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Courser v. Michigan House of Representatives

United States District Court, W.D. Michigan, Southern Division

July 11, 2019

TODD COURSER, Plaintiff,
v.
MICHIGAN HOUSE OF REPRESENTATIVES, et al., Defendants.

          OPINION REGARDING DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFF'S MOTION FOR RULE 37(E) SANCTIONS

          GORDON J. QUIST, UNITED STATES DISTRICT JUDGE.

         I. Overview

         Plaintiff, Todd Courser, a former member of Michigan's House of Representatives, claims that he and his colleague, former Representative Cindy Gamrat, [1] were victims of a political conspiracy designed to squelch their voices within the Republican Caucus, eventually have them removed from office, and, as to Courser, subject him to criminal charges, all because they refused to sign the Republican Caucus Pledge. Courser says that the individual Defendants, Kevin Cotter, Tim Bowlin, Brock Swartzle, Norm Saari, Edward McBroom, and Hassan Beydoun (collectively the House Defendants), conspired with Keith Allard, Benjamin Graham, and Josh Cline-three legislative aides assigned to Courser's and Gamrat's staffs[2]-and Gamrat's then-husband, Joe Gamrat, and his friends, David Horr and Vincent Krell, to conduct illegal surveillance, wiretapping, and extortive acts in order to “dig up dirt” on Courser and Gamrat. Courser alleges that Defendants' activities gave rise to a host of violations of federal and state laws.

         Reality, as we know from Courser's and Gamrat's own admissions, as well as public hearings and investigations, is much different. In fact, soon after Courser and Gamrat took office, Allard, Graham, and, to a lesser extent, Cline, began complaining to House leadership staff that Courser and Gamrat were requiring them to devote House work time to Courser's and Gamrat's political and personal tasks. Complicating matters further, Courser and Gamrat were engaged in an extramarital sexual relationship, which they hid in plain sight from Allard, Graham, Cline, and Joe Gamrat. The affair led to the now well-known “inoculate the herd” conversation between Courser and Graham in May of 2015 and Graham's recording of the conversation; Courser's subsequent false-flag-gay-sex email to his constituents; the August 7, 2015, Detroit News article reporting on the affair and Courser's and Gamrat's use of public funds to hide it; House investigations into the matter; and, eventually, Courser's resignation and Gamrat's expulsion.

         This is Courser's second go-around in this Court. In 2016, Courser filed a complaint against the House Defendants, Allard, Graham, and Cline, and numerous other defendants alleging violations of federal and state law (Courser I). After several defendants filed motions to dismiss, and facing an imminent response deadline, Courser amended his complaint and, minutes later, voluntarily dismissed his complaint. See Courser v. Allard, et al., No. 1:16-CV-1108 (W.D. Mich.), ECF Nos. 121, 123. Courser returned about eighteen months later, separating his prior lawsuit into three separate cases, including the instant case against the House Defendants.

         Courser's First Amended Complaint, which is the subject of this Opinion, like all of Courser's prior pleadings in his cases before this Court, is massive-148 pages, 676 paragraphs, and 18 counts-stretching Federal Rule of Civil Procedure Rule 8(a)(2)'s command that a pleading contain “a short and plain statement of the claim” to a point beyond all possible recognition. Invoking federal law, Courser alleges claims pursuant to 42 U.S.C. §§ 1983 and 1985; the federal wiretapping act, known as the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2522; the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962; and a claim that Article IV, § 16 of the Michigan Constitution is unconstitutionally vague. Courser alleges state-law claims for violation of the Fair and Just Treatment Clause of the Michigan Constitution; violation of the Michigan Fraudulent Access to Computers, Computer Systems, and Computer Networks Act, M.C.L. § 752.791; libel, slander, and defamation; civil stalking; invasion of privacy and intrusion upon seclusion; tortious interference with business relationships; intentional infliction of emotional distress; negligence and negligent infliction of emotional distress; indemnification pursuant to M.C.L. § 691.1408; fraudulent misrepresentation; intentional interference with or destruction of evidence and spoliation; and conspiracy and concert of action.

         The House Defendants have filed motions to dismiss, in which they argue that Courser's claims are barred by Eleventh Amendment immunity, legislative immunity, qualified immunity and, as to the state-law tort claims, governmental immunity.[3] The House Defendants further argue that, notwithstanding the First Amended Complaint's heft, it fails to state a claim, and at least some of Courser's claims are time-barred. The Court heard oral argument on the motions on June 11, 2019, and the motions are ready for decision.

         For the reasons that follow, the Court will grant the House Defendants' motions. In addition, the Court will deny Courser's motion for sanctions pursuant to Rule 37 based on Defendants' alleged destruction of evidence and spoliation of evidence.

         II. Background

         In November 2014, Gamrat and Courser were elected, respectively, as the State Representatives of Michigan's 80th House District and Michigan's 82nd House District. Keith Allard volunteered and served on Courser's political campaign. In addition, Benjamin Graham and Josh Cline were paid political consultants and served on Courser's campaign. (ECF No. 33 at Page ID.401.) In January 2015, Allard, Graham, and Cline were officially employed by the House. (Id. at PageID.402.) On January 2, 2015, the House assigned Allard to Gamrat's office and assigned Graham and Cline to Courser's office. (Id.)

         At the time Courser and Gamrat took office, Defendants Cotter and McBroom were State Representatives, and Cotter was also the Speaker of the House. Defendant Bowlin was the Business Director and Chief Financial Officer for the House, Defendant Swartzle was the House General Counsel, Defendant Saari was Cotter's Chief of Staff, and Defendant Beydoun was the House Majority Legal Counsel. (Id. at PageID.393.)

         Following the election, Gamrat and Courser agreed to a staff-sharing arrangement in which Allard, Graham, and Cline served as staff members in both districts and worked out of both Gamrat's and Courser's separate offices. (Id. at PageID.408.) From the beginning of their tenures as Representatives, Gamrat and Courser carried on an extramarital sexual relationship. Around the same time-January 2015-Allard, Graham, and Cline began meeting with Defendants Saari and Swartzle to issue reports on Courser and Gamrat. Courser claims that the purpose of these reports was to erode Courser's “credibility and effectiveness as a State Representative, and to force his vote according to COTTER's wishes.” (Id. at PageID.405.) One such report included an incident in May 2015 in which Courser asked Graham to disseminate a “false flag” email designed as a “controlled burn” to “inoculate the herd.” The email that Courser or someone on his behalf had authored contained a number of outlandish, untrue, and salacious allegations about Courser. Courser hoped that the email would create such a stir that any real information that came out about his affair with Gamrat would be ignored as an exaggeration or seen as a smear campaign. Graham refused to send the email, but Courser found someone else to send it. (ECF No. 28-5 at PageID.326-27.)

         On July 6, 2015, Bowlin terminated Allard's and Graham's employment, apparently at the behest of Courser and Gamrat. (ECF No. 33 at PageID.411.) After Bowlin implemented the termination, Allard and Graham told Bowlin about their prior reports to Swartzle and Saari regarding Courser and Gamrat's affair and other misconduct. When the House leadership did not investigate, Allard and Graham provided their information, including an edited version of the audio recording of Graham's “false flag” conversation with Courser, to the Detroit News. On August 7, 2015, the Detroit News ran a story about Courser and Gamrat's sexual relationship and Courser's “false flag” email, as well as Courser's and Gamrat's misuse of taxpayer money to cover up their affair. The same day the Detroit News article ran, Cotter requested and directed Bowlin and the House Business Office (HBO) to investigate and prepare a report on Courser's and Gamrat's alleged misconduct. (ECF No. 28-5 at PageID.322.)

         On August 31, 2015, the HBO issued a report that concluded further investigation by the House was warranted. On August 19, 2015, before Bowlin had completed the HBO report, the House adopted Resolution 129 to form a Select Committee to examine the qualifications of Gamrat and Courser and to determine their fitness to continue holding office. The Select Committee was composed of six members, four from the Republican Caucus and two from the Democratic Caucus. Defendant McBroom chaired the Select Committee.

         On September 8, 2015, the HBO and the Office of the General Counsel issued a “Combined Statement, ” which set forth the facts uncovered during the investigation.[4] The Combined Statement concluded with the recommendation that Courser be expelled and that Gamrat not be expelled but censured with severe conditions attached. (Combined Statement at 32.) On September 11, 2015, Courser resigned from the House before the House could act on the Select Committee's recommendation. (ECF No. 33 at PageID.455.) The full House voted to expel Gamrat the same day.

         On or about August 2, 2015, Defendant Saari left his position as Cotter's Chief of Staff to assume the office of a Commissioner of the Public Service Commission, pursuant to an appointment by then-Governor Rick Snyder. (ECF No. 40-4.) Thus, after that time, Saari was not involved in House affairs or the Courser investigation (other than being interviewed as a witness during the HBO investigation).

         III. Motion Standard

         Pursuant to Federal Rule of Civil 8(a), a complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Detailed factual allegations are not required, but “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' required more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103 (1957)). The court must accept all of the plaintiff's factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. “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.” Ashcoft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). Although the plausibility standard is not equivalent to a “‘probability requirement,' . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). “[W]here the well-pleaded facts do not permit the court to infer more than a sheer possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.” Id. at 679, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

         In general, in deciding a Rule 12(b)(6) motion to dismiss the court is limited to considering only the pleadings. See Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673, 682 (6th Cir. 2011) (noting that “Rule 12(b)(6) scrutiny is limited to the pleadings”). However, without converting the motion to one for summary judgment under Rule 56, a court may also consider “any exhibits attached [to the Complaint], public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008). Such items include, but are not limited to, the HBO report and materials generated during the HBO investigation and the Select Committee proceeding.

         IV. Discussion

         A. Immunity

         The House Defendants argue all or most of Courser's claims are barred by various immunities.

         1. Eleventh Amendment Immunity

         The House Defendants first argue that they are entitled to sovereign immunity under the Eleventh Amendment, i.e., a state and its agencies are generally immune from private lawsuits in federal court. Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572 (1977). The state legislature is an arm of the State. Mich. Const. art. IV, § 1. Because Courser fails to show that Michigan has waived its Eleventh Amendment immunity as to any claim, his claims against the House are barred by the Eleventh Amendment. See Harnden v. Mich. Dep't of Human & Health Servs., No. 17-2022, 2018 WL 1956011, at *1 (6th Cir. Mar. 5, 2018) (“The State of Michigan has not waived its sovereign immunity or consented to be sued in federal court.” (citing Johnson v. Dellatifa, 357 F.3d 539, 545 (6th Cir. 2004)). In addition, a suit against a state officer in his or her official capacity is deemed a suit against the state. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312 (1989). Thus, Courser's claims against the individual Defendants in their official capacities are barred as well.[5]

         Courser's First Amended Complaint-steeped in conspiracy allegations-is a prime example of a tactic known as group pleading. As one court has explained, “[a] complaint which lumps all defendants together and does not sufficiently allege who did what to whom, fails to state a claim for relief because it does not provide fair notice of the grounds for the claims made against a particular defendant.” Tatone v. SunTrust Mortg., Inc., 857 F.Supp.2d 821, 831 (D. Minn. 2012). With the exception of his fraudulent misrepresentation claim in Count 14 against Swartzle and Beydoun, all of Courser's claims are against “Defendants” or “Defendants and their employees” (“employees” referring to Allard, Graham, and Cline, who, Courser admits, were employees of the House, not the individual Defendants) without delineating what each Defendant did to violate Courser's rights. Regardless, three claims in particular stand out as being properly asserted only against the House and, therefore, subject to dismissal to total dismissal on Eleventh Amendment grounds.

         First, Count 3 alleges that Article IV, § 16 of the Michigan Constitution is unconstitutionally vague. That section states:

Each house, except as otherwise provided in this constitution, shall choose its own officers and determine the rules of its proceedings, but shall not adopt any rule that will prevent a majority of the members elected thereto and serving therein from discharging a committee from the further consideration of any measure. Each house shall be the sole judge of the qualifications, elections and returns of its members, and may, with the concurrence of two-thirds of all the members elected thereto and serving therein, expel a member. The reasons for such expulsion shall be entered in the journal, with the votes and names of the members voting upon the question. No. member shall be expelled a second time for the same cause.

         The House Defendants offer a number of persuasive arguments why this claim fails, including that Courser lacks Article III standing to assert it because, as Courser resigned his office, the House never applied this provision to him. But the claim is subject to dismissal on an even more fundamental level. Courser alleges this claim against all Defendants, but he does not explain why. For example, Saari, Bowlin, Swartzle, and Beydoun were not even legislators who could have voted on expulsion, so Courser has no basis to sue them. Moreover, had Courser been expelled, it would have occurred only by the vote of the entire House because only two-thirds of the members of the House can apply this provision. This claim, to the extent it is valid, is against only the House.[6]

         Second, in Count 4, Courser alleges that the House Defendants' investigation and hearing on his misconduct violated the Fair and Just Treatment clause of Michigan's Constitution, which provides:

. . . . The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.

Mich. Const. art. 1, § 17. In Smith v. Department of Public Health, 428 Mich. 450, 410 N.W.2d 749 (1989), affirmed sub nom Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304 (1989), the Michigan Supreme Court said that a plaintiff seeking damages under Michigan's Constitution-as Courser does here-may sue only the State and its officials in their official capacities. Under Smith, Courser's claim under the Fair and Just Treatment Clause is proper only against the House and its officials in their official capacities and, therefore, is barred in this Court by the Eleventh Amendment.

         Finally, in Count 13, Courser alleges a claim for indemnification under M.C.L. § 691.1408(1) for the expenses he incurred in connection with the state-court criminal prosecution and the whistleblower lawsuit that Allard and Graham filed against Courser. Section 691.1408 applies only to “a government agency, ” defined as the State of Michigan or a political subdivision. M.C.L. § 691.1401(a). As no individual House Defendant qualifies as a “governmental agency, ” Courser's claim for indemnification can only be against the House, or perhaps against Cotter in his official capacity as Speaker. Either way, the Eleventh Amendment bars the claim. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S.Ct. 900, 908-09 (1984); see Emery v. Mich. Dep't of Civil Rights, No. 15-11467, 2016 WL 1090429, at *4-6 (E.D. Mich. Mar. 21, 2016) (dismissing the plaintiff's state-law claims against the Michigan Department of Civil Rights and individual defendants in their official capacities as barred by the Eleventh Amendment).

         Citing Martin v. Wood, 772 F.3d 192 (4th Cir. 2014), the individual House Defendants argue, as they did in Gamrat v. Allard, 320 F.Supp.3d 927, 935 n.2 (W.D. Mich. 2018), that Courser's claims against them in their individual capacities are barred by the Eleventh Amendment because Courser's own allegations make clear that his claims are based on actions the individual House Defendants took in their official capacities. However, “[t]he eleventh amendment does not prevent plaintiffs from bringing suits for money damages against state officials provided that the defendants are sued in their individual capacities.” Foulks v. Ohio Dep't of Rehab. & Corr., 713 F.2d 1229, 1233 (6th Cir. 1983) (citing, among others, Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S.Ct. 1683, 1686-87 (1974)). In Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358 (1991), the Supreme Court rejected essentially the same argument the House Defendants raise in this case, that “officials may not be held liable in their personal capacity for actions they take in their official capacity.” Id. at 27, 112 S.Ct. at 363. The Court said that such a theory “would absolutely immunize state officials from personal liability for acts within their authority and necessary to fulfilling governmental responsibilities.” Id. at 28, 112 S.Ct. at 363. Moreover, as this Court noted in Gamrat, Martin was a Fair Labor Standards Act case, not a § 1983 case. And, the Fourth Circuit has held that Martin does not apply to § 1983 claims, precisely because applying Martin to such claims would be at odds with Hafer. Adams v. Ferguson, 884 F.3d 219, 225 (4th Cir. 2018).[7]

         2. Legislative Immunity

         The House Defendants next argue that they are entitled to legislative immunity. Pursuant to the Speech or Debate Clause, U.S. Const. art I, § 6, defendants who engage in legislative activities are absolutely immune from suit in their individual capacities. The Speech or Debate Clause provides that “for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other place.” The Speech or Debate Clause serves “to prevent intimidation by the executive and accountability before a possibly hostile judiciary.” United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755 (1966). The clause provides protection not “simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.” United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2135 (1972). Although the federal Speech or Debate Clause does not protect state legislators, Michigan has such a clause in its Constitution, and the Supreme Court has extended legislative immunity to state and local legislative bodies. Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788 (1951).

         “Absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity.” Bogan v. Scott-Harris, 523 U.S. 44, 54, 119 S.Ct. 966, 972 (1998) (internal quotation marks omitted). To determine whether an act falls within this sphere, a court must examine “the nature of the act, rather than . . . the motive or intent of the official performing it.” Id., 118 S.Ct. at 973. The question is whether the activity is

‘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.'

Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504, 95 S.Ct. 1813, 1821-22 (1975) (quoting Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627 (1972)).

         Apart from words spoken in a debate, the Speech or Debate clause covers “written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting.” Kilbourn v. Thompson, 103 U.S. 168, 204 (1880). In addition, “committee hearings are protected, even if held outside the Chambers.” Hutchinson v. Proxmire, 443 U.S. 111, 124, 88 S.Ct. 2675, 2683 (1979); see Walker v. Jones, 733 F.2d 923, 929 (D.C. Cir. 1984) (noting that legislative activity includes “participation in committee investigations, proceedings, and reports”). In addition, legislative immunity extends beyond legislators to legislative aids and counsel. Eastland, 421 U.S. at 507, 95 S.Ct. at 1823; see Ellis v. Coffee Cty. Bd. of Registrars, 981 F.2d 1185, 1190 (11th Cir. 1993) (noting that “[t]he Supreme Court has extended this privilege to the chief counsel of a congressional subcommittee; committee staff, consultants, investigators, and congressional aids, insofar as they are engaged in legislative functions”).

         3. Qualified Immunity

         Next, the House Defendants argue that they are entitled to qualified immunity on all of Courser's federal claims. “Under the doctrine of qualified immunity, ‘government officials performing discretionary functions generally are shielded 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.'” Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982)). Once a defendant raises the qualified immunity defense, the burden shifts to the plaintiff to demonstrate that the defendant official violated a right so clearly established “that every ‘reasonable official would have understood that what he [was] doing violate[d] that right.'” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987)). The analysis entails a two-step inquiry. Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013). First, the court must “determine if the facts alleged make out a violation of a constitutional right.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 815-16 (1982). Second, the court asks if the right at issue was “‘clearly established' when the event occurred such that a reasonable offic[ial] would have known that his conduct violated it.” Id. (citing Pearson, 555 U.S. at 232, 129 S.Ct. at 816). A court may address these steps in any order. Id. (citing Pearson, 555 U.S. at 236, 129 S.Ct. at 818). Thus, an official is entitled to qualified immunity if either step of the analysis is not satisfied. See Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 440 (6th Cir. 2016).

         4. ...


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