United States District Court, W.D. Michigan, Southern Division
OPINION REGARDING DEFENDANTS' MOTIONS TO DISMISS
AND PLAINTIFF'S MOTION FOR RULE 37(E) SANCTIONS
J. QUIST, UNITED STATES DISTRICT JUDGE.
Todd Courser, a former member of Michigan's House of
Representatives, claims that he and his colleague, former
Representative Cindy Gamrat,  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-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.
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.
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.
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.
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. 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
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.
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.)
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.)
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.)
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.)
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.
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. 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
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).
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)).
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.
House Defendants argue all or most of Courser's claims
are barred by various immunities.
Eleventh Amendment Immunity
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.
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.
Count 3 alleges that Article IV, § 16 of the Michigan
Constitution is unconstitutionally vague. That section
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.
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
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,
. . . . 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.
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).
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.
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).
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
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
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.