes, as described above, that negotiations between House Defendants and Salesforce greatly narrowed the scope of the materials at issue. For example, House Defendants are not seeking, and Salesforce is not producing, any disaggregated information about any of the RNC's donors, volunteers, or email recipients, including any person's personally identifiable information. Moreover, even the RNC's own confidential information that is undeniably at issue is relatively narrow in scope. The RNC responds by suggesting that the Court should not credit the results of these negotiations. But courts regularly credit discussion that narrows disputes over congressional subpoenas. See, e.g., Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34, 37 (D.D.C. 2018). Even the Supreme Court, at least once, has required recipients of legislative subpoenas who object to their scope to work with Congress to narrow the dispute so that such issues can be “easily ... remedied” without judicial involvement. See McPhaul v. United States, 364 U.S. 372, 382, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960). Thus, the Court credits those negotiations, which significantly reduced the subpoena's potential overbreadth and made clear that the personally identifiable information of “millions” of RNC supporters is no longer at risk of disclosure. See ECF No. 21 at 11. Obviously, should House Defendants change course and demand, or Salesforce suggest it was preparing to produce, any materials beyond what they have represented are at issue, that would be a different story. Still, the RNC argues that the subpoena is overbroad because the Select Committee undisputedly seeks information “wholly unrelated” to the January 6 attack, such as “holiday greeting” campaigns that took place between November 3, 2020 and January 6, 2021. However, the Speech or Debate Clause prohibits the Court from parsing the Select Committee's demands so finely. The Court is unaware of any court that has ever done so when deciding whether the Clause applies. Most obviously, the Eastland Court did not do so. To the contrary, it held that a “cursory look at the facts” revealed the “legitimacy” of that subpoena, which sought “any and all” financial records of a political organization, without examining whether some subset of the financial records sought exceeded the subpoena's legitimate scope. See Eastland, 421 U.S. at 494, 506, 95 S.Ct. 1813. Moreover, in a similar situation, the Supreme Court in McMillan declined to wade into the particulars of a dispute over information included in the record of a Senate subcommittee's hearings and its committee report. In that case, the plaintiffs argued that congressional defendants could be held liable for their decisions to include that information in those places, claiming that the information was “unnecessary and irrelevant to any legislative purpose” served by the record and the report. See McMillan, 412 U.S. at 312, 93 S.Ct. 2018. The Court seemed to agree that the information was not “even Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 9 remotely useful” to “any legislative purpose,” but still it held that the Clause “pretermit[ted] the imposition of liability on any such theory” by preventing the judiciary from second- guessing such “legislative judgment[s].” See id. at 312–13, 93 S.Ct. 2018. So too here. See Eastland, 421 U.S. at 509, 95 S.Ct. 1813 (citing McMillan, 412 U.S. at 313, 93 S.Ct. 2018). That is the nature of the “absolute” immunity granted by the Clause when it applies. See Rangel, 785 F.3d at 24. Second, the RNC argues that the Speech or Debate Clause should not apply because the subpoena is merely an “open attempt by political foes to unearth a competing political party's internal deliberations and political and digital strategy,” a point the NRSC forcefully echoes. Given the obvious political dynamics involved, this is an understandable point. And to be sure, although the subpoena has been narrowed through negotiation, the Court recognizes the highly unusual nature of the Select Committee's demand for what is mostly the RNC's information and documents, even though they are in Salesforce's possession. The problem for the RNC is that this Court may not examine House Defendants’ motives when evaluating whether the Clause applies. Courts “are not the place for such controversies.” See Tenney, 341 U.S. at 378, 71 S.Ct. 783. Instead, “[w]hether an act is legislative” for purposes of the Clause “turns on the nature of the act, rather than on the motive or intent of the official performing it.” See Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). Thus, when acts are “legislative,” as the subpoena is here, the Clause “protects against inquiry ... into the motivation for those acts.” See Brewster, 408 U.S. at 525, 92 S.Ct. 2531. *10 Third, the RNC argues that the Court cannot decide whether the Clause applies until it addresses the merits of the RNC's “congressional authorization” claim. The RNC contends that the Court must first decide whether the Select Committee is duly constituted and lawfully permitted to issue subpoenas despite having only nine members, no “ranking member,” and no member recommended by Minority Leader McCarthy. Like the RNC's prior argument, this has intuitive appeal, but again, precedent forecloses it. An “act does not lose its legislative character” for Speech or Debate Clause purposes “simply because a plaintiff alleges that it violated the House Rules.” Rangel, 785 F.3d at 24. Instead, legislative immunity applies whether the disputed legislative action “was regular, according to the Rules of the House, or irregular and against their rules.” See Kilbourn, 103 U.S. at 203 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808)); accord Tenney, 341 U.S. at 373–74, 71 S.Ct. 783. Thus, House Defendants are immune from suit even assuming the subpoena was issued irregularly and against the House's rules governing the committee. 4 See, e.g., Judicial Watch, 998 F.3d at 992–93. 4 In arguing otherwise, the RNC relies on a line of cases for the proposition that “rules of Congress and its committees are judicially cognizable.” See Yellin v. United States, 374 U.S. 109, 114, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963). And this is true, at times. But in none of these cases was the immunity conferred by the Clause at issue. See, e.g., id.; Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826 (1949); Exxon Corp. v. FTC, 589 F.2d 582 (D.C. Cir. 1978). In sum, the subpoena falls “within the ‘legitimate legislative sphere.’ ” See Eastland, 421 U.S. at 503, 95 S.Ct. 1813. Thus, “the Speech or Debate Clause is an absolute bar” to the RNC's claims against House Defendants, and they must be dismissed because the Court lacks subject matter jurisdiction over the claims against them. See id. at 503, 512, 95 S.Ct. 1813; Judicial Watch, 998 F.3d at 993. * * * Because House Defendants must be dismissed based on the Court's lack of subject matter jurisdiction over the claims against them, the Court cannot reach the merits of those claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868). The only way the Court can consider the merits of this case is if the Court has subject matter jurisdiction over the RNC's claims against Salesforce. House Defendants argue otherwise, asserting that Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828 (D.C. Cir. 2006), permits the Court to “issue a merits-based alternative holding” even if it concludes that it lacks subject matter jurisdiction over the case. See ECF No. 30 at 2–3. Unsurprisingly, Lesesne does not stand for this proposition. There, the D.C. Circuit held merely that a district court did not erroneously reach the merits after finding the case moot because the district court was wrong to find the case moot and so “did, in fact, have jurisdiction” to reach the merits. See 447 F.3d at 833. It also recognized that, had the district court lacked subject matter jurisdiction on account of mootness, then it “would have been without jurisdiction to consider the merits.” See id. (quoting Info. Handling Servs., Inc. v. Defense Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 10 Automated Printing Servs., 338 F.3d 1024, 1031 (D.C. Cir. 2003)). Thus, Lesesne stands only for the point that a court with subject matter jurisdiction does not err in exercising it, even if the court incorrectly concludes that it lacks jurisdiction. But Lesesne is not a license for courts to find that they lack subject matter jurisdiction and then issue merits-based alternative holdings just in case they are wrong about the jurisdictional question. House Defendants’ reading of Lesesne runs headlong into Steel Co.’s well-known dictate that a court has “no authority” to reach the merits, even in the “alternative,” if it concludes that it lacks subject matter jurisdiction. See Jackson v. Off. of Mayor of District of Columbia, 911 F.3d 1167, 1171 (D.C. Cir. 2018); see also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). B. The Court Has Subject Matter Jurisdiction over the RNC's Claims Against Salesforce *11 To repeat, the RNC asserts the same claims against both House Defendants and Salesforce. Whether the Court may exercise subject matter jurisdiction over the claims against Salesforce turns on whether the RNC has standing to pursue them. 5 See Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169, 174 (D.C. Cir. 2012); Whitlock v. U.S. Dep't of Homeland Sec., No. 21-cv-807 (DLF), 2022 WL 424983, at *4 (D.D.C. Feb. 11, 2022). The parties have identified no case in which a court addressed whether a plaintiff had standing to pursue claims like these against a third-party recipient of a congressional subpoena as a standalone defendant after the congressional defendants were dismissed on Speech or Debate Clause grounds. In a few cases in which the issue might have come up, the court had no need to address it because the congressional defendants had intervened—that is, they were not “made defendants” involuntarily—rendering the Clause inapplicable. See, e.g., Am. Tel. & Tel. Co., 567 F.2d at 128– 30 & n.28; see also Mazars USA, 140 S. Ct. at 2028; Bean LLC, 291 F. Supp. 3d at 39; cf. Eastland, 421 U.S. at 517– 18 & n.4, 95 S.Ct. 1813 (Marshall, J., concurring in the judgment) (observing that a court would “not necessarily” need to dismiss a case in which the Clause requires dismissing the congressional defendants if the third-party recipient of the subpoena had been sued as well and remained in the case). For the reasons explained below, the Court finds that the RNC has standing to assert its claims against Salesforce. 5 As explained below, the Stored Communications Act claim is moot, meaning the Court lacks subject matter jurisdiction over it even if the RNC has standing to assert it against Salesforce. See, e.g., Ruseva v. Rosenberg, 490 F. Supp. 3d 320, 322 (D.D.C. 2020). But for simplicity's sake, the Court will address this point when discussing the “merits” of each claim, and it omits that claim from this standing analysis. The “irreducible constitutional minimum of standing” requires the RNC to show that it will imminently suffer an injury-in-fact, that the injury is fairly traceable to Salesforce, and that the injury is likely to be redressed by a favorable decision. See Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130. When considering these elements, the Court “must assume arguendo the merits” of the claims at issue, including that the plaintiff has a cause of action against the defendant to assert the claims. See Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007); City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003) (per curiam). First, the RNC has established as to each of its claims that it will imminently suffer an injury-in-fact stemming from Salesforce's compliance with the subpoena. An injury- in-fact is, fundamentally, a “cognizable interest” that the challenged action will impair. See Lujan, 504 U.S. at 562– 63, 112 S.Ct. 2130. Each of the RNC's claims arises out of such a “cognizable interest.” See, e.g., AFL-CIO v. FEC, 333 F.3d 168, 176–78 (D.C. Cir. 2003) (First Amendment); Wikimedia Found. v. NSA, 857 F.3d 193, 209–10 (4th Cir. 2017) (Fourth Amendment); Eastland, 421 U.S. at 501 n.14, 95 S.Ct. 1813 (valid legislative purpose); Yellin, 374 U.S. at 114, 83 S.Ct. 1828 (Rules of Congress and its Committees). And the threatened injuries to these interests are imminent. See ECF No. 6 ¶¶ 44–50; ECF No. 8-5 ¶¶ 10–12. Second, the RNC has shown that its cognizable injuries are “fairly traceable” to Salesforce's imminent disclosure of the materials at issue to the Select Committee. To “show that the alleged injury is fairly traceable to the challenged action,” the RNC “must make a reasonable showing that but for” Salesforce's imminent action “the alleged injury will not occur.” Am. Fed. of Gov't Emps., AFL-CIO v. United States, 104 F. Supp. 2d 58, 63 (D.D.C. 2000) (cleaned up). This element may be met even if a non-party is a “key player in the causal story.” See Orangeburg v. FERC, 862 F.3d 1071, 1080 (D.C. Cir. 2017). Here, if Salesforce produces the materials at issue, the RNC's injuries will occur. That is enough to make the RNC's injuries fairly traceable to Salesforce. Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 11 Granted, a plaintiff does not show fair traceability when another party's action will “independently cause[ ]” the alleged injuries. See Delta Constr. Co. v. EPA, 783 F.3d 1291, 1297 (D.C. Cir. 2015). Not so here. Salesforce possesses the materials the Select Committee demands, and the materials will not be disclosed without Salesforce's compliance with the subpoena. Thus, Salesforce's compliance is a necessary link in the fair-traceability chain. *12 In addition, that Salesforce's disclosure of the materials at issue to the Select Committee flows from a legal duty to comply with a subpoena—rather than a voluntary choice— does not mean that the RNC's threatened injuries are not fairly traceable to its compliance. See ECF No. 6 ¶ 41; ECF No. 6-1 at 4–10; ECF No. 24 at 117. For example, in Powell v. McCormack, a congressman sued members as well as employees of the House of Representatives over a resolution calling for his “exclusion” and sought relief against both the members and the employees. See 395 U.S. 486, 492–94, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). The Supreme Court held that the congressman could maintain his action against the House employees even though they were simply “acting pursuant to express orders of the House.” See id. at 501– 06, 89 S.Ct. 1944. Although the Court was not addressing standing in Powell, the D.C. Circuit has since considered its implications in the standing context and acknowledged that the “causal connection” between the employees’ actions and the plaintiff's injuries was “obvious.” See Common Cause v. Biden, 748 F.3d 1280, 1284 (D.C. Cir. 2014). Similarly, fair traceability is present here even though Salesforce's threatened disclosure of the RNC's materials flows from the Select Committee's “express orders” rather than Salesforce's own decision. See ACLU of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1091, 1093 (8th Cir. 2011); Isabel v. Reagan, 394 F. Supp. 3d 966, 972–73 (D. Ariz. 2019). Third, the RNC has shown redressability. “The redressability element of standing ‘is virtually always merely the reciprocal of causation.’ ” LTMC/Dragonfly, Inc. v. Metro. Wash. Airports Auth., 699 F. Supp. 2d 281, 292 (D.D.C. 2010) (quoting Viet. Veterans of Am. v. Shinseki, 599 F.3d 654, 658 (D.C. Cir. 2010)); see also Dynalantic Corp. v. Dep't of Def., 115 F.3d 1012, 1017 (D.C. Cir. 1997). A favorable ruling from the Court on the merits of any of the RNC's challenges to the subpoena would bar Salesforce from complying with it, either in whole or in part. See Powell, 395 U.S. at 549 n.86, 89 S.Ct. 1944. Thus, just as causation is satisfied, so is redressability. To be sure, redressability may be absent when “the court's power to redress an injury” is “independently impaired,” even if a defendant's challenged action causes the injury. See Viet. Veterans, 599 F.3d at 658 (citing Renal Phys. Ass'n v. HHS, 489 F.3d 1267, 1278 (D.C. Cir. 2007)). For instance, as with causation, redressability is absent when the “independent choice” of parties beyond the court's power would still cause the harm. See Renal Phys. Ass'n, 489 F.3d at 1278; see also LTMC/Dragonfly, 699 F. Supp. 2d at 292. This is not the case here. Again, Salesforce's compliance with the subpoena is necessary to cause the RNC's injuries, and Salesforce is not beyond the Court's power. Should the Court find for the RNC on the merits of its claims directed at the subpoena, remedies targeted at Salesforce would redress the RNC's injuries. 6 6 Additionally, a plaintiff cannot show redressability if the only redress the Court could grant would be unconstitutional. See, e.g., Johnson v. Comm'n on Pres. Debates, 869 F.3d 976, 981–82 (D.C. Cir. 2017). For example, in Johnson, the D.C. Circuit concluded that the plaintiffs had not shown redressability because the redress available would likely violate the First Amendment. See id. No such constitutional impediment to redress is present here. True, the Speech or Debate Clause bars an order directed at House Defendants, but they acknowledge that the Clause does not bar redress against Salesforce. See ECF No. 24 at 83, 85–86; ECF No. 28 at 7; cf. Rangel, 785 F.3d at 25 n.3 (“[T]he Speech or Debate Clause is technically the privilege of the Member and congressmen can therefore waive the immunity of their aides.” (cleaned up)). C. Summary Judgment Is Warranted Against the RNC on Its Claims Against Salesforce With House Defendants dismissed, and the RNC's standing to pursue its claims against Salesforce established, two other issues that could pose obstacles to the RNC pursuing its claims against Salesforce require mention before the Court turns to the merits of those claims. First, Rule 19 of the Federal Rules of Civil Procedure would require dismissal of the entire action if House Defendants were indispensable parties such that the action could not proceed against only Salesforce. See Fed. R. Civ. P. 19(a)–(b). Second, for the RNC to prevail on most of its claims against Salesforce —each of which challenges the subpoena issued by the Select Committee—it would need to establish that Salesforce qualifies as a “state actor” for purposes of those claims. Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 12 See, e.g., Daniels v. Union Pac. R.R. Co., 480 F. Supp. 2d 191, 196 (D.D.C. 2007). But neither of these issues is a jurisdictional hurdle to reaching the merits. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 90, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005) (Rule 19); Wright & Miller, 7 Fed. Prac. & Proc. Civ. § 1611, nn.18–26 & accompanying text (3d ed. Apr. 2022 update) (Rule 19); Johnson, 869 F.3d at 983–84 (state- action doctrine); id. at 987 (Pillard, J., concurring in part and concurring in the judgment) (state-action doctrine). Thus, to avoid having to decide those issues, and because the Court finds against the RNC on all its claims on other grounds, the Court assumes without deciding that House Defendants are not indispensable under Rule 19 and that Salesforce may be treated as a “state actor” in this context. 7 7 Even if a Rule 19 analysis were necessary, because the Court finds summary judgment warranted against the RNC, it is self-evident that House Defendants’ “absence” will not “as a practical matter impair or impede [their] ability to protect the[ir] interest” and will not “prejudice” them. Fed. R. Civ. P. 19(a)(1)(B)(i), (b)(1). In addition, Salesforce has argued that, if it were considered a “state actor” here because of its compliance with the subpoena, it would be entitled derivatively to House Defendants’ legislative immunity. See ECF No. 25 at 7–8. Even if that were so, especially given how the Supreme Court has characterized an analogous “derivative” immunity, the Court sees no reason why this defense would be a jurisdictional bar to considering the merits. Cf. Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016); In re U.S. Off. of Personnel Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 68–69 (D.C. Cir. 2019) (per curiam). *13 Before turning to those claims, the Court first lays out the principles governing Congress's investigative power and the Court's limited role in reviewing Congress's exercise of that power. Congress has no enumerated “investigations” power. See U.S. Const. art. I, § 8. But the Supreme Court has long recognized that each house of Congress has the implied “power ‘to secure needed information’ in order to legislate” and thus to issue subpoenas and employ other compulsory process to obtain public and private information alike. See Mazars USA, 140 S. Ct. at 2031 (quoting McGrain, 273 U.S. at 161, 47 S.Ct. 319). This power “is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Barenblatt v. United States, 360 U.S. 109, 111, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959). Thus, it “encompasses inquiries into,” among other things, “defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.” Mazars USA, 140 S. Ct. at 2031 (internal quotation marks omitted). That said, because this power is justified “solely as an adjunct to the legislative process,” there are inherent limits to it. See Mazars USA, 140 S. Ct. at 2031. First, the targets of “legislative subpoenas retain their constitutional rights throughout the course of an investigation.” See id. at 2032, 2035. Thus, a legislative investigation may be forced to yield when it threatens a “dissipation of precious constitutional freedoms.” 8 See Watkins v. United States, 354 U.S. 178, 204, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957). Second, there are several related limitations reflecting the principle that both a legislative investigation and a specific legislative- investigative act must have a “valid legislative purpose”— that is, each must be “related to, and in furtherance of, a legitimate task of the Congress,” such as pursuing a “subject on which legislation could be had.” See Mazars USA, 140 S. Ct. at 2031 (cleaned up); see also Quinn v. United States, 349 U.S. 155, 161, 75 S.Ct. 668, 99 L.Ed. 964 (1955) (observing that the “power to investigate” does not “extend to an area in which Congress is forbidden to legislate”). For instance, Congress cannot issue a subpoena “for the purpose of ‘law enforcement.’ ” See Mazars USA, 140 S. Ct. at 2032. Also, “Congress has no general power to inquire into private affairs and compel disclosures” without a valid legislative purpose to do so. See id. (cleaned up); Quinn, 349 U.S. at 161, 75 S.Ct. 668. In other words, Congress cannot “expose for the sake of exposure.” Mazars USA, 140 S. Ct. at 2032 (internal quotation marks omitted); Watkins, 354 U.S. at 187, 77 S.Ct. 1173. Thus, investigations conducted “solely” for any of these reasons are “indefensible.” See Mazars, 140 S. Ct. at 2032. 8 When the Speech or Debate Clause applies, however, it renders such rights nonjusticiable. See, e.g., Rangel, 785 F.3d at 24; Eastland, 421 U.S. at 509–10 & n.16, 95 S.Ct. 1813. Congressional committees may wield this investigatory power when the relevant body delegates it to them. See, e.g., McGrain, 273 U.S. at 168, 47 S.Ct. 319. But to “issue a valid subpoena,” a “committee ... must conform strictly to the resolution establishing its investigatory powers.” Exxon Corp., 589 F.2d at 592; see also Bean LLC, 291 F. Supp. 3d Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 13 at 42. Ordinarily, a committee's conformity to its authorizing resolution or governing rules is nonjusticiable. See, e.g., Metzenbaum v. Fed. Energy Reg. Comm'n, 675 F.2d 1282, 1287 (D.C. Cir. 1982) (per curiam). But a court may pass on this sort of challenge to a committee's actions when “rights of persons other than members of Congress are jeopardized by Congressional failure to follow its own procedures.” 9 See id. 9 Subject, once again, to the caveat that the Speech or Debate Clause renders nonjusticiable such a challenge when the Clause applies. See, e.g., Rangel, 785 F.3d at 24; Kilbourn, 103 U.S. at 203. *14 Although these limitations constrain Congress's investigative power, the Court's role in policing whether Congress has transgressed them is itself limited, owing in large part to the separation-of-powers concerns implicated when the judiciary is asked to decide the validity of a legislative-investigative act. See Sanders v. McClellan, 463 F.2d 894, 902 (D.C. Cir. 1972). The Court's role is circumscribed in several ways. First, the Court's review is “deferential” when assessing whether an investigative act has a valid legislative purpose, bearing in mind that the “legitimate legislative purpose bar is a low one” and that the legitimate “purpose need not be clearly articulated.” See Comm. on Ways & Means, U.S. House of Reps. v. U.S. Dep't of Treasury, No. 19-cv-1974 (TNM), ––– F.Supp.3d ––––, ––––, ––––, 2021 WL 5906031, at *5, *12 (D.D.C. Dec. 14, 2021) (citing McGrain, 273 U.S. at 177– 80, 47 S.Ct. 319). Indeed, the Court is “bound to presume that the action” has a “legitimate object” so long as “it is capable of being so construed.” See McGrain, 273 U.S. at 178–79, 47 S.Ct. 319 (internal quotation marks omitted). In other words, the legislative investigators need not “declare in advance what [they] meditate[ ] doing when the investigation [is] concluded.” See In re Chapman, 166 U.S. 661, 670, 17 S.Ct. 677, 41 L.Ed. 1154 (1897). Second, in assessing whether the legislative purpose is a valid one, the Court must account for Congress's “wide boundaries” in investigating. See Barsky v. United States, 167 F.2d 241, 245 (D.C. Cir. 1948). After all, the “very nature of the investigative function ... is that it takes the searchers up some ‘blind alleys’ and into nonproductive enterprises.” Eastland, 421 U.S. at 509, 95 S.Ct. 1813. Thus, “Congress is not limited to securing information precisely and directly bearing on some proposed measure” but also may seek information having “an indirect bearing on the subject.” United States v. Bryan, 72 F. Supp. 58, 61 (D.D.C. 1947), aff'd sub. nom. Barsky, 167 F.2d 241. And when considering the valid legislative purpose in the scope of a subpoena, the Court's review is limited to determining “whether the documents sought ... are ‘not plainly incompetent or irrelevant to any lawful purpose’ ” of the committee “ ‘in the discharge of [its] duties.’ ” Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17, 20–21 (D.D.C. 1994) (quoting McPhaul, 364 U.S. at 381, 81 S.Ct. 138); cf. Hutcheson v. United States, 369 U.S. 599, 618–19, 82 S.Ct. 1005, 8 L.Ed.2d 137 (1962) (plurality opinion) (“[I]t does not lie with this Court to say when a congressional committee should be deemed to have acquired sufficient information for its legislative purposes.”). Third, for the Court to find a subpoena invalid based on an improper purpose, the subpoena must be “solely” for a prohibited purpose, such as exposing for exposure's sake. See Mazars USA, 140 S. Ct. at 2032. Mixed purposes do not defeat an investigative act, provided one of those purposes is a valid legislative one. See, e.g., McGrain, 273 U.S. at 180, 47 S.Ct. 319; Sinclair v. United States, 279 U.S. 263, 295, 49 S.Ct. 268, 73 L.Ed. 692 (1929), overruled on other grounds by United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). And an otherwise valid legislative purpose is not nullified by an improper motive. See, e.g., Barenblatt, 360 U.S. at 132–33, 79 S.Ct. 1081. Thus, when attempting to “impeach” the purpose of a legislative inquiry as invalid, the challenger faces a “formidable bar.” See Comm. on Ways & Means, ––– F.Supp.3d at ––––, 2021 WL 5906031, at *5. Even “ ‘an impressive array of evidence’ ” suggesting an illegitimate purpose may not suffice. See id. at ––––, at *6 (quoting Watkins, 354 U.S. at 199–200 & n.32, 77 S.Ct. 1173). *15 Fourth, when a litigant whose rights have been “jeopardized” by a committee's failure to follow its own rules challenges that failure, the Court's determination of what the rules require is constrained. See Metzenbaum, 675 F.2d at 1287. The Court may intervene if doing so “requires no resolution of ambiguities.” See United States v. Durenberger, 48 F.3d 1239, 1244 (D.C. Cir. 1995). But a “sufficiently ambiguous House Rule is non-justiciable.” See United States v. Rostenkowski, 59 F.3d 1291, 1306 (D.C. Cir. 1995). In that case, judicial interpretation “runs the risk” of the Court telling the House what its own rules require, thereby “intruding into the sphere of influence reserved” to it under the Rulemaking Clause of Article I of the Constitution. See id. Further complicating such a challenge, “the Court must give great weight to the [House's] present construction of its own rules,” particularly when that construction was arrived at before the Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 14 “events in controversy.” See United States v. Smith, 286 U.S. 6, 33, 52 S.Ct. 475, 76 L.Ed. 954 (1932); cf. Barker v. Conroy, 921 F.3d 1118, 1130 (D.C. Cir. 2019) (giving the House's interpretation of its own rules controlling effect even though the interpretation was adopted after the plaintiff sued about the rule). With these principles in mind, the Court considers the RNC's challenges to the subpoena. The RNC asserts six claims: (1) the Select Committee lacks necessary congressional authorization to issue the subpoena; (2) the subpoena does not advance a valid legislative purpose; (3) the subpoena violates the First Amendment; (4) the subpoena violates the Fourth Amendment; (5) the subpoena is overbroad and unduly burdensome; and (6) the subpoena violates the Stored Communications Act. See ECF No. 6 ¶¶ 74–142; ECF No. 8-1 at 17–31. 1. The Select Committee Is Properly Authorized The RNC's broadest challenge is to the legitimacy of the Select Committee itself, which it attacks as an indirect way to attack the validity of the subpoena. See ECF No. 6 ¶¶ 116–24; ECF No. 8-1 at 28–30. The RNC argues that the Select Committee lacks the proper authorization to wield investigative power on behalf of the House on three grounds: the Select Committee lacks the required number of members; it contains none of the five Republican members recommended by Minority Leader McCarthy; and it lacks a “ranking minority member” with whom Chairman Thompson had to consult before issuing the subpoena. First, the RNC argues that the Select Committee lacks authorization because it has only nine members, when its authorizing resolution states that Speaker Pelosi “shall” appoint thirteen members. See H.R. Res. 503, § 2(a). To the RNC, “shall” is mandatory, meaning the Select Committee is improperly constituted with only nine members. It's not an unreasonable position. But for a few reasons, especially given the House's own reading of the authorizing resolution, the Court cannot agree. Starting with the resolution's text, as this Court observed in upholding former President Trump's right to name his own acting Director of the Consumer Financial Protection Bureau, “although ‘shall’ is usually understood as mandatory,” the word is “a semantic mess” and is sometimes used “to mean ‘should,’ ‘will,’ or even ‘may.’ ” English v. Trump, 279 F. Supp. 3d 307, 323 (D.D.C. 2018) (cleaned up). Thus, that the resolution states that Speaker Pelosi “shall” appoint thirteen members to the Select Committee is not conclusive as to whether thirteen members are required for it to lawfully operate. Especially given this mess, the Court must give “great weight” to the House's own reading of § 2(a) before this lawsuit was filed. See Smith, 286 U.S. at 33, 52 S.Ct. 475; Barker, 921 F.3d at 1130. And the House views the Select Committee to be duly constituted and empowered to act under its authorizing resolution, even though the Select Committee has only nine members. This understanding is reflected by the House's adoption of the Select Committee's recommendations to find witnesses in contempt of Congress for their refusals to comply with Select Committee subpoenas. 10 See 167 Cong. Rec. H5748, H5768–69 (Oct. 21, 2021) (Steve Bannon); 167 Cong. Rec. H7667, H7794, H7814–15 (Dec. 14, 2021) (Mark Meadows). If the Court reads § 2(a)’s “shall” as mandatory, it would be “interpret[ing] the Rule differently than ... the [House] itself” and “would effectively be making the Rules— a power that the Rulemaking Clause reserves to each House alone.” See Rostenkowski, 59 F.3d at 1306–07. 10 In addition, Speaker Pelosi—the person responsible for implementing § 2(a) and thus whose “contemporaneous exposition” is entitled to “[g]reat weight” as a general matter, see Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 418, 5 L.Ed. 257 (1821); Edwards’ Lessee v. Darby, 25 U.S. (12 Wheat.) 206, 210, 6 L.Ed. 603 (1827)— decided to appoint only one more member to the Select Committee after Minority Leader McCarthy withdrew his recommended appointees. *16 Second, the RNC contends that the Select Committee lacks authorization to issue the subpoena because it does not include the Republican members Minority Leader McCarthy recommended to Speaker Pelosi to serve on the Select Committee. This argument also is based on § 2(a) of the authorizing resolution, which states that Speaker Pelosi “shall appoint” five Select Committee members “after consultation with the minority leader.” Again, the Court cannot agree. To the extent this argument rehashes the parties’ dispute over the word “shall,” for the reasons already explained, the Court cannot find that the Select Committee is improperly constituted on this basis. And if it is a dispute over the authorizing resolution's use of the word “consultation,” for similar reasons, the Court cannot side with the RNC. To “consult” with Minority Leader McCarthy, all Speaker Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 15 Pelosi had to do was ask for his “advice or opinion.” See Consultation, Black's Law Dictionary (11th ed. 2019). There is no dispute that she did. That she did not accept all his recommendations, and that Minority Leader McCarthy then withdrew all his recommendations, does not mean that Speaker Pelosi failed to consult with him. And again, the House's implicit determination that the Select Committee is duly authorized without the Republican members Minority Leader McCarthy recommended all but precludes the Court from holding otherwise. See Rostenkowski, 59 F.3d at 1306– 07. Third, the RNC says that the Select Committee could not have lawfully issued the subpoena because, under § 5(c) (6)(A) of the authorizing resolution, Chairman Thompson had to consult with the “ranking minority member” before issuing it—and the RNC contends that the Select Committee does not have a “ranking minority member.” Section 5(c)(6) (A) of the resolution states that, after “consultation with the ranking minority member,” Chairman Thompson “may order the taking of depositions, including pursuant to subpoena, by a Member or counsel of the Select Committee.” House Defendants acknowledge that this rule governs the subpoena, but they argue that Representative Cheney qualifies as the Select Committee's “ranking minority member” for consultation purposes. See ECF No. 17 at 25; ECF No. 24 at 93–94. The RNC does not dispute that Chairman Thompson consulted with Representative Cheney before issuing the subpoena. See ECF No. 17 at 25. A “ranking member” is “[t]he most senior (though not necessarily the longest-serving) member of the minority party on a committee.” See “Ranking Member,” Glossary of Legislative Terms, congress.gov (last accessed Apr. 11, 2022). Representative Cheney is a Republican member of the House. See, e.g., ECF No. 6 ¶¶ 14, 72. She was appointed to the Select Committee before Representative Kinzinger, and she meets the requirements to be considered the “most senior ... member” of the Republican Party on the Select Committee. True, for whatever reason the Select Committee did not give her—or anyone else—the formal title “ranking member.” But to the extent there is any uncertainty about whether she fits the bill, on this record the Court must defer to the Select Committee's decision to treat Representative Cheney as the ranking minority member for consultation purposes. See Rostenkowski, 59 F.3d at 1306. 2. The Subpoena Has a Valid Legislative Purpose Next, the RNC contends that the subpoena is unenforceable because it does not advance a valid legislative purpose. See ECF No. 6 ¶¶ 103–15; ECF No. 8-1 at 26–28. This argument, like the previous one, has several distinct aspects. The RNC argues that House Defendants have failed to adequately identify the valid legislative purpose supporting the subpoena; that their “purported legislative purpose” is a pretext for engaging in “ad-hoc law enforcement,” “harass[ing]” a “political adversary,” and “expos[ing] for the sake of exposure”; and that the subpoena is overbroad and thus exceeds the bounds of any possible legitimate legislative purpose. These arguments echo those that the Court rejected when applying the Speech or Debate Clause to dismiss House Defendants. For similar reasons, even with the Clause removed from the equation, the Court must do so again. *17 First, the RNC contends that House Defendants have not adequately identified a valid legislative purpose in the records being subpoenaed, faulting them for not recommending any “draft legislation related to the topics provided” or explaining how these topics would “further any valid legislative end.” ECF No. 6 ¶¶ 108–09; see also ECF No. 8-1 at 27. Again, the Court's review here must be “deferential.” Comm. on Ways & Means, ––– F.Supp.3d at ––––, 2021 WL 5906031, at *12. To be sure, in any context, the “more detailed and substantial the evidence of Congress's legislative purpose” for issuing an investigative subpoena, “the better.” Cf. Mazars USA, 140 S. Ct. at 2035–36 (identifying “special considerations” when Congress subpoenas the President's personal information). Even so, the Select Committee did not have to “declare in advance” what legislation it may recommend based on the materials at issue to show that the subpoena has a “legitimate object.” See In re Chapman, 166 U.S. at 670, 17 S.Ct. 677; see also Eastland, 421 U.S. at 509, 95 S.Ct. 1813; McGrain, 273 U.S. at 172, 47 S.Ct. 319; Trump v. Thompson, No. 21-cv-2769 (TSC), ––– F.Supp.3d ––––, ––––, 2021 WL 5218398, at *12 (D.D.C. Nov. 9, 2021). After all, the Select Committee may investigate “what if any legislation [is] necessary or desirable” to avert a future January 6-style attack. See Sinclair, 279 U.S. at 294–95, 49 S.Ct. 268 (emphasis added). And “Congress's decision whether, and if so how, to legislate in a particular area will necessarily depend on what information it discovers in the course of an investigation” as “members educate themselves on the relevant facts and circumstances.” Trump v. Mazars Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 16 USA, LLP, 940 F.3d 710, 731 (D.C. Cir. 2019), vacated on other grounds by Mazars USA, 140 S. Ct. 2019. The subpoena's valid legislative purpose is apparent enough to sustain it against this challenge. See In re Chapman, 166 U.S. at 670, 17 S.Ct. 677. The House instructed the Select Committee to “investigate and report upon the facts, circumstances, and causes relating to” the January 6 attack, including “the influencing factors that fomented” it. H.R. Res. 503, § 3(1). And it empowered the Select Committee to investigate “how technology ... may have factored into the motivation” for the attack, id. § 4(a)(1)(B), including by examining the roles of any relevant “public and private” entities, id. § 4(a)(1)(C). The Select Committee is tasked with reporting to the House its “findings, conclusions, and recommendations” for legislative remedial measures. See H.R. Res. 503, § 4(a)(3), (c). Thus, it is “hardly disputable” that the Select Committee may investigate the causes of the January 6 attack, and its “broad knowledge of the causes” of that day will make it “better able to fulfill its responsibility” to make well-informed recommendations to the House. See Sanders, 463 F.2d at 900. According to the Select Committee, its investigation and public reporting suggest that claims that the 2020 presidential election was fraudulent or stolen motivated some who participated in the attack, and emails sent by the RNC and the Trump campaign using Salesforce's platform spread those claims. See ECF No. 6-1 at 4–5. Salesforce itself acknowledged that, because “there remain[ed] a risk of politically incited violence across the country,” it had taken “action to prevent [the RNC's] use of our services in any way that could lead to violence.” See id. at 5. Through the subpoena, House Defendants seek, and Salesforce has agreed to provide, information about whether and how successfully the RNC used Salesforce's platform to spread these claims about the 2020 presidential election. See id. at 5–6. Given all the above, the Court finds that the subpoena for the materials at issue has a valid legislative purpose. 11 11 Even if the Select Committee had to provide examples of specific legislation for which the RNC's subpoenaed information would be relevant —and again, it does not—examples are not hard to find. See, e.g., Trump, ––– F.Supp.3d at ––––, 2021 WL 5218398, at *12. One example of legislation that could be had for which this information would be relevant would be a bill amending the Electoral Count Act, 3 U.S.C. § 15, to move the date of Congress's electoral-college certification closer to election day. See 167 Cong. Rec. H5759 (Oct. 21, 2021); see also U.S. Const. amend. XII; Trump, 20 F.4th at 42. The subpoenaed information would be relevant to that valid legislative end because, as House Defendants argued, it might suggest that the RNC's email campaigns had a “cumulative effect” between election day and January 6 that led to the attack. See ECF No. 24 at 88–89. *18 Second, the RNC argues that the Select Committee's alleged legislative purpose is a pretext for impermissible law-enforcement, political-harassment, and exposing-for- exposure's-sake purposes. To support this claim, the RNC points out that the Select Committee's investigation is being led by two former federal prosecutors and that the Select Committee has “more than a dozen former federal prosecutors on staff.” See ECF No. 6 ¶ 54. It also identifies three tweets from Select Committee members: one from Chairman Thompson on the first anniversary of the January 6 attack reflecting that “[w]e have been working diligently to bring justice” to “the tragedy of Jan. 6”; one from Representative Schiff in November 2021 saying that “[w]e will expose those responsible for Jan 6” and “[n]o one is above the law”; and one from Representative Raskin in December 2021 observing that “[e]xec. privilege doesn't cover criminal misconduct, like insurrections or coups.” Id. ¶¶ 57–59, 114. The RNC also references three public statements from Select Committee members: one from Representative Kinzinger about how “[w]e'll be able to have out on the public record anything [the] Justice Department needs maybe in ... pursuit of [a crime]”; one from Chairman Thompson about how “we are pursuing evidence” leading to “former President Trump or anyone else”; and one from Representative Raskin about how neither attorney-client nor executive privilege “operate[s] to shield participants in a crime from an investigation into a crime.” Id. ¶¶ 56–57, 59. The RNC further points out “public reporting” that has “widely confirmed” that “the Select Committee's investigation aims to produce criminal referrals.” Id. ¶ 62. This evidence falls short of the RNC's goal in several ways. To begin with, these staffing decisions and statements are not nearly enough to overcome the “formidable bar” the RNC faces to “impeach” the Select Committee's otherwise valid legislative purpose. See Comm. on Ways & Means, ––– F.Supp.3d at ––––, 2021 WL 5906031, at *5. For example, in Watkins, the Supreme Court described an “impressive array of evidence” from several formal sources suggesting that the “sole purpose” of the inquiry at issue was to expose for exposure's sake. 354 U.S. at 199 & n.32, 77 S.Ct. 1173. Even Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 17 so, the Court found that the “solution” to the “problem” before it was “not to be found in testing the motives of committee members.” Id. at 200, 77 S.Ct. 1173. The RNC's evidence of an illegitimate purpose here is substantially less “impressive” than the evidence in Watkins. Thus, it does not come close to showing that the Select Committee's proffered legislative purpose is merely a pretext. In addition, even assuming this evidence shows that the subpoena is serving an additional, illegitimate, quasi-law- enforcement purpose—perhaps a reasonable conclusion to draw—precedent dictates that this purpose “takes nothing from the lawful object” the Select Committee is also pursuing. See McGrain, 273 U.S. at 180, 47 S.Ct. 319. Similarly, even if this evidence reflects an untoward motive of certain Select Committee members, that too is irrelevant given the Select Committee's valid legislative purpose. So long as “Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.” Barenblatt, 360 U.S. at 132, 79 S.Ct. 1081; see also Watkins, 354 U.S. at 200, 77 S.Ct. 1173. Third, the RNC argues that the subpoena is overbroad because it seeks information “unrelated to any potential legislation.” See ECF No. 6 ¶ 126; see also id. ¶¶ 106, 110– 11; ECF No. 8-1 at 28. This argument focuses on two general categories of information. The first category is any personally identifiable information of RNC donors, volunteers, and email recipients. See ECF No. 6 ¶¶ 1, 5, 7–8, 39, 81–84, 94, 110. But as discussed above, the Select Committee is not demanding, and Salesforce is not preparing to produce, any such information. The second category is what the RNC describes as confidential information about its “operations and activity wholly unrelated” to the January 6 attack that reflects its email-outreach strategy. ECF No. 21 at 12; see also ECF No. 6 ¶¶ 5, 7, 9, 32, 88, 110, 129. For example, the parties agree that the materials at issue include data about emails sent in connection with elections besides the 2020 presidential election and emails sent for the RNC to extend holiday greetings to its supporters. See ECF No. 24 at 44, 75. In assessing whether these records exceed the Select Committee's valid legislative purpose, the Court's role is limited to asking whether they “are ‘not plainly incompetent or irrelevant to any lawful purpose’ ” of the Select Committee “ ‘in the discharge of its duties.’ ” Packwood, 845 F. Supp. at 20–21 (brackets omitted) (quoting McPhaul, 364 U.S. at 381, 81 S.Ct. 138); see also Eastland, 421 U.S. at 509, 95 S.Ct. 1813 (recognizing that the “nature of the investigative function ... is that it takes the searchers up some ‘blind alleys’ ”). The Court cannot say that the Select Committee has exceeded the “wide boundaries” it must be afforded here. See Barsky, 167 F.2d at 245. *19 For starters, the Select Committee is hardly on an unconstrained “fishing expedition[ ]” into the RNC's records. See Sinclair, 279 U.S. at 294, 49 S.Ct. 268. It has requested information only relating to emails sent from November 3, 2020 to January 6, 2021. That two-month window is plainly relevant to its investigation into the causes of the January 6 attack. Granted, some of those emails will be “unrelated to the presidential election, post-election recount, or litigation efforts.” ECF No. 21 at 12. But some of those emails may have included claims that the presidential election was fraudulent or stolen. And though some may not, the Select Committee's “collection of facts may cover a wide field” and can include “matters that may have an indirect bearing on the subject” being investigated. See Bryan, 72 F. Supp. at 61. As House Defendants explain, this information will give the Select Committee the context to understand how much attention and interest was generated by emails that asserted the election was fraudulent or stolen. ECF No. 24 at 75. By providing this “context,” this information will “ ‘materially aid’ ” the Select Committee's valid legislative purpose. See Comm. on Ways & Means, ––– F.Supp.3d at ––––, 2021 WL 5906031, at *11 (brackets omitted) (quoting McGrain, 273 U.S. at 177, 47 S.Ct. 319). 3. The Subpoena Does Not Violate the First Amendment The RNC next argues that the subpoena violates its First Amendment associational rights by compelling the disclosure of the RNC's confidential, strategic information. 12 See ECF No. 6 ¶¶ 74–90; ECF No. 8 at 1; ECF No. 8-1 at 9, 17– 18. This argument has some force, especially given that the Select Committee is dominated by members of the Democratic Party, whose candidates compete with RNC- backed candidates in almost every federal election. But, as explained below, the Court ultimately concludes that the subpoena does not violate the First Amendment, in part because of the limited materials at issue. 12 The RNC also asserted that the subpoena violates the First Amendment because it compels disclosure of the personally identifiable information of its Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 18 donors, volunteers, and email recipients. See, e.g., ECF No. 6 ¶¶ 83–84; ECF No. 21 at 14. But again, the Select Committee is not demanding, and Salesforce is not preparing to produce, any such information. The RNC has the right to “organize itself” and “conduct its affairs” free from government interference as integral to the freedom of association guaranteed to it by the First Amendment. See Eu v. S.F. Cnty. Dem. Cent. Comm., 489 U.S. 214, 230, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). By extension, the RNC also has a First Amendment interest in keeping confidential its internal, strategic materials pertaining to how it organizes itself and conducts its affairs. See AFL- CIO, 333 F.3d at 176–78. And compelled disclosure of such materials can violate those First Amendment rights in some cases. See id. For example, in AFL-CIO, the D.C. Circuit held that a Federal Election Commission regulation that compelled “public disclosure” of political organizations’ “confidential internal materials” of a strategic nature “intrude[d]” on the organizations’ First Amendment associational rights because that disclosure would “directly frustrate the organizations’ ability to pursue their political goals effectively by revealing to their opponents ‘activities, strategies and tactics’ ” that the organizations had pursued and would “likely follow in the future.” See id. at 177. The RNC relies on AFL-CIO as the basis for its First Amendment claim arising out of the threatened disclosure of its confidential, strategic information about digital outreach to its donors, volunteers, and email recipients. See, e.g., ECF No. 6 ¶¶ 75–78; ECF No. 8-1 at 13, 18–19; ECF No. 21 at 13–14; ECF No. 24 at 57, 91, 130. But AFL- CIO is not on all fours with this case because that decision focused on the “extensive interference with political groups’ internal operations and with their effectiveness” flowing from compelled “public disclosure” of such information. See 333 F.3d at 176–78. And ordinarily, “release of information to the Congress does not constitute ‘public disclosure.’ ” See Exxon Corp., 589 F.2d at 589. The RNC suggests this is of no moment because, in Americans for Prosperity Foundation v. Bonta, the Supreme Court emphasized that “disclosure requirements” can infringe associational rights “even if there is no disclosure to the general public.” ––– U.S. ––––, 141 S. Ct. 2373, 2388, 210 L.Ed.2d 716 (2021) (cleaned up). Fair enough. But Bonta is not entirely on point, either, because the Court there considered a challenge to a California regulation requiring tax-exempt organizations to disclose to the state the names and addresses of certain donors—information, unlike that here, that could directly chill individual associational rights. See id. at 2380, 2387–88. *20 All that said, the Court is persuaded that the RNC has a cognizable First Amendment claim here. The materials at issue include “confidential internal materials” relating to how the RNC used Salesforce's platform to engage its donors, volunteers, and email recipients, as well as certain communications between the RNC and Salesforce, in which the RNC has a First Amendment interest. See AFL-CIO, 333 F.3d at 176–77. And disclosure of these materials by Salesforce to the Select Committee should be considered more like disclosure to the public than merely disclosure to the government. See id. The Court reaches this conclusion for two reasons. First, House Defendants have not represented that they will keep this information confidential. Cf. Bean LLC, 291 F. Supp. 3d at 47 (finding that the likelihood of public disclosure was “quite low” where the committee's rules “require[d] subpoenaed materials ... to be kept confidential” and there was insufficient “evidence to suggest” that the committee would not “follow its own rules”). To be sure, the Court “must presume” that the Select Committee “will exercise [its] powers responsibly and with due regard for the [RNC's] rights” in handling the information, see Exxon Corp., 589 F.2d at 589—a point about which House Defendants repeatedly remind the Court, see ECF No. 24 at 90, 98, 134. But House Defendants’ failure to reassure the Court on that point looms large. And as the RNC points out, according to at least one newspaper article, the Select Committee— or at least persons associated with it—have shared with the media “information regarding private communications” the Select Committee obtained. See ECF No. 8-1 at 35. Second, perhaps more importantly, given the unusual circumstances here, the RNC's information need not be leaked to the media to impact its First Amendment interests. By providing the information to the Select Committee, dominated by members of the Democratic Party, Salesforce would be directly handing the RNC's information to those in a position to use it to “frustrate the [RNC's] ability to pursue [its] political goals.” AFL-CIO, 333 F.3d at 177. This Court “would have to be that ‘blind’ Court” not to recognize these political realities. See United States v. Rumely, 345 U.S. 41, 44, 73 S.Ct. 543, 97 L.Ed. 770 (1953). The next question is what test applies to determine whether the subpoena survives the RNC's First Amendment challenge. The RNC argues that the Court should review this claim Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 19 under “exacting scrutiny” as refined in Bonta, according to which “there must be a substantial relation between the disclosure requirement and a sufficiently important governmental interest,” with the required disclosure being “narrowly tailored to the government's asserted interest.” See 141 S. Ct. at 2383 (cleaned up). House Defendants assert that the governing standard is a more general “balancing” of “the competing private and public interests at stake in the particular circumstances shown” without a narrow-tailoring requirement. See Barenblatt, 360 U.S. at 126, 79 S.Ct. 1081. As a practical matter, the Court does not see much if any difference between the approaches the parties suggest. Setting aside the narrow-tailoring issue, the Barenblatt Court recognized that NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), applied the “the same principles” it applied in “balancing” the interests at stake. See 360 U.S. at 127, 79 S.Ct. 1081. And the Bonta plurality recognized that the “exacting scrutiny” standard, referred to as such in Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), had its origins in NAACP v. Alabama as well. See Bonta, 141 S. Ct. at 2382–83. These tests, then, appear to be different ways of saying much the same thing. See, e.g., AFL-CIO, 333 F.3d at 176 (“When facing a constitutional challenge to a disclosure requirement, courts ... balance the burdens imposed on individuals and associations against the significance of the government interest in disclosure ....” (citing Buckley, 424 U.S. at 64–68, 96 S.Ct. 612)). *21 Less clear is whether the narrow-tailoring requirement applies when a legislative subpoena is being challenged on First Amendment grounds, and the parties have identified no case in which a court addressed this question. See ECF No. 17 at 37; ECF No. 21 at 15. The Court assumes that the narrow-tailoring requirement applies here, “[w]here exacting scrutiny applies.” See Bonta, 141 S. Ct. at 2384. Even so, applying that requirement is not straightforward because the “contours of the narrow-tailoring inquiry ... must be calibrated to fit the distinct issues raised” in the context of each case. See Grutter v. Bollinger, 539 U.S. 306, 333–34, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). And the context here is not a law or regulation of general applicability, but a legislative investigation in which Congress generally “has broad discretion in determining ... the scope and extent of the inquiry,” see Bryan, 72 F. Supp. at 61; see also Eastland, 421 U.S. at 509, 95 S.Ct. 1813, and a subpoena for which the responsive documents have been narrowed by negotiation. As it turns out, the standards governing legislative investigations fairly track the components of narrow tailoring as they might apply to such investigations, providing the contours for what a “fit that is ... reasonable” looks like in this unusual context. See Bonta, 141 S. Ct. at 2384 (quoting McCutcheon v. FEC, 572 U.S. 185, 218, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014) (plurality opinion)). To start, the records demanded must be “reasonably relevant” to the investigation. See McPhaul, 364 U.S. at 381–82, 81 S.Ct. 138 (cleaned up); cf. Bonta, 141 S. Ct. at 2386 (finding a lack of tailoring where the information at issue was basically irrelevant to the purpose for disclosure). Related to that, the investigative demand should not be “substantially” overbroad, meaning that a “substantial portion” of the information sought “does not serve to advance” the investigative “goals.” See Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (footnote omitted); see also Bonta, 141 S. Ct. at 2386 (finding a “dramatic mismatch” that rendered the regulation insufficiently tailored). Also, the subpoena must not cause an “unnecessary and unreasonable dissipation of precious constitutional freedoms.” See Watkins, 354 U.S. at 204, 77 S.Ct. 1173. An “unnecessary” burden is imposed when, for instance, there are “multiple alternative mechanisms” for obtaining the information without imposing the burden. See Bonta, 141 S. Ct. at 2385, 2387. Finally, while assessing the adequacy of the tailoring, the Court must be “loath to second-guess the Government's judgment” about the relevance of the information demanded and the necessity of the burdens imposed. See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 478, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). That is, even in the face of a First Amendment challenge, the Court may not “lightly interfer[e]” with an investigative act, see Sanders, 463 F.2d at 902–03, and “every reasonable indulgence of legality must be accorded” it, see Watkins, 354 U.S. at 204, 77 S.Ct. 1173. To sum up, then, the Court applies exacting scrutiny to the RNC's First Amendment challenge to the subpoena, and it considers as part of that analysis whether the scope of the Select Committee's demand is narrowly tailored to its interest. See Bonta, 141 S. Ct. at 2383. For the subpoena to withstand exacting scrutiny, the “strength” of the Select Committee's interest “must reflect the seriousness of the actual burden” imposed by the subpoena on the RNC's First Amendment rights. See id. at 2383, 2387. And for the subpoena to pass the narrow-tailoring requirement, the materials demanded must be “reasonably relevant” to the Select Committee's inquiry and not substantially overbroad, the burdens imposed must not be “unnecessary,” and the Court must remain reticent to Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 20 “second-guess” the Select Committee's judgment about these points. As explained below, the Court finds that the subpoena, as narrowed by negotiations that clarified the materials at issue, does not violate the First Amendment. *22 First, the Select Committee has a strong—that is, a “sufficiently important”—interest in the records demanded. See Bonta, 141 S. Ct. at 2383. The D.C. Circuit has already recognized Congress's “uniquely weighty” and “vital interest in studying the January 6th attack,” which is being undertaken by the Select Committee to help propose “remedial legislation” that will safeguard Congress's “constitutional and legislative operations.” See Trump, 20 F.4th at 17, 19, 35. Indeed, it is hard to imagine a more important interest for Congress than to preserve its own ability to carry out specific duties assigned to it under the Constitution. See id. at 35; Barsky, 167 F.2d at 246. Part of the study the Select Committee is tasked with doing includes investigating the “causes” and “influencing factors” of the attack. H.R. Res. 503, § 4(a)(1). The subpoena is part of this “uniquely weighty” and “vital” study. To repeat: according to the Select Committee, its investigation and public reporting suggest that claims that the 2020 presidential election was fraudulent or stolen motivated some who participated in the attack, and emails sent by the RNC and the Trump campaign using Salesforce's platform spread those claims. See ECF No. 8-3 at 4–5. Through the subpoena, the Select Committee seeks information that will help it understand whether and how much those email campaigns attracted attention and thus were a factor in the January 6 attack. See, e.g., ECF No. 24 at 75. And the Select Committee's knowledge of the causes of the attack will make it “better able to fulfill its responsibility” of providing well-informed recommendations to the House for remedial measures to avert a future attack. See Sanders, 463 F.2d at 900. In sum, the materials demanded have particular “value” to the Select Committee “in the exercise of legislative duty,” and its interest in this information is strong. See Barenblatt v. United States, 240 F.2d 875, 884 (D.C. Cir. 1957), vacated and remanded, 354 U.S. 930, 77 S.Ct. 1394, 1 L.Ed.2d 1533 (1957) (per curiam), adhered to by 252 F.2d 129 (D.C. Cir. 1958) (en banc), aff'd, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959). Second, the strength of the Select Committee's interest here reflects the seriousness of the “actual burden” the subpoena imposes on the RNC's First Amendment rights. See Bonta, 141 S. Ct. at 2383. The Court considers “in the concrete” both the materials at issue and the RNC's alleged burden from their disclosure. See Barenblatt, 360 U.S. at 112, 79 S.Ct. 1081. As the RNC has put it, the confidential internal materials at issue will shed light on what goes into making its email campaigns successful—such as how the RNC targets its email campaigns; the “cadence” or timing strategy of its email transmissions; and information showing the efficacy of those strategies, consisting mostly of performance-related data (for example, how many recipients opened a given email), and potentially including communications with Salesforce in which such information is referenced or discussed. See, e.g., ECF No. 6 ¶¶ 7, 32, 88, 110; ECF No. 8-1 at 14; ECF No. 21 at 12–13, 16; ECF No. 24 at 61–67. The RNC fears that disclosure of this information will “frustrate” its “ability to pursue political goals such as winning elections and advocating for its policies.” ECF No. 6 ¶ 88; see also ECF No. 8-1 at 13. Like many of its others, these are not unreasonable arguments. But upon closer inspection, less is at stake than the RNC represents. For example, at least some of the email “cadence” information is already publicly available or readily deducible from publicly available sources. As House Defendants point out, several online databases have collected the emails sent by the RNC during the relevant time, and these databases include the date and time the emails were sent. See ECF No. 17 at 17 n.12. So the subpoena's demand for this information does not seek the disclosure of “confidential” internal materials and does not add to the RNC's burden. 13 See AFL-CIO, 333 F.3d at 177. And while the RNC raises the specter that its employees’ communications with Salesforce could, in theory, include discussions about data related to the performance of its email campaigns, see ECF No. 8-1 at 22, the RNC has provided no basis for the Court to find that such communications exist despite presumably having its own copies of them from @gop.com email addresses. See generally ECF No. 8-2; ECF No. 21-1. 13 Similarly, the RNC has suggested a First Amendment harm from disclosure because someone could use the information to create a “mosaic” of RNC supporters’ “political activities and beliefs.” See, e.g., ECF No. 21 at 14. But again, the personally identifiable information that would provide almost the entire basis for this revealing “mosaic” is not at risk of disclosure. *23 For the information the parties acknowledge exists but is currently confidential—such as the performance data of the Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 21 RNC's email campaigns during this period—the strength of the Select Committee's interest in this information outweighs any actual burdens imposed by its disclosure to the Select Committee. See Bonta, 141 S. Ct. at 2383, 2386–87. The RNC's alleged burden is the subpoena's interference with the RNC's “ability to pursue political goals such as winning elections and advocating for its policies.” See ECF No. 6 ¶ 88; see also AFL-CIO, 333 F.3d at 177 (recognizing that compelled public disclosure of strategic information can violate the First Amendment when the disclosure causes “extensive interference” with political organizations’ “effectiveness”). But because this alleged burden does not outweigh the Select Committee's interest, the “balance ... must be struck in favor of the latter.” See Barenblatt, 360 U.S. at 134, 79 S.Ct. 1081. The Court strikes this balance mainly because disclosure of the material at issue is not nearly as burdensome for the RNC as disclosure of the “detailed descriptions of training programs, member mobilization campaigns, polling data, and state-by-state strategies” was for the AFL-CIO and Democratic National Committee in AFL-CIO. See 333 F.3d at 176–77. Public disclosure of that kind of information would obviously “seriously interfere[ ]” with a political organization's “effectiveness.” See id. at 178. The Court cannot reach the same conclusion about the information here, at least on the record before it. Nothing suggests that the Select Committee is demanding, or that Salesforce is preparing to produce, internal RNC memoranda laying out its digital strategy. The RNC's representations on this front appear to assume that if all the material it feared was at stake were disclosed—including, for example, granular personal information about its donors, such as their giving history— the information “could” be used to create a “mosaic” of its email-outreach strategy that its political rivals could then use to better compete with the RNC in the digital arena. See ECF No. 8-1 at 21; ECF No. 6 ¶ 88; ECF No. 8-2 ¶¶ 18, 24– 25. No doubt. But—again, to return to one example—the RNC's donors’ personal information and giving histories are not being demanded or produced. True, some of the internal names of the RNC's email campaigns could reveal some of its strategic decisions, such as the general audiences to which the RNC targets certain communications. And obviously, information that shows which email campaigns attracted more attention, and which attracted less, has some strategic value. But on the record here, whatever competitive harm may come to the RNC from disclosure of the actual material at issue is too “logically attenuated” and “speculative” to defeat the Select Committee's weighty interest. See United States v. Salvation Army S. Territory, No. 13-mc-341 (ABJ/JMF), 2013 WL 2632639, at *3 (D.D.C. June 12, 2013); see also Buckley, 424 U.S. at 71–72 & n.88, 96 S.Ct. 612; cf. AFL- CIO, 333 F.3d at 177 (rejecting a per se rule that any “action that places a political association at a disadvantage relative to its opponents violates the First Amendment”). Third, the Select Committee's demand is narrowly tailored to its interest. As the Court has already explained, the Select Committee seeks reasonably relevant information from a narrow window during which the RNC sent emails promoting claims that the presidential election was fraudulent or stolen. See ECF No. 8-3 at 4–6. And the material being demanded is not overbroad because even information about those email campaigns the RNC argues are irrelevant will provide helpful “context” that will “ ‘materially aid’ ” the Select Committee. See Comm. on Ways & Means, ––– F.Supp.3d at ––––, 2021 WL 5906031, at *11 (brackets omitted) (quoting McGrain, 273 U.S. at 177, 47 S.Ct. 319); see also ECF No. 24 at 43–44, 75; ECF No. 8-1 at 14, 21–22. As for the necessity of the burden, the RNC has not argued that the subpoena is insufficiently tailored because of viable “alternative mechanisms” for the Select Committee to get the information it seeks. See Bonta, 141 S. Ct. at 2385, 2387; see also ECF No. 8-1 at 17, 19–22; ECF No. 21 at 13, 16. Thus, the Court will not “second-guess” the Select Committee's “judgment” as to its chosen means. See Fox, 492 U.S. at 478, 109 S.Ct. 3028. For these reasons, the Select Committee's demand is “in proportion to the interest served”—that is, it is narrowly tailored. See Bonta, 141 S. Ct. at 2384 (quoting McCutcheon, 572 U.S. at 218, 134 S.Ct. 1434). 14 14 The RNC also argues that it should have a right to review documents Salesforce is preparing to produce to the Select Committee as responsive to the third, fourth, and fifth categories outlined in the subpoena before they are produced to the Select Committee because the RNC cannot be sure that its First Amendment-protected material is not included in these documents. See ECF No. 8-1 at 22. As to categories three and four, the RNC has provided no specific basis for the Court to find that such First Amendment-protected material may exist in responsive documents, nor has it explained why the Court should strike the balance any differently than it already has here as to any such material. See id.; ECF No. 21-1 ¶¶ 13–16; ECF No. 24 at 19. Moreover, Salesforce's representations about the documents it is withholding as privileged Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 22 and those it is preparing to produce underscore the lack of any reasonable basis to conclude that such protected material is at issue. See ECF No. 24 at 119–20. As for the fifth category, the RNC also has provided no specific basis for the Court to find that such First Amendment-protected communications may exist despite presumably having its own copies of them from @gop.com email addresses. See generally ECF No. 8-2; ECF No. 21-1. And again, the Court has no reason to suspect it would strike the balance any differently as to any such First Amendment-protected material present. 4. The Subpoena Does Not Violate the Fourth Amendment *24 The RNC also argues that the subpoena violates the Fourth Amendment's prohibition on unreasonable searches and seizures because its breadth “exceeds any lawfully authorized purpose” of the Select Committee. See ECF No. 6 ¶¶ 91–102; ECF No. 8-1 at 22–26. The parties dispute whether the RNC has a Fourth Amendment interest in the Salesforce- held information that the subpoena demands. Compare ECF No. 17 at 39, with ECF No. 21 at 18–22. Even assuming the RNC retains such an interest, the subpoena does not violate the RNC's Fourth Amendment rights. The leading Supreme Court case on Fourth Amendment challenges to legislative subpoenas (and one of the “few federal cases” on point) is McPhaul, 364 U.S. 372, 81 S.Ct. 138. See 1 Bus. & Com. Litig. in Fed. Cts. § 6:15 (Robert L. Haig, Ed., 5th ed. 2021 update). In McPhaul, a House committee issued to the executive secretary of the Civil Rights Congress a subpoena that demanded production of “all records, correspondence[,] and memoranda pertaining to the organization of, the affiliation with other organizations[,] and all monies received or expended by the Civil Rights Congress.” See 364 U.S. at 374, 81 S.Ct. 138. The subpoena's recipient argued that it was “so broad as to constitute an unreasonable search and seizure in violation of the Fourth Amendment.” Id. at 382, 81 S.Ct. 138. The Supreme Court recognized that the subpoena was “broad,” but it reasoned that the committee's inquiry was a “relatively broad one” and thus the “permissible scope of materials that could reasonably be sought was necessarily equally broad.” See id. And it ultimately held that the subpoena was not so broad “such as to violate the Fourth Amendment.” Id. at 383, 81 S.Ct. 138. So too here. As discussed above, the subpoena demands documents within the permissible scope of materials that the Select Committee may seek in its investigation. Also as discussed above, the information at issue that could shed some light on the RNC's political strategy is no more sensitive than the McPhaul subpoena's demands for information about the Civil Rights Congress's “organization” and affiliates. Moreover, in this case, unlike in McPhaul, the subpoena is time-limited to a few months of records. Thus, because the subpoena is “not more sweeping” than the one “sustained against challenge[ ]” in McPhaul, the Court “cannot say that the breadth of the subpoena [is] such as to violate the Fourth Amendment.” 15 See McPhaul, 364 U.S. at 383, 81 S.Ct. 138. 15 The RNC also argues that the Select Committee's failure to put in place “safeguards” such as a “taint team or analogous filter” for its protected information renders the subpoena unreasonable under the Fourth Amendment. See ECF No. 8-1 at 24–26. For this, it relies on Packwood, in which Senator Robert Packwood raised a Fourth Amendment challenge to the Senate Ethics Committee's subpoena for his “personal diaries.” See 845 F. Supp. at 21–22. The court, aware of the “peculiarly sensitive nature of personal diaries,” factored into its Fourth Amendment reasonableness analysis the “protocol” the committee planned to follow in examining these diaries, consisting of “a focused, temporally limited review of a fraction of the diaries of most recent origin with many passages masked” that would take place “in the presence of Senator Packwood's counsel,” after which the diaries would be “returned immediately to Senator Packwood.” Id. at 22. No such similarly sensitive personal—and potentially irrelevant— information is at issue here. Thus, the court's determination that the presence of such protocols in Packwood helped support the reasonableness of the search there does not mean they are required here. Of course, “whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case.” See Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 23 5. The Subpoena Is Not Overbroad and Unduly Burdensome *25 In its complaint, the RNC asserted a standalone claim that the subpoena is “excessively broad and unduly burdensome.” See ECF No. 6 ¶¶ 125–33. This claim raises the same issues that the Court has already addressed. See id. Confirming its redundancy, the RNC did not advance this claim in its preliminary injunction motion despite devoting sections of that motion to each of its five other claims. See ECF No. 8 at 1–3; No. 8-1 at 17–31. Thus, this claim fails for all the reasons already explained above. 6. The RNC's Stored Communications Act Claim Is Moot Finally, the RNC brings a claim under the Stored Communications Act, 18 U.S.C. § 2701 et seq., because the subpoena “appears to seek the actual content of communications” covered by the Act. See ECF No. 6 ¶¶ 134–42. But a “federal court does not have subject matter jurisdiction over claims that are moot.” Amin v. Nyack Sch. of Adult & Distance Educ., 710 F. Supp. 2d 80, 82 (D.D.C. 2010). And a “claim for relief that has already been realized is moot.” Id. That is the case here. As the RNC noted in its complaint, Salesforce objected to the subpoena “to the extent it [sought] the disclosure of the contents of electronic communications maintained on behalf of the RNC in violation of the Stored Communications Act.” See ECF No. 6 ¶¶ 44, 137. But after “conversations” with Salesforce, the Select Committee confirmed that it was not seeking communications content covered by the Act. See ECF No. 15-1 at 3 & n.1; see also ECF No. 17 at 49. House Defendants reaffirmed to the Court that they were “not seeking any materials that would be covered” by the Act. See ECF No. 24 at 100. And Salesforce has since informed the Court that it is not preparing to produce any material covered by the Act. See ECF No. 25 at 2, 4. In other words, the RNC has already realized its claim for relief to prevent Salesforce from producing matter covered by the Stored Communications Act to the Select Committee. Thus, this claim is moot. V. Administrative Injunction Before concluding, the Court recognizes that the subpoena's return date is currently Monday, May 2, 2022. Thus, the RNC has little time to move for an injunction pending appeal. See Fed. R. Civ. P. 62(d), (g); Fed. R. App. P. 8(a)(2). And all the RNC's claims could become moot before it can do so. That is so because, once Salesforce discloses the materials at issue to the Select Committee, “the separation of powers, including the Speech or Debate Clause, bars this [C]ourt from ordering” the Select Committee to return or destroy the subpoenaed documents. See Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080, 1086 (D.C. Cir. 2017). Under the All Writs Act, the Court “may issue all writs necessary or appropriate in aid” of its jurisdiction and “agreeable to the usages and principles of law.” See 28 U.S.C. § 1651(a). The All Wits Act is a “residual source of authority” by which the Court may “issue writs ... not otherwise covered by statute” when “the need arises.” Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985); see also Adams v. United States ex rel. McCann, 317 U.S. 269, 272, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The authority conferred by the Act includes issuing injunctive relief. See, e.g., Trump v. Comm. on Ways & Means, 415 F. Supp. 3d 38, 44, 50 (D.D.C. 2019); ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351, 1359 n.19 (5th Cir. 1978). One circumstance when the “need arises” to issue such relief is when it is necessary to “preserve the availability of meaningful judicial review.” See Astrazeneca Pharms. LP v. Burwell, 197 F. Supp. 3d 53, 56 (D.D.C. 2016); see also TRAC v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984). Thus, injunctive relief under the All Writs Act “may be appropriate when a claim is not yet ripe for judicial review but may both ripen and become moot almost instantaneously, thereby depriving the court of jurisdiction to decide the claim.” Comm. on Ways & Means, 415 F. Supp. 3d at 44. *26 Here, the RNC's ability to seek an injunction pending appeal could ripen and then very quickly become moot. Thus, to preserve the availability of meaningful judicial review, the Court will enter an “administrative injunction” to ensure the RNC has time to seek an injunction pending appeal. See Trump v. Thompson, No. 21-5254, 2021 WL 5239098, at *1 (D.C. Cir. Nov. 11, 2021) (per curiam). The administrative injunction will dissolve automatically on May 5, 2022 if the RNC has not moved for an injunction pending appeal by then. If the RNC does so move by then, the administrative injunction will dissolve automatically upon the resolution of that motion. Republican National Committee v. Pelosi, --- F.Supp.3d ---- (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 24 VI. Conclusion For all these reasons, the Court will dismiss all the claims against House Defendants, dismiss as moot the Stored Communications Act claim against Salesforce, enter judgment against the RNC on the rest of its claims against Salesforce, and enter an administrative injunction to give the RNC time to seek an injunction pending appeal. A separate order will issue. All Citations --- F.Supp.3d ----, 2022 WL 1294509 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. EXHIBIT B Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 5819787 Only the Westlaw citation is currently available. United States District Court, M.D. Tennessee, Columbia Division. Randall MILLS, Plaintiff, v. Weakley E. BARNARD, et al., Defendants. No. 1:14–cv–00150 | Entered 09/30/2016 MEMORANDUM WILLIAM J. HAYNES, JR., Senior United States District Judge *1 Plaintiff, Randall Mills, filed this action under 42 U.S.C. §§ 1981, 1983, and 1985 and their jurisdictional counterparts 28 U.S.C. §§ 1331 and 1343(a) against the Defendants: Weakley Barnard, Sharon Jenkins, and Beth Rhoton in their individual and official capacities; Mark Gwyn in his official capacity; Marshall County; and the City of Lewisburg. This action arises from Plaintiff's wrongful convictions in January 2000 that were set aside in November 2013 for a new trial by the Tennessee Court of Criminal Appeals on the basis of new DNA evidence. Plaintiff contends, in sum: (1) that Defendants subjected him to malicious prosecution and wrongful conviction and conspired to hide the truth in violation of the Fourth, Thirteenth, and Fourteenth Amendments; (2) that Defendants Barnard, Jenkins, and Rhoton conspired to deprive Plaintiff of his rights under the First, Fourth, and Fourteenth Amendments, including his right to be free from unreasonable arrest and seizure, wrongful imprisonment, malicious prosecution, and access to courts and deprived him of equal protection of the laws under the Fourteenth Amendment and §§ 1983 and 1985; and (3) that Defendants Marshall County and the City of Lewisburg are liable because Barnard, as their final policymaker, authorized the unlawful conduct to prosecute Plaintiff even after exculpatory evidence was fully revealed. Plaintiff also asserts a Tennessee state law claim for false imprisonment against Defendants Barnard and Jenkins. Plaintiff seeks monetary damages as well as declaratory and injunctive relief. Before the Court are the following motions: Defendants Jenkins's and Gwyn's motion to dismiss (Docket Entry No. 6); Defendant Barnard's motion to dismiss (Docket Entry No. 13); Defendant Marshall County's motion to dismiss (Docket Entry No. 16); and Defendants Rhoton's and the City of Lewisburg's motion to dismiss (Docket Entry No. 18). In their motion, Defendants Jenkins and Gwyn assert, in essence: (1) that Plaintiff's claims for money damages against Defendants Jenkins and Gwyn in their official capacities are barred by the Eleventh Amendment and because they are not “persons” under 42 U.S.C. § 1983; (2) that Plaintiff's allegations on his malicious prosecution and “wrongful conviction” claims fail to establish a lack of probable cause to prosecute and fail to establish that Defendant Jenkins participated in the decision to prosecute; (3) that Plaintiff does not allege the race-based discrimination required for a Thirteenth Amendment claim; (4)that Plaintiff fails to plead his §§ 1983 and 1985 conspiracy claims with requisite specificity and fails to allege racial animus for his § 1983 conspiracy claim; (5) that Plaintiff fails to allege that similarly situated persons were treated differently; (6) that the statute of limitations bars Plaintiff's claims for false arrest, false imprisonment, and assault; (7) that Plaintiff's allegations fail to establish that Defendants Jenkins and Gwyn impaired Plaintiff's ability to file his claims; (8) that declaratory judgment would not resolve any issues in this case; and (9) that Plaintiff cannot demonstrate immediate irreparable harm necessary for his injunctive relief claim. *2 In his motion, Defendant Barnard asserts: (1) that Plaintiff's claims for money damages against him in his individual capacity are barred by absolute prosecutorial immunity; (2) that Plaintiff's claims for money damages against Defendant Barnard in his official capacity are barred by the Eleventh Amendment and because he is not a “person” under 42 U.S.C. § 1983; and (3) that there is no basis for seeking declaratory or injunctive relief. In its motion, Defendant Marshall County asserts: (1) that Plaintiff improperly named Marshall County as a Defendant based on the erroneous premise that Marshall County employed the individual Defendants in this action; and (2) that Plaintiff's allegations do not establish a constitutional deprivation and thus, Marshall County cannot be liable. In their motion, Defendants Rhoton and the City of Lewisburg assert: (1) that Plaintiff fails to allege the race-based discrimination required for his Thirteenth Amendment claim; Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2 (2) that Plaintiff's claims for false arrest, seizure, unlawful detention, and false imprisonment are barred by the one year statute of limitations; (3) that Plaintiff fails to plead his §§ 1983 and 1985 conspiracy claims with specificity; (4) that Plaintiff fails to allege that he was deprived access to the courts by these Defendants; (5) that Plaintiff's allegations on his malicious prosecution claim fail to challenge the probable cause to prosecute and identify Defendant Rhoton as a participant in the decision to prosecute; (6) that Defendant Rhoton is entitled to qualified immunity; (7) that Plaintiff's allegations fail to establish that the City of Lewisburg is responsible for the actions of Defendant Barnard; (8) that Plaintiff fails to allege a constitutional deprivation and thus, the City of Lewisburg cannot be liable; and (9) that Plaintiff fails to allege that any City of Lewisburg policy, practice, procedure, or custom was the driving force behind the alleged constitutional violations. In his consolidated response, Plaintiff argues, in sum: (1) that none of his claims is barred by the applicable statutes of limitation; (2) that Defendants Barnard, Jenkins, Rhoton, and Gwyn are properly named in their official capacities due to Plaintiff's requests for declaratory and injunctive relief and that Plaintiff has sufficiently alleged the criteria for declaratory and injunctive relief; (3) that Defendant Jenkins influenced the decision to prosecute and helped to establish probable cause with her “false” DNA report and testimony; (4) that Plaintiff sufficiently alleges the elements of his malicious prosecution claim against Defendant Barnard based on Barnard's “coerc[ing] false and fabricated testimony and withh[olding] a great deal of exculpatory evidence”; (5) that Plaintiff's allegations establish a valid claim for discrimination as a “class of one” under the Equal Protection Clause of the Fourteenth Amendment and § 1983; (6) that Plaintiff's allegations state viable claims for conspiracy under §§ 1983 and 1985(3) as a “class of one” based on each Defendant's specific illegal conduct in falsely asserting Plaintiff's guilt; (7) that Plaintiff sufficiently alleges that the Defendants deprived Plaintiff of his ability to use the court system to assert his rights; (8) that based on his allegations, Defendants Jenkins, Gwyn, Rhoton, the City of Lewisburg, and Marshall County are not entitled to qualified immunity; (9) that based on his allegations, Defendant Barnard is not entitled to absolute prosecutorial immunity; and (10) that his allegations establish that the City of Lewisburg and Marshall County are properly named defendants that “permit[ted] and encourage[d] Barnard and those reporting to him [to] engage in the course of conduct that led to the deprivation of Plaintiff's rights.” In his consolidated response, Plaintiff concedes dismissal of his discrimination claim under the Thirteenth Amendment and 42 U.S.C. § 1981, as Plaintiff does not allege race-based discrimination. *3 For the reasons set forth below, the Court concludes that Defendants’ motions to dismiss should be granted. The Court concludes that Plaintiff's Fourth Amendment false arrest/false imprisonment claim is barred by the applicable one-year statute of limitations because these claims began to accrue in 1999. Plaintiff's official capacity claims for money damages against Defendants Jenkins, Gwyn, and Barnard are barred by the Eleventh Amendment because these Defendants were state officials. Because all of Defendant Barnard's alleged acts were closely related to his role as an advocate for the State, Defendant Barnard is entitled to absolute prosecutorial immunity for all of the alleged misconduct that provides the bases for Plaintiff's claims against Barnard. Plaintiff's Fourth Amendment malicious prosecution claims should be dismissed because the victim's oral and signed statements and the grand jury indictments supplied probable cause to prosecute Plaintiff. Based upon the state appellate court findings, Plaintiff's Brady claim fails because the new DNA evidence was based on sperm material and additional DNA material that Defendant Jenkins did not possess or test. Plaintiff's equal protection claim should be dismissed because he fails to allege that he was treated differently from persons similarly situated in all material respects. Plaintiff's §§ 1983 and 1985(3) conspiracy claims should be dismissed because Plaintiff has not established an underlying constitutional injury and Plaintiff fails to allege with specificity any plausible facts of an agreement to engage in unlawful action. Plaintiff's access-to-courts claim should be dismissed because Plaintiff does not allege any of the elements necessary for a backward-looking denial of access- to-court claim. Moreover, where, as here, Plaintiff has viable state law remedies, the Fourteenth Amendment due process claims fail to state a claim. Plaintiff's municipal liability claims against Defendants Marshall County and the City of Lewisburg should be dismissed because Defendant Barnard, the lead prosecutor, was a state official. Likewise, given his state remedies, Plaintiff's requests for declaratory and injunctive relief should be denied. A. Analysis of the Complaint 1. Background Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 3 On the evening of March 15, 1999, Plaintiff's twelve-year- old neighbor CM 1 snuck out of her mother's house while her mother was away. (Docket Entry No. 1, Complaint, at ¶ 12). CM's sister, Jennifer, and Jennifer's boyfriend, Robert Hodge, noticed CM's absence and drove around the neighborhood to look for her. Id. at ¶ 13. Jennifer and Hodge found CM disoriented on the front doorstep when they came home. Id. CM initially told Jennifer that she had been in the back yard, but when Jennifer informed CM that she had looked in the back yard, CM told Jennifer that Plaintiff gave her marijuana and sexually fondled her. Id. at ¶ 14. Jennifer and Hodge then “barged into” Plaintiff's living room where Plaintiff was watching television with his two teenage sons and accused Plaintiff of molesting and sharing drugs with CM. Id. at ¶ 23. Plaintiff turned himself over to the Lewisburg police department. Id. at ¶ 26. 1 Parties refer to the accuser in Plaintiff's underlying criminal case as “CM” and her sister as “Jennifer” because they were minors at the time of trial. On March 18, 1999, Plaintiff was indicted for providing drugs to a minor and engaging in digital and oral sexual contact with a minor. Id. at ¶¶ 26–27. In August 1999 2 , a DNA report from the Tennessee Bureau of Investigation (“TBI”) found that there was semen in CM's underwear. Id. at ¶ 35. Lewisburg police investigator Beth Rhoton approached CM with this information and obtained a signed statement from CM that Plaintiff also engaged in penile intercourse with her. Id. at ¶¶ 6, 19, 36–37. CM stated that she did not report the penile intercourse earlier because she was afraid of getting into trouble. Id. at ¶ 37. On August 18, 1999, Plaintiff was indicted for an additional charge of rape of a child through penile penetration. Id. at ¶ 38. On August 18, 1999, the State court ordered the collection of blood and saliva samples from Plaintiff. See Mills v. Bell., 1:05–cv–00083 (M.D. Tenn.) (Docket Entry No. 33–1 at 39, August 18, 1999 State court order granting motion to collect blood and saliva samples of Randall Mills). 2 Because Plaintiff's allegations in his complaint are ambiguous on the important issue of the role of the DNA test in the filing of the second indictment and whether the report used by Rhoton for this inference was Jenkins's DNA report, the Court deems it necessary to take judicial notice of its records on the actual timing of the DNA report. Courts can take judicial notice of its records. J.P. Silverton Indus. L.P. v. Sohm, 243 F.App'x 82, 87 (6th Cir. 2007). On January 25, 2000, a jury found Plaintiff guilty of rape of a child, aggravated sexual battery, and casual exchange. (Docket Entry No. 1 at ¶¶ 54–55). Plaintiff was sentenced to serve twenty years in Riverbend Maximum Security Prison. Id. at ¶ 55. In 2003, Plaintiff unsuccessfully appealed his convictions in state court. Id. at ¶¶ 58–59. Plaintiff then sent a habeas corpus petition to the Federal Public Defender for the Middle District of Tennessee. Id. at ¶ 60. The Federal Public Defender's office, in conjunction with the Innocence Project, sent the preserved DNA evidence from Plaintiff's trial to SERI, a private DNA laboratory. Id. SERI analysts found semen from two different male contributors in CM's underpants and concluded that Plaintiff was not the contributor of either semen stain. Id. at ¶ 61. *4 On April 20, 2011, Plaintiff filed a petition for writ of error coram nobis in state court, and Plaintiff's conviction for rape of a child through penile penetration was dismissed on the basis of the new DNA evidence. Id. at ¶¶ 1, 65, 68. The State court approved a release agreement between Plaintiff and Defendant-prosecutor Weakley Barnard that allowed Plaintiff a reduced sentence, amounting to time served for the drug and non-penile rape convictions, in exchange for Plaintiff's release of claims. Id. at ¶¶ 1, 69, 72. On April 26, 2011, Plaintiff was released and registered as a sexual offender because of his remaining conviction for aggravated sexual battery. Id. at ¶¶ 1, 72,73. On November 19, 2013, the Tennessee Court of Criminal Appeals granted Plaintiff a new trial for all remaining claims, ruling that SERI's new DNA evidence called into question not just the penile penetration claim, but all of the charged offenses. Id. at ¶ 1, 81; Mills v. State, No. M2011–00620– CCA–R3–PC, 2013 WL 6069276, at **1, 25 (Tenn. Crim. App. Nov. 19, 2013). After an extensive review of the record, the Tennessee appellate court made the following findings 3 : During the evidentiary hearings, the trial court evaluated the veracity of SERI's new DNA results and compared them with Jenkins's DNA results from the Petitioner's trial. The court also heard testimony from Agent Minor, the technical manager for the TBI's DNA division. Harmor testified that SERI's results showed that the Petitioner was excluded from the male DNA from unit 1–1, the sample from the waistband of the victim's underwear, and was excluded from the male DNA on unit 1–2, the sample from the crotch of the victim's underwear. He Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 4 noted that he was able to identify more genetic material on the underwear than Jenkins. He also noted that Jenkins only drew “conclusions about the epithelial or non-sperm fraction of the crotch of the pair of panties and not the sperm fraction.” Harmon stated that he would have included the conclusions regarding the sperm fraction “to give a more complete result of the analysis.” Regarding the one marker that Jenkins asserted could have been contributed by the Petitioner, Harmon stated, “I would prefer to have looked at the electronic data and then analyzed it myself, with spreading the scale out, so that I could see what the peaks themselves looked like, to make sure they weren't artifacts.” Finally, he opined that Jenkins had mistakenly identified the Petitioner's known sample as a 13, 14 rather than a 13, 13 at the D8S1179 locus and asserted that he had two results showing that the Petitioner was a 13, 13 at that locus. At the evidentiary hearing, Jenkins testified that during the Petitioner's trial she concluded that at the locus of TH01, in the non-sperm fraction, she found alleles 5, 9, which were both consistent with the Petitioner's known sample at that locus. She further concluded at trial that an unrelated individual having the same DNA profile from the African-American population was 1 in 270 and in the Caucasian population was 1 in 290. She confirmed that her current testimony was the same as at the Petitioner's trial, namely that she was unable to rule the Petitioner out at the TH01 locus. Jenkins stated that when she lowered the baseline to between 50 and 150 RFU. she found no sperm fraction on the crotch area or the waistband area of the underwear at the TH01 locus. Although she acknowledged that SERI found an allele number 8 on the sperm fraction of the waistband in item 1–1 and the sperm fraction of the crotch of the panties in item 1–4, she stated that she was unable to find an 8 there. She explained that the difference could be because of the “technology, the sensitivity of their instruments” or because they may have been able to find something different because they had a different cutting or because of contamination. She said that after dropping the baseline, she still could not exclude the Petitioner at the locus TH01. Jenkins acknowledged that SERI found in the area D135317 alleles 12, 14 in item 1–1 that were male. She stated that SERI used these alleles to exclude the Petitioner because his known markers at that location were 8, 12. In addition, she noted that SERI found a 12, 14 in the sperm fraction for item 1–2 as male, which SERI used to exclude the Petitioner because his known markers at that location are 8, 12. In area D165539, SERI found alleles 9, 11 in item 1–2, which SERI used to exclude the Petitioner because his known markers at this location were 10, 13. Jenkins denied mistyping the Petitioner as a 13, 14 at the D8S1179 locus. She acknowledged that her testing produced very little DNA despite the fact that she had identified sperm and semen on the victim's underwear and that SERI's testing produced substantially more DNA in the non-sperm and sperm fractions in units 1–1 and 1–4. She also acknowledged that when she tested the underwear in 1999, she identified a lot of alleles that excluded the Petitioner, but she did not call them because she deemed them inconclusive. Jenkins said that after reviewing SERI's reports and data and after conducting additional analysis of her data, she stated that there was nothing that would change the testimony she gave at the Petitioner's trial. *5 Agent Minor also testified at the evidentiary hearings. He stated that based on his review of SERI's report, there was nothing in SERI's findings with which he disagreed. However, he said that he had not reviewed SERI's raw data to ensure that it supported SERI's conclusions. He noted that he had some problems with the wording of SERI's conclusions in its reports and that contamination of the evidence could explain why SERI's findings were different from TBI's findings. Agent Minor stated that he, like SERI, identified the Petitioner's known sample as a 13, 13 at the D8S1179 locus, even though Jenkins identified the Petitioner as a 13, 14 at that locus. After considering the evidence from the coram nobis hearing and the evidence presented at trial, the court granted the Petitioner a new trial on count 2. First, the Petitioner argues that SERI's exculpatory DNA evidence undermines the victim's testimony as to all of the charged counts, not just the charge of rape of a child- penile penetration. He claims that this court on direct and post-conviction appeal held that Jenkins's “incriminating DNA evidence bolstered and corroborated [the victim's] entire testimony” and that “the new exculpatory DNA evidence eviscerates [the victim's] entire testimony.” He asserts that “the new exculpatory DNA evidence casts substantial doubt on all of [the victim's] trial testimony— not just her penile penetration testimony” and “[h]ad the jury known of the exculpatory DNA evidence, [it] may have acquitted Mills” of the remaining counts. We believe the new DNA evidence casts at least some doubt on the accuracy of Jenkins's results and calls into question not only whether the Petitioner committed the offense of rape of a child—penile penetration but also whether the Petitioner committed any of the charged Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 5 offenses. On direct appeal, this court recognized that the victim's testimony “constituted the bulk of the evidence against the defendant at trial” and that Jenkins's testimony that semen and sperm were found on the victim's underwear corroborated the victim's testimony. Interestingly, Jenkins[’s] testimony at trial was that she found alleles 5, 9 at the locus TH01 that were consistent with the Petitioner and that the probability in an unrelated individual having the same DNA profile from the African/ American population was 1 in 270 and in the Caucasian population was 1 in 290. However, the alleles that Jenkins stated were consistent with the Petitioner were found in the non-sperm fraction of the sample, rather than the sperm fraction of the sample. Moreover, Harmor stated that SERI was able to identify more genetic material on the underwear than Jenkins and that SERI's results showed that the Petitioner was excluded from the male DNA from unit 1–1, the sample from the waistband of the victim's underwear, and was excluded from the male DNA on unit 1–2, the sample from the crotch of the victim's underwear. We agree with the Petitioner that the new DNA evidence undermines the victim's credibility not just as to the child rape—penile penetration charge but also as to all the charges for which the Petitioner was convicted. Consequently, we hold that a reasonable basis exists for concluding that had the new DNA evidence been presented at trial, the result of the proceedings on all of the charges might have been different. Mills v. State, 2013 WL 6069276, at **23–25 (emphasis added). The Tennessee appellate court's decision led to Plaintiff's deregistration as a sex offender and overturned the lower court's approval of the release of claims. (Docket Entry No. 1 at ¶¶ 1, 81). On March 4, 2014, Plaintiff filed a corrected motion to dismiss the indictment based on State's misconduct, and Defendant Barnard filed a nolle prosequi motion. Id. at ¶¶ 83–84. On April 4, 2014, the Tennessee Circuit Court entered a nolle prosequi order regarding the State's case against Plaintiff. Id. at ¶ 85. Plaintiff alleges that a “basic background check ... still indicates that he was convicted of rape of a child, aggravated sexual battery, and casual exchange ....” Id. at ¶ 86. 3 Because the Tennessee appellate court opinion is cited in Plaintiff's complaint and attached to the motions to dismiss of Defendant Jenkins (Docket Entry No. 6) and Defendant Barnard (Docket Entry No. 13), the Court can consider this material on a motion to dismiss and such consideration does not convert the pending motions to dismiss into motions for summary judgment. Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980). *6 In addition to the DNA evidence, Plaintiff alleges that CM later told her sister Jennifer that she lied about the accusations against Plaintiff. Id. at ¶ 15. Plaintiff also alleges that CM “significantly changed her account of the events every time it has been given,” and made inconsistent statements regarding whether she entered Plaintiff's bedroom willingly, whether Plaintiff gave her Valium, and whether Plaintiff had penile intercourse with her. Id. at ¶¶ 15–16, 18–19. According to CM, the drug use and sexual contact occurred “a few feet away from a room occupied by Mills's two teenage sons.” Id. at ¶ 21. CM testified at trial that she was a virgin prior to her alleged sexual encounter with Plaintiff. Id. at ¶ 39. 2. Allegations Against Defendant Barnard Plaintiff alleges that Defendant Weakley Barnard, the Marshall County Assistant District Attorney who investigated and prosecuted Plaintiff, withheld evidence from Plaintiff's trial attorney, including the “actually exculpatory” DNA results that showed the semen on CM's underwear was not Plaintiff's, but two different men's. Id. at ¶¶ 3, 46, 49, 56. Plaintiff also alleges that Barnard did not investigate at least two other adult males, including Jennifer's adult boyfriend Robert Hodge, and a registered sexual offender living near CM's house. Id at ¶¶ 42, 45. Barnard allegedly knew that Hodge and Jennifer, who was at the time a minor, were in a sexual relationship, but elicited testimony at trial to present their relationship as nonsexual. Id. at ¶¶ 42–43. Hodge was later convicted of crimes related to sexual acts with a minor. Id. at ¶ 44. Plaintiff alleges that, during Plaintiff's 2003 state court appeal, Barnard elicited “false, logically impossible, and legally inadmissible testimony” from Plaintiff's defense attorneys that Plaintiff admitted guilt for all, but the penile intercourse charge. Id. at ¶ 58. Plaintiff also alleges that Barnard undermined Jennifer's testimony that CM admitted to lying about what happened on the date of the alleged incident. Id. at ¶ 59. During Plaintiff's coram nobis action, Plaintiff alleges that Barnard “overzealously maintained that some unidentifiable men had masturbated and then handled the stained portions of CM's underwear while it was being preserved in a state evidence facility or being transferred via controlled protocol to SERI.” Id. at ¶ 65. Barnard Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 6 further proffered Plaintiff's defense attorneys’ allegedly false testimony to support Plaintiff's convictions on the non-penile rape and drug offenses. Id. at ¶ 66. Citing CM's 2013 affidavit, Plaintiff alleges that Barnard threatened CM with legal consequences unless she testified as to Plaintiff's guilt. Id. at ¶¶ 15, 67, 79. Plaintiff alleges that Barnard was the final policymaker responsible for the actions of his subordinate employees in the Marshall County District Attorney's Office and those who investigated the underlying incident. Id. at ¶ 3. Plaintiff further alleges that Barnard “acted in an administrative capacity with respect to certain matters alleged” in his complaint. Id. at ¶ 3. 3. Allegations Against Defendants Jenkins and Gwyn Defendant Sharon Jenkins, the DNA analyst assigned to Plaintiff's case, performed DNA analysis of CM's underwear and testified at Plaintiff's trial. Id. at ¶¶ 4,46–47. According to Jenkins, there was semen present in two distinct stains in CM's underwear, and CM was the major DNA contributor while Plaintiff was the minor DNA contributor. Id. at ¶ 46. Jenkins testified that there was a 1–in–290 chance that a Caucasian other than Plaintiff was the source of the semen. Id. Jenkins also testified that semen present in CM's underwear, not consistent with Plaintiff's DNA profile, contained inconclusive data. Id. Plaintiff alleges that Jenkins's report was “inaccurate and incomplete” because SERI's later analysis revealed that the DNA evidence used by Jenkins was “actually exculpatory,” showing the presence of semen from two different men and that Jenkins's faulty testimony contributed to Plaintiff's wrongful convictions. Id. at ¶¶ 47, 54, 61–63. *7 Plaintiff alleges that SERI analysts used the same techniques as Jenkins and determined that in CM's underwear there was semen from two distinct male contributors and Plaintiff was not one of the contributors. Id. at ¶ 61. Plaintiff alleges that the SERI records reflect that Jenkins mislabeled a portion of Plaintiff's DNA, although Jenkins asserts that she did not make a mistake in her initial DNA analysis and report. Id. at ¶¶ 62–63. According to Plaintiff, if a “true report” had been provided to the defense, Plaintiff would have proven that CM lied about being a virgin, Plaintiff raping her, and Plaintiff giving her marijuana. Id. at ¶ 47. Plaintiff alleges that Jenkins “mistakenly or intentionally mischaracterized the DNA evidence in CM's underpants ... to support and maintain the guilty verdict.” Id. at ¶ 65. Plaintiff alleges that Defendant Mark Gwyn, who was the Assistant Director of the Forensic Services Division at the time relevant to the complaint, was the final policymaker responsible for the actions of Jenkins and other subordinates. Id. at ¶¶ 5, 48, 64. Plaintiff alleges that Jenkins was trained and followed procedures set forth by Gwyn. Id. at ¶¶ 48, 64. 4. Allegations Against Defendant Rhoton Plaintiff alleges that Defendant Beth Rhoton, an officer with the Lewisburg Police Department, and other Lewisburg investigative officers did not take any physical evidence from Plaintiff's home “despite allegations that a child had been molested on” Plaintiff's bed. Id. at ¶¶ 6, 25. On August 16, 1999, Rhoton received a TBI report finding semen in CM's underwear. Id. at ¶ 35. Plaintiff alleges that Rhoton approached CM with this report and suggested to CM that Plaintiff had penile intercourse with CM. Id. at ¶¶ 19, 36. As a result, Rhoton obtained a signed statement from CM that Plaintiff had penile intercourse with her, after which Plaintiff was indicted for the charge of rape of a child through penile penetration. Id. at ¶¶ 37–38. During Rhoton's investigation, Plaintiff's son, Dale, told Rhoton that Dale had sexual intercourse with CM at some point in time. Id. at ¶ 40. Plaintiff alleges that Dale also told Rhoton that he and his brother were watching television with Plaintiff on the night of the alleged incident and that Rhoton became angry with Dale and told him not to tell anyone else this information. Id. Plaintiff also alleges that Rhoton did not investigate other adult males, including Robert Hodge and a registered sexual offender living near CM. Id. at ¶¶ 42, 45. Plaintiff alleges that Dale revealed this information to him in a letter after Plaintiff was incarcerated and shortly before Dale committed suicide on February 14, 2001. Id. at ¶ 41. 5. Allegations Against the City of Lewisburg and Marshall County At his arraignment on March 18, 1999, Plaintiff was represented by now-deceased attorney Larry Wallace. Id. at ¶ 26. Following Plaintiff's March 18, 1999, indictment, Lewisburg and Marshall County administrators assigned Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 7 Plaintiff's case to public defender Andrew Jackson Dearing, III. Id. at ¶ 27. Plaintiff alleges that the Tennessee Board of Professional Responsibility censured Dearing one year before representing Plaintiff. Id. at ¶ 28. Plaintiff alleges that Dearing was serving a six month probationary period during Plaintiff's trial, and that Dearing was censured again one year after representing Plaintiff. Id. at ¶¶ 29–30. Plaintiff alleges that Dearing told him that the public defender's office could not afford to analyze the DNA evidence despite there being procedures that the office could follow to analyze DNA. Id. at ¶ 50. Plaintiff also alleges that Dearing later testified that Plaintiff admitted guilt during their first meeting in March 1999 to all but the penile intercourse charge. Id. at ¶ 31. Plaintiff alleges that Dearing fabricated this testimony to refute Plaintiff's claim for ineffective assistance of counsel and to avoid a suspension of his law license. Id. at ¶ 32. Plaintiff also alleges that Wallace corroborated Dealing's account by claiming that Plaintiff also admitted guilt to Wallace for all but the penile intercourse charge. Id. at ¶ 33. *8 Plaintiff alleges that the policies and practices of the Lewisburg Police Department and Marshall County District Attorney's Office caused “information obtained by the Defendants which was exculpatory, inconsistent with, or contradicted the defendants’ theory of the case” to be withheld from Plaintiff's attorneys or not be recorded in official forms. Id. at ¶ 56. B. Conclusions of Law In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint “only survives a motion to dismiss if it ‘ contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court must “construe the complaint in the light most favorable to the plaintiff, accept all its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” In re Travel Agent Comm'n Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (citation omitted). However, the Court “need not accept as true legal conclusions or unwarranted factual inferences ... and conclusory allegations or legal conclusions masquerading as factual allegations will not suffice.” Id. at 903 (citations and quotation marks omitted). In Iqbal, the Supreme Court explained the requirements for sustaining a motion to dismiss under Fed. R. Civ. P. 12(b)(6): Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” As the Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed- me accusation. Id. at 555 (citing Papasan v. Allain, 478U.S.265, 286 (1986)). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. 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 alleged. Id. at 556. 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. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. at 557 (brackets omitted). Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 555.... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Iqbal v. Hasty, 490 F.3d 143, 157–58 (2d Cir. 2007). But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). *9 In keeping with these principles 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. While legal Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 8 conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief. 556 U.S. at 677–79. As a general rule, “[a] motion under Rule 12(b)(6) is directed solely to a complaint itself. ...” Sims v. Mercy Hosp. of Monroe, 451 F.2d l71, 173 (6th Cir. 1971). Yet, under Fed. R. Civ. P. 10(c), any matters attached to the pleadings are considered part of the pleadings as well as documents that are referred to in the complaint or are “central” to the claim. Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997); see also Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999): Katt v. Titan Acquisitions, Ltd., 133 F. Supp.2d 632, 637 (M.D. Tenn. 2000) (citing Nieman v. NLO, Inc., 108 F.3d 1546, 1555 (6th Cir. 1997)). Such submissions do not convert a motion to dismiss into a motion for summary judgment where the evidence consists of proceedings in other courts of record. Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980). 1. Defendants’ Statute of Limitations Defense Defendants Gwyn, Jenkins, Barnard, Rhoton, and the City of Lewisburg argue that Plaintiff's Fourth Amendment claims for false arrest/false imprisonment are barred by the applicable statute of limitations. Plaintiff contends that his false arrest/false imprisonment claims are timely because the limitation period did not accrue until the Tennessee Court of Criminal Appeals “overturned” Plaintiff's convictions on November 19, 2013. (Docket Entry No. 24 at 3). The parties agree that the applicable period for federal civil rights actions in Tennessee is one year. Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015); Tenn. Code Ann. § 28–3–104(a)(1)(B). The date of accrual for § 1983 claims is a question of federal law. Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007). “Generally, a claim accrues ‘when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.’ ” Panzica v. Corrections Corp. of America, 559 F.App'x 461, 463 (6th Cir. 2014) (quoting Wallace v Kato, 549 U.S. 384, 388 (2007)). The Sixth Circuit “typically determine[s] the accrual of a § 1983 action by look[ing] to the event that should have alerted the typical lay person to protect his or her rights.’ ” D'Ambrosio v. Marino, 747 F.3d 378, 384 (6th Cir. 2014) (quoting Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007)). The proper accrual date for § 1983 actions, however, also depends on the nature of the claim. Heck v. Humphrey, 512 U.S. 477 (1994); Wallace, supra. In Heck, a state prisoner “filed a § 1983 claim seeking damages for various constitutional violations that he alleged had occurred during his prosecution.” Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013) (citing Heck, 512 U.S. at 479). At issue was whether damages claims that “call into question the lawfulness of conviction or confinement” are cognizable under § 1983. Heck, 512 U.S. at 483. The Supreme Court held: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. *10 Id. at 486-87 (footnote omitted). Thus, Heck “established a delayed accrual date in cases involving challenges to an invalid conviction or sentence ....” Harrison, 722 F.3d at 772 (emphasis in original); Heck, 512 U.S. at 489– 90 (citations omitted) (“Just as a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor, so also a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.”). By contrast, in Wallace the Supreme Court considered the accrual date for an unlawful arrest claim. 549 U.S. at 386. The Supreme Court determined that the statute of limitations for “false imprisonment actions (including the sub-species of false arrest) ... begins to run only when the Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 9 alleged false imprisonment ends.” Panzica, 559 F.App'x at 464 (citing Wallace, 549 U.S. at 388). The Supreme Court, however, held that “the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.” Wallace, 549 at 397. In Fox v. DeSoto, the Sixth Circuit explained the interplay between Wallace and Heck: Wallace clarifies the distinction between claims of malicious prosecution, such as the one addressed in Heck, and claims of false arrest and false imprisonment. ... Heck held that a claim of malicious prosecution does not accrue until the underlying conviction is invalidated, 512 U.S. at 489–90, and this holding was reaffirmed in Wallace. 127 S.Ct. at 1098. The statute of limitations for a claim of false arrest, however, “where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.” Id. at 1100. 489 F.3d at 235. Here, Plaintiff argues that Heck applies to all of his § 1983 claims, not just his malicious prosecution claim. Yet, Wallace governs Plaintiff's false arrest/false imprisonment claims given Plaintiff's alleged unlawful arrest and subsequent criminal proceedings. Thus, the Court concludes that under Wallace Plaintiff's Fourth Amendment false arrest/false imprisonment claims are barred by the one-year statute of limitations because he “bec[a]me[ ] detained pursuant to legal process” when he was arraigned and indicted in 1999. Wallace, 549 U.S. at 397. Accordingly, these Fourth Amendment claims should be dismissed as untimely. Plaintiff alternatively contends that his false arrest/false imprisonment claim should be considered tolled until entry of the nolle prosequi order on April 4, 2014. Here, the nolle prosequi order merely foreclosed Plaintiff's potential re-prosecution and the Supreme Court in Wallace explained that potential future convictions do not toll the statute of limitations. 549 U.S. at 393; see also Fox, 489 F.3d at 235 (“[T]he possibility that [a] plaintiff's already-accrued § 1983 claims might impugn an anticipated future conviction d[oes] not trigger the Heck rule for deferred accrual.”). 2. Official Capacity Claims Against Jenkins, Gwyn, and Barnard Defendants Jenkins, Gwyn, and Barnard assert that Plaintiff's claims against them in their official capacities for money damages are barred under the Eleventh Amendment and because they are not “persons” under 42 U.S.C. § 1983. An action against a state employee in his or her official capacity is an action against the State. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Because a State is not a person who can be sued for monetary damages in a Section 1983 action, actions for money damages are barred against state officials in their official capacities, but not in their individual capacities. Kentucky v. Graham, 473 U.S. at 159, 167–68 (1985); McKormick v. Miami University, 693 F.3d 654, 662 (6th Cir. 2012). *11 Plaintiff does not dispute Defendants’ contention, but states: Defendants Barnard, Jenkins, and Rhoton were each named in their individual capacities because Plaintiff seeks damages for intentional acts they engaged in to deprive Plaintiff of his rights. They were also named, along with Tennessee Bureau of Investigation (“TBI”) Director Gwyn, in their official capacities, because Plaintiff seeks injunctive and declaratory relief against each of their offices. (Docket Entry No. 24 at 4). As Defendants Jenkins and Gwyn were state officials employed by the TBI, a state agency, the Court concludes that claims for money damages against Defendants Jenkins and Gwyn in their official capacities are barred by the Eleventh Amendment. See McKormick, 693 F.3d at 662; Rodgers v. Banks, 344 F.3d 587, 594 (6th Cir. 2003) (citation omitted) (“[T]he Eleventh Amendment bars § 1983 suits seeking money damages against states and against state employees sued in their official capacities.”). Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 10 Defendant Barnard argues that all official capacity claims against him should also be dismissed under the Eleventh Amendment. “Whether a county prosecutor is deemed a ‘ state official’ depends, at least in part, on state law.” Cady v. Arenac Cnty., 574 F.3d 334, 342 (6th Cir. 2009) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). The office of District Attorney is created by state law. See Tenn. Code Ann. § 16–2–508. “Under Tennessee law, a county prosecutor is responsible for prosecuting ‘all violations of the [Tennessee] criminal statutes, ’ therefore a suit brought against a county prosecutor responsible for enforcing criminal laws on behalf of the state of Tennessee is treated as a suit against Tennessee itself.” Tiger v. Pynkala, No. 14–2312–JDT–dkv, 2014 WL 5502405, at *12 (W.D. Tenn. Oct. 30, 2014) (quoting Tenn. Code Ann. § 8–7–103(1)). As an Assistant District Attorney, Barnard was responsible for enforcing criminal laws on behalf of the State of Tennessee. Thus, the Court concludes that Barnard was a state official and Plaintiff's official capacity claims for money damages against Barnard are barred by the Eleventh Amendment. See McKormick, 693 F.3dat 662; Rodgers, 344 F.3d at 594; Tiger, 2014 WL 5502405, at *12. 3. Barnard Defendant Barnard asserts absolute prosecutorial immunity to bar Plaintiff's damages claims against him in his individual capacity because all of Plaintiff's claims relate to Barnard's evaluation of evidence, his decision to prosecute, his preparation and presentation of the state's case, and his continued advocacy in post-conviction proceedings. Plaintiff alleges that “Barnard decided that he wanted a guilty conviction during his investigation of the charges against Plaintiff, then completely disregarded Plaintiff's clearly established constitutional rights in continuing the prosecution, despite clearly exculpatory evidence that he chose to withhold rather than present to Plaintiff as obligated.” (Docket Entry No. 24 at 19). Plaintiff also alleges that Barnard purposefully elicited false or misleading testimony from witnesses and coerced CM to present false testimony. *12 Prosecutors are “entitled to absolute immunity for performing functions ‘intimately associated with the judicial phase of the criminal process.’ ’’ Adams v. Hanson, 656 F.3d 397, 401 (6th Cir. 2011) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). While prosecutorial immunity may “ ‘leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty,’ [ ] affording any less protection would ‘disserve the broader public interest’ by preventing ‘vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system. ’ ” Ireland v. Tunis, 113 F.3d 1435, 1444 (6th Cir. 1997) (quoting Imbler, 424 U.S. at 427–28). “[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified ....” Bums v. Reed, 500 U.S. 478, 486 (1991). “Absolute prosecutorial immunity is not defeated by a showing that the prosecutor acted wrongfully or even maliciously.” Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989). “[A]negations of conspiracy do not abrogate a prosecutor's immunity ....” Shannon v. Johnson, No. 3:12–cv–01318, 2013 WL 1564223, at *3 (M.D. Tenn. April 12, 2013); see Imbler, 424 U.S. at 416–17, 427– 29. Absolute immunity attaches to specific functions rather than “the identity of the actor who performed” them. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (citing Forrester v. White, 484 U.S. 219, 229 (1988)). Absolutely protected prosecutorial acts “include those ‘undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.’ ” Adams, 656 F.3d at 402 (quoting Buckley, 509 U.S. at 273). “Those acts must include the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made.” Buckley, 509 U.S. at 273. By contrast, “[i]f the challenged actions of the prosecutor were not performed in his role as advocate, if they do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings, then only qualified immunity applies.” Harris v. Bornhorst, 513 F.3d 503, 510 (6th Cir. 2008) (quoting Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006)). Thus, “[p]rosecutors are not absolutely immune when they perform administrative, investigative, or other functions ....” Holloway v. Brush, 220 F.3d 767, 774 (6th Cir. 2000). “[T]he critical inquiry is how closely related is the prosecutor's challenged activity to his role as an advocate intimately associated with the judicial phase of the criminal process.” Ireland, 113 F.3d at 1443 (internal quotation marks omitted). “The analytical key to prosecutorial immunity, therefore, is advocacy—whether the actions in question are those of an advocate.” Holloway, 220 F.3d at 775 (emphasis in original) (citations omitted). Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 11 The Sixth Circuit has noted that “[t]he line between conduct that is part of a preliminary investigation and conduct that is intimately associated with the judicial phase of a criminal proceeding is difficult to draw in some cases.” Prince v. Hicks, 198 F.3d 607, 612 (6th Cir. 1999) (citation omitted). Nevertheless, a court must “focus on the specific conduct at issue in a case and determine whether a prosecutor was acting as an advocate for the state or whether she was simply engaging in preparatory conduct and performing administrative or investigative functions.” Id. *13 Interviewing witnesses may be investigative acts and beyond prosecutorial immunity, as the Supreme Court stated: There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other. Buckley, 509 U.S. at 273 (citation and internal quotation marks omitted). However, “[i]nvestigative acts undertaken in direct preparation of judicial proceedings, including the professional evaluation of evidence, warrant absolute immunity.” Ireland, 133 F. 3d at 1445. Yet, “other acts, such as the preliminary gathering of evidence that may ripen into a prosecution, are too attenuated to the judicial process to afford absolute protection.” Id. a. Investigation The underlying incident occurred on March 15, 1999, and Plaintiff was indicted and arraigned on March 18, 1999. Plaintiff does not challenge Barnard's decision to indict, but rather Barnard's “role in investigating the charges in conjunction with the other Defendants ....” (Docket Entry No. 24 at 18). Although Plaintiff generally alleges that Barnard was responsible for the actions of “those charged with investigating the underlying incident,” (Docket Entry No. 1 at ¶ 3), the only specific allegations regarding Barnard's involvement with the investigation relate to his failure to investigate other potential suspects aside from Plaintiff. Plaintiff alleges: 42. Robert Hodge, an adult male that Defendants Rhoton and Barnard knew was engaged in a sexual relationship with Jennifer, then a minor, was in CM's house at the time of the incident, but Defendants did not investigate Robert Hodge or test his DNA. * * * 45. Defendants Rhoton and Barnard were also aware that a registered sex offender lived several houses away from CM at the time of the alleged rape, but Defendants did not investigate the registered sex offender or investigate his DNA. Id. at ¶¶ 42, 45. Yet, Plaintiff's arrest and indictment was based on CM's account of the underlying incident to Rhoton, not Barnard's investigation (or lack thereof). Plaintiff specifically alleges: 24. On the night of the alleged incident, CM's account to police of what she had told Jennifer had occurred with Mr. Mills was different from the version recounted by Jennifer in a number of material ways. 25. Defendant Rhoton and the investigative officers employed by the City of Lewisburg took no physical evidence to investigate from Mr. Mills's home, despite allegations that a child had been molested on Mr. Mills's bed. 26. Mr. Mills cooperated with the Lewisburg police and turned himself over to police custody. Based on CM's allegations, Mr. Mills was promptly arraigned for providing drugs to a minor and engaging in digital and oral sexual contact with a minor on March 18, 1999. Mr. Mills was represented by attorney Larry Wallace, now deceased, at the arraignment. * * * Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 12 *14 34. There were no allegations that Mr. Mills had engaged in penile intercourse with CM at any time Larry Wallace represented Mr. Mills, nor the time Dearing alleged the conversation between Mills and Dearing took place. 35. On August 16, 1999, Defendant Rhoton received a report from TBI that testing revealed the presence of semen in CM's underwear. 36. Defendant Rhoton approached CM with this information. 37. Defendant Rhoton obtained a written and signed statement from CM that Mr. Mills had engaged in penile intercourse with her and that she had not reported it previously because she was afraid she would get into trouble. 38. After obtaining CM's signed statement in August of 1999, new indictment documents for Mr. Mils were processed adding the charge of rape of a child through penile penetration on August 18, 1999. Id. at ¶¶ 24–26, 34–38. If Barnard failed to investigate other potential suspects after the indictment, Barnard did so in his role as an advocate for the state preparing for criminal proceedings. Buckley, 509 U.S. at 272–73; Ireland, 113F.3d at l447 (“Absolute prosecutorial immunity will likewise attach to administrative or investigative acts necessary for a prosecutor to initiate or maintain the criminal prosecution.”); Gavitt v. Ionia Cnty., 67 F.Supp.3d 838, 857 (E.D. Mich. 2014) (quoting Latta v. Chapala, 221 Fed.Appx. 443, 444 (7th Cir. 2007)) (“[T]here is no constitutional duty to ‘do a better investigation’; prosecutors may proceed on the basis of probable cause (all that is required for an indictment) and rely on defense counsel to marshal the evidence in defendants’ favor.”) Accordingly, the Court concludes that Barnard's alleged failure to investigate other potential suspects was “intimately associated with the judicial phase of the criminal proceedings” and thus Defendant Barnard is entitled to absolute prosecutorial immunity as to this claim. b. Eliciting or Proffering False or Misleading Testimony Plaintiff alleges that Barnard elicited false or misleading testimony on at least four occasions: (1) at trial, Barnard elicited testimony from Robert Hodge and Jennifer presenting their relationship as nonsexual despite Barnard's knowledge to the contrary, (Docket Entry No. 1 at ¶¶ 42–43); (2) on post-conviction, Barnard tried to undermine Jennifer's credibility because Jennifer testified that CM later admitted to lying about what happened on March 15, 1999, id. at ¶ 59; (3) on post-conviction, Barnard elicited false testimony from Plaintiff's defense attorneys that Plaintiff admitted guilt for all charges except penile intercourse, id. at ¶ 58; and (4) on his coram nobis motion, Barnard again proffered the false testimony of the defense attorneys even after the SERI DNA analysis, id. at ¶¶ 65–66. Plaintiff acknowledges that Barnard “would have prosecutorial immunity for his court-based conduct,” but argues that “the Complaint draws attention to Barnard's courtroom behavior because his over- zealous advocacy reflects upon and supports Plaintiff's claims regarding Barnard's role in investigating the allegations levied against Plaintiff.” (Docket Entry No. 24 at 18). *15 “As the [Supreme] Court concluded in Imbler, even the knowing presentation of false testimony at trial is protected by absolute immunity.” Spurlock v. Thompson, 330 F.3d 791, 797 (6th Cir. 2003) (citing Imbler, 424 U.S. at 413, 430). Since Imbler, “[p]rosecutorial decisions regarding witness testimony, including what witnesses to use at trial, and what questions to ask them, are activities intimately associated with the judicial phase of a criminal trial ....” Id. at 798 (citing Imbler, 424 U.S. at 413, 430; Buckley, 509 U.S. at 273); see also Wendrow v. Mich. Dep't of Human Services, 534 F.App'x 516, 530 (6th Cir. 2013) (“The distinction remains the prosecutor's function at the time of the malfeasance, rather than the falsification itself.”). Accordingly, the Court concludes that absolute immunity applies to this alleged misconduct. See Spurlock, 330 F.3d at 798 (“Thompson's decision, as prosecuting attorney, to have Whitley and Apple testify falsely at Spurlock's second criminal trial, even if done knowingly, is protected by absolute immunity.”). c. Withholding Exculpatory Evidence Plaintiff alleges that Barnard withheld several items of information from Plaintiff's defense attorney during trial, including: (1) Defendant Jenkins's “actually exculpatory” DNA test results, (Docket Entry No. 1 at ¶ 49); (2) Plaintiff's son Dale's statement to Defendant Rhoton that he had sexual intercourse with CM on a prior occasion, id. at ¶¶ 40, 51; (3) that Robert Hodge was an adult in a sexual relationship with CM's minor sister Jennifer, id. at ¶ 52; and (4) that a Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 13 registered sexual offender lived in CM's neighborhood at the time of the alleged incident, id. at ¶ 53. The extent to which this undisclosed information would have assisted Plaintiff in his defense is not relevant for prosecutorial immunity purposes. Even assuming that this evidence was exculpatory, “prosecutors have absolute immunity from civil liability for the non-disclosure of exculpatory information at trial.” Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir. 2010) (citing Imbler, 424 U.S. at 431 n.34). Accordingly, based on Sixth Circuit precedents, the Court concludes that Barnard is entitled to absolute immunity on these claims. d. Threatened Retaliation if CM Did Not Continue to Allege Plaintiff's Guilt Plaintiff alleges that CM continued to assert Plaintiff's guilt only because of Barnard's legal threats. (Docket Entry No. 1 at ¶¶ 15, 67, 79). Barnard argues that such activity is absolutely protected as preparation of witnesses for trial and out-of-court efforts to control the presentation of a witness's testimony. Plaintiff contends that “Barnard's actions forcing Plaintiff's accuser to maintain lies” are more in line with facts in Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014), where the Seventh Circuit denied absolute prosecutorial immunity to the defendant. The Court disagrees. In Fields, the prosecutor, acting as an investigator prior to the prosecution, was alleged to have fabricated evidence and introduced the fabricated evidence at trial. 740 F.3d at 1112– 13. The Court stated that “[a] prosecutor cannot retroactively immunize himself from conduct by perfecting his wrong- doing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity.” Id. at 1114. Holding that this prosecutor was not entitled to absolute immunity, the Court distinguished between coercing witness testimony and fabricating testimony. Id. at 1112 (discussing Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012) and Buckley v. Fitzsimmons, 20 F.3d 789, 794 (7th Cir. 1994) (“Coercing witnesses to speak, rather than loosening their tongues by promises of reward, is a genuine constitutional wrong, but the persons aggrieved would be [the coerced witnesses] rather than [the criminal defendant/Plaintiff]. Overbearing tactics violate the right of the person being interrogated to be free from coercion.”)). *16 Yet, Barnard's actions differ from the prosecutor in Fields because Barnard is not alleged to have fabricated evidence or concocted CM's initial account of events, even though she later stated that she lied. In Spurlock v. Thompson, the Sixth Circuit addressed allegations of a prosecutor making coercive threats to witnesses. 330 F.3d at 798-99. There, the prosecutor “coerced [a witness] by threatening him to ‘st[i]ck to his trial story’ or be prosecuted for perjury ....” Id. at 798. The Court held that this coercive threat was not entitled to absolute immunity because it occurred after the conclusion of the plaintiff's adversarial criminal proceedings, during the course of an administrative investigation into the use of false testimony at the plaintiffs’ trial and after plaintiff filed a federal civil rights action. Id. at 798–99. The Sixth Circuit stated that when the prosecutor “threatened retaliation against [the witness], [the prosecutor] was not doing so to prepare [the witness] as a trial witness or to make any professional evaluation of the evidence, but rather to hinder the investigation into the wrongdoing of himself and others, and to defeat [the plaintiffs’] civil rights suit.” Id. at 799 (citation omitted). Yet, “[a]bsolute immunity applies to the adversarial acts of prosecutors during post-conviction proceedings, including direct appeals, habeas corpus proceedings, and parole proceedings, where the prosecutor is personally involved in the subsequent proceedings and continues his role as an advocate.” Id. (citing Houston v. Partee, 978 F.2d 362, 365-66 (7th Cir. 1992)). Here, Barnard's threats to CM are entitled to absolute prosecutorial immunity because they occurred during the course of Plaintiff's adversarial criminal proceedings and Barnard is not alleged to have fabricated CM's testimony. Barnard's alleged threats occurred after CM made the accusations against Plaintiff and well after Plaintiff was indicted. Plaintiff alleges that Barnard coerced CM to continue maintaining Plaintiff's guilt through the pendency of his criminal action with “legal threats”—presumably in the form of a potential perjury prosecution. Barnard's alleged threats occurred while he was maintaining Plaintiff's guilt during the post-conviction appeals process. See id. at 799. Thus, the Court concludes that under Sixth Circuit precedent Barnard's alleged threats are entitled to absolute immunity because they were in the course of his advocacy for the state. For these reasons, the Court concludes that Defendant Barnard is entitled to absolute prosecutorial immunity for all of the alleged misconduct that provides the bases for Plaintiff's claims against him. Accordingly, all of Plaintiff's claims against Barnard should be dismissed. Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 14 4. Claims Against Jenkins and Rhoton in their Individual Capacities Defendants Jenkins and Rhoton contend that they are entitled to qualified immunity. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In Pearson, the Supreme Court clarified that the two- prong test for qualified immunity requires Plaintiff to show that: (1) based upon the applicable law, the facts viewed in the light most favorable to the plaintiff show that a constitutional violation has occurred, and (2) the violation involved a clearly established constitutional right of which a reasonable person would have known. See Brown v. Lewis, 779 F.3d 401, 411– 12 (6th Cir. 2015) (internal quotations omitted). “The court may address these prongs in any order, and if the plaintiff cannot make both showings, the officer is entitled to qualified immunity.” Id. at 412 (citing Pearson, 555 U.S. at 236). a. Malicious Prosecution *17 Plaintiff asserts a Fourth Amendment malicious prosecution claim against Defendants Jenkins and Rhoton in their individual capacities. (Docket Entry No. 1 at ¶ 93). Plaintiff's malicious prosecution claim accrued on November 19, 2013, Mills v. State, No. M2011–00620–CCA–R3–PC, 2013 WL 6069276 (Tenn. Crim. App. Nov. 19, 2013), when his convictions were reversed. See Heck, 512 U.S. at 489–90 (citations omitted) (“Just as a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor, so also a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.”) Here, Plaintiff timely filed this action on November 19, 2014. “The Sixth Circuit ‘recognize[s] a separate constitutionally cognizable claim of malicious prosecution under the Fourth Amendment,’ which ‘encompasses wrongful investigation, prosecution, conviction, and incarceration.’ ” Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (quoting Barnes v. Wright, 449 F.3d 709, 715–16 (6th Cir. 2006)). To state his malicious prosecution claim, Plaintiff must allege plausible facts on the following elements: (1) a criminal prosecution was initiated against the plaintiff and the defendant made, influenced, or participated in the decision to prosecute; (2) there was no probable cause for the criminal prosecution; (3) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding was resolved in the plaintiff's favor. Robertson v. Lucas, 753 F.3d 606, 616 (6th Cir. 2014) (citing Sykes, 625 F.3d at 308–09). Defendants contend that Plaintiff cannot satisfy the first two elements of this claim because these Defendants did not participate in the decision to prosecute and because there was probable cause. As to the first element, “the term ‘participated’ should be construed within the context of tort causation principles. Its meaning is akin to ‘aided.’ To be liable for ‘participating’ in the decision to prosecute, the officer must participate in a way that aids in the decision, as opposed to passively or neutrally participating.” Webb v. United States, 789 F.3d 647, 660 (6th Cir. 2015) (quoting Sykes, 625 F.3d at 308 n.5) (internal quotation marks omitted). “[T]here must be some element of blameworthiness or culpability in the participation —albeit less than ‘malice.’ That is, truthful participation in the prosecution decision is not actionable.” Johnson v. Moseley, 790 F.3d 649, 655 (6th Cir. 2015) (citing Sykes, 625 F.3d at 314). As to the second element, probable cause to initiate a criminal prosecution exists where “the facts and circumstances are sufficient to lead a reasonable person to believe that the accused committed the particular offense with which he is to be charged.” Mott v. Mayer, 524 F.App'x 179, 187 (6th Cir. 2013) (emphasis in original) (citation omitted) (“Whether probable cause exists to arrest a suspect is a distinct question from whether probable cause exists to prosecute an accused.”). “[W]here there is probable cause to prosecute, a § 1983 action for malicious prosecution will not lie.” McKinley v. City of Mansfield, 404 F.3d 418, 445 (6th Cir. 2005) (citations omitted). Generally, “the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause.” Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 15 Webb, 789 F.3d at 660 (internal quotation marks omitted) (quoting Barnes, 449 F.3d at 716). Yet, “[a]n exception to this general rule applies when defendants knowingly or recklessly present false testimony to the grand jury to obtain the indictment.” Id. (citations omitted). i. Defendant Jenkins *18 Defendant Jenkins contends that Plaintiff cannot establish his malicious prosecution claim against her because she did not influence or participate in the decision to prosecute Plaintiff and there was probable cause for the prosecution. Plaintiff argues that Jenkins participated in the decision to prosecute Plaintiff based upon her DNA report. Specifically, Plaintiff alleges, in relevant part: 46. Defendant Jenkins, the TBI DNA analyst assigned to the case, corroborated CM's story by reporting that she had found indicators of the presence of semen in two distinct stains in CM's underwear. According to Defendant Jenkins, there were two sources of DNA found in these areas: CM was the major contributor, and Mills's DNA profile was consistent with the minor contributor. Defendant Jenkins testified that Mr. Mills could not be excluded from the semen that was found in CM's underwear, and that there was a 1 in 290 chance that the semen came from any Caucasian other than Mr. Mills. Defendant Jenkins claimed that the segments of underwear containing semen other than the one she found to be consistent with Mr. Mills's DNA contained inconclusive data. 47. Later expert analysis revealed that the DNA evidence used by Defendant Jenkins was actually exculpatory, and many of the semen results Defendant Jenkins termed “inconclusive” were actually conclusively someone else's DNA. The report that Defendant Jenkins presented was inaccurate and incomplete, and had a true report been provided to Mr. Mills and Dearing he would have been able to prove that DM had likely engaged in sexual relations with two other males on March 15, 1999, and that she had lied about her virginity as well as Mr. Mills raping her, fondling her, and providing her with marijuana. * * * 54. Based on Defendant Jenkins’ damning expert testimony of the incorrectly represented DNA evidence corroborating CM's trial narrative, Defendant Barnard was successful in eliciting a jury verdict finding Mr. Mills guilty of some, but not all, of the counts in the indictment on January 25, 2000. * * * 61. Using the same analysis techniques as those used by Defendant Jenkins, the SERI results for the same sections of CM's underwear indicated the presence of semen from two different male contributors, and that Mr. Mills could not be the contributor of either of the two different male semen stains. 62. SERI analysts also revealed that Defendant Jenkins had mislabeled a portion of Mills's DNA. 63. A portion of Mr. Mills's DNA was mislabeled by Defendant Jenkins. Defendant Jenkins had testified that there was only a 0.3% chance that the DNA she had analyzed belonged to a Caucasian male other than Mr. Mills, despite clear evidence that CM's underwear contained semen from multiple men that was not Mr. Mills. Defendant Jenkins has nevertheless maintained that she did not make a mistake in her analysis and report. 64. Defendant Jenkins was trained according to the policies and procedures set forth by Defendant Gwyn. (Docket Entry No. 1 at ¶¶ 46–47, 54, 61–64). On Plaintiff's “Motion to Reopen Post[–]Conviction Petition and Other Relief,” the Tennessee Court of Criminal Appeals stated: We conclude that the Petitioner's claim of new scientific evidence in the form of new DNA evidence fails to present a claim under which a motion to reopen a post-conviction proceeding may be granted. While SERI was able to exclude the Petitioner as the contributor of the DNA in two places based on its testing, Jenkins was unable to exclude the Petitioner at the TH01 locus and concluded that the probability in an unrelated individual having the same DNA from the African/American Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 16 population was approximately 1 in 270 and the probability in an unrelated individual having the same DNA from the Caucasian population was 1 in 290. At best, SERI's results merely call into question whether the Petitioner committed the offenses in this case but fall short of establishing by that the Petitioner was actually innocent of these charges. Accordingly, the Petitioner has not presented scientific evidence establishing his actual innocence and has not alleged any of the other statutory reasons for reopening a post- conviction proceeding. *19 Mills v. State, 2013 WL 6069276, at *20. Yet, the Tennessee appellate court also concluded: We agree with the Petitioner that the new DNA evidence undermines the victim's credibility not just as to the child rape—penile penetration charge but also as to all the charges for which the Petitioner was convicted. Consequently, we hold that a reasonable basis exists for concluding that had the new DNA evidence been presented at trial, the result of the proceedings on all of the charges might have been different. Id. at *25. Here, Jenkins's DNA report was not used as a basis for establishing probable cause for Plaintiff's criminal prosecution. Plaintiff was initially indicted on March 18, 1999 for providing drugs to a minor and engaging in digital and oral sexual contact with a minor based upon CM's statements. (Docket Entry No. 1 at ¶¶ 24–27). According to Plaintiff's complaint, on August 16, 1999, Rhoton received a TBI report that reflected the presence of semen in CM's underwear. Id. at ¶ 36. Plaintiff alleges that Rhoton approached CM with this information, and CM provided a written statement that Plaintiff did engage in penile intercourse with CM. Id. at ¶¶ 36–37. Given the ambiguity as to whether this semen report included the DNA test results, the Court takes judicial notice of its records. Based upon this information, Plaintiff was indicted on August 18, 1999 on the additional charge of rape of a child through penile penetration. Id. at ¶ 38; see Mills v. Bell., 1:05–cv–00083 (M.D. Tenn.) (Docket Entry No. 33–1 at 39). On August 18, 1999, the same State court ordered the collection of blood and saliva samples of Plaintiff. Mills v. Bell., 1:05–cv–00083 (M.D. Tenn.) (Docket Entry No. 33–1 at 39). Thus, Jenkins's DNA test did not influence the second indictment. CM's signed statement, not Jenkins's DNA test, supplied probable cause to prosecute Plaintiff. Plaintiff does not allege that Jenkins presented false testimony to the grand jury to obtain the indictment. “[T]he finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause.” Webb, 789 F.3d at 660 (quoting Barnes, 449 F.3d at 716). Thus, the indictment established probable cause for Plaintiff's prosecution, and the Plaintiff's malicious prosecution claim against Jenkins should be dismissed. ii. Defendant Rhoton Defendant Rhoton contends that Plaintiff fails to state his malicious prosecution claim because there was probable cause to prosecute Plaintiff and Plaintiff does not sufficiently allege that Rhoton made, influenced, or participated in the decision to prosecute. Plaintiff argues that Rhoton failed to disclose exculpatory evidence uncovered in her investigation. Plaintiff alleges that Rhoton investigated the March 1999 incident, but does not allege that Rhoton made or was consulted with regard to the decision to prosecute Plaintiff. The complaint specifically alleges that CM made statements implicating Plaintiff in the alleged crimes. “[A] crime victim's accusation standing alone can establish probable cause.” Gardenhire v. Schubert, 205 F.3d 303, 322 (6th Cir. 2000) (citations omitted). *20 Further, as discussed above, Plaintiff's indictments, based upon the victim's statements, by the grand jury establishes the existence of probable cause, precluding Plaintiff's malicious prosecution claim. See Barnes, 449 F.3d at 716; see United States v. Angel, 355 F.3d 462,475 (6th Cir. 2004) (“The government ... has no judicially enforceable duty to provide a grand jury with exculpatory evidence.”) Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 17 (citing United States v. Williams, 504 U.S. 36, 47 (1992)). Plaintiff does not allege that Rhoton testified falsely before the second grand jury. Accordingly, the Court concludes that Plaintiff's malicious prosecution claim against Defendant Rhoton should be dismissed. b. Brady Claim Plaintiff asserts that Defendants Barnard, Jenkins, and Rhoton manufactured “knowingly false inculpatory evidence” against Plaintiff and suppressed “exonerating exculpatory evidence,” including Defendant Jenkins's DNA report that “clearly excluded [Plaintiff] but was labeled ‘inconclusive.’ ” (Docket Entry No. 1 at ¶ 96). In his complaint, Plaintiff alleges: 48. Defendant Jenkins alleges that she had followed standard protocols and procedures of the TBI Forensic Services Division, a department under the direction of Defendant Mark Gwyn. * * * 64. Defendant Jenkins was trained according to the policies and procedures set forth by Defendant Gwyn. Id. at ¶¶ 48, 64. The Court construes this as a claim under Brady v. Maryland, 373 U.S. 83 (1963). See Moldowan v. City of Warren, 578 F.3d 351, 379 (6th Cir. 2009) (“[A] criminal defendant is equally deprived of his or her due process rights when the police rather than the prosecutor suppresses exculpatory evidence because, in either case, the impact on the fundamental fairness of the defendant's trial is the same.”). In Brady, the Supreme Court held that the government is required to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. 373 U.S. at 87. “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Stickler v. Greene, 527 U.S. 263, 281–82 (1999). In Kyles v. Whitley, 514 US. 419 (1995), the Supreme Court stated that Brady materials require disclosure of exculpatory and impeachment evidence, and such evidence must show that the result of the trial would have been different: “[F]avorable evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” 514 U.S. at 433 (quoting United States v. Bagley, 473 U.S. 667, 682, 685 (1985) (emphasis added)). As stated previously, Defendant Barnard is entitled to absolute prosecutorial immunity for all of his alleged misconduct underlying Plaintiff's claims. See Koubriti, 593 F.3d at 467 (citing Imbler, 424 U. S. at 431 n. 34) (“[P]rosecutors have absolute immunity from civil liability for the nondisclosure of exculpatory information at trial.”). Additionally, Plaintiff does not allege that Defendant Rhoton was involved in preparing the “exculpatory” DNA report and therefore Plaintiff's Brady claim against Defendant Rhoton should be dismissed. As to Defendant Jenkins's DNA report, the Tennessee Court of Criminal Appeals held that “a reasonable basis exist[ed] for concluding that had the new DNA evidence been presented at trial, the result of the proceedings on all of the charges might have been different.” Mills, 2013 WL 6069276, at *25. This conclusion qualifies under Brady as the record is unclear at this juncture as to whether her DNA report resulted in Plaintiff “receiv[ing] a fair trial, understood as atrial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434. Yet, as reflected earlier in this Memorandum, the Tennessee appellate court reached its decision based upon findings that the “new DNA evidence” was based upon sperm fraction that Jenkins did not have, and additional DNA material that Jenkins did not have. *21 Harmor testified that SERI's results showed that the Petitioner was excluded from the male DNA from unit 1–1, the sample from the waistband of the victim's underwear, and was excluded from the male DNA on unit 1–2, the sample from the crotch of the victim's underwear. He noted that he was able to identify more genetic material on the underwear than Jenkins. He also noted that Jenkins only drew “conclusions about the epithelial or non-sperm fraction of the crotch of the pair of panties and not the sperm fraction.” Harmo[r] stated that he would have included the conclusions regarding the sperm fraction “to give a more complete result of the analysis.” Regarding the one marker that Jenkins asserted could have been contributed by the Petitioner, Harmo[r] stated. “I would prefer to have looked at the electronic data and then analyzed it myself, with spreading the scale out, so that I could see what the peaks themselves looked like, to make Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 18 sure they weren't artifacts.” Finally, he opined that Jenkins had mistakenly identified the Petitioner's known sample as a 13, 14 rather than a 13, 13 at the D8S1179 locus and asserted that he had two results showing that the Petitioner was a 13, 13 at that locus. * * * Jenkins stated that when she lowered the baseline to between 50 and 150 RFU, she found no sperm fraction on the crotch area or the waistband area of the underwear at the TH01 locus. Although she acknowledged that SERI found an allele number 8 on the sperm fraction of the waistband in item 1–1 and the sperm fraction of the crotch of the panties in item 1–4. she stated that she was unable to find an 8 there. She explained that the difference could be because of the “technology, the sensitivity of their instruments” or because they may have been able to find something different because they had a different cutting or because of contamination. She said that after dropping the baseline, she still could not exclude the Petitioner at the locus TH01. Jenkins acknowledged that SERI found in the area D135317 alleles 12, 14 in item 1–1 that were male. She stated that SERI used these alleles to exclude the Petitioner because his known markers at that location were 8, 12. In addition, she noted that SERI found a 12, 14 in the sperm fraction for item 1–2 as male, which SERI used to exclude the Petitioner because his known markers at that location are 8, 12. In area D165539, SERI found alleles 9, 11 in item 1–2, which SERI used to exclude the Petitioner because his known markers at this location were 10, 13. Jenkins denied mistyping the Petitioner as a l3, 14 at the D8S1179 locus. She acknowledged that her testing produced very little DNA despite the fact that she had identified sperm and semen on the victim's underwear and that SERI's testing produced substantially more DNA in the non-sperm and sperm fractions in units 1–1 and 1–4. She also acknowledged that when she tested the underwear in 1999, she identified a lot of alleles that excluded the Petitioner, but she did not call them because she deemed them inconclusive. Jenkins said that after reviewing SERI's reports and data and after conducting additional analysis of her data, she stated that there was nothing that would change the testimony she gave at the Petitioner's trial. * * * We believe the new DNA evidence casts at least some doubt on the accuracy of Jenkins's results and calls into question not only whether the Petitioner committed the offense of rape of a child—penile penetration but also whether the Petitioner committed any of the charged offenses. ... [T]he alleles that Jenkins stated were consistent with the Petitioner were found in the non-sperm fraction of the sample, rather than the sperm fraction of the sample. Moreover, Harmor stated that SERI was able to identify more genetic material on the underwear than Jenkins and that SERI's results showed that the Petitioner was excluded from the male DNA from unit 1–1, the sample from the waistband of the victim's underwear, and was excluded from the male DNA on unit 1–2, the sample from the crotch of the victim's underwear. We agree with the Petitioner that the new DNA evidence undermines the victim's credibility not just as to the child rape—penile penetration charge but also as to all the charges for which the Petitioner was convicted. Consequently, we hold that a reasonable basis exists for concluding that had the new DNA evidence been presented at trial, the result of the proceedings on all of the charges might have been different. *22 Mills, 2013 WL 6069276 at **23–25 (internal citation omitted) (emphasis added). To be sure, technicians can be liable for a Brady claim. See Gregory v. City of Louisville, 444 F.3d 725, 744–45 (6th Cir. 2006) (denying a defendant-lab technician's interlocutory appeal of a district court's denial of qualified immunity at summary judgment from Brady claims where the plaintiff alleged that the lab technician “deliberately withheld the existence of two nonmatching hairs” while the “forensic report showed only 5 hairs, all of which [the lab technician] ‘matched’ with Plaintiff’). As the Sixth Circuit explained in Moldowan: In Gregory, we reasoned that expert forensic examiners “act in an investigatory fashion when they interpret and document physical evidence,” and thus we determined that “the intentional fabrication of a forensic report” is subject to the same considerations applied to the intentional fabrication of evidence by a police officer or prosecutor. 444 F.3d at 740. Under that framework, Gregory concluded that a forensic expert may be subject to suit under § 1983 for deliberately withholding the existence of exculpatory forensic evidence or fabricating forensic evidence. Id. at 744. Relying on Spurlock v. Satterfield, 167 F.3d 995, 1005 (6th Cir. 1999). Gregory reaffirmed that a forensic expert defendant “cannot seriously contend that a reasonable [investigator] would not know that such actions were inappropriate and performed in violation of an individual's constitutional ... rights.” Gregory, 444 F.3d Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 19 at 744 (quoting Spurlock, 167 F.3d at 1005) (alteration in Gregory). Gregory’s reliance on Spurlock is significant because we determined in that case that this legal norm was clearly established at least as early as April or May of 1990. Spurlock, 167 F.3d at 998–99, 1006. 578 F.3d at 397 (internal quotation marks omitted). Yet, based upon the Tennessee appellate court findings, at the time of Plaintiff's trial, there was only one DNA test, Jenkins's test. Thus, there was not any exculpatory DNA evidence to withhold. The “new DNA evidence” that exculpated Plaintiff was based on “sperm fraction” material that Jenkins did not have and the additional DNA material that Jenkins did not have. Plaintiff's DNA expert testified that Jenkins “mistakenly identified” Plaintiff, which is not a deliberate decision to withhold evidence. Mills, 2013 WL 6069276, at *23. 5. Equal Protection Because the Court concludes that Defendant Barnard's acts are entitled to absolute prosecutorial immunity, Plaintiff's equal protection claim should be dismissed against Defendant Barnard. As to Defendants Jenkins and Rhoton, these Defendants contend, in essence, that Plaintiff fails to state an equal protection claim because there are not any plausible factual allegations that similarly situated persons were treated differently. In response, Plaintiff argues that “[w]hile a portion of Plaintiff's Complaint unartfully attributed Plaintiff's Equal Protection rights to the wrong Constitutional Amendment and statute, this was a harmless error as the Complaint still substantively and expressly contains a ‘class of one’ discrimination claim.” (Docket Entry No. 24 at 11). *23 “An equal protection claim must assert that the plaintiff suffered class-based discrimination.” Herron v. Harrison, 203 F.3d 410, 417 (6th Cir. 2000) (citations omitted). Plaintiff argues that he qualifies for discrimination as a “class of one.” Because “the concept of a class-of-one equal protection claim could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors,” Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012) (quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1210–11 (10th Cir. 2004)), the Sixth Circuit has stated that “a plaintiff must overcome a ‘heavy burden’ to prevail based on the class-of-one theory,” id. (citing TriHealth, Inc. v. Bd. of Comm'rs Hamilton Cnty., Ohio, 430 F.3d 783, 791 (6th Cir. 2005)). A valid class-of- one claim “must allege ‘that [she or he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.’ ” Franks v. Rubitschun, 312 F.App'x 764, 766 (6th Cir. 2009) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff's complaint “must contain enough factual matter to plausibly show there was not ‘any conceivable basis’ that rationally supported” the defendants’ actions. See Rapp v. Dutcher, 557 F.App'x 444, 449–50 (6th Cir. 2014) (citing TriHealth, Inc., 430 F.3d at 790) (emphasis in original). Plaintiff contends that Plaintiff was treated differently from similarly situated persons because “potential suspects were not even investigated despite the evidence exculpating Plaintiff,” citing Plaintiff's son Dale, Robert Hodge, and an unnamed registered sexual offender who lived in CM's neighborhood. (Docket Entry No. 24 at 11 (citing Docket Entry No. 1 at ¶¶ 40–45)). Yet, Plaintiff was not similarly situated to these “potential suspects” because CM did not make accusations against any of them. Plaintiff “[has] the burden of demonstrating that [he was] treated differently than other potential suspects “who were similarly situated in all material respects.” Loesel, 692 F.3d at 462 (citations omitted) (emphasis added). Thus, CM's accusations against Plaintiff provided Defendants a “conceivable basis” for treating Plaintiff differently than other “potential suspects.” See Rapp, 557 F.App'x at 449–50. Further, once probable cause was established by CM's statements, “the police have no constitutional duty to investigate further or to seek potentially exculpatory evidence.” Martin v. Maurer, 581 F.App'x 509, 512 (6th Cir. 2014) (citation omitted). Accordingly, the Court concludes that Plaintiff's equal protection claim should be dismissed. 6. Conspiracy Claims Under Sections 1983 and 1985 Against Jenkins and Rhoton Plaintiff asserts claims for conspiracy to violate his constitutional rights. Defendants contend, in sum, that Plaintiff's complaint fails to allege any facts with specificity that would support a claim for conspiracy and that Plaintiff has failed to allege that he was a member of a constitutionally protected class for his § 1983 claim. For his conspiracy claims, Plaintiff alleges that “Defendants Barnard, Jenkins, and Rhoton, with Dearing and other Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 20 investigative, supervisory, and command personnel, together and under color of law, reached an understanding, engaged in a course of conduct, and otherwise conspired among and between themselves to deprive Mr. Mills of his constitutional rights ....” (Docket Entry No. 1, Complaint, at ¶ 95). Plaintiff also alleges that: In furtherance of this conspiracy or conspiracies, the defendants named above, together with their un-sued co-conspirators, committed the overt acts set forth in the facts set forth above, including, but not limited to, the wrongful arrest, imprisonment and prosecution of Mr. Mills; the manufacture by the methods articulated above of knowingly false inculpatory evidence against Mr. Mills; the suppression of exonerating exculpatory evidence, including, but not limited to the DNA evidence that clearly excluded Mr. Mills but was labeled as “inconclusive,” the failure to investigate Robert Hodge, Dale Mills, or any other likely suspects either at the time they received or after it became known there was no scientific or physical evidence that linked Mr. Mills to the alleged crime, the psychological coercion of CM in an attempt to compel her to make false inculpatory statements against Mr. Mills; the making of known misstatements and the presentation of this knowingly false and incomplete evidence to prosecutors, judges, juries, and appellate courts; and the filing of false and incomplete statements and reports. *24 Id. at ¶ 96. Plaintiff's complaint does not contain any factual allegations of an agreement between Defendant Jenkins and her supervisor, Defendant Gwyn, nor does it contain any allegations that Defendant Gwyn reviewed or adopted Defendant Jenkins's report. The only factual allegations connecting Defendant Jenkins and Defendant Gwyn are the following: 48. Defendant Jenkins alleges that she had followed standard protocols and procedures of the TBI Forensic Services Division, a department under the direction of Defendant Mark Gwyn. * * * 64. Defendant Jenkins was trained according to the policies and procedures set forth by Defendant Gwyn. Id. at ¶¶ 48, 64. In Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985), the Sixth Circuit established the standard for § 1983 conspiracy claims: A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003) (quoting Hooks, 771 F.2d at 943–44). To state a claim for conspiracy under 42 U.S.C. § 1983, a plaintiff must allege “ ‘that (1) a single plan existed, (2) the conspirators shared a conspiratorial objective to deprive the plaintiff's of their constitutional rights, and (3) an overt act was committed.’ ” Womack v. Conley, 595 F.App'x 489, 494 (6th Cir. 2014) (quoting Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007)). “It is well-settled that conspiracy claims must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient to state such a claim under § 1983.” Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). Thus, “pleading requirements governing civil conspiracies are relatively strict.” Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008) (citation omitted). Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 21 The only two paragraphs in which Plaintiff references conspiracy consist primarily of legal conclusions. A court is not required to accept legal conclusions or unwarranted factual inferences as true. Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008). Plaintiff's complaint is devoid of any specific factual allegations of a plan or agreement by Defendants to violate Plaintiff's constitutional rights. Plaintiff fails to allege with factual specificity an agreement by Defendants Rhoton or Gwyn to engage in unlawful action. Thus, Plaintiff's “failure to plead apian or agreement to violate his constitutional rights is fatal to his conspiracy claim.” Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 564 (6th Cir. 2011) (citing Mettetal v. Vanderbilt Univ., Legal Dep't, 147 F.App'x 577, 585 (6th Cir. 2005) (concluding that a district court correctly dismissed certain conspiracy claims for failure to allege that the parties had entered into an agreement or formed a single plan); Huffer v. Bogan, 503 F.App'x 455, 462 (6th Cir. 2012) (holding that the plaintiff failed to state a conspiracy claim where the plaintiff's conspiracy claim “merely described the actions taken by various individual defendants, asserting that their actions were taken in furtherance of a conspiracy,” as the plaintiff's claim was deemed conclusory and failed “to include allegations regarding an agreement or shared plan between the individual defendants to violate his civil rights”); Trans Rail Am., Inc. v. Hubbard Twp., 478 F.App'x 986, 988 (6th Cir. 2012) (affirming the district court's conclusion that “there are no factual allegations that would support the conclusory statements that each of the defendants conspired with one another,” the Sixth Circuit stated that the amended complaint's “insurmountable flaw [was] that it fail[ed] to plead facts showing the existence of ‘a single plan’ ”). Accordingly, the Court concludes that Plaintiff's allegations regarding Defendants’ participation in a conspiracy are “vague and conclusory” and therefore insufficient to state a § 1983 conspiracy claim. See Guitierrez, 826 F.2d at 1538. Moreover, to the extent that the individual Defendants participated in his convictions, “[a] claim for civil conspiracy under § 1983 exists only where the plaintiff has established a separate and actionable constitutional injury.” Rapp, 557 F.App'x at 450 (citing Bauss v. Plymouth Twp., 233 F.App'x 490, 500 (6th Cir. 2007)). Plaintiff has not established an underlying constitutional injury. The Court concludes that Plaintiff's §§ 1983 and 1985(3) conspiracy claims should be dismissed. See id. *25 Finally, as to his conspiracy claim under § 1985(3), Plaintiff must prove: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities of the laws; (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. Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003) (quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828–29 (1983)). “The acts that allegedly ‘deprived the plaintiff of equal protection must be the result of class-based discrimination. ’ ” Coker v. Summit Cnty. Sheriff's Dep't, 90 F.App'x 782, 789 (6th Cir. 2003) (quoting United Bhd., 463 U.S. at 828–29); Center for Bio–Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir. 2007) (“A § 1985(3) complaint must ‘allege both a conspiracy and some class-based discriminatory animus behind the conspirators’ action.’ Newell v. Brown, 981 F.2d 880, 886 (6th Cir. 1992).... Plaintiffs here do not allege that Defendants acted with discriminatory animus based on a constitutionally protected classification.”) (emphasis in original) (citing Dunn v. Tennessee, 697 F.2d 121, 124 (6th Cir. 1982)). Here, Plaintiff does not allege that the Defendants’ alleged violations were the result of race or class-based discrimination. Even if Plaintiff qualified as a “class of one,” the Sixth Circuit has stated that membership in a class of one is “ ‘not entitled to the kind of special protection which would make § 1985(3) applicable ....’ ” Royal Oak Entm't, LLC v.City of Royal Oak, Mich., 205 F.App'x 389, 399 (6th Cir. 2006) (quoting McGee v. Schoolcraft Cmty. Coll., 167 F.App'x 429, 436 (6th Cir. 2006)). Thus, the Court concludes that Plaintiff's § 1985 conspiracy claim should be dismissed because Plaintiff did not suffer class-based discrimination. See Coker, 90 F.App'x at 789; Umani v. Mich. Dept. of Corr., 423 F.App'x 453, 462 (6th Cir. 2011). 7. Access to Courts Claim Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 22 Plaintiff alleges that Defendants Barnard, 4 Jenkins, and Rhoton deprived him of his constitutional “right to access to the Courts, as protected by the First, Fourth, and Fourteenth Amendments to the United States Constitution and 42 U.S.C § 1983.” (Docket Entry No. 1 at ¶ 95). 4 As discussed supra, Plaintiff's claims against Barnard are barred by absolute prosecutorial immunity. “The Supreme Court has recognized a constitutional right of access to the courts, whereby a plaintiff with a nonfrivolous legal claim has the right to bring that claim to a court of law.” Flagg v. City of Detroit, 715 F.3d 165, 173 (6th Cir. 2013) (citing Christopher v. Harbury, 536 U.S. 403, 415 n. 12 (2002)). “[T]he right [of access to the courts] is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.” Brown v. Matauszak, 415 F.App'x 608, 612 (6th Cir. 2011) (citation omitted). As the Sixth Circuit recently explained, “[d]enial of access to the courts claims maybe ‘forward- looking’ or ‘backward-looking. ’ ” Flagg, 715 F.3d at 173 (citing Christopher, 536 U.S. at 415). “In forward-looking claims, the plaintiff accuses the government of creating or maintaining some ‘frustrating condition,’ that stands between the plaintiff and ‘the courthouse door.’ The object of the suit is to eliminate the condition, thereby allowing the plaintiff, usually an inmate, to sue on some underlying legal claim.” Id. (citations omitted). In contrast, “[i]n backward- looking claims,... the government is accused of barring the courthouse door by concealing or destroying evidence so that the plaintiff is unable to ever obtain an adequate remedy on the underlying claim. ” Id. (citing Christopher, 536 U.S. at 413– 14). Although much less established than forward-looking claims, this Circuit recognizes backward-looking claims. Id.; see also Hunt v. City of Cleveland, 563 F.App'x 404, 410(6th Cir. 2014). The Court construes Plaintiff's claim as backward- looking. *26 “In a denial-of-access case, ‘the underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice to a defendant,’ just ‘ [1]ike any other element of an access claim.’ ” Brown, 415 F.App'x at 612 (citations omitted). In Christopher, the Supreme Court stated: [T]he underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation. It follows, too, that when the access claim ... looks backward, the complaint must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought. There is, after all, no point in spending time and money to establish the facts constituting denial of access when a plaintiff would end up just as well off after litigating a simpler case without the denial-of-access element. * * * Although we have no reason here to try to describe pleading standards for the entire spectrum of access claims, this is the place to address a particular risk inherent in backward- looking claims. Characteristically, the action underlying this sort of access claim will not be tried independently, a fact that enhances the natural temptation on the part of plaintiffs to claim too much, by alleging more than might be shown in a full trial focused solely on the details of the predicate action. Hence the need for care in requiring that the predicate claim be described well enough to apply the “nonfrivolous” test and to show that the “arguable” nature of the underlying claim is more than hope. And because these backward- looking cases are brought to get relief unobtainable in other suits, the remedy sought must itself be identified to hedge against the risk that an access claim be tried all the way through, only to find that the court can award no remedy that the plaintiff could not have been awarded on a presently existing claim. 536 U.S. at 415–16 (footnotes omitted). “Essentially, a claim for denial of access to the courts has unique pleading requirements: a plaintiff must plead a case within a case, alleging the law and facts sufficient to establish both the interference with his access to the courts, and the non-frivolous nature of the claim that was lost.” Brown, 415 F.App'x at 612. As stated by the Sixth Circuit, the elements of a backward-looking denial of access-to-court claims are: “(1) a non-frivolous underlying claim; (2) obstructive actions by state actors; (3) substantial prejudice to the underlying claim that cannot be remedied by the state court; and (4) a request for relief which the plaintiff would have sought on the underlying claim and is now otherwise unattainable.” Flagg, 715 F.3d at 174 (internal punctuation and citations omitted). “Plaintiff's must make out the denial-of-access elements against each defendant in conformance with the requirements of § 1983.” Id. Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 23 As to his access-to-courts claim, Plaintiff complaint alleges: “To date, a basic background check of Mr. Mills still indicates that he was convicted of rape of a child, aggravated sexual battery, and casual exchange, making it extremely difficult for Mr. Mills to earn gainful employment.” (Docket Entry No. 1, Complaint, at ¶ 86). In his response to Defendants’ motions to dismiss, Plaintiff argues: “Defendants Marshall County and Barnard have continued to block Plaintiff's efforts to expunge [his] charges and conviction from his record despite his rights under Tennessee law.” (Docket Entry No. 24 at 14). As to injunctive relief, Plaintiff states: *27 Plaintiff seeks an injunction clearing his criminal record. Plaintiff's efforts to do so through the Marshall County court system pursuant to Tenn. Code Ann. § 40–32–101 have not progressed, likely due to Defendants Barnard and Marshall County's intent to continue to deprive Plaintiff of his rights in any manner at their disposal. Plaintiff is entitled to have his name restored and these heinous charges and convictions removed from his background check. Tennessee criminal background checks are conducted by TBI, which is under the direction of [Defendant] Gwyn. Defendants will not comply with the law when it comes to restoring Plaintiff's rights that their actions stripped away, and they must be enjoined from continuing to do so. Id. at 7. Tennessee Code Ann. § 40–32–101(a)(3)provides: “Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged.” Based upon his allegations, to the extent Plaintiff asserts an injury to his name, where state law provides a remedy, there is not a federal claim. Paul v. Davis, 424 U.S.693, 701–02 (1976). The Supreme Court has held that, where a plaintiff has a remedy against government officials under state law, the plaintiff does not state a cognizable claim under the Due Process Clause. Parratt v. Taylor, 451 U.S. 527, 543–44 (1981) (overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). “While the states are, of course, free to enact laws that are more protective of individual rights than the United States Constitution, a mere violation of such a state law will not establish a proper claim under § 1983.” Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995) (citation and internal quotation marks omitted). The Fourteenth Amendment should not be “superimposed upon whatever systems may already be administrated by the States.” Daniels, 474 U.S. at 332 (citations and internal quotation marks omitted). “[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). To the extent the Plaintiff alleges loss of property such as income, the Tennessee Governmental Tort Liability Act provides a remedy for the loss of property interest. See Tenn. Code Ann. § 29–20–101 et seq. Here, Plaintiff has failed to allege with particularity facts to establish the elements of his access-to-courts claim. Plaintiff does not allege any underlying claims lost as a result of any Defendant's conduct or that cannot be remedied by this Court. Nor does Plaintiff allege sufficient facts as to why any relief he would have sought on an underlying claim is now unattainable or why he is now foreclosed from bringing the underlying claim. 5 Accordingly, the Court concludes that Plaintiff's denial-of-access claim should be dismissed. 5 Although Plaintiff's Fourth Amendment false arrest and false imprisonment claims are barred by the statute of limitations, as a matter of law, Plaintiff was required to file these claims within a year from the time he became detained pursuant to legal processes, and Plaintiff does not allege that any Defendant prevented him from filing these claims. 8. Marshall County and the City of Lewisburg Plaintiff also asserts claims for municipal liability against Marshall County and the City of Lewisburg. Of the individual Defendants, only Defendant Rhoton was a local government employee. To raise a municipal liability claim under § 1983, Plaintiff must demonstrate that the alleged federal violation occurred because of a municipal policy or custom. Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). “There can be no Monell municipal liability unless there is an underlying Mills v. Barnard, Not Reported in Fed. Supp. (2016) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 24 unconstitutional act.” Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir. 2007) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Because the Court has concluded that there are not any underlying constitutional violations by Defendant Rhoton, the only city or county employee, the Court concludes that Marshall County and the City of Lewisburg are not subject to municipal liability and should be dismissed as Defendants. Id. 9. Declaratory and Injunctive Relief *28 As to Plaintiff's request for injunctive relief, the individual Defendants may not be sued for injunctive relief in their individual capacities. See Cmty. Mental Health Servs. of Belmont v. Mental Health and Recovery Bd. Serving Belmont, Harrison & Monroe Cntys., 150 F.App'x 389, 401 (6th Cir. 2005). As to Plaintiff's allegations on the continued publication of his conviction that has been set aside, as stated above, Tennessee law provides a remedy. As to Defendants in their official capacities, Plaintiff cannot enjoin Defendants from things they have allegedly already done. If Plaintiff is seeking to enjoin Defendants from future acts, Plaintiff lacks standing. See Heaning v. Sliwowski, 806 F.3d 864, 868 (6th Cir. 2015). Accordingly, Plaintiff's claim for injunctive relief should be denied. For the reasons stated on Plaintiff's access-to-courts claim, Plaintiff has viable state remedies and in such a situation, Plaintiff is not entitled to declaratory or injunctive relief. C. Conclusion Without any viable federal claims, the Court declines to exercise supplemental jurisdiction over Plaintiff's state law false imprisonment claim. See e.g., Wal–Juice Bar, Inc. v. Elliot, 899 F.2d 1502, 1504 (6th Cir. 1990). For these collective reasons, the Court concludes that the motions to dismiss of Defendants Jenkins and Gwyn (Docket Entry No. 6), Defendant Barnard (Docket Entry No. 13), Defendant Marshall County (Docket Entry No. 16), and Defendants Rhoton and the City of Lewisburg (Docket Entry No. 18) should be granted, except that Plaintiff's state law claim should be dismissed without prejudice. For his wrongful conviction, Plaintiff's potential remedies are in the state courts. An appropriate Order is filed herewith. All Citations Not Reported in Fed. Supp., 2016 WL 5819787 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. Mills v. Barnard, Not Reported in Fed. Supp. © 2022 Thomson Reuters. No claim to original U.S. Government Works. History (5) Direct History (2) 1. Mills v. Barnard 2016 WL 5819787 , M.D.Tenn. , Sep. 30, 2016 Reversed by 2. Mills v. Barnard 869 F.3d 473 , 6th Cir.(Tenn.) , Aug. 28, 2017 , rehearing en banc denied ( Oct 12, 2017 ) Related References (3) 3. Mills v. Barnard 2016 WL 4466630 , M.D.Tenn. , Aug. 24, 2016 4. Mills v. Barnard 2019 WL 2440804 , M.D.Tenn. , Apr. 18, 2019 Report and Recommendation Adopted by 5. Mills v. Barnard 2019 WL 2433185 , M.D.Tenn. , June 11, 2019 Mills v. Barnard, Not Reported in Fed. Supp. © 2022 Thomson Reuters. No claim to original U.S. Government Works. B Mills v. Barnard 869 F.3d 473 | Aug 28, 2017 6th Cir.(Tenn.) rehearing en banc denied Oct 12, 2017 Reversing A A Mills v. Barnard 2016 WL 5819787 Sep 30, 2016 M.D.Tenn. Intermediate Court Trial Court EXHIBIT C Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 2022 WL 888182 Only the Westlaw citation is currently available. United States District Court, District of Columbia. Ugo COLELLA, et al., Plaintiffs and Counter-Defendants, v. Thomas T. ANDROUS, et al., Defendants and Counter-Plaintiffs. Civil Action No.: 20-813 (RC) | Signed 03/25/2022 Attorneys and Law Firms Ugo Colella, Colella Zefutie LLC, Washington, DC, Pro Se. Brian Adam Scotti, Gordon Rees Scully Mansukhani LLP, Alexandria, VA, for Plaintiff and Counter-Defendant Ugo Colella. John J. Zefutie, Jr., Cranbury, NJ, Pro Se. Brian Adam Scotti, Gordon Rees Scully Mansukhani LLP, Alexandria, VA, Ugo Colella, Colella Zefutie LLC, Washington, DC, for Plaintiff and Counter-Defendant John J. Zefutie, Jr. Christopher G. Hoge, Crowley, Hoge & Fein, P.C., Washington, DC, for Defendants. MEMORANDUM OPINION RUDOLPH CONTRERAS, United States District Judge DENYING COUNTER-DEFENDANTS' MOTION TO DISMISS COUNTERCLAIM I. BACKGROUND *1 What began as a lawsuit two attorneys brought against former clients to recover allegedly unpaid legal fees has morphed, via a counterclaim, into a legal malpractice suit. The Court's previous opinion in the matter describes in detail the fee-recovery allegations, and the Court does not repeat that background in detail here. Colella v. Androus, 518 F. Supp. 3d 439, 442–44 (D.D.C. 2021). In short, Ugo Colella and John Zefutie represented Thomas Androus and two limited liability companies of which Androus was the sole and controlling member—2208 Russell Road, LLC and 2208 RR AVA, LLC—in a lawsuit against a construction contractor in Virginia state court. Id. at 442. Androus and his businesses allegedly failed to pay Colella and Zefutie for their services, so they filed the instant suit in this Court to recover their fees. Id. at 443. Androus, 2208 Russell Road, and 2208 RR AVA (together, “Counter-Plaintiffs”) filed an answer, as well as a counterclaim against Colella and Zefutie (together, “Counter-Defendants”) alleging legal malpractice in relation to the underlying Virginia lawsuit and related matters. Counterclaim at 19, ECF No. 26. Currently before the Court is Counter-Defendants' Federal Rule of Procedure 12(b)(6) motion to dismiss the Counterclaim for failure to state a claim. Mot. Dismiss Counterclaim, ECF No. 28. For the purpose of resolving this motion, the Court accepts the following allegations in the Counterclaim as true. See, e.g., Robb v. Vilsack, No. CV 20-0929, 2021 WL 3036796, at *1 n.2 (D.D.C. July 19, 2021). In October 2015, 2208 Russell Road, LLC contracted to purchase an Alexandria, Virginia property (the “Alexandria Property”) from Brian Thomas and Thomas Brothers Enterprises, LLC (together, “Thomas”), who were in the process of renovating a home on the property. Counterclaim ¶¶ 6–7, 10. “As part of the purchase price, Androus signed a promissory note to Thomas in the amount of $1,600,000 (the ‘Note’), secured by a Deed of Trust on the Property.” Id. ¶ 7. Androus grew concerned that Thomas's construction of the home on the property had been defective. In August 2017, he retained Colella, who at the time was associated with the law firm of Duane Morris, to represent him in relation to a potential dispute between Androus and Thomas. Id. ¶¶ 6, 8. Within a week, Colella advised Androus via email of several claims he could potentially bring against Thomas: “violation of the Virginia Consumer Protection Act (‘VCPA’); aiding and abetting violation of the VCPA; conspiracy to violate the VCPA; fraudulent inducement; fraud in the execution; negligent misrepresentation; and breach of contract.” Id. ¶ 9. In October 2017, with Colella's assistance, 2208 Russell Road, LLC deeded the Alexandria Property to Androus, who then immediately deeded it to 2208 RR AVA. Id. ¶ 10. In April 2018, Thomas demanded from Androus $1,954,854.51 in payment on the Note. Colella responded with a letter alleging construction defects worth over $1,000,000 and asserting that Thomas had acted without a state contracting license, which according to Colella rendered him liable under the VCPA for Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2 treble damages in the amount of $3,000,000. Id. ¶ 11. Colella offered that if Thomas would walk away from his claim on the Note, Androus would finish the construction using different contractors. Id. *2 Instead of settling, Thomas sued Androus and his LLCs in Virginia state court, alleging that the transfers of the property between Androus and his LLCs were fraudulent conveyances intended to defeat his claims. He sought a judgment declaring that he had a lien against the Alexandria Property. Id. ¶ 12. Androus asked his attorney Colella if he should have 2208 RR AVA return the property to 2208 Russell Road, LLC, “in order to render [Thomas's complaint] moot.” Id. ¶ 13. Colella advised that he should not, and that he instead should file a counterclaim against Thomas seeking damages for violations of the VCPA, fraudulent inducement, and breach of contract. Id. ¶¶ 13, 15. Androus took the advice and filed a counterclaim and third-party complaint against Thomas seeking, among other things, $2,000,000 in compensatory damages, treble damages under the VCPA, and punitive damages. Id. ¶ 15. Thomas responded with an amended complaint, which added causes of action and sought $1,600,000 in damages on the Note. Id. at 16. The case proceeded toward trial. “Throughout his representation of Androus,” including “shortly before trial,” Colella had advised Androus of two key legal theories. Id. ¶ 14. First, he “estimated that Counter- Plaintiffs had incurred actual damages of $1,200,000, which could be trebled to $3,600,000 under the VCPA.” Id. Second, he “advised Androus that [he and his LLCs] had a viable claim for punitive damages, which could result in up to nine times the actual damages (i.e. $10,800,000), as well as a claim for attorneys' fees, estimated at $400,000.” Id. Colella never told Androus about Va. Code Ann. § 8.01-38.1, which provides that “[i]n any action accruing on or after July 1, 1988 ... [i]n no event shall the total amount awarded for punitive damages exceed $350,000.” See Counterclaim ¶ 14. Before trial, Colella and Zefutie left Duane Morris for Culhane Meadows, PLLC, but they signed an engagement letter stating that they would continue to represent Androus and his LLCs in the pending lawsuit against Thomas. Id. ¶ 18–20. Zefutie “assisted Colella with the preparation for and conduct of the trial.” Id. ¶ 20. Naturally, preparation for trial involved readying witnesses. Although Colella discussed with Androus the need to present expert witnesses, he relied on Androus to select the experts himself, “without advising Androus that he should not retain an expert with whom he had a personal relationship.” Id. ¶ 21. Androus selected his “neighbor and friend” Jeffrey Resetco “as a construction expert,” and selected Randy Harding—“a friend of Androus' since high school”—“to offer an estimate of the cost of repair.” Id. In addition to leaving the selection of these witnesses up to Androus, neither Androus nor Zefutie supervised Harding's preparation. Id. ¶ 22. Harding duly authored a report which estimated the costs of repairing the defects ($859,172), but Androus considered the estimate to be too high based on his own experience in the business. Id. He therefore “edited the report and revised the estimate down to $598,386.75.” Id. Androus delivered the revised report to Colella, who did not ask any questions about it. Id. Thus, when preparing Harding for his deposition, “Colella and/or Zefutie failed to alert Harding to the fact that Androus had revised Harding's estimate downward.” Id. ¶ 24. So when counsel for Androus confronted Harding with an estimate significantly lower than the one he had prepared, he became “confused” and his “credibility [was] diminished.” Id. Androus asked about obtaining new estimates, but Colella advised that new estimates were not necessary. Id. As for Resetco, “[w]ith Colella and Zefutie's knowledge and consent, Androus himself prepared a lengthy, detailed report concerning the nature and extent of the construction defects.” Id. ¶ 23. Androus attached to the report a one-page letter from Resetco, which stated that he had reviewed Androus's report and had repeatedly visited the property to confirm that the report's description of the construction deficiencies was accurate. Id. The letter also stated that Resetco agreed with the estimated repair costs in the Harding Report. Id. *3 Just before trial, Androus asked about pursuing mediation, but “Colella and Zefutie responded that there was no time for mediation; all efforts had to be devoted to trial preparation.” Id. ¶ 25. Androus had also repeatedly told Colella and Zefutie that he was interested in settling the case. Id. Colella and Zefutie pushed back, “insist[ing] that Counter-Plaintiffs had very substantial claims and a very good chance to win at trial, and they did not engage in meaningful settlement discussions with counsel for Thomas.” Id. But trial did not go well for Androus and his LLCs. When Androus attempted at trial to introduce Harding's estimate (as revised downward by Androus), the trial court excluded it. Id. ¶ 24. Thus, “Colella and Zefutie were unable to introduce any estimates for the total repair of all the construction defects” Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 3 at trial. Id. ¶ 28. Opposing counsel emphasized to the jury the conveyance of the Alexandria Property, “which had been sanctioned and abetted by Colella.” Id. ¶ 29. According to Androus, Colella was “overly aggressive” at trial; for example, he called Thomas a “liar.” Id. ¶ 27. In the end, the jury returned a verdict against Androus and his LLCs of $2,400,000. Id. ¶ 30. Because of the fee dispute discussed above, Colella and Zefutie refused to appeal, so Androus had to hire new counsel to do so. Id. ¶ 32. Based on these allegations, Androus and his LLCs counterclaim in this action for legal malpractice, asserting that Colella and Zefutie breached their duties of care in six ways: • “Incorrectly advising Counter-Plaintiffs that they had a viable claim for punitive damages against Thomas.” Id. ¶ 37. • “Incorrectly advising Counter-Plaintiffs that they had a very strong case against Thomas based on [his] lack of a construction license.” Id. • “Incorrectly advising Counter-Plaintiffs that there was nothing wrong with conveying the Property to 2208 RR AVA, assisting them with that transaction, and advising them not to convey the Property back to 2208 Russell Road after Counter-Plaintiffs were sued for fraudulent conveyance by Thomas.” Id. • “Failing to manage and supervise the selection and preparation of expert witnesses to support Counter- Plaintiffs' claims, including but not limited to failing to alert Harding before his deposition that Androus had revised his estimate of repair downward.” Id. • “Failing to engage in significant settlement negotiations with Thomas prior to trial, despite Androus' requests to do so, and instead encouraging Counter-Plaintiffs to go to trial with the expectation of a large verdict in Counter- Plaintiffs' favor.” Id. • “Utilizing an overly aggressive litigation style at trial, which antagonized the judge and the jury.” Id. Androus alleges that these breaches proximately caused damages in the form of the adverse trial judgment, which remains unpaid and has grown to $2,600,000 with post- judgment interest; “[o]verpayment” of $300,000 in attorneys' fees for subpar services; appellate fees to remedy the trial judgment; and the cost of the required bond pending appeal. Id. ¶ 38. II. LEGAL STANDARD The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” sufficient to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a complaint” under that standard; it asks whether the plaintiff has properly stated a claim. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff's factual allegations “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).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555. However, a court considering a motion to dismiss must accept the complaint's factual allegations as true and construe them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). Put another way, the court must “draw all reasonable inferences” in favor of the plaintiff. DC2NY, Inc. v. Acad. Express, LLC, 485 F. Supp. 3d 113, 118 (D.D.C. 2020). III. ANALYSIS *4 “To succeed on a legal malpractice claim [under District of Columbia law], the plaintiff must show that (1) the defendant was employed as the plaintiff's attorney, (2) the defendant breached a reasonable duty, and (3) that breach resulted in, and was the proximate cause of, the plaintiff's loss or damages.” 1 Seed Co. Ltd. v. Westerman, Hattori, Daniels & Adrian, LLP, 961 F.3d 1190, 1196 (D.C. Cir. 2020) (quoting Martin v. Ross, 6 A.3d 860, 862 (D.C. 2010)). Counter- Defendants argue that the counterclaim fails to plausibly allege the breach and causation elements in relation to several Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 4 of Counter-Plaintiffs' legal malpractice theories. See Mem. at 8. They further argue that any malpractice claim related to advice regarding the conveyance of the Alexandria Property between Androus-owned entities is barred by the statute of limitations and the doctrines of in pari delicto and judicial estoppel. See id. at 15–20. Finally, they assert that the counterclaim does not sufficiently allege that Zefutie was involved in any of the alleged breaches of the duty of care, so it fails to state any claims against him. See id. at 8–9. The Court first addresses the sufficiency of the allegations against Colella before turning to those against Zefutie. It concludes that the Counterclaim states legal malpractice claims against both Counter-Defendants. 1 Both parties draw upon District of Columbia law for their arguments about the legal malpractice claims. Mem. P. & A. Supp. Pls.'/Counter-Defs.' Mot. Dismiss Counterclaim at 7 (“Mem.”), ECF No. 28-1; Defs.'/Counter-Pls.' Opp'n Pls.'/Counter- Defs.' Mot. Dismiss Counterclaim at 4, 8 (“Op'n”), ECF No. 29. Of course, a significant portion of the events underlying the claims took place in Virginia, and Counter-Plaintiffs state in a passing footnote that “[t]he question of whether to apply District of Columbia or Virginia law to the issues raised by this motion has not been briefed and is not clear.” Opp'n at 11 n.2. That passive formulation elides that the responsibility to brief any choice-of-law issue lies with the parties. The parties have not established whether there is any conflict between D.C. and Virginia law that is relevant to the issues presented in the instant motion, and the allegations in the complaint alone do not provide a sufficient basis to resolve any choice of law question that might arise (for example, it is unclear at this time whether Colella and Zefutie provided certain of their advice in D.C. or Virginia). Accordingly, the Court applies D.C. law by default for the purpose of resolving this motion, but the parties may raise the issue again if they wish “after an opportunity for discovery.” See Jones v. Lattimer, 29 F. Supp. 3d 5, 10 n.3 (D.D.C. 2014); Beach TV Props., Inc. v. Solomon, 306 F. Supp. 3d 70, 92 (D.D.C. 2018). One preliminary note: Counter-Defendants attached to their motion to dismiss significant excerpts from the record of the trial court action, and ask the Court to take judicial notice of these documents. Counter-Plaintiffs do not object. Public documents from other court proceedings are judicially noticeable and permissible to consider when resolving a Rule 12(b)(6) motion, so the Court considers them here. Lewis v. Drug Enf't Admin., 777 F. Supp. 2d 151, 159 (D.D.C. 2011), aff'd, No. 11-5152, 2012 WL 1155698 (D.C. Cir. Mar. 8, 2012). A. The Counterclaim States a Legal Malpractice Claim Against Colella 1. Counter-Plaintiffs Plausibly Plead the Breach and Causation Elements of their Claims Breach and causation regarding VCPA advice. Colella advances three related arguments to the effect that Counter- Plaintiffs' allegation that Colella breached his professional duty of care by advising them “that they had a very strong case against Thomas based on [Thomas's] lack of a construction license” fails to state a legal malpractice claim. Counterclaim ¶ 37(b). Colella contends that this advice was substantively correct and therefore not a breach of his duty; he alternatively claims that even if the advice was mistaken in some way, it nevertheless cannot ground a legal malpractice claim because of the judgmental immunity rule. Mem. at 11–12, 13–14. Colella also argues that the Counterclaim does not sufficiently allege that his VCPA advice caused Counter-Plaintiffs any harm. Mem. at 13. *5 Resolution of these arguments requires the Court to clear up which of two distinct pieces of advice related to Thomas's lack of a construction license serves as the basis for Counter-Plaintiffs' legal malpractice claim. The Counterclaim alleges that Colella advised Androus that Thomas's lack of a license violated the VCPA and therefore gave Counter- Plaintiffs an affirmative VCPA claim against Thomas for treble damages up to $3,600,000, and that based in part on this understanding, Colella advised Androus to file and pursue at trial a counterclaim for damages against Thomas. Counterclaim ¶¶ 11, 13–14. Colella's brief largely focuses on a second piece of advice he says he gave regarding the license rule, namely that the lack of a construction license afforded Counter-Plaintiffs a defense to Thomas's breach-of-contract claims. See Mem. at 11–13. But this focus is a distraction: the Court understands Counter-Plaintiffs' malpractice claim to rest instead on the advice regarding the potential for a large damages recovery on an affirmative VCPA claim. See Counterclaim ¶¶ 11, 13–14, 35 (“Counter-Plaintiffs went into the trial expecting to win a substantial verdict, based largely on Counter-Defendants' repeated assurances that the licensing issue was an almost sure winner.”); Opp'n at 7 (“[R]ather Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 5 than explain the murky nature of the law and that the lack of a license was not necessarily fatal to Thomas' claims, as the statutory amendments and case law suggest, Counter- Defendants advised Androus that Counter-Plaintiffs' claim under the VCPA was worth over $3,000,000, including treble damages.”). The question of whether an attorney breached the professional standard of care is not easily answered at the Rule 12(b) (6) stage. Indeed, “[u]nless the attorney's lack of care is so obvious that the jury can find negligence as a matter of common knowledge, the standard and its violation must be proved by expert testimony.” Mills v. Cooter, 647 A.2d 1118, 1123 (D.C. 1994). The application of the judgmental immunity rule likewise does not easily submit to pleading- stage resolution. This “doctrine provides that an informed professional judgment made with reasonable care and skill cannot be the basis of a legal malpractice claim. Central to the doctrine is the understanding that an attorney's judgmental immunity and an attorney's obligation to exercise reasonable care coexist such that an attorney's non-liability for strategic decisions is conditioned upon the attorney acting in good faith and upon an informed judgment after undertaking reasonable research of the relevant legal principals and facts of the given case.” Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662, 666 (D.C. 2009) (cleaned up). Thus, in Biomet, the court noted that “the reasonableness of an attorney's litigation strategy” is not always “susceptible to resolution” even at the summary judgment stage. Id. at 665. Colella argues that his advice on the license issue was at least a reasonable evaluation of Virginia law, and relies on Mills to argue that the mere fact that the jury sided against Androus on the affirmative VCPA claim does not prove otherwise. Mem. at 14. This argument is flawed in two ways. First, Mills was an appeal of a post-trial motion for judgment notwithstanding the verdict; Colella does not cite any authority to support the proposition that an adverse jury determination cannot lend plausibility to Counter-Plaintiffs' allegation that Colella's advice of a strong chance at a VCPA damages recovery breached the standard of care. Mills, 647 A.2d at 1119. Second, the parties' briefing on Virginia law does not allow the Court, at this stage, to conclude that Colella's advice was either substantively correct or based on a reasonably informed professional judgment such that Counter-Plaintiffs' claim fails as a matter of law. In fact, though the Court reserves final judgment until the parties fully brief the issue, it appears that Colella's advice may have been substantively wrong. See Biomet, 967 A.2d at 668 (whether an attorney's strategy was reasonable in the context of the judgmental immunity “requires consideration of the state of the law” at the time the attorney made the strategic decision). Va. Code Ann. § 54.1-1103 requires that those who engage in contracting work in Virginia have a state license to do so. Colella spends most of his briefing on this issue explaining the way this requirement interacts with breach- of-contract disputes involving unlicensed contractors (so, for that matter, do the Counter-Plaintiffs): “A construction contract entered into by a person undertaking work without a valid Virginia contractor's license shall not be enforceable by the unlicensed contractor undertaking the work unless the unlicensed contractor (i) gives substantial performance within the terms of the contract in good faith and (ii) did not have actual knowledge that a license or certificate was required by this chapter to perform the work for which he seeks to recover payment.” Id. § 54.1-1115(C); see Mem. at 11–12; Opp'n at 5–7. But as the Court has explained, the legal malpractice claim does not appear to rely on Colella's advice concerning this defense. Instead, it relies on Colella's advice that the license statute gave Counter-Plaintiffs an affirmative claim for treble damages against Thomas. Colella devotes a grand total of one sentence to the provision that presumably grounded this piece of advice. Mem. at 11. Va. Code Ann. § 54.1-1115(B)(i) provides that undertaking contracting work without a license, in addition to subjecting the contractor to criminal penalties, “shall also constitute a prohibited practice in accordance with § 59.1-200 [of the Virginia Consumer Protection Act], provided that the violation involves a consumer transaction as defined in the Virginia Consumer Protection Act (§ 59.1-196 et seq.), and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act.” The “enforcement provision[ ] of the Virginia Consumer Protection Act” relevant to Colella's advice must have been its private cause of action, which provides: *6 Any person who suffers loss as the result of a violation of this chapter shall be entitled to initiate an action to recover actual damages, or $500, whichever is greater. If the trier of fact finds that the violation was willful, it may increase damages to an amount not exceeding three times the Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 6 actual damages sustained, or $1,000, whichever is greater. Va. Code Ann. § 59.1-204. So far, so good for Colella's advice. But recall that a violation of the contractor license requirement qualifies as a prohibited practice under the VCPA only “provided that the violation involves a consumer transaction as defined in the Virginia Consumer Protection Act.” Va. Code Ann. § 54.1-1115(B)(i). The VCPA defines consumer transaction, in relevant part, as “[t]he advertisement, sale, lease, license or offering for sale, lease or license, of goods or services to be used primarily for personal, family or household purposes.” Va. Code Ann. § 59.1-198 (emphasis added). The allegations in the Counterclaim do not make it clear that the Androus and his LLCs used Thomas's contracting services primarily for personal, household, or family purposes. In fact, the counterclaim contains allegations that at least plausibly suggest they did not. “Androus is in the real estate business and knowledgeable about construction issues.” Counterclaim ¶ 8. Moreover, the Alexandria Property transaction involved two separate LLCs, one of which was the direct purchaser—hardly an indicator, though not necessarily preclusive, of personal, household, or family use. Id. ¶ 10. It is at least plausible that Counter-Plaintiffs never had a viable affirmative VCPA claim based on plain statutory requirements, and that Colella's advice therefore breached his duty of care and was not sufficiently informed to merit the protection of the judicial immunity rule. To be sure, the Court does not have the benefit of full briefing on the scope of a lack-of-license-based VCPA cause of action, and does not reach any firm conclusion on whether Counter- Plaintiffs did or did not have a viable affirmative VCPA claim. Rather, the Court holds that Colella's memorandum in support of his motion to dismiss fails to convince that advising the Counter-Plaintiffs that they had a good chance at a substantial VCPA recovery was either substantively correct or a reasonably informed judgment as a matter of law, and that the Counterclaim plausibly alleges otherwise. In other words, the Counterclaim plausibly alleges that Colella's advice was based on “oversight or neglect” of a significant weakness in Counter-Plaintiffs' VCPA claim, which is enough to plead a breach of the duty of care outside the protection of the judgmental immunity rule at the motion-to-dismiss stage. See Biomet, 967 A.2d at 666. Colella suggests that his advice must have been correct, or that it at least did not cause Counter-Plaintiffs any harm, because the Virginia court allowed the affirmative VCPA claim to go to the jury and instructed the jury that lack of a contractor's license is a VCPA violation. “One can only assume,” Colella writes, “that the [Virginia c]ourt would not have allowed a meritless claim to go the jury.” Mem. at 13. Not so. For one thing, Colella attached only certain excerpts from the Virginia-court record, and these do not establish whether Thomas even presented to the Virginia court an argument that the VCPA claim should not go to the jury. The Court cannot infer anything about the viability of the affirmative VCPA claim from the mere possibility of a Virginia court ruling on an issue it may not have even confronted. For another, it is at least plausible that whether the Alexandria Property transaction qualified as a “consumer transaction” was a disputed issue at trial, and that the jury sided against Counter-Plaintiffs on their affirmative VCPA claim because they concluded it did not so qualify. The jury instructions Colella excerpts include an instruction on the “consumer transaction” requirement: “Any person who undertakes work as a contractor without a valid Virginia contractor's license ... has engaged in a prohibited practice in violation of the Virginia Consumer Protection Act, provided the violation involves a ‘consumer transaction’ as defined by the Virginia Consumer Protection Act.” Mot. Dismiss Counterclaim Ex. D at 5, ECF No. 28-5. The excerpted instructions do not go on to define “consumer transaction,” but Colella does not purport to provide a complete copy of the jury instructions. *7 Moreover, and in response to Colella's causation argument, Counter-Plaintiffs' malpractice claim does not rest solely on the fact that they lost at trial on the VCPA claim. They also allege that they would not have incurred the expense of pursuing a VCPA counterclaim against Thomas in the first place (and/or would have settled before trial) were it not for Colella's advice that they had a “very strong” VCPA claim for substantial treble damages. See Counterclaim ¶¶ 11, 14, 25, 37, 38. Thus, Colella misconstrues the nature of Counter-Plaintiffs' claim when he insists that “[a]n adverse jury verdict standing alone cannot be the basis for a malpractice claim.” Mem. at 13. Read in the light most favorable to Counter-Plaintiffs, the Counterclaim alleges not only that Colella's faulty evaluation of the VCPA claim was partially responsible for Counter-Plaintiffs' loss at trial, but also that it caused them to “[o]verpay” in attorneys' fees by misleading them into pursuing the doomed project of bringing a VCPA counterclaim and litigating it to trial in the first place. Counterclaim ¶¶ 13–15, 38. This is not Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 7 a case in which the plaintiff alleges only that attorney malpractice caused him to fail to recover on an otherwise viable claim; rather, Counter-Plaintiffs allege that Counter- Defendants negligently overstated the viability of their claim and therefore caused them to pursue it when they otherwise would not have. 2 2 For the first time in his reply brief, Colella attaches and invokes a document in which Androus took notes evidencing an understanding that one possible outcome of the trial was an adverse judgment of over $2,000,000. Reply Mem. Further Supp. Counter-Defs.' Mot. Dismiss Counterclaim (“Reply”) at 3, ECF No. 30; Reply Ex. J at 3, ECF No. 30-1. Colella suggests that this document defeats the notion that any of his advice caused Androus to pursue a faulty litigation strategy. Reply at 3–4. But it does not conclusively so establish; for example, it does not reveal whether Colella's advice led Androus to understand that an adverse judgment was a likely outcome at trial, an unlikely outcome, or something in between. In any event, the Counterclaim neither attaches, references, nor necessarily relies upon this document, so it is not properly before the Court at the Rule 12(b)(6) stage. See Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011); Compton v. Alpha Kappa Alpha Sorority, Inc., 64 F. Supp. 3d 1, 11–12 (D.D.C. 2014); Cogdell v. Murphy, No. CV 19-2462, 2020 WL 6822683, at *3 (D.D.C. Nov. 20, 2020). For what it is worth, the Court agrees with Colella that Counter-Plaintiffs' complaints about Colella's presentation style before the jury likely would not on their own suffice to state a claim for legal malpractice. Mem. at 25–26. The only specific fact alleged in support of the Counterclaim's allegations that “Colella exhibited overly aggressive behavior” at trial and that “the jury was clearly unimpressed” is the allegation that Colella referred to Thomas as liar in his opening statement. Counterclaim ¶ 27. Casting doubt on the credibility of an adverse party hardly seems overly aggressive; in any event, Colella's decision to call Thomas a liar during his opening statement represents the sort of reasonable choice of “trial tactic[ ]” that lies at the heart of the judgmental immunity doctrine. See Biomet, 967 A.2d at 666. But all of this is neither here nor there, because other Counterclaim allegations suffice to state a legal malpractice claim. Cf. Harmoni Int'l Spice, Inc. v. Wenxuan Bai, No. 216-cv-00614, 2019 WL 4194306, at *8 (C.D. Cal. July 2, 2019) (“[T]he Court notes that even if these allegations are immaterial, they provide ‘a background and important factual underpinning’ to Plaintiffs' claims and provide at least some context about what happened in this case (citation omitted)). Causation regarding remaining alleged errors. For purposes of the motion to dismiss, Colella appears not to detail an argument that Counter-Plaintiffs' remaining alleged errors— including Colella's failure to advise Androus of Virginia's punitive damages cap, the shortcomings in expert preparation, and the failure to engage in settlement discussions—were not breaches of the duty of care. He instead focuses on arguing that the Counterclaim does not plausibly plead that these errors caused any injury. “As with any tort action, legal malpractice liability is predicated on a finding that the injury was proximately caused by the breach of duty. Proximate cause exists when there is a substantial and direct causal link between the attorney's breach and the injury sustained by the client.” Dalo v. Kivitz, 596 A.2d 35, 41–42 (D.C. 1991) (cleaned up). Contrary to Colella's assertions, as the Court will explain, the Counterclaim plausibly alleges proximate cause with respect to each of these alleged errors. *8 In addition to alleging that Colella negligently mischaracterized the prospect of Counter-Plaintiffs' recovery on a VCPA claim, Counter-Plaintiffs allege that Colella incorrectly advised them that they had a viable chance at recovering punitive damages up to $10,800,000. 3 Counterclaim ¶ 14, 37. This was a severe misstatement of Virginia law, which caps punitive damages recoveries at $350,000. See id. ¶ 14; Va. Code Ann. § 8.01-38.1 (“In any action accruing on or after July 1, 1988, including an action for medical malpractice under Chapter 21.1 (§ 8.01-581.1 et seq.), the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trier of fact. In no event shall the total amount awarded for punitive damages exceed $350,000.”). Colella does not contend that the cap did not apply to Counter-Plaintiffs' Virginia case. Instead, he points out that while the Virginia judge instructed the jury that it could award punitive damages against Thomas if it found that he had acted willfully and with actual malice, the instruction did not mention any damages cap. Mem. at 10. Colella seems to argue that because the jury never had occasion to consider the damages cap, his failure to advise on the cap could not have caused Counter-Plaintiffs' failure to recover punitive damages from Thomas. See id. 3 The record does not entirely clarify in relation to which of their counterclaims against Thomas Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 8 Counter-Plaintiffs sought punitive damages. Punitive damages would not have been recoverable in connection with the breach-of-contract claim against Thomas, but may have been recoverable in connection with the fraudulent inducement claim against Thomas. See Wackenhut Applied Techs. Ctr., Inc. v. Sygnetron Prot. Sys., Inc., 979 F.2d 980, 984 (4th Cir. 1992); Tidewater Beverage Servs., Inc. v. Coca Cola Co., 907 F. Supp. 943, 948 (E.D. Va. 1995); see also Counterclaim ¶ 15 (noting that Counter-Plaintiffs counterclaimed against Thomas in the Virginia action for violation of the VCPA, breach of contract, fraudulent inducement, and a declaratory judgment “to remove a cloud on the title to the Property”). This argument suffers from two fundamental flaws. First, it misapprehends how Virginia's punitive damages cap operates by failing to account for the two concluding sentences of the four-sentence statute. The statute reads in full: In any action accruing on or after July 1, 1988, including an action for medical malpractice under Chapter 21.1 (§ 8.01-581.1 et seq.), the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trier of fact. In no event shall the total amount awarded for punitive damages exceed $350,000. The jury shall not be advised of the limitation prescribed by this section. However, if a jury returns a verdict for punitive damages in excess of the maximum amount specified in this section, the judge shall reduce the award and enter judgment for such damages in the maximum amount provided by this section. Va. Code Ann. § 8.01-38.1 (emphasis added). Thus, Colella's observation that the jury instructions did not reference the cap is entirely irrelevant; this omission was standard procedure. The statute plainly contemplates allowing the jury to award whatever punitive damages it sees fit and requiring the judge to then reduce them consistent with the cap after trial. The jury instruction only underscores the severity of Colella's alleged error in advising Androus that he stood to recover up to $10,800,000 in punitive damages. Second, and like the argument about the alleged VCPA error, Colella's causation argument about the alleged damages cap error misunderstands the Counterclaim in that it assumes it to allege that the damages cap error caused harm only by preventing Counter-Plaintiffs from obtaining a damages verdict in their favor. Once again, Counter- Plaintiffs allege that this error harmed them by setting them on the strategically misguided and expensive path of filing and trying a counterclaim for millions of dollars in punitive damages against Thomas—an effort that, because of the damages cap Colella neglected to advise them of, was destined to fail. Counterclaim ¶¶ 13–15, 38. Colella's causation argument is not responsive to these allegations. *9 Next comes a set of arguments about the Counterclaim's allegations related to witness preparation. Counter-Plaintiffs allege that Colella failed to supervise Randy Harding's preparation of an estimate of the costs Thomas's defective construction had inflicted upon Androus. Counterclaim ¶ 22. Upon receipt of Harding's estimate, Androus concluded that it was too high and revised it downward. Id. This resulted in Harding being confronted with an estimate he had never seen before and could not personally vouch for at his deposition, and ultimately, in the Virginia court's rejection of Counter- Plaintiffs' attempt to introduce the estimate at trial. Id. ¶ 24. According to Counter-Plaintiffs, this failure to supervise the witness preparation process contributed to Counter-Plaintiffs' “crushing defeat” at trial. Id. ¶ 35. Colella responds with an argument that the allegations suggest that Androus did not alert Colella that he had revised the estimate downward, so Colella lacked an opportunity to do anything about it. Mem. at 22; see Counterclaim ¶ 22 (noting that Androus revised the estimate downward and “delivered the revised estimate to Colella, who did not ask any questions about what he had received from Androus”). Colella further notes that his engagement agreement with Androus (which was attached to the original complaint in this case) provided that the firm was “not responsible for independently verifying the truth or accuracy of information supplied” by Androus and that the firm would rely on Androus to review for correctness all documents to be filed in court. Mem. at 23 (citation omitted). Even so, it was plausibly reasonable for Androus to expect that his attorney would actively involve himself in understanding the preparation process behind a witness estimate report. In at least some jurisdictions, “[a]n attorney has an ethical duty to prepare a witness.” Odone v. Croda Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 9 Int'l PLC., 170 F.R.D. 66, 69 (D.D.C. 1997) (Attridge, Mag. J.); State ex rel. Means v. King, 520 S.E.2d 875, 882 (W. Va. 1999) (“[A]n attorney has an ethical duty to prepare a witness for a deposition.”); see Jeffrey S. Kinsler & Jay E. Grenig, Consultation with Counsel, Va. Prac. Civ. Discovery § 6:36 (2021) (referring to an “attorney's ethical duty to prepare a witness”). Indeed, Androus has alleged that this was his expectation. See Counterclaim ¶ 22 (alleging that the “entire process” of Harding's estimate preparation “was unsupervised by Colella or Zefutie, even though they had been paid hundreds of thousands of dollars in legal fees by then”); id. ¶ 23 (alleging that Colella and Zefutie had knowledge of the manner of preparation of the report of Resetco, another witness for Androus). Thus, Androus has plausibly alleged that Colella's inaction, and not his own silence, caused the deficiencies in Harding's preparation. 4 4 To the extent Colella's contentions on this score are meant to suggest that Counter-Plaintiffs' have not plausibly alleged a breach of duty in relation to Harding's preparation, the Court rejects this argument for the same reasons it rejects the causation argument. Moreover, Colella learned of the downward revision to the estimate report at least during Harding's deposition. See id. ¶ 24. He could have done something about it then; indeed, after the deposition, Androus directly asked Colella if he should obtain new estimates and Colella advised him that doing so was not necessary. Id. This failure to remedy the problem allegedly caused the later failure to introduce Harding's estimate at trial, which allegedly helped cause the adverse verdict. Id. Counter-Plaintiffs have plausibly alleged that the deficiencies in Harding's witness preparation were a “substantial and direct” cause of their adverse litigation outcome. 5 Dalo, 596 A.2d at 42 (cleaned up). Whether they can ultimately so prove is a question for another day. 6 5 The Court agrees with Colella that while the Counterclaim details alleged shortcomings in the preparation of Resetco's expert report, Counterclaim ¶¶ 21, 23, it does not specifically allege how these defects caused Counter- Plaintiffs any harm. Mem. at 21. Counter- Plaintiffs say that allowing Androus to select Resetco as an expert even though the two men had a personal relationship “made [Resetco] unnecessarily susceptible to accusations of lack of objectivity and bias,” but do not allege (in their Counterclaim or briefs) that opposing counsel ever made any such accusations. Opp'n at 9. In any event, Counter-Plaintiffs' allegations regarding Harding are sufficient to plead their legal malpractice claim. 6 Colella briefly notes that Harding testified at trial as a fact witness (contrary to the Counterclaim's reference to Harding as an expert witness), and that while Counter-Plaintiffs were unable to introduce Harding's estimate for the cost of repairs to the interior of the Alexandria Property because Harding could not authenticate it, they did introduce at trial Harding's estimates for costs related to siding and the ridge vent. Mem. at 22, Mot. Dismiss. Ex. I at 33, 39–40, 42, 44, ECF No. 28-10. The current record does not equip the Court to evaluate the relative importance of these estimates or the effect of the interior estimate's omission on the ultimate outcome of the case. Colella's final causation argument responds to Counter- Plaintiffs' allegations regarding settlement opportunities, which assert that Counter-Plaintiffs notified Colella and Zefutie “several times” before trial that they were interested in settling and/or mediating the case, but Colella and Zefutie refused to engage in settlement discussions—all because of Colella and Zefutie's insistence that Counter-Plaintiffs had a good chance of winning a large judgment at trial. Counterclaim ¶¶ 25, 37. This allegedly caused Counter- Plaintiffs to undertake the expense of proceeding to trial on a flawed theory, where they suffered a substantial adverse judgment, which further caused them to incur the costs of appeal. See id. ¶ 37. Colella says that legal malpractice claims based on the loss of a settlement opportunity are categorically “inherently speculative” as a matter of law, but each of the authorities he relies on—none of which applies D.C. law— grounds its conclusion that a claim regarding settlement value was speculative on record evidence at summary judgment or a later stage, rather than relying on the pleadings. Zee Co., Inc. v. Williams, Mullen, Clark & Dobbins, P.C., 871 F. Supp. 2d 498, 511–12 (E.D. Va. 2012), aff'd, 547 F. App'x 166 (4th Cir. 2013); Whiteaker v. State, 382 N.W.2d 112, 117 (Iowa 1986); McConwell v. FMG of Kansas City, Inc., 861 P.2d 830, 840–50 (Kan. Ct. App. 1993); Thompson v. Halvonik, 43 Cal. Rptr. 2d 142, 146 (Cal. Ct. App. 1995); McCartney v. Dunn & Conner, Inc., 563 A.2d 525, 530 (Pa. Super. Ct. 1989); Campbell v. Magana, 8 Cal. Rptr. 32, 36 (Cal. Dist. Ct. App. 1960). Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 10 *10 Though the D.C. Court of Appeals does not seem to have directly weighed in on the subject, at least once court in this district applying D.C. law has observed that “a cause of action may exist under some circumstances against an attorney for failure to negotiate a reasonable settlement of a case.” Macktal v. Garde, 111 F. Supp. 2d 18, 22 (D.D.C. 2000), aff'd, No. 00-7207, 2001 WL 238170 (D.C. Cir. Feb. 23, 2001); see also Seed Co., Ltd. v. Westerman, 840 F. Supp. 2d 116, 125–26 (D.D.C. 2012) (allowing plaintiffs the opportunity to conduct discovery in order to adduce evidence in support of their theory “that they acted in reliance on [defendant attorneys'] erroneous legal advice when they declined ... settlement offers”). To be sure, Counter-Plaintiffs do not expressly allege that Thomas would have accepted a settlement offer or even listened to one. See Mem. at 24. But it is reasonable to infer that Thomas, facing a counterclaim for substantial damages, would have at least entertained an offer to settle his original claims. At the very least, accepting the Counterclaim allegations as true, Colella and Zefutie's refusal to even explore the possibility of a settlement plausibly may have deprived Counter-Plaintiffs of the opportunity to avoid an expensive and futile trial undertaking. Again, whether Counter-Plaintiffs can ultimately establish that Colella and Zefutie's refusal to even explore settlement caused them any harm is a question of proof, not pleading. See District of Columbia v. Zukerberg, 880 A.2d 276, 281 (D.C. 2005) (“Proximate cause is generally a factual issue to be resolved by the jury ....”); cf. Seed Co., 840 F. Supp. 2d at 126 n.10 (declining to require legal malpractice plaintiffs to “demonstrate that if they had accepted [a] settlement offer, they would have made more money than they lost” because “such [a] factual showing[ ] ... [was] not appropriate at the pre-discovery stage of [the] litigation” where the “plaintiffs ... ha[d] sufficiently alleged that they lost money (an injury) as a result of their reliance on erroneous legal advice (causation)”). 2. Counter-Defendants' Statute of Limitations, In Pari Delicto, and Judicial Estoppel Arguments Do Not Justify Dismissal of the Counterclaim The remaining way in which Counter-Plaintiffs allege Colella breached his duty of care was by advising them in relation to the transfer of the Alexandria Property from 2208 Russell Road, LLC through Androus to 2208 RR AVA without alerting them that these conveyances could expose them to a fraudulent transfer claim from Thomas, and by advising Androus not to reverse the transactions once he was hit with the fraudulent transfer suit. Counterclaim ¶¶ 10, 13, 37. 7 Colella asks the Court to hold that any claim based on this advice must be dismissed based on statute of limitations, in pari delicto, and/or judicial estoppel defenses, but the motion- to-dismiss-stage record does not permit the Court to hold that any of these defenses apply. 7 Colella disputes the Counterclaim's allegation that Androus made the transfers “with the assistance and knowledge of Colella,” Counterclaim ¶ 10, and therefore denies that he ever represented Androus in relation to the transfers, Mem. at 18; but this sort of factual dispute is of course irrelevant to the Court's evaluation of the instant motion to dismiss. Statute of limitations. Colella characterizes advice related to these transfers as an engagement distinct from his representation of Counter-Plaintiffs in their dispute with Thomas, and argues that any claim related to the transfer representation is untimely under D.C.’s three-year statute of limitations for legal malpractice claims. Mem. at 18–19; see Seed Co., Ltd. v. Westerman, 832 F.3d 325, 331–32 (D.C. Cir. 2016) (applying the three-year statute of limitations found in D.C. Code § 12-30(8) to a D.C.-law legal malpractice action brought in federal court). Specifically, Colella argues that the transfer representation ended when the transfers were finalized on October 24, 2017, Counterclaim ¶ 10, more than three years before Counter-Plaintiffs counterclaimed on February 24, 2021. Mem. at 18–19. “[A] defendant is entitled to succeed on a Rule 12(b)(6) motion to dismiss brought on statutes of limitations grounds only if the facts that give rise to this affirmative defense are clear on the face of the plaintiff's complaint.” Hagan v. United States, 197 F. Supp. 3d 30, 35 (D.D.C. 2016) (cleaned up). Under D.C.'s discovery rule, the statute of limitations on a legal malpractice claim begins to run when the plaintiff has knowledge of some injury caused by the defendant's wrongdoing. See Knight v. Furlow, 553 A.2d 1232, 1233–34 (D.C. 1989). There is nothing in the Counterclaim to suggest that Counter-Plaintiffs learned or should have learned that Colella had failed to advise them of a potential fraudulent transfer problem or that the transfers would injure them in any way until July 19, 2018, when Thomas filed his fraudulent transfer suit. Counterclaim ¶ 12. Assuming the statute began to run that day, Counter-Plaintiffs' February 24, 2021 claim is timely. For this reason alone, Colella's statute-of-limitations argument cannot prevail at the motion-to-dismiss stage. Cf. Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 11 Seed Co., 840 F. Supp. 2d at 123 (“[T]he point in time at which the plaintiff knew or reasonably should have known is normally a question of fact for a jury, and a trial judge should only make this determination as a matter of law if no reasonable person could disagree on this date.”). *11 Even assuming for the sake of argument that Counter- Plaintiffs discovered an injury on October 24, 2017 (the day of the transfers), the continuous representation rule would save their Counterclaim from a Rule 12(b)(6) dismissal on statute-of-limitations grounds. The District of Columbia's “continuous representation rule ... tolls the statute of limitations on legal malpractice claims until the attorney's representation concerning the particular matter in issue is terminated—even if the client was on actual or inquiry notice of the attorney's malpractice before then.” Rocha v. Brown & Gould, LLP, 101 F. Supp. 3d 52, 68 (D.D.C. 2015) (cleaned up), aff'd, No. 15-7053, 2016 WL 11761481 (D.C. Cir. Mar. 30, 2016). “Under D.C. law ... what constitutes the particular matter in issue and when that matter was terminated are questions of fact about which there is little guidance.” Id. (cleaned up). Colella's statute-of-limitations defense depends upon the answer to a factual question about the extent of the transfer representation that is inappropriate for resolution at the motion-to-dismiss stage. Colella's alleged transfer representation arguably lasted at least until some time after the July 19, 2018 filing of Thomas's complaint, when Androus asked Colella a legal question about the transfers: whether he should reverse them by deeding the Alexandria Property back to 2208 Russell Road, LLC as a way of mooting Thomas's fraudulent transfer complaint. Counterclaim ¶ 13. Colella advised Androus not to do this. Id. If the representation did last this long, Counter-Plaintiffs' claim would be timely. Colella stresses that the August 2, 2017 engagement agreement “was for representation in a dispute between Counter-Plaintiffs” and Thomas, Counterclaim ¶ 6, and it is true that Androus's July 2018 question about reversing the conveyances arguably related as much to the litigation as it did to advice on the transfers in the first instance. But nothing in the record at this stage precludes the possibility that there was a distinct representation related to the transfers or that the transfer advice was part of pre-litigation strategy covered by the August 2, 2017 engagement letter. More evidence is required to tease out the precise nature of any representation related to the transfers, whether such a representation was distinct from the litigation representation, and whether the July 2018 question about reversing the transfers constituted a continuation of either or both of these representations. Cf. Rocha, 101 F. Supp. 3d at 69 (resolving a continuous representation question by looking to a summary judgment record which included the engagement agreement and the plaintiff's deposition testimony about her understanding of the scope of the relevant engagement). The existence of these open questions defeats Colella's statute of limitations argument insofar as he presents it in support of the instant motion to dismiss. In pari delicto. Colella next invokes the doctrine of in pari delicto, “an affirmative defense that precludes a plaintiff who participated in the same wrongdoing as the defendant from recovering damages from that wrongdoing.” In re Derivium Cap. LLC, 716 F.3d 355, 367 (4th Cir. 2013). Colella seems to acknowledge that the fact-intensive defense of in pari delicto is suitable for resolution at the pleading stage, if at all, only when there is “no set of facts under which [Counter-Plaintiffs] would not be subject to the defense.” In re Greater Se. Cmty. Hosp. Corp. I, 353 B.R. 324, 369 (Bankr. D.D.C. 2006); Yarn v. Hamburger L. Firm, LLC, No. CIV.A. 12-3096, 2013 WL 5375462, at *10 (D. Md. Sept. 24, 2013); see Mem. at 16–17. This case does not meet that high bar. Colella's argument that “Androus bears equal or greater fault [as compared with Colella] in the fraudulent transfers at issue,” rests on two faulty premises: that the record conclusively establishes that Androus acted fraudulently with respect to the transfers and that the record conclusively establishes that Colella engaged in “no wrongdoing ... in connection with” the transfers. 8 Mem. at 16–17. For the first premise, Colella points out that “Androus admitted under oath” in the Virginia trial “that it was his intention to make the transfers, and that he did transfer the property”; Colella says that it is therefore “clear” that Androus's “intention [was] to make the conveyances.” Id. at 16. But establishing that Androus intended to make the transfers does not establish that he did so fraudulently, that is, “with intent to delay, hinder, or defraud creditors.” Va. Code Ann. § 55.1-400. In fact, in the very testimony Colella cites, Androus identifies an alternative reason behind his conveyances: an estate planning strategy. Mot. Dismiss Ex. E at 418–19, ECF No. 28-6. So Colella fails to conclusively establish the first premise, that Androus in fact acted fraudulently. 8 The Court does not suggest that establishment of these premises would make application of the in pari delicto doctrine appropriate in this case. Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 12 Rather, it declines to reach that issue because it does not need to at this stage. *12 Same for the second premise, for which Colella relies on a Virginia court order denying Thomas's motion to compel production of certain communications between Androus and Colella. Colella insists that this one-sentence order constitutes a finding that that there was “no evidence of wrongdoing by [Androus's] Counsel,” Mem. at 17, but this misreads the Virginia litigation record. Androus and Colella had invoked attorney-client privilege over the communications; in response, Thomas moved to compel based on his assertion that the documents were subject to the crime-fraud exception to the attorney-client privilege. Thomas argued to the Virginia court that the application of the crime-fraud exception turned on the client's fraudulent intent alone, and that, therefore, the “attorney's knowledge of the client's wrongful intent is irrelevant.” Mot. Dismiss Ex. F at 5–7, ECF No. 28-7 (citing Clark v. United States, 289 U.S. 1, 15 (1933)). Thus, Thomas premised his argument entirely on the assertion that Androus had acted with fraudulent intent, id. at 7–8—the Virginia Court could have resolved the motion without even considering whether Colella did or did not engage in any wrongdoing. Moreover, the Virginia court denied the motion to compel for another reason altogether, “its finding that such documents are not relevant to any material issue [in this] matter[.]” Mot. Dismiss Ex. G at 2, ECF No. 28-8. The Virginia court's motion-to-compel ruling therefore tells us nothing about Colella's (or Androus's) level of wrongdoing in relation to the property transfers. Based on the motion- to-dismiss record and the arguments Colella has presented, Colella's in pari delicto argument does not add up. Judicial estoppel. Colella claims that Androus's assertion that he transferred the Alexandria Property between his LLCs “with the assistance and knowledge of Colella and his then law firm, Duane Morris,” Counterclaim ¶ 10, is barred by the equitable doctrine of judicial estoppel. Mem. at 19–20. The Court is not persuaded. “Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” Encyclopaedia Britannica, Inc. v. Dickstein Shapiro, LLP, 905 F. Supp. 2d 150, 154 (D.D.C. 2012) (cleaned up). Three considerations guide a court's exercise of discretion in determining whether to apply judicial estoppel. (1) Is a party's later position clearly inconsistent with its earlier position? (2) Has the party succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled? (3) Will the party seeking to assert an inconsistent position derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped? Id. (cleaned up); see also Dennis v. Jackson, 258 A.3d 860, 865–66 (D.C. 2021) (describing these considerations as “basic elements that must be established in order to apply judicial estoppel.”). Colella again points to Androus's testimony at the Virginia trial, during which he admitted that he made the transfers as part of an estate planning scheme. “At no time” during this testimony, Colella stresses, “did Androus claim that the transfers were, in fact, made upon the advice or assistance of Counsel.” Mem. at 19–20. But Colella does not identify any instance in which Androus affirmatively stated that he did not receive counsel's advice on the transfers. Therefore, Androus's trial testimony is not “clearly inconsistent” with his current position that Colella advised him with respect to the transfers; it is irrelevant to this position. Encyclopaedia Britannica, 905 F. Supp. 2d at 154. And even if Androus's trial position that the transfers were not fraudulent were somehow inconsistent with the current allegation that Colella advised him on the transfers, it is far from clear that he persuaded the Virginia court to accept any of his assertions regarding the transfers. See id. Though the basis of the Virginia jury's verdict against Counter-Plaintiffs is not evident from the Counterclaim or the Virginia-court attachments, it very well may have rested on a rejection of Androus's assertions regarding the transfers. See Counterclaim ¶¶ 16, 30. Colella also tries once again to rely on the Virginia-court order denying Thomas's motion to compel, but again to no avail. Colella says that the order represents the Virginia court's conclusion that Colella did not advise on the transfers. Mem. at 20; Reply at 9. But this misunderstands the Virginia court's order: as the Court has explained, all the Virginia court held was that the documents Thomas sought were not relevant to the litigation. The dispute did not present the issue of whether Colella had provided advice on the transfer transaction, and the order said nothing about the issue. Even Colella v. Androus, Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 13 if it had, there is nothing in the current record to support a conclusion that the court's conclusion adopted any assertions from Androus; Colella has provided only Thomas's brief in support of the motion to compel. Therefore, Colella's judicial estoppel argument fails at the motion-to-dismiss stage. B. The Counterclaim States a Legal Malpractice Claim Against Zefutie *13 Equipped with its conclusion that the allegations in the Counterclaim plausibly support Counter-Plaintiffs' legal malpractice claim against Colella in several ways, the Court turns to addressing Counter-Defendants' argument that the Counterclaim does not state a legal malpractice claim against Zefutie. See Reply at 4–5. To the contrary, the Counterclaim plausibly alleges that Zefutie, Colella's co-counsel and law partner, was directly involved in several of the alleged breaches of the duty of care the Court has concluded are sufficient to state a legal malpractice claim. Counter-Plaintiffs allege that Zefutie “assisted Colella with the preparation for and conduct of the trial of the” Virginia litigation; that he consented to the manner in which Androus prepared a report on behalf of his expert witness Resetco; that he (along with Colella) heard and rejected Androus's repeated requests to pursue settlement or mediation because he insisted that Androus had “very substantial claims and a very good chance to win at trial”; that he tried and failed to get Harding's interior repairs estimate admitted into evidence at trial; and that “Colella and/or Zefutie failed to alert Harding to the fact that Androus had revised Harding's estimate downward.” Counterclaim ¶¶ 20, 23, 24, 25, 28; Mot. Dismiss. Ex. I at 39–40. Thus, the Counterclaim alleges Zefutie's direct involvement in much of the conduct at the core of Counter- Plaintiffs' claims, most notably the alleged failure to prepare Harding for his deposition, the resultant failure to offer his estimate into evidence, and the refusal to agree to Androus's wish to explore settlement. For the same reasons that these alleged failures suffice to state a legal malpractice claim against Colella, they suffice to state a legal malpractice claim against Zefutie. IV. CONCLUSION For the foregoing reasons, Counter-Defendants' Motion to Dismiss Counter-Plaintiffs' Counterclaim (ECF No. 28) is DENIED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued. All Citations Slip Copy, 2022 WL 888182 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

Defense_s_Motion_for_Summary_Judgment.pdf

Original document

Searchable full text

Document record