Todd Courser v. Keith Allard ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0253p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TODD COURSER, ┐
Plaintiff-Appellant, │
│
> No. 20-1038
v. │
│
│
KEITH ALLARD; BENJAMIN GRAHAM; JOSHUA CLINE, │
Defendants-Appellees. │
│
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:18-cv-00874—Gordon J. Quist, District Judge.
Argued: July 29, 2020
Decided and Filed: August 10, 2020
Before: MOORE, CLAY, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Matthew S. DePerno, DEPERNO LAW OFFICE, Portage, Michigan, for Appellant.
Sarah Riley Howard, PINSKY, SMITH, FAYETTE & KENNEDY, LLP, Grand Rapids,
Michigan, for Appellees Allard and Graham. ON BRIEF: Matthew S. DePerno, DEPERNO
LAW OFFICE, Portage, Michigan, for Appellant. Sarah Riley Howard, H. Rhett Pinsky,
PINSKY, SMITH, FAYETTE & KENNEDY, LLP, Grand Rapids, Michigan, for Appellees
Allard and Graham.
No. 20-1038 Courser v. Allard, et al. Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Todd Courser was a member of the
Michigan House of Representatives. His affair with fellow-representative Cindy Gamrat and his
related misconduct lost him that office. Courser, however, does not see himself as the source of
his misfortunes and instead alleges that the Defendants—Keith Allard, Benjamin Graham, and
Joshua Cline—conspired together and with the Michigan House of Representatives to remove
him from office. Each Defendant worked for Courser and Gamrat as their legislative aides. Two
of them, Allard and Graham, went to the press to expose Courser’s and Gamrat’s affair,
Courser’s attempted coverup, and Courser’s misuse of his public office for political and personal
purposes.1 The Detroit News coverage prompted the Michigan House of Representatives to
issue a report and hold a hearing on the allegations. Courser resigned before he could be
expelled.
This case is one of several that Courser and Gamrat have filed against various persons
that they believe conspired against them to end their political careers. For the reasons that
follow, we AFFIRM the district court’s judgment of dismissal of all claims against all
Defendants.2
I. BACKGROUND
Courser is a former Republican member of the Michigan House of Representatives.
While in office, Courser had an affair with another representative, Gamrat. Defendants were
legislative aides assigned to Courser and Gamrat. Worried that he and Gamrat eventually would
be caught, Courser concocted a plan to get ahead of the story by sending out an anonymous
email to his constituents accusing himself of having an affair with Gamrat, but including
1The third defendant, Cline, was less involved, but is alleged to have surveilled Courser as well.
2Additionally, we deny Courser’s motion to take judicial notice of certain documents that are not part of
the record in this case, such as affidavits. To the extent Courser requests that we take notice of other materials
properly in front of us, we have reviewed public filings, hearings, and decisions relevant to this case.
No. 20-1038 Courser v. Allard, et al. Page 3
outlandish allegations against himself of further escapades. That way, when the real story broke
about Courser’s and Gamrat’s affair, it would seem too incredible to believe.
Courser asked Graham to meet with him so that he could ask Graham to send the coverup
email to Courser’s constituents. They met on May 19, 2015, and unbeknownst to Courser,
Graham recorded their conversation. During the meeting, Courser explained his plan to create a
“controlled burn” to “inoculate the herd” with the coverup email. Graham refused to participate,
so Courser found someone else to send the email.
Meanwhile, Graham and Allard reported Courser’s affair and misuse of their time for
political and personal tasks to higher-ups in House leadership. In retaliation, Courser directed
the House Business Office to fire Allard and Graham. After they were fired, Allard and Graham
again tried to expose the affair to Republican leaders, but were unsuccessful. So they went to the
Detroit News with the recording. Once the Detroit News published the story exposing Courser’s
affair and misconduct on August 7, 2015, the House investigated Courser and Gamrat. On
August 31, 2015, the House Business Office issued a report concluding that Courser and Gamrat
had engaged in misconduct. On September 9, 2015, the House held the Select Committee
Hearing on Courser’s misconduct. During the hearing, Courser admitted that he “listened to the
tape” that Graham had made on May 19, 2015, and that “it sounds like a complete record.” R.
12-1 (House Select Committee Hr’g Tr. at 12) (Page ID #95). He also admitted that he
improperly used his staff for political and personal matters. Id. at 4 (Page ID #87). Courser
resigned before the House could expel him. He was criminally charged and pleaded no contest
to willful neglect of duty by a public officer. He now claims that the recording Graham made on
May 19, 2015, was altered and distorted the truth. He also claims that Allard and Graham
unlawfully surveilled him.
Cline allegedly was involved in gathering information on Courser as well, but to a lesser
degree. Cline quit his position as a legislative aide on April 14, 2015, before the “inoculate the
herd” conversation and most of the alleged unlawful surveillance took place. On similar facts,
the district court granted Cline judgment on the pleadings in a lawsuit brought by Gamrat against
No. 20-1038 Courser v. Allard, et al. Page 4
Cline for wiretapping, eavesdropping, civil stalking, and civil conspiracy. See Gamrat v. Cline,
No. 1:16-CV-1094, 2019 WL 3024599, at *4–5 (W.D. Mich. July 11, 2019).3
Separate from Defendants’ alleged conduct, Courser received texts from Joe Gamrat,
Cindy Gamrat’s husband, and his friends harassing him over the affair. Courser alleges that
Defendants were somehow involved in feeding information to Joe Gamrat to fan the flames of
these “extortion texts.”
Courser initially filed a lawsuit against multiple defendants, including Allard and
Graham, on September 8, 2016. See Courser v. Allard, No. 1:16-cv-01108 (W.D. Mich.), R. 1
(Compl.) (Page ID #1). He voluntarily dismissed that action on December 12, 2016. Id., R. 123
(Voluntary Dismissal) (Page ID #4545). Then, on August 6, 2018, he filed two new lawsuits
making similar claims but splitting up the defendants. One of those lawsuits was this case,
brought against Allard, Graham, and Cline. See R. 1 (Compl.) (Page ID #1). The other lawsuit
was against the Michigan House of Representatives and individual representatives and staff
members (collectively, the “House defendants”). See Courser v. Mich. House of
Representatives, No. 1:18-cv-00882 (W.D. Mich.) (the “Michigan House case”), R. 1 (Compl.)
(Page ID #1).4 The operative complaints filed in each case are virtually identical. Compare id.
with R. 17 (1st Am. Compl.) (Page ID #172). The only meaningful difference is that there are
three counts that are alleged in the House case that are not alleged in this case: an
unconstitutional vagueness challenge to Article IV, § 16 of the Michigan Constitution, a request
for indemnification, and fraudulent misrepresentation claims alleged solely against two House
defendants. Every count alleged in this case appears in the Michigan House case.
Allard and Graham filed a motion to dismiss before Courser filed his First Amended
Complaint. See R. 11 (Mot. to Dismiss) (Page ID #56). After Courser amended his complaint,
Allard and Graham filed a motion to strike. See R. 18 (Mot. to Strike) (Page ID #1821). Cline
did not file anything. On July 30, 2019, the district court denied as moot Allard’s and Graham’s
3We recently affirmed the district court’s dismissal of Gamrat’s claims against Allard, Graham, and Cline
in Gamrat v. McBroom, -- F. App’x --, No. 19-2364, 2020 WL 4346677, at *3 (6th Cir. July 29, 2020).
4Courser’s appeal from the district court’s dismissal of his claims in the Michigan House case is pending as
appeal No. 19-1840.
No. 20-1038 Courser v. Allard, et al. Page 5
motion to dismiss, denied Allard’s and Graham’s motion to strike, and dismissed sua sponte
most of Courser’s claims. See R. 22 (Order of 07/30/19 at 4) (Page ID #1846).
Citing its own decisions in related cases, the district court sua sponte dismissed Counts 1
(42 U.S.C. § 1983), 2 (42 U.S.C. § 1985), 3 (violation of the Fair and Just Treatment Clause of
the Michigan Constitution), 5 (state and federal computer fraud), 6 (libel, slander, and
defamation), 7 (civil stalking), 9 (tortious interference with business relationships),
11 (negligence and negligent infliction of emotional distress), 12 (RICO) and 13 (RICO
conspiracy), 14 (intentional interference with or destruction of evidence/spoliation), and
15 (conspiracy). Id. at 2–4 (Page ID #1844–46). Courser did not object in the district court to
the sua sponte nature of the dismissal.
With respect to the remaining claims—Counts 4 (violation of the Federal Wiretapping
Act and Michigan’s Eavesdropping Statute), 8 (invasion of privacy and intrusion upon
seclusion), and 10 (intentional infliction of emotional distress)—the district court instructed
Allard and Graham to file a motion to dismiss within twenty-one days, before the end of August.
Id. at 4 (Page ID #1846). Allard and Graham missed that deadline and, asking for forgiveness
rather than permission, filed their second motion to dismiss in October. See R. 26 (Second Mot.
to Dismiss) (Page ID #1853). The district court accepted their motion in spite of the delay,
noting that their oversight was “understandable in light of the procedural history and
circumstances of the case.” See R. 29 (Order of 10/08/19 at 2) (Page ID #1873). Courser made
no objections to the extension in the district court. Instead, he jointly stipulated with Defendants
to a briefing schedule. See R. 30 (Stipulation at 1) (Page ID #1874). All parties, with the
exception of Cline, fully briefed the second motion to dismiss before the district court issued a
ruling.
Before dismissing any of Courser’s claims, the district court entered default against Cline
for failing to plead or defend. R. 15 (Entry of Default 12/21/2018) (Page ID #170). Courser
never moved for entry of default judgment, and Cline never moved for the district court to set
aside the default.
No. 20-1038 Courser v. Allard, et al. Page 6
The district court issued its final opinion and judgment in this case on December 19,
2019, granting Allard’s and Graham’s second motion to dismiss the remaining claims against
them. R. 36 (Final Op. at 4–5) (Page ID #1938–39); R. 37 (Judgment) (Page ID #1940). In the
same order, the district court exercised its discretion to set aside the entry of default against Cline
and dismissed Courser’s claims against Cline. R. 36 (Final Op. at 5) (Page ID #1939). We have
jurisdiction over Courser’s timely appeal from the district court’s opinion and order granting
Defendants’ motion to dismiss and its order granting Allard’s and Graham’s motion for leave to
file a second motion to dismiss.
II. ANALYSIS
A. First Dismissal of Claims
After Courser amended his complaint following Allard’s and Graham’s filing of their
motion to dismiss, the district court dismissed most of Courser’s claims sua sponte. The claims
that the district court dismissed at that time are: Counts 1 (42 U.S.C. § 1983), 2 (42 U.S.C.
§ 1985), 3 (violation of the Fair and Just Treatment Clause of the Michigan Constitution), 5
(state and federal computer fraud), 6 (libel, slander, and defamation), 7 (civil stalking), 9
(tortious interference with business relationships), 11 (negligence and negligent infliction of
emotional distress), 12 (RICO) and 13 (RICO conspiracy), 14 (intentional interference with or
destruction of evidence/spoliation), and 15 (conspiracy). R. 22 (Order of 07/30/19 at 2–4) (Page
ID #1844–46). Relying in large part on its decision in the Michigan House case and Gamrat’s
case against Cline, the district court dismissed the claims against Defendants as implausible or
irremediable as a matter of law. We note that Courser has not objected to the fact that the district
court dismissed the claims sua sponte.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotations omitted). At this stage, we must take factual
allegations as true, but need not accept legal conclusions couched as factual allegations. Id. We
review a dismissal pursuant to Rule 12(b)(6) de novo. Robbins v. New Cingular Wireless PCS,
No. 20-1038 Courser v. Allard, et al. Page 7
LLC, 854 F.3d 315, 318 (6th Cir. 2017). For the reasons that follow, we affirm the district
court’s dismissal of all of Courser’s claims.
1. Count 1 – 42 U.S.C. § 1983
Courser claims that Defendants, by surveilling him and conspiring to remove him from
office, violated his constitutional rights under the Due Process Clause, the Equal Protection
Clause, and the Fourth Amendment. He accordingly brings a 42 U.S.C. § 1983 claim against
Defendants for the violation of his constitutional rights. The district court dismissed this claim in
part because “Courser fail[ed] to state a constitutional violation.” R. 22 (Order of 07/30/19 at 2)
(Page ID #1844).
a. Procedural Due Process
With respect to procedural due process, Courser must plausibly allege that “(1) he had a
life, liberty, or property interest protected by the Due Process Clause; (2) he was deprived of this
protected interest; and (3) the state did not afford him adequate procedural rights prior to
depriving him of the property interest.” Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611
(6th Cir. 2006). In the Michigan House case, Courser argued that he was deprived of a liberty
interest, but he did not state what that liberty interest was and he did not cite any cases
supporting his position. See Courser v. Mich. House of Representatives, 404 F. Supp. 3d 1125,
1147 (W.D. Mich. 2019). Therefore, the district court held that Courser’s procedural due
process theory fails.
The same is true here. Courser has not stated a liberty interest or cited any cases to back
up his claim of an alleged deprivation of liberty. Because Courser presents his procedural due
process claim in the same way here, it was appropriate for the district court to rely on its decision
in the Michigan House case. See United States v. Robinson, 390 F.3d 853, 886 (6th Cir. 2004)
(“We have cautioned that ‘[i]ssues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed [forfeited],’ and that ‘[i]t is not sufficient for a
party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh
on its bones.’” (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997))). The
No. 20-1038 Courser v. Allard, et al. Page 8
district court properly determined that Courser failed to state a claim for a procedural due
process violation.
b. Substantive Due Process
With respect to substantive due process, Courser must plausibly allege a conscience-
shocking deprivation of a liberty interest, described with particular care. See Guertin v.
Michigan, 912 F.3d 907, 918 (6th Cir. 2019). In the Michigan House case, the district court held
that Courser failed to allege a substantive due process claim because “most of the allegations
pertain to Allard, Graham, and Cline,” who were not defendants in that case. See Courser, 404
F. Supp. 3d at 1147. Thus, “Courser’s allegations against [the House] Defendants offer[ed]
nothing more than conclusions that do not rise to the level of a substantive due process
violation.” Id.
In this instance, it was not appropriate for the district court to rely on its decision in the
Michigan House case because the defendants in this case are Allard, Graham, and Cline. The
reason why the district court dismissed Courser’s claim in the Michigan House case is because
he made specific allegations as to Allard, Graham, and Cline, but not as to the defendants in that
case. Nevertheless, as the district court noted with respect to Courser’s procedural due process
claim, Courser has not stated a liberty interest. Thus, we affirm the district court’s dismissal of
this claim.
c. Equal Protection
With respect to equal protection, Courser must plausibly allege “that the government
treated the plaintiff disparately as compared to similarly situated persons and that such disparate
treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.”
See Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (internal
quotation marks omitted). In the Michigan House case, Courser did not allege that he was part
of a suspect class or that the defendants unlawfully discriminated against him. See Courser, 404
F. Supp. 3d at 1147. Instead, Courser pressed the “class-of-one” theory, id., by which a
“plaintiff alleges that she has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment,” Village of Willowbrook v.
No. 20-1038 Courser v. Allard, et al. Page 9
Olech, 528 U.S. 562, 564 (2000) (per curiam). The district court held that Courser “cannot avail
himself of the class-of-one theory” because that theory “has no application in the public
employment context.” Courser, 404 F. Supp. 3d at 1147–48 (citing Engquist v. Or. Dep’t of
Agric., 553 U.S. 591, 603–04 (2008)).
Because Courser presents his equal protection claim in the same way here, it was
appropriate for the district court to rely on its decision in the Michigan House case. Moreover,
the district court properly determined that Courser failed to state a constitutional violation and
rightly dismissed this claim.
d. Fourth Amendment
Courser additionally claims that Defendants violated his Fourth Amendment right to be
free from unreasonable searches and seizures. In the Michigan House case, Courser claimed that
Graham, at Allard’s direction, recorded the “controlled burn” conversation without Courser’s
knowledge or consent. See Courser, 404 F. Supp. 3d at 1148. The district court held that this
claim fails because the recording was done by Graham and, allegedly, Allard—not the House
defendants. Id. Additionally, in Gamrat’s case, the district court held that recording the
“controlled burn” conversation did not violate federal or state law. Gamrat v. Allard, 320 F.
Supp. 3d 927, 945–46 (W.D. Mich. 2018), aff’d Gamrat v. McBroom, -- F. App’x --, No. 19-
2364, 2020 WL 4346677 (6th Cir. July 29, 2020). In this case, the court further observed that
Courser “fail[ed] to explain how a recording by a person who was lawfully part of the
conversation could be a seizure under the Fourth Amendment.” Courser, 404 F. Supp. 3d at
1148.
Courser’s Fourth Amendment claim in this case also is based on the “controlled burn”
recording. The difference here, however, is that Allard and Graham, who allegedly were
responsible for the recording, are named as defendants. Nevertheless, because Courser, once
again, has made a conclusory argument and has cited no cases to support his position, we affirm
the district court’s dismissal of Courser’s Fourth Amendment claim. See Robinson, 390 F.3d at
886.
No. 20-1038 Courser v. Allard, et al. Page 10
2. Count 2 – 42 U.S.C. § 1985
Courser claims that Defendants conspired against him in bringing about the House Select
Committee Hearing, in violation of 42 U.S.C. § 1985. The district court dismissed this claim
because “Courser fail[ed] to state a claim for a violation of § 1985.” R. 22 (Order of 07/30/19 at
2) (Page ID #1844). In the Michigan House case, Courser alleged that the defendants violated
subsections (1) and (3) of § 1985, and stated in a response that the defendants also violated
subsection (2). See Courser, 404 F. Supp. 3d at 1148–49. Subsection (1) “prohibits conspiracies
to interfere with federal officers in the performance of their duties.” Fox v. Mich. State Police
Dep’t, 173 F. App’x 372, 376 (6th Cir. 2006). Subsection (2) “prohibits conspiracies to
influence parties, witness[es], or jurors in federal court proceedings . . . [and] conspiracies to
interfere with due process in state courts with the intent to deprive persons of their equal
protection rights.” Id. To state a claim under subsection (3), “which prohibits conspiracies to
deprive persons of their equal protection rights, a plaintiff must allege that there was ‘some
racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators’ action.’” Id. (quoting Kush v. Rutledge, 460 U.S. 719, 726 (1983)).
In the Michigan House case, the district court dismissed Courser’s subsection
(1) argument because “Courser was not a federal officer.” See Courser, 404 F. Supp. 3d at 1148.
The district court rejected the subsection (2) argument because Courser’s allegations did not
concern a court proceeding. See id. at 1148–49. Finally, the district court rejected the subsection
(3) argument because Courser did not allege a conspiracy “motivated by racial, or other class-
based, invidiously discriminatory animus.” Id. at 1148 (quoting Moniz v. Cox, 512 F. App’x
495, 499 (6th Cir. 2013)). Because Courser presents his § 1985 claim in the same way here, it
was appropriate for the district court to rely on its decision in the Michigan House case.
Moreover, the district court properly determined that Courser failed to state a claim under any
subsection of § 1985.
3. Count 3 – Fair and Just Treatment Clause of the Michigan Constitution
Courser claims that the House Select Committee Hearing violated his right to fair and just
treatment under Michigan’s Constitution. The Fair and Just Treatment clause of Michigan’s
No. 20-1038 Courser v. Allard, et al. Page 11
Constitution 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.
The district court rightly dismissed this claim because it is barred by the Eleventh
Amendment. R. 22 (Order of 07/30/19 at 2) (Page ID #1844). Under Michigan law, a plaintiff
seeking damages under Michigan’s Constitution must sue state officials in their official
capacities. See Smith v. Dep’t of Pub. Health, 410 N.W.2d 749, 751 (1987), affirmed sub nom.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). “A suit against an individual in his
official capacity is the equivalent of a suit against the governmental entity.” Matthews v. Jones,
35 F.3d 1046, 1049 (6th Cir. 1994). Eleventh Amendment “[s]overeign immunity protects
states, as well as state officials sued in their official capacity for money damages, from suit in
federal court.” Boler v. Earley, 865 F.3d 391, 409–10 (6th Cir. 2017). Because Courser’s fair-
and-just-treatment claim is proper only insofar as it is brought against the defendants in their
official capacities, Courser’s claim is barred by the Eleventh Amendment. It also is worth noting
that Defendants were not personally involved in the hearing. For all these reasons, Courser’s
claim fails.
4. Count 5 – Computer Fraud and Abuse Act (18 U.S.C. § 1030) and
Michigan Fraudulent Access to Computers, Computer Systems, and
Computer Networks Act (MICH. COMP. LAWS § 752.791 et seq.)
Courser claims that Defendants accessed his work computer without his authorization
and obtained and transmitted information from that computer. Under the Computer Fraud and
Abuse Act (“CFAA”), a person “who suffers damage or loss by reason of a violation of this
section may maintain a civil action against the violator to obtain compensatory damages and
injunctive relief or other equitable relief.” 18 U.S.C. § 1030(g). The Michigan Fraudulent
Access to Computers, Computer Systems, and Computer Networks Act similarly punishes
unauthorized access to computers in certain circumstances, but it does not provide for a private
right of action. Garback v. Lossing, No. 09-cv-12407, 2010 WL 3733971, at *8 (E.D. Mich.
Sept. 20, 2010).
No. 20-1038 Courser v. Allard, et al. Page 12
The district court dismissed Courser’s CFAA claim because “Courser does not allege any
sort of loss compensable under the CFAA, which is limited to damage to the illegally-accessed
computer or computer system, or loss incurred because the computer’s service was interrupted
and does not include subsequent use of illegally-obtained information.” R. 22 (Order of
07/30/19 at 2) (Page ID #1844). As the district court noted in the Michigan House case,
Courser’s claim was especially dubious because “the computers the House Defendants seized
and searched belonged to the House, not Courser.” See Courser, 404 F. Supp. 3d at 1150. The
district court properly determined that Courser failed to state a claim under the CFAA.
Additionally, the district court properly dismissed Courser’s Michigan Fraudulent Access
to Computers, Computer Systems, and Computer Networks Act claim “because there is no
private cause of action under that statute.” R. 22 (Order of 07/30/19 at 2) (Page ID #1844). The
Act, instead, is a criminal statute, with no civil component. See Garback, 2010 WL 3733971, at
*8 (“[The plaintiff] offers no authority, and the Court has found none, allowing the Court to
permit enforcement of the criminal statute through a private civil action.”). In Michigan, a
criminal statute must expressly create a private cause of action, or one must be inferred from a
lack of adequate means of enforcement. Long v. Chelsea Cmty. Hosp., 557 N.W.2d 157, 160
(Mich. Ct. App. 1996). As neither circumstance is present here, Courser cannot sue under this
statute, and the district court rightly dismissed his claim.
5. Count 6 – Libel, Slander, and Defamation
Courser claims that Defendants are liable for libel, slander, and defamation for delivering
the supposedly fabricated recording of the “controlled burn” conversation to the Detroit News in
August 2015. The elements of a defamation claim are:
(1) a false and defamatory statement concerning the plaintiff,
(2) an unprivileged communication to a third party,
(3) fault amounting at least to negligence on the part of the publisher, and
(4) either actionability of the statement irrespective of special harm (defamation
per se) or the existence of special harm caused by publication.
Ghanam v. Does, 845 N.W.2d 128, 142 (Mich. Ct. App. 2014) (internal quotation omitted).
No. 20-1038 Courser v. Allard, et al. Page 13
The district court dismissed this claim because it is time-barred. Defamation, libel, and
slander claims under Michigan law carry a one-year statute of limitations, MICH. COMP. LAWS
§ 600.5805(11), and the limitations period begins to run upon publication, not discovery, Puetz v.
Spectrum Health Hosps., 919 N.W.2d 439, 443 (Mich. Ct. App. 2018). Courser’s claim is well
past due. Moreover, as the district court held, even if this claim were not time-barred, “Courser
cannot show that the recording was false, as required for a defamation claim, because he
acknowledged before the [House] Select Committee that his voice was on the tape and that he
made the statements attributed to him.” R. 22 (Order of 07/30/19 at 3) (Page ID #1845). The
district court rightly dismissed this claim.
6. Count 7 – Civil Stalking (MICH. COMP. LAWS § 600.2954)
Courser claims that Defendants stalked him under Michigan Law. See MICH. COMP.
LAWS § 600.2954. The Michigan Supreme Court has defined civil stalking as “a willful course
of conduct whereby the victim of repeated or continuous harassment actually is, and a reasonable
person would be, caused to feel terrorized, frightened, intimidated, threatened, harassed, or
molested.” Nastal v. Henderson & Assocs. Investigations, Inc., 691 N.W.2d 1, 6 (Mich. 2005).
Harassment is defined as including “repeated or continuing unconsented contact” causing
emotional distress—which is what Courser alleges here. MICH. COMP. LAWS § 750.411h(c).
The district court dismissed this claim because “Courser . . . failed to allege any
unconsented contacts, and none of the Defendants in this case sent or coordinated the extortion
texts.” R. 22 (Order of 07/30/19 at 3) (Page ID #1845). In the Michigan House case, the district
court concluded, based on a police report that Courser himself referred to in his complaint, that
Joe Gamrat and David Horr sent the extortion texts. See Courser, 404 F. Supp. 3d at 1145. Like
in the Michigan House case, Courser failed plausibly to allege that Defendants here sent the
extortion texts. Without an unconsented-to contact, there can be no stalking claim, and Courser
has not pointed to any case that has extended liability for civil stalking to persons coordinating or
encouraging, rather than personally perpetrating, stalking. See Robinson, 390 F.3d at 886.
Courser tries to avoid this result by hooking his stalking claim into his civil conspiracy
claim. He argues that he “does not have to show that any of these Defendants personally took
No. 20-1038 Courser v. Allard, et al. Page 14
part in the stalking,” but instead “only needs to allege that Defendants were part of the
conspiracy.” Appellant Br. at 35. Courser’s logic is circular. To state a claim for civil
conspiracy, Courser must “prove a separate, actionable tort.” Advocacy Org. for Patients &
Providers v. Auto Club Ins. Ass’n, 670 N.W.2d 569, 580 (Mich. Ct. App. 2003) (quoting Early
Detection Ctr., PC v. N.Y. Life Ins. Co., 403 N.W.2d 830, 836 (Mich. Ct. App. 1986)). Thus,
Courser cannot mount a civil stalking claim based on his conspiracy claim because the civil
stalking claim is necessary for him to prove his conspiracy claim. We accordingly affirm the
district court’s dismissal of this claim.
7. Count 9 – Tortious Interference with Business Relationships
Courser claims that Defendants are liable for tortious interference with his business
relationships. The elements of a tortious interference claim are:
(1) the existence of a valid business relationship or expectancy that is not
necessarily predicated on an enforceable contract,
(2) knowledge of the relationship or expectancy on the part of the defendant
interferer,
(3) an intentional interference by the defendant inducing or causing a breach or
termination of the relationship or expectancy, and
(4) resulting damage to the party whose relationship or expectancy was
disrupted.
Health Call of Detroit v. Atrium Home & Health Care Servs., Inc., 706 N.W.2d 843, 849 (Mich.
Ct. App. 2005). The district court rightly dismissed this claim because “Courser fails to . . .
identify[] a specific business relationship or alleg[e] that Defendants knew that their actions
would harm a specific business relationship.” R. 22 (Order of 07/30/19 at 3) (Page ID #1845).
8. Count 11 – Negligence and Negligent Infliction of Emotional Distress
Courser claims that Defendants are liable for negligence and negligent infliction of
emotional distress under Michigan tort law. Yet, Courser makes no argument based on
negligence or negligent infliction of emotional distress in his briefing.5 He instead makes a case
5In any event, claims for negligent infliction of emotional distress under Michigan law “are limited to
‘bystander recovery,’”—i.e., cases in which the plaintiff witnessed an injury to a third party—“and Courser has not
No. 20-1038 Courser v. Allard, et al. Page 15
for intentional infliction of emotional distress. See Appellant Br. at 36. Accordingly, Courser
has forfeited any argument on this point. See United States v. Johnson, 440 F.3d 832, 845–46
(6th Cir. 2006) (“[A]n appellant abandons all issues not raised and argued in its initial brief on
appeal.” (internal quotation omitted)). We affirm the district court’s dismissal of this claim.
9. Counts 12 and 13 – RICO (18 U.S.C. § 1961 et seq.) and
Conspiracy To Violate RICO
Courser claims that Defendants forced him to resign through their corrupt activity, in
violation of RICO. The federal RICO statute creates a cause of action for “[a]ny person injured
in his business or property by reason of a violation of [18 U.S.C. §] 1962,” which prohibits
persons from engaging in a pattern of racketeering. 18 U.S.C. §§ 1964(c), 1962. To establish a
claim under RICO, the plaintiff must allege “(1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)
(footnote omitted). To prove a pattern of racketeering, a plaintiff “must show that the
racketeering predicates are related, and that they amount to or pose a threat of continued criminal
activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989). For continuity to exist, there
must be a threat of future criminal conduct. See id. at 242; Aces High Coal Sales, Inc. v. Cmty.
Bank & Tr. of W. Ga., 768 F. App’x 446, 455 (6th Cir. 2019). If the alleged scheme involved a
single scheme and a single goal, the continuity requirement is not met. See Aces High Coal
Sales, Inc., 768 F. App’x at 456–57.
The district court dismissed this claim because “Courser [could not] establish continuity
to support a RICO claim.” R. 22 (Order of 07/30/19 at 3) (Page ID #1845). In the Michigan
House case, “Courser allege[d] a scheme that lasted no more than nine months and had but a
single purpose and victim—to remove Courser from office. The alleged scheme was complete
once Courser resigned, as nothing else remained to be done.” See Courser, 404 F. Supp. 3d at
1153. Thus, “[b]ecause the single purpose was accomplished, no threat of alleged future
criminal activity remained.” Id. Because Courser presents his RICO claim in the same way
here, it was appropriate for the district court to rely on its decision in the Michigan House case.
alleged that he witnessed an injury to a third person.” See R. 22 (Order of 07/30/19 at 3) (Page ID #1845); Wargelin
v. Sisters of Mercy Health Corp., 385 N.W.2d 732, 734–35 (Mich. Ct. App. 1986).
No. 20-1038 Courser v. Allard, et al. Page 16
Courser additionally alleges a conspiracy to violate RICO. The district court dismissed
this claim because “Courser cannot establish continuity to support a RICO claim.” R. 22 (Order
of 07/30/19 at 3) (Page ID #1845). In the Michigan House case, the district court ruled that,
“because Courser d[id] not establish a RICO claim, he also fail[ed] to establish a RICO
conspiracy.” See Courser, 404 F. Supp. 3d at 1153. Applying the same ruling here was proper.
See Craighead v. E.F. Hutton & Co., 899 F.2d 485, 495 (6th Cir. 1990) (“Plaintiffs’ conspiracy
claim cannot stand in light of the dismissal of their other RICO counts.”).
10. Count 14 – Intentional Interference With or Destruction of Evidence and
Spoliation of Evidence
Courser alleges that Defendants committed the tort of spoliation by modifying
information on his work computer. The district court rightly dismissed this claim because
“Michigan does not recognize the stand-alone tort of spoliation.” R. 22 (Order of 07/30/19 at 3)
(Page ID #1845); see Teel v. Meredith, 774 N.W.2d 527, 529 (Mich. Ct. App. 2009).
11. Count 15 – Conspiracy and Concert of Actions
Finally, Courser claims that Defendants conspired against him and acted in concert in
violation of Michigan law. “In Michigan, a claim for civil conspiracy requires a combination of
two or more persons, by some concerted action, to accomplish a criminal or unlawful purpose, or
to accomplish a lawful purpose by criminal or unlawful means.” Specialized Pharm. Servs., LLC
v. Magnum Health & Rehab of Adrian, LLC, No. 12–12785, 2013 WL 1431722, at *4 (E.D.
Mich. Apr. 9, 2013). “[C]onspiracy claims must be pled with some degree of specificity”—not
merely vague or conclusory allegations. Moldowan v. City of Warren, 578 F.3d 351, 395 (6th
Cir. 2009). And “a claim for civil conspiracy may not exist in the air; rather, it is necessary to
prove a separate, actionable tort.” Advocacy Org. for Patients & Providers, 670 N.W.2d at 580
(quoting Early Detection Ctr., PC, 403 N.W.2d at 836). The doctrine of concert of action
applies when a plaintiff shows “that all defendants acted tortiously pursuant to a common
design.” Abel v. Eli Lilly & Co., 343 N.W.2d 164, 176 (Mich. 1984).
The district court dismissed this claim because “Courser admitted the accuracy of the
contents of the May 19, 2015, ‘fabricated’ recording, which was not false, and Courser’s
No. 20-1038 Courser v. Allard, et al. Page 17
allegation that Defendants engaged in concerted action to ‘set up’ Courser and then have him
criminally charged is not plausible in light of the available public record and the Court’s
conclusion that Courser failed to allege a conspiracy or concert of actions between Defendants
Allard, Graham, and Cline and the House Defendants.” R. 22 (Order of 07/30/19 at 3–4) (Page
ID #1845–46). In the Michigan House case, the district court dismissed the conspiracy claim
against the House defendants for several reasons.
First, according to the district court, “Courser’s conspiracy and concert of action claim
[wa]s not only implausible, but absurd on its face.” Courser, 404 F. Supp. 3d at 1145. Courser
claimed that the defendants conspired against him and Gamrat because they refused to sign the
Republican Caucus Pledge promising to toe the party line. The district court found this
motivation implausible because the House Republicans had enough of a majority that they would
not need Courser’s and Gamrat’s votes to pass legislation. Id. It is not clear to what extent the
district court relied on this particular conclusion from the Michigan House case in rendering its
decision here. Nevertheless, to the extent that the district court did rely on this conclusion, doing
so was improper. Courser’s theory for the defendants’ motivation is not entirely implausible.
The Michigan Republican Party has an interest in making sure their members toe the party line
even if they presently have a majority. A House member who votes against them is a liability. It
creates tension and bad optics, and it could lead to decisive votes against them down the line if
they lose elections. Courser’s theory does not stretch the imagination so far as to render his
claim implausible.
Next, the district court noted that the House defendants terminated Allard and Graham
and initially refused to act on Allard’s and Graham’s allegations of the affair or the “controlled
burn” recording. Id. In fact, Allard and Graham had to bring the recording to the Detroit News
because the House defendants refused to act. Id. Therefore, according to the district court,
Courser failed plausibly to allege that the House defendants and Allard and Graham were acting
in concert or according to an agreement or common design. The same would be true for Cline,
who left his job before the hearing even took place. The problem with this reasoning, however,
is that Courser also alleges that Allard, Graham, and Cline conspired together as a single group,
in addition to his allegations that they conspired with the House defendants.
No. 20-1038 Courser v. Allard, et al. Page 18
We can resolve this claim on simpler grounds: Courser has not proven a separate,
actionable tort that could serve as the basis for his conspiracy claim, or as the basis for a concert
of actions. See supra at pp. 13–17; Gamrat v. McBroom, -- F. App’x --, No. 19-2364, 2020 WL
4346677, at *3 (6th Cir. July 29, 2020) (“Gamrat fails to state a plausible claim for any other
actionable tort, so she also fails to state a claim for civil conspiracy.”). We accordingly affirm
the district court’s dismissal of this claim.
B. Second Dismissal of Claims
After sua sponte dismissing most of Courser’s claims, the district court directed
Defendants to file a second motion to dismiss on the remaining claims within 21 days. The
remaining claims were: Counts 4 (violation of the Federal Wiretapping Act and Michigan’s
Eavesdropping statute), 8 (invasion of privacy and intrusion upon seclusion), and 10 (intentional
infliction of emotional distress). Even though Allard and Graham missed the deadline to file by
a longshot, the district court accepted their motion and granted them an extension. Following
briefing by both sides, the district court dismissed each of the remaining counts.
In the first instance, Courser argues that the district court should not have granted Allard
and Graham leave to file a second motion to dismiss after they missed the deadline. Yet,
Courser made no objections to the extension of the deadline in the district court. Quite the
contrary, after the district court granted the extension, Courser jointly stipulated with Defendants
to a briefing schedule for their motion to dismiss. We therefore treat Courser’s argument—
which does not even concern the merits of his claims—as forfeited and proceed to the merits.
1. Count 4 –Federal Wiretapping Act (18 U.S.C. § 2511) and Michigan’s
Eavesdropping Statute (MICH. COMP. LAWS § 600.585(2))
Courser claims that recording the “controlled burn” conversation violated the Federal
Wiretapping Act and Michigan’s Eavesdropping statute.6 The district court dismissed Courser’s
Federal Wiretapping Act claim because it is time-barred. R. 36 (Final Op. at 3) (Page ID #1937).
6Courser brought up additional recordings at oral argument, but did not argue his claims based on those
recordings in his briefing. Courser argued with respect to the “controlled burn” recording only. See Appellant Br. at
31–34, 47. Therefore, we deem forfeited any arguments based on the additional recordings. See Johnson, 440 F.3d
at 845–46.
No. 20-1038 Courser v. Allard, et al. Page 19
The Federal Wiretapping Act is subject to a two-year statute of limitations, commencing from
“the date upon which the claimant first ha[d] a reasonable opportunity to discover the violation.”
18 U.S.C. § 2520(e). As the district court noted in the Michigan House case, Courser heard the
recording of the “controlled burn” conversation by the time of the House Select Committee
Hearing in September 2015. See Courser, 404 F. Supp. 3d at 1149. Thus, the district court
properly concluded that this claim, submitted in August 2018, is time-barred.
Having dismissed all federal claims, the district court declined to exercise supplemental
jurisdiction over the remaining state-law claims, including Courser’s claim brought under
Michigan’s eavesdropping statute. R. 36 (Final Op. at 3) (Page ID #1937). It was within the
district court’s discretion to do so. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline
to exercise supplemental jurisdiction over a claim under subsection (a) if-- . . . the district court
has dismissed all claims over which it has original jurisdiction.”).
2. Counts 8 and 10 – Privacy Torts and Intentional Infliction of Emotional Distress
Again, in light of the district court’s dismissal of all federal claims, the district court
declined to exercise supplemental jurisdiction over Courser’s state-law tort claims for invasion of
privacy, intrusion upon seclusion, and intentional infliction of emotional distress. R. 36 (Final
Op. at 3) (Page ID #1937). Doing so was a proper exercise of the district court’s discretion. See
28 U.S.C. § 1367(c)(3).
C. Default Judgment Against Cline
In its discretion, the district court set aside the entry of default against Cline. Courser
never moved for default judgment. A district court may, in its discretion, “set aside an entry of
default for good cause.” FED. R. CIV. P. 55(c). We accordingly review for abuse of discretion.
See United Coin Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 846 (6th Cir. 1983).
Because “[t]rials on the merits are favored in federal courts,” “[a]ny doubt should be resolved in
favor of the petition to set aside the judgment so that cases may be decided on their merits.” Id.
(internal quotation omitted). The factors for good cause are:
No. 20-1038 Courser v. Allard, et al. Page 20
(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 (6th Cir. 2006) (quotation omitted).
Here, the district court was “focused on the second factor” because “any conduct
attributable to Cline falls well outside of the statute of limitations under the Federal Wiretapping
Act”—Courser’s only surviving federal claim. R. 36 (Final Order at 4) (Page ID #1938). “With
the entry of default set aside, the Court . . . dismiss[ed] the Federal Wiretapping Claim against
Cline and decline[d] to exercise supplemental jurisdiction over the remaining state-law claims.”
Id. Doing so was not an abuse of discretion, particularly in light of the policy favoring removal
of defaults. And it makes sense to dismiss Courser’s claims against Cline together with
Courser’s claims against Allard and Graham because, if anything, Cline was even less involved
in the alleged conspiracy than Allard and Graham.
Additionally, there is some evidence of culpable conduct on Courser’s part leading to the
default. The Michigan Attorney General’s Office learned from Cline that Courser tried to
pressure him into signing multiple affidavits supporting Courser’s case, outside the presence of
Cline’s attorney. R. 35-1 (Aff. of Special Agent) (Page ID #1931). Courser told Cline that he
would dismiss him from the litigation if he signed the affidavit but would move to default Cline
in the litigation if he did not sign the affidavit. Id. at 3 (Page ID #1934). According to the
special agent of the Attorney General’s Office, Cline agreed to sign an affidavit on April 5, 2019,
id. at 2 (Page ID #1933), but subsequently refused to sign an additional affidavit and had his
lawyer contact the Attorney General’s Office instead, id. at 3 (Page ID #1934). Courser attached
the Cline affidavit dated April 5, 2019, to his response to Allard’s and Graham’s second motion
to dismiss. See R. 32-1 (Aff. of Cline at 2) (Page ID #1904). Curiously, Courser moved for
entry of default but never moved for entry of default judgment. Without presuming the truth of
the affidavit of the special agent of the Attorney General’s Office, these events and writings at
the very least are concerning and demonstrate some degree of culpable conduct on Courser’s
part.
No. 20-1038 Courser v. Allard, et al. Page 21
For all these reasons, we affirm the district court’s decision to set aside entry of default
against Cline.
III. CONCLUSION
We AFFIRM the district court’s judgment of dismissal of all claims against all
Defendants.