2014-10!24!17_corwin's motion to dismiss

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

CRYSTAL AMAYA, BRAD CATES, BRIAN MOORE, AND KIM RONQUILLO, Plaintiffs, v. Case 1:14-cv-00599-MV-SMV SAM BREGMAN, MICHAEL CORWIN, JAMIE ESTRADA, ANISSA GALASSINI- FORD, and JASON LOREA, Defendants.

MICHAEL CORWIN’S MOTION TO DISMISS

Defendant Michael Corwin, by and through his attorneys, Rothstein, Donatelli, Hughes,

Dahlstrom, Schoenburg & Bienvenu, LLP, hereby moves for dismissal of Plaintiffs’ Complaint

for Violations of the Federal Wiretap Act, the Stored Communications Act and Conspiracy to

Violate the Federal Wiretap Act (Doc. 1), as it relates to him, for failure to state a claim upon

which relief may be granted as authorized under Federal Rule of Civil Procedure 12(b)(6).

INTRODUCTION

Mr. Corwin is, inter alia, an investigator, journalist, and political blogger. He is the

executive director of, and also an investigator and writer for, Independent Source PAC (ISPAC),

an organization that investigates and exposes the activities of political candidates, office holders,

and interest groups on its website, http://www.independentsourcepac.org/index.html, and

through printed newsletters. ISPAC’s mission is to disseminate source material for its news

bulletins and editorials by publicizing those documents, video and audio. The stated goal of

ISPAC is to hold politicians and office holders accountable to everyone, not just special interests.

Case 1:14-cv-00599-MV-SMV Document 17 Filed 10/24/14 of 21

2

Although ISPAC operates as an independent entity, and is definitely a political organization, it

does not coordinate with any campaign, candidate, or party. ISPAC has, and continues to,

expose corruption in the Administration of Governor Susana Martinez, in particular, corruption

related to the Public Education Department (PED) and the Downs racetrack.

As a result of his political speech, supporters of the Martinez Administration have

engaged in a pattern of retaliatory actions against Mr. Corwin. The instant lawsuit is an epitome

of such retaliation. Plaintiffs’ Complaint, as it concerns Mr. Corwin, alleges the illegal use and

disclosure of information obtained from allegedly illegal interception of emails under the Federal

Wiretap Act, 18 U.S.C. §§ 2510-2522 (FWA). Tellingly, the Complaint is virtually devoid of

facts specifically related to Mr. Corwin and provides no detail addressing how, in any fashion,

Mr. Corwin purportedly violated the FWA. See generally Doc. 1. Given the lack of specificity

in the Complaint, Mr. Corwin must speculate about Plaintiffs’ claims against him, and assumes

that the claims are based on Mr. Corwin’s publishing allegedly1 stolen emails and providing

allegedly stolen emails that were not related to matters of public importance to the New Mexico

Attorney General’s (AG). The AG then released those emails to the Santa Fe Reporter in

response to an Inspection of Public Records Act request. Notwithstanding the bare bones

allegations set forth in the compliant, Plaintiffs fail to state a plausible claim against Mr. Corwin.

This shortcoming is fatal to Plaintiffs’ case, and therefore this action must be dismissed as to Mr.

Corwin for failure to state a claim upon which relief may be granted.

1 At times in this motion, Mr. Corwin refers to “allegedly” illegally intercepted emails. Mr. Corwin acknowledges that Defendant Jamie Estrada has pled guilty to one count of Unlawful Interception of Electronic Communications in violation of 18 U.S.C. § 2511(1)(a). See Plea Agreement (Doc. 79), United States v. Estrada, No. 13-cr-1877 WPJ (D.N.M. June 16, 2014). Accordingly, Mr. Corwin’s reference to the “alleged” nature of the interception, use, and disclosure of the emails at issue in this case is meant to apply only to Mr. Corwin.


3

BACKGROUND FACTS

This action arises from the allegedly illegal interception of emails between Governor

Susana Martinez, her staff, and various advisors from private (as opposed to public) email

accounts by Governor Martinez’s former campaign manager, Mr. Estrada. Some of the emails

intercepted by Mr. Estrada were published by ISPAC and provided by Mr. Corwin to the media,

and to law enforcement, as part of ISPAC’s mission to expose potential public corruption or

other wrongdoing by those in office. Not only did Mr. Corwin provide particular emails to

outside media outlets and journalists, he also provided copies to the AG, as part of a complaint of

alleged misconduct on the part of the Governor and her staff, based in large part on the contents

of some of the subject email correspondence. In response to Mr. Corwin’s complaints, the AG

conducted an investigation into Mr. Corwin’s allegations of corruption and AG investigators

requested additional email documentation from Mr. Corwin, which he provided.

Mr. Corwin’s publishing of the emails, and provision of the emails to the AG, were in no

way extraordinary. Mr. Corwin has been reporting potential criminal conduct on the part of

Governor Martinez, members of her administration, as well as others, since November of 2011 to

the public and to law enforcement. The emails at issue here were part of those investigations.

The following is a chronology of Mr. Corwin’s investigative reporting and petitioning the

government for redress of grievances:

1. Mr. Corwin made his first request for an investigation into possible criminal activity involved in the awarding of a lucrative state contract to the Downs of Albuquerque by letter to the Office of the United States Attorneys on November 22, 2011. Kenneth Gonzales acknowledged receipt of that letter on December 6, 2011, in correspondence to Mr. Corwin, and stated that he was forwarding Mr. Corwin’s request for an investigation to the FBI. Based on that information, Mr. Corwin sent, via facsimile, a letter to the FBI on December 15, 2011, containing additional information revealed by his investigation.


4

2. On January 20, 2012, Mr. Corwin publicly released the first of two investigative reports on the Downs contract, via the website for ISPAC, and in print. This report was delivered directly to the FBI on January 24, 2012.

3. On March 7, 2012, Mr. Corwin delivered another letter to the FBI, with additional

information concerning the contract at issue. All of these letters detailed the connections between individuals and campaign contributions in connection with the award of the billion-dollar contract.

4. On April 4, 2012, Mr. Corwin publicly released a second investigative report into this

potential corruption and criminal misconduct. On that same day, he requested that the AG investigate the awarding of the contract. This report contained information gleaned from emails obtained through public records requests, but not the emails at issue in this case.

5. On June 5, 2012, Mr. Corwin sent another letter to the FBI and the AG with additional

information gleaned from his investigation.

6. On June 12, 2012, Mr. Corwin asked the AG to investigate possible corruption within the PED. With a follow up letter on June 13, 2012 regarding the Downs investigation, Mr. Corwin notified the AG of the use of private email addresses in relation to PED business.

7. On June 26, 2012, Mr. Corwin sent information on emails related to the Downs to both the AG and the FBI. On the same day, he published emails pertaining to the Downs on his website, and on July 2, 2012, he sent copies of the Downs emails to the FBI and AG. These are the emails believed to be at issue in this case. They were provided to Mr. Corwin by a confidential source.

8. The AG then requested copies of all the emails in Mr. Corwin’s possession, including those of a private nature. Mr. Corwin forwarded the emails in his possession to the AG on July 16, 2012. On July 19, 2012, the AG investigator requested that Mr. Corwin obtain all the emails that Mr. Corwin could get from his confidential source. Mr. Corwin requested the emails from his source, who then provided them. In turn, Mr. Corwin provided those emails to the AG on July 23, 2012.

According to Plaintiffs, the emails that the confidential source provided to Mr. Corwin

were illegally intercepted by Mr. Estrada. In their Complaint, Plaintiffs vaguely suggest that Mr.

Corwin is somehow connected to Mr. Estrada. To the contrary, Mr. Corwin has met Mr. Estrada

only once. During that single meeting, the subject of the intercepted emails never surfaced. In

fact, Mr. Corwin did not receive the emails from Mr. Estrada, and Plaintiffs have not alleged that


5

he did. At the time Mr. Corwin obtained the emails upon which this case is grounded, he had no

knowledge whatsoever that they had been illegally obtained. More importantly, Plaintiffs have

not alleged that Mr. Corwin had any reason to believe that the emails had been illicitly acquired.

ARGUMENT

This Court may dismiss a complaint for failure to state a claim upon which relief may be

granted. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), a

plaintiff must “‘nudge his claims across the line from conceivable to plausible.’” Ridge at Red

Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (alterations omitted)). In deciding whether to dismiss a

complaint under Rule 12(b)(6), the Court is to “assume the truth of the plaintiff’s well-pleaded

factual allegations and view them in the light most favorable to the plaintiff.” Id.

Legal conclusions, however, are handled much differently. Unlike factual allegations,

legal conclusions are not assumed to be correct unless they are supported by the necessary

factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Accordingly, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555). The Plaintiffs carry an obligation

to provide a sufficient factual foundation to warrant their “‘entitle[ment] to relief.’” Twombly,

550 U.S. at 555. That burden “requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Id. In ruling on a Rule 12(b)(6)

motion, the Court may consider “documents incorporated by reference in the complaint;

documents referred to in and central to the complaint, when no party disputes its authenticity;


6

and matters of which a court may take judicial notice.” Berneike v. CitiMortgage, Inc., 708 F.3d

1141, 1146 (10th Cir. 2013) (internal quotation omitted).

I. Plaintiffs’ Failure to Adequately Allege a Factual Case Under the FWA Is Fatal to the Cause of Action Alleged Against Mr. Corwin.

The factual allegations supporting Plaintiffs’ FWA claim against Mr. Corwin fall far

short of what is required to survive this motion to dismiss. Plaintiffs have sued Mr. Corwin for

an alleged illegal disclosure and/or use of Plaintiffs’ electronic communications under 18 U.S.C.

§ 2511(1)(c)-(d) and § 2520. See Doc. 1 at 15-16, ¶¶ 64-75 (Count Two).2 Section 2511(1)

states that:

any person who--

(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; (d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

Section 2520 provides the civil remedy for any violation of § 2511(1). Because Plaintiffs have

not and ethically cannot plead facts that satisfy the legal standard set forth under 18 U.S.C. §

2511(1)—facts that would establish that Mr. Corwin knew or had reason to know that the emails

2 Plaintiffs do not allege that Mr. Corwin participated in, knew about, or was remotely aware that the emails were illegally intercepted by Estrada. See Doc. 1 at 4-10 (factual allegations regarding the interception of the emails), 14-15 (Count One, brought against Mr. Estrada only, for interception of the emails).


7

at issue were obtained through the interception of a communication—their claims against Mr.

Corwin must be dismissed.

In general, liability under § 2511(1) “requires that a plaintiff prove intentional conduct.”

Thompson v. Dulaney, 970 F.2d 744, 749 (10th Cir. 1992). Liability under subsections (c) and

(d) of the statute, however, requires a plaintiff to prove more than is required for liability for

interception of communications under subsections (a) and (b). Id. To establish liability for use

and disclosure, in addition to intentional conduct, a plaintiff must prove that the defendant knew

that “1) the information used or disclosed came from an intercepted communication, and 2)

sufficient facts concerning the circumstances of the interception such that the defendant could,

with presumed knowledge of the law, determine that the interception was prohibited.” Id. Mere

knowledge that the information came from an intercepted communication is not enough.

Thompson v. Dulaney, 838 F. Supp. 1535, 1542 (D. Utah 1993). To prevail on a use or

disclosure claim, the Plaintiffs need to allege sufficient facts “that would enable an inference to

be drawn that the defendant knew or should have known that the wiretap was an illegal one.” Id.

The claim set forth here includes an unlawful use or disclosure under § 2511(1)(c)-(d) that “has a

significant mens rea element on top of the use or disclosure requirement.” Zinna v. Cook, 428 F.

App’x 838, 840 (10th Cir. 2011) (citing Thompson, 970 F.2d at 748-49).

Of Plaintiffs’ 92-paragrah Complaint, only five paragraphs relate specifically to Mr.

Corwin’s alleged involvement with the emails at issue here. Three of those paragraphs simply

allege that Mr. Corwin published one of the intercepted emails and disclosed other intercepted

emails to the AG and others. See Doc. 1 at 13, ¶¶ 53-54. The remaining two paragraphs, the

paragraphs that attempt to establish a violation of § 2511(1), allege:


8

69. Defendants Loera, Bregman, Corwin, and Galassini-Ford intentionally disclosed and/or used Plaintiffs’ stolen electronic communications.

70. Based on the communications between and among the various Defendants

and the actions of the various Defendants, as described herein, and the contents of the emails, Defendants Loera, Bregman, Corwin, and Galassini-Ford knew, or should have known, or had reason to know that any electronic communications that they received from any of the other Defendants, or any other individual that related to the @susana2010.com email accounts, were obtained through the wrongful and illegal interception of electronic communications.

Id. at 15-16. These allegations are legal conclusions without viable factual support and “are

silent as to any particulars regarding” Plaintiffs’ actual FWA claim against Mr. Corwin.

Decuyper v. Flinn, No. 3:13-0850, 2014 WL 4272720 at *2-3 (M.D. Tenn. Aug. 29, 2014).

Instead, they merely track the language of § 2511(1)(c)-(d), and represent nothing more than “a

formulaic recitation of the elements of a cause of action” under the FWA. Twombly, 550 U.S. at

555. As published federal cases easily demonstrate, Plaintiffs have not “made a plausible

showing of [their] entitlement to relief under the FWA.” Decuyper, 2014 WL 4272720 at *3

(recommending that defendants’ motion to dismiss be granted where plaintiff’s FWA claim

lacked detail and merely tracked the language of the statute).

Where a claim for violation of the FWA has no factual basis and is supported only by

conclusory statements, it must be dismissed as a matter of law. See Zinna, 428 F. App’x at 840

(granting summary judgment to defendants where plaintiff’s claims under § 2511(1) were based

only on speculation, “conjecture,” and “general assertion and supposition devoid of supporting

citation”); Thompson, 838 F. Supp. at 1546-47 (granting summary judgment on factually

unsupported FWA claims against certain defendants). Plaintiffs’ Complaint utterly fails to allege

a plausible FWA claim against Mr. Corwin. Indeed, Mr. Corwin had no reason to know that the


9

emails were obtained by a prohibited interception of communications. He had no knowledge of

Mr. Estrada’s conduct, or that Mr. Estrada had illicitly intercepted the emails by prohibited

means. Without such factual proof, Plaintiffs’ FWA claim against Mr. Corwin fails as a matter

of law. See McCann v. Iroquis Mem’l Hosp., 622 F.3d 745, 753-54 (7th Cir. 2010) (holding that

defendants who had no reason to think that the interception of a conversation violated the FWA

could not be liable under § 2511(1)(c) or (d) of the FWA); Hamed v. Pfeifer, 647 N.E.2d 669,

671 (Ind. Ct. App. 1995) (same).

II. Plaintiffs’ FWA Claim Against Mr. Corwin Fails Because Mr. Corwin’s Receipt, Disclosure, and Use of the Emails Are Protected By the First Amendment.

Even if Plaintiffs could state a FWA disclosure and use claim against Mr. Corwin, as

plead, any such claim would fail under the protections provided by the First Amendment to the

Constitution. The only emails made public by Mr. Corwin were those that dealt with matters of

public concern. Those emails should have never been on private email accounts in the first place

because they discussed matters of public import by government officials who were required to

use formal government email accounts to distribute that kind of communication. Mr. Corwin

also provided emails of public importance to the AG and FBI in connection with his requests to

those agencies to investigate what he believed to be public corruption. Other emails of a private

nature, including Plaintiffs’ emails, were provided by Mr. Corwin only to the AG after that office

repeatedly requested that he provide a copy of all of the emails in question, not just those he had

published due to their public nature. Mr. Corwin made no other disclosures of the emails. The

disclosures that he did make are protected by the First Amendment. Accordingly, Plaintiffs’

FWA claims against Mr. Corwin fail for failure to state a plausible claim to relief.


10

A. The FWA Is Unconstitutional as Applied to Mr. Corwin’s Disclosure of Information of Public Concern.

Assuming arguendo that the emails at issue here were illegally intercepted,3 Plaintiffs’

FWA claim against Mr. Corwin still fails because application of the FWA to Mr. Corwin’s

disclosures of the emails violates the First Amendment. The basic purpose of the FWA is to

protect the privacy of communications. Bartnicki v. Vopper, 532 U.S. 514, 526 (2001).

However, because the FWA’s “naked prohibition against disclosures is fairly characterized as a

regulation of pure speech,” id., application of the FWA is subject to intermediate scrutiny. Id. at

521. In Bartnicki, the Supreme Court held that application of the FWA against the defendants

violated their free speech rights because the illegally intercepted communication concerned a

matter of public importance and they had not been involved in the interception. See id. at 518,

534-35. The same is true here.

As discussed in Bartnicki, Mr. Corwin’s disclosures of the illegally intercepted emails are

distinguishable from most cases that arise under § 2511(1) for three reasons. See id. at 525.

First, even under Plaintiffs’ rendition of the facts, Mr. Corwin “played no part in the illegal

interception.” Id.; see also supra note 1. Second, Mr. Corwin’s “access to the information [in

the emails] was obtained lawfully, even though the information itself was intercepted [allegedly]

unlawfully by someone else.” Bartnicki, 532 U.S. at 525. Mr. Corwin received the emails from

a confidential source. He neither received the emails from Mr. Estrada nor did he have any

reason to believe that either his source or Mr. Estrada had obtained the emails illegally. Thus,

3 Mr. Corwin disputes that the emails at issue were illegally “intercepted” within the meaning of the FWA. See Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 462-64 (5th Cir. 1994) (explaining that Congress did not intend for “intercept” under the FWA to apply to email under most circumstances, making “interception” of emails under § 2511(1) virtually impossible).


11

Mr. Corwin’s access to the emails and their content was lawful. Finally, the emails were

“newsworthy.” Id. They showed apparent violations of the law and collusion on the Downs

contract, which undoubtedly were matters of public concern. Moreover, the very fact of the

emails themselves was newsworthy because they exposed the official use of unofficial email

accounts, communications that were, by their very nature, designed to prevent present and future

scrutiny of official communications involving public matters. Under the circumstances

presented here, the interests served by § 2511(1) do not justify restricting Mr. Corwin’s First

Amendment speech.

The United States Supreme Court “has repeatedly held that if a newspaper lawfully

obtains truthful information about a matter of public importance then state officials may not

constitutionally punish publication of the information, absent a need . . . of the highest order.”

Id. at 527-28 (internal quotation omitted) (citing cases). In fact, the Supreme Court has held that

the press4 has a constitutional right to publish information of great public concern even when it is

obtained from documents stolen from a third party. See id. at 528 (citing New York Times Co. v.

United States, 403 U.S. 713 (1971) (per curiam)). “Gathering information about government

officials in a form that can readily be disseminated to others serves a cardinal First

Amendment interest in protecting and promoting ‘the free discussion of governmental

affairs’” Glik v. Cunniffe, 655 F.3d 78, 79-81 (1st Cir. 2011 (quoting Mills v. Alabama, 384

4 Bloggers such as Mr. Corwin are no different than traditional journalists for purposes of First Amendment protection. Cf. von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 143 (2d Cir. 1987); Silkwood v. Kerr–McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977); Protecting the New Media: Application of the Journalist’s Privilege to Bloggers, 120 Harv. L. Rev. 996, 998 (2007); Bloggers as Newsmen: Expanding the Testimonial Privilege, 88 B.U. L. Rev. 1075 (October 2008).


12

U.S. 214, 218 (1966)). Thus, Mr. Corwin cannot be punished through this lawsuit for publishing

and otherwise disclosing information of public importance gleaned from the emails even if he

had known of their illicit provenance. Indeed, “it would be quite remarkable to hold that speech

by a law-abiding possessor of information [Mr. Corwin] can be suppressed in order to deter

conduct by a non-law-abiding third party [allegedly Mr. Estrada].” Bartnicki, 532 U.S. at 529-30

(holding that prohibitions against disclosure do not reduce illegal interceptions of

communications).

Any privacy concerns implicated by Mr. Corwin’s public disclosures of the emails at

issue here give way when balanced against the interest in publishing matters of public

importance. In disclosing information from the allegedly illegally intercepted emails, Mr.

Corwin was reporting and editorializing on issues of public concern. The attendant loss of

privacy suffered by Plaintiffs and others is outweighed by freedom of speech and expression

under the First Amendment. See id. at 534-35. As noted by the Supreme Court, a “stranger’s

illegal conduct does not suffice to remove the First Amendment shield from speech about a

matter of public concern.” Id. at 535. Accordingly, Mr. Corwin’s actions are protected speech

and cannot serve as the basis for a viable claim under the FWA.

B. Mr. Corwin’s Constitutional Right to Petition for Redress Protects His Use and Disclosure of Information of Private Concern.

To the extent that Mr. Corwin used or disclosed information that was not a matter of

public importance, his actions are protected by the First Amendment because his disclosure of

private emails was made only to the AG in connection with petitioning that office to conduct an

investigation into what he believed to be corruption in the Martinez Administration. Mr. Corwin

never published private emails on his website or provided them to anyone except the AG’s


13

investigator at the explicit request of the AG. Such actions are protected by Mr. Corwin’s First

Amendment right to petition the government for redress.

The First Amendment states: “Congress shall make no law respecting . . . the right of the

people . . . to petition the Government for a redress of grievances.” U.S. Const. amend I. “[A]

private citizen exercises a constitutionally protected First Amendment right anytime he or she

petitions the government for redress.” Van Deelen v. Johnson, 497 F.3d 1151, 1156 (10th Cir.

2007). Under the right to petition for redress, a citizen has immunity from suit so long as the

citizen’s actions are “directed toward influencing governmental action.” Sierra Club v. Butz, 349

F. Supp. 934, 937 (9th Cir. 1972) (explaining that the Supreme Court has determined that First

Amendment guarantees are a defense to invasion of privacy claims) (collecting cases).

“[L]iability can be imposed for activities ostensibly consisting of petitioning the government for

redress of grievances only if the petitioning is a ‘sham,’ and the real purpose is not to obtain

governmental action, but to otherwise injure the plaintiff.” Id. at 939; see also Cardtoons, L.C.

v. Major League Baseball Players Ass’n, 208 F.3d 885, 889 (10th Cir. 2000) (discussing

immunity from suit arising from the right to petition). Stated differently, “liability can never be

imposed upon a party for damage caused by government action he induced.” Sierra Club v.

Butz, 349 F. Supp. at 939. The facts here establish that Mr. Corwin only disclosed all of the

emails to the AG after he had complained about conduct that he legitimately believed to be

illegal, and the AG requested everything that he could obtain. His conduct, precipitated by

government action, is squarely protected by the First Amendment’s right to petition the

government for redress.


14

On June 12, 2012, Mr. Corwin asked the AG to investigate the actions of the PED. With

a follow up letter on June 13, 2012 regarding the Downs investigation that Mr. Corwin had

previously asked the AG to conduct and that was already under way, Mr. Corwin notified the AG

of the use of private email addresses in relation to PED business. On June 26, 2012, Mr. Corwin

sent information on emails related to the Downs to both the AG and the FBI. On the same day,

he published emails pertaining to the Downs on his website, and on July 2, 2012, he sent copies

of the Downs emails to the FBI and AG. Thereafter, the AG began requesting copies of all the

emails in Mr. Corwin’s possession, including those of a private nature. Mr. Corwin sent those to

the AG on July 16, 2012. On July 19, 2012, the AG investigator requested that Mr. Corwin

obtain all the emails that Mr. Corwin could get from his confidential source. Mr. Corwin

requested the emails from his source, who willingly disclosed them. In turn, Mr. Corwin

provided the emails to the AG on July 23, 2012.

Mr. Corwin’s conduct in disclosing emails of an arguably private nature was done in

response to a direct request from the AG, and only after Mr. Corwin had legitimately petitioned

the AG to investigate unlawful activity. It is not illegal for a citizen to report information to law

enforcement. See Meyer v. Bd. of Cnty. Comm’rs of Harper Cnty., 482 F.3d 1232, 1243 (10th

Cir. 2007) (“attempt to report alleged criminal offense was conduct protected by the First

Amendment”). To the extent Plaintiffs’ emails were allegedly disclosed by Mr. Corwin (the

Complaint contains no allegations on that point, see generally Doc. 1), they were disclosed only

to the AG. The fact that the AG later released the same emails to the Santa Fe Reporter in

December 2012 cannot be attributable to Mr. Corwin. Mr. Corwin cannot be held liable for such

government conduct as he had disclosed the emails to the AG in connection with his


15

constitutional right to petition the government. See, e.g., Sierra Club, 349 F. Supp. at 939

(dismissing defendant’s counterclaim where the only allegations supporting the claims were that

the plaintiffs “by various acts induced or sought to induce a department of the federal

government to take certain actions”).

III. Plaintiffs Fail to Adequately Allege a Claim Against Mr. Corwin for Conspiracy to Violate the FWA.

Plaintiffs also have sued Mr. Corwin for alleged conspiracy to violate § 2511(1) of the

FWA. See Doc. 1 at 16-17, ¶¶ 76-81 (Count Two). Like their claim for violation of § 2511(1),

Plaintiffs’ conspiracy claim against Mr. Corwin should be dismissed because Plaintiffs have not

and ethically cannot plead facts adequate to allege a plausible claim for conspiracy.

“In order to plead a conspiracy claim, a plaintiff must allege, either by direct or

circumstantial evidence, a meeting of the minds or agreement among the defendants.” Salehpoor

v. Shahinpoor, 358 F.3d 782, 789 (10th Cir. 2004) (internal quotation omitted). “A bare

assertion of conspiracy will not suffice.” Twombly, 550 U.S. at 556. Conspiracy claims “require

evidence from which it can reasonably be inferred that the alleged conspirators agreed to act in

concert—and pursuing compatible, even parallel, aims is not enough to warrant that inference.”

Zinna, 428 F. App’x at 840. Plaintiffs’ allegation of conspiracy does not come within the

universe of factually acceptable pleading requirements that would survive a motion to dismiss.

The single paragraph in Plaintiffs’ Complaint that attempts to establish a conspiracy

states:

78. Defendants agreed, conspired, reached a common understanding, and had the common purpose to unlawfully and without authorization intercept, access, disclose, and/or use electronic communications intended for Plaintiffs.


16

Doc. 1 at 17. The complaint’s conclusory, factually unsupported, and formulaic allegation is, as

discussed above, insufficient to state a valid claim. See Salehpoor, 358 F.3d at 789 (conspiracy

claim was appropriately dismissed where plaintiff “failed to set forth evidence of an agreement

and concerted action on the part of the [defendants]” (emphasis added)). It provides no factual

detail about the who, when, where, why, or how the alleged conspiracy was hatched. Instead, the

allegation set forth in ¶ 78 is a pure legal conclusion, a simple recitation of the elements of

conspiracy. Rank speculation and conjecture about relationships and agreements among

defendants is not enough to support a claim for conspiracy to violate 18 U.S.C. § 2511(1) of the

FWA. See Zinna, 428 F. App’x at 840 (affirming summary judgment). In short, nothing in

Plaintiffs’ Complaint alleges a plausible or legally viable conspiracy claim. For that reason, the

conspiracy charge against Mr. Corwin in Plaintiffs’ Complaint should be dismissed as a matter

of law. See Twombly, 550 U.S. at 569 (dismissing plaintiffs’ conspiracy complaint for failure to

“state a claim to relief that is plausible on its face”); Thompson, 970 F.2d at 750 (affirming

summary judgment on claims for conspiracy to violate the FWA where the claims had no factual

support).

IV. Plaintiffs’ Complaint Is Time Barred.

A civil action under the FWA “may not be commenced later than two years after the date

upon which the claimant first has a reasonable opportunity to discover the violation.” 18 U.S.C.

§ 2520(e). “[T]he statute bars a suit if the plaintiff had such notice as would lead a reasonable

person either to sue or to launch an investigation that would likely uncover the requisite facts.”

Sparshott v. Feld Entm’t, Inc., 311 F.3d 425, 429 (D.C. Cir. 2002). “Under section 2520(e), the

cause of action accrues when the claimant has a reasonable opportunity to discover the violation,


17

not when she discovers the true identity of the violator or all of the violators.” Andes v. Knox,

905 F.2d 188, 189 (8th Cir. 1990); see also Dyniewicz v. United States, 742 F.2d 484, 486 (9th

Cir. 1984) (“Discovery of the cause of one’s injury, however, does not mean knowing who is

responsible for it.”). “Like many statutes of limitation, this one does not require the claimant to

have actual knowledge of the violation; it demands only that the claimant have had a reasonable

opportunity to discover it.” Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir. 1998) (holding that

FWA suit was barred by the statute of limitations where the plaintiff was “on inquiry notice that

his rights might have been invaded”).

Here, Plaintiffs’ Complaint is barred by § 2520(e) because it was filed on June 26, 2014,

at least one week, but more likely several weeks, after the statute of limitations had run. In their

Complaint, Plaintiffs allege that “[i]n or about mid to late June 2012, Defendants disseminated

the stolen emails to media outlets and an email from Martinez’s email account associated with

the Website Domain was published.” Doc. 1 at 10, ¶ 40. The email that they are referring to is

an email regarding the PED that went public when Santa Fe New Mexican reporter Steve Terrell

did a piece breaking the story on June 11, 2012. See United States v. Estrada, No. 1:13-cr-

01877-WJ (Doc. 36-3) (Interview of Jay McCleskey) at 4 (“McCleskey advised that the leaked

email was originally reported by the Santa Fe, [sic] New Mexican.”)5. Mr. Corwin published

that email on his website the next day, June 12, 2012, with an article detailing how it showed a

violation of the governmental conduct act (using government resources and personnel for private

political purposes). See http://independentsourcepac.com/ped-breaks-nm-law.html. Plaintiffs

5 The Interview of Jay McCleskey is a matter of public record and therefore properly subject to judicial notice. See, e.g., Pace v. Swerdlow, 519 F.3d 1067, 1072-73 (10th Cir. 2008) (taking judicial notice of all of the materials in the file from related state court action).


18

allege that “[t]he release of this email prompted Governor Martinez and her staff to be concerned

that the Website Domain had not in fact simply expired.” Doc. 1 at 10, ¶ 40. Based on the

objective evidence available in this case, on June 11 and 12, 2012, Plaintiffs were placed on

inquiry notice that something had gone wrong with Governor Matrinez’s @susana2010.com

email account, notice that should have prompted an inquiry into how those emails were

disclosed.

At that point, the statute of limitations began running because Plaintiffs had a reasonable

opportunity to discover any purported violation of the FWA. This conclusion is supported by

Plaintiffs’ own allegations in the Complaint. They allege that:

After becoming aware that the Website Domain was still active and that emails intended for recipients at their @susana2010.com email addresses were likely being diverted to an unknown destination, the original creator of the account, contacted GoDaddy and informed them that the Website Domain and associated email addresses had been hijacked. GoDaddy investigated the situation and determined that someone had indeed fraudulently used his credentials to re-register the Website Domain. Accordingly, on or about June 19, 2012, GoDaddy canceled the account associated with the Website Domain and returned it to the original creator of the account.

Doc. 1 at 10, ¶ 41 (emphasis added). Taking these allegations as true, as the Court must, it is

undisputed that Governor Martinez and the holders of the email address @susana2010.com,

including Plaintiffs, knew that the Governor’s emails had been “hijacked” before June 19, 2012

when GoDaddy canceled the account.

That date is confirmed by statements made by the Martinez Administration to the press.

On June 28, 2012 at 12:05 a.m., the Albuquerque Journal reported that Scott Darnell, a Governor

Martinez spokesman, had stated that the matter of the allegedly stolen emails “was turned over to

the appropriate federal law enforcement authorities last week.” See United States v. Estrada, No.


19

1:13-cr-01877-WJ (Doc. 44-2) at 2 (emphasis added)6; see also http://www.abqjournal.com/

115447/news/downs-lawyer-wanted-to-talk-2.html (internet link to article). That means that the

Martinez Administration knew enough to report the issue to law enforcement during the week of

June 18, 2012, the same week that GoDaddy canceled the email account. Further, the

Albuquerque Journal’s June 28, 2012 article also reported that “Martinez last week directed all

state employees under her authority to use their official government accounts when conducting

state business via email.” Id. at 3 (emphasis added). The Governor’s directive was enough to

put Plaintiffs on notice that their @susana2010.com email addresses had been compromised and

should not be used for state government business.

Based on the facts outlined above, the two-year statute of limitations started to run on or

before June 19, 2012, and most likely on June 11 or 12, 2014 when the Governor and her staff

first learned that the email address had been compromised. Even using the later of these dates,

the statute of limitations for Plaintiffs’ FWA claims arising from the allegedly intercepted emails

ran out on June 19, 2014, a week before Plaintiffs’ filed their Complaint on June 26, 2014. As

the statute of limitations had expired, Plaintiffs’ Complaint must be dismissed as a matter of law

under 18 U.S.C. § 2520(e).

CONCLUSION

For these reasons discussed above, Mr. Corwin respectfully requests that the Court

dismiss all of the causes of action alleged against him in the Plaintiffs’ June 26, 2014 Complaint,

6 Like the McCleskey Interview, the June 28, 2012 article is subject to judicial notice as a matter of public record. See, e.g., Pace, 519 F.3d 1067.


20

that the Court enter an order dismissing this action with prejudice as to Mr. Corwin, and for any

other relief that law and justice require.

Respectfully submitted,

ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP

Carolyn M. “Cammie” Nichols Brendan K. Egan 500 4th Street NW, Suite 400 Albuquerque, NM 87102 (505) 243-1443 /s/ Kristina Martinez Kristina Martinez 1215 Paseo de Peralta Post Office Box 8180 Santa Fe, New Mexico 87504-8180 (505) 988-8004 Attorneys for Defendant Michael Corwin


21

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 24, 2014, I filed this pleading electronically

through the CM/ECF system, which caused the following counsel to be served by electronic

means, as more fully reflected on the Notice of Electronic Filing:

Angelo J. Artuso [email protected] Mark E. Braden [email protected] Gerald G. Dixon [email protected] Theodore J. Kobus, III [email protected] Eric A. Packel [email protected] Steven S. Scholl [email protected] James C. Wilkey [email protected] /s/ Kristina Martinez Kristina Martinez


2014-10!24!17_corwin's motion to dismiss

Documents