United States District Court, W.D. Michigan, Southern Division
OPINION
GORDON
J. QUIST, UNITED STATES DISTRICT JUDGE
Before
the Court is Defendants Keith Allard and Benjamin
Graham's motion to dismiss the remaining claims against
them. (ECF No. 26.) For the reasons that follow, the Court
will grant Allard and Graham's motion to dismiss the only
remaining federal claim and decline supplemental jurisdiction
on the remaining state-law claims.[1] For the same reasons, the
Court will set aside the entry of default against Defendant
Joshua Cline, dismiss the federal claim, and decline
supplemental jurisdiction on the remaining state-law claims,
thereby concluding this case.
Plaintiff,
Todd Courser, a former member of Michigan's House of
Representatives, alleges that Allard, Graham, and
Cline-former legislative staffers in Courser's
office-illegally obtained information through wiretaps,
intercepted emails, and other means, and used information
about Courser's extramarital affair with former
Representative Cindy Gamrat[2] to extort Courser in order to
force his resignation from office. According to Courser,
Defendants conspired with members of the House leadership
(House defendants); Joseph Gamrat (Gamrat's
then-husband); and Joseph Gamrat's friends, David Horr
and Vincent Krell.
In
2016, Courser filed a complaint against Defendants, House
defendants, 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. Then, beginning in August 2018, Courser
separated his prior lawsuit into three separate cases,
including the instant case against Allard, Graham, and Cline.
On
December 7, 2018, Allard and Graham moved to dismiss
Courser's 37-page, 10-Count complaint. (ECF No. 11.)
Courser responded by filing his First Amended Complaint, more
than tripling the length of his original pleading and adding
five additional counts. (ECF No. 17.) Allard and Graham
responded with a motion to strike Courser's First Amended
Complaint for failure to comply with Federal Rule of Civil
Procedure 8(a)(2)'s requirement that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” (ECF No. 19.) The
Court denied the motion to strike. However, the Court decided
to dismiss with prejudice twelve of Courser's fifteen
claims in this case for the reasons given in the Court's
July 11, 2019, Opinion in Courser v. Michigan House of
Representatives, et al., 1:18-CV-882, ECF No. 67; and
invited Defendants to file a motion to dismiss on the
remaining three claims: Count 4-Violation of Federal
Wiretapping Act and Michigan's Eavesdropping Statute;
Count 8-Invasion of Privacy and Intrusion Upon Seclusion; and
Count 10-Intentional Infliction of Emotional Distress. (ECF
No. 22.) On October 7, 2019, Allard and Graham filed the
motion to dismiss currently before the Court. (ECF No. 26.)
The
only remaining federal claim is “Violation of Federal
Wiretapping Act, ” which is combined with the claim for
violation of “Michigan's Eavesdropping
Statute” to make Count 4. (First Am. Compl., ECF No. 17
at PageID.266-70.) In discussing Count 4, Allard and Graham
argue that Courser's claim is untimely under the
three-year statute of limitations for civil claims in
Michigan. See Mich. Comp. Laws § 600.585(2).
But this Court does not need to rely on Michigan's
statute of limitations; the statute of limitations for civil
actions under the Federal Wiretapping Act is only two years.
18 U.S.C. § 2520. Courser filed the instant action on
August 6, 2018, more than three years after the period of
alleged wiretapping in 2015. Thus, the Court will dismiss
Courser's claim for “Violation of Federal
Wiretapping Act” as untimely.[3] With the dismissal of the
only remaining federal claim against Allard and Graham, the
Court will decline to exercise supplemental jurisdiction over
the remaining state law claims. 28 U.S.C. § 1367(c)(2),
(3); see also United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139 (1966) (“if
the federal claims are dismissed before trial, . . . the
state claims should be dismissed as well”).
Federal
Rule of Civil Procedure 55(c) grants the Court discretion to
“set aside an entry of default for good cause.”
Default was entered against Cline on December 21, 2018, but
Courser has never moved for the Court to enter a default
judgment. The affidavit of Special Agent Diane Salter, an
agent with the State of Michigan Department of the Attorney
General, attached to Allard and Graham's reply brief,
suggests that Courser has not moved for a default judgment
because he was pressuring Cline, without Cline's attorney
present, to sign an affidavit to support Courser's claims
against Allard and Graham, in exchange for dismissing Cline
from the lawsuit. (See ECF No. 35-1.) Regardless of
the reason, though, the Court will exercise its discretion in
setting aside the default, finding that good cause exists to
do so.[4] Factors to consider in determining good
cause include: “(1) whether culpable conduct of the
defendant led to the default, (2) whether the defendant has a
meritorious defense, and (3) whether the plaintiff will be
prejudiced.” Burrell v. Henderson, 434 F.3d
826, 831-32 (6th Cir. 2006). The Court is focused on the
second factor. Based on the allegations in Courser's
complaint, any conduct attributable to Cline falls well
outside of the statute of limitations under the Federal
Wiretapping Act. In other words, Cline has a meritorious and
conclusive defense to Courser's only remaining federal
claim. With the entry of default set aside, the Court will
dismiss the Federal Wiretapping Claim against Cline and
decline to exercise supplemental jurisdiction over the
remaining state-law claims. 28 U.S.C. § 1367(c)(3);
Gibbs, 383 U.S. at 726-27, 86 S.Ct. at 1139. Having
determined that it would not grant a motion to enter default
judgment against Cline because Courser's own allegations
show that the complained-of conduct fell outside the statute
of limitations, the Court suggests that it is in
Courser's best interest to conclude this matter in this
federal district court, so that if he chooses to pursue an
appeal, he has a final order from this Court.
For the
foregoing reasons, the Court will grant Allard and
Graham's motion to dismiss (ECF No. 26) regarding
Courser's claim for violation of the Federal Wiretapping
Act, and that claim will be dismissed with prejudice. The
Court will decline to exercise supplemental jurisdiction over
Courser's state-law claims of violation of the Michigan
Eavesdropping Statute, invasion of privacy and intrusion upon
seclusion, and intentional infliction of emotional distress;
those claims are dismissed without prejudice. The Court will
exercise its discretion to set aside the entry of default
against Cline. Courser's claim against Cline for
violation of the Federal Wiretapping Act will be dismissed
with prejudice. The Court likewise will decline to exercise
supplemental jurisdiction over Courser's remaining
state-law claims against Cline, so those claims will be
dismissed without prejudice.
An
Order consistent with this Opinion will enter.
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Notes:
[1] Plaintiff requested oral argument, but
because the Court is familiar with the facts and arguments of
this case- through the briefing in this case and oral
arguments held in the related cases-it will decline to hold
oral argument.
[2] Cindy Gamrat now uses the name Cindy
Baur, but for consistency, the Court will refer to Bauer as
Gamrat-the name she used during the events in
question.
[3]
Courser I did not toll the
applicable statute of limitations. Wilson v. Grumman Ohio
Corp., 815 F.2d 26, 27 (6th Cir. 1987) (“It is
generally accepted that a dismissal without prejudice leaves
the situation the same as if the suit had never been brought,
and that in the absence of a statute to the contrary a party
cannot deduct from the period of the statute of limitations
the time during which the action so dismissed was
pending.”) Even if Courser I had tolled the
statute of limitations, Courser I was ...