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,
J AMIE ESTRADA, ANISSA GALASSINI-
FORD, and J ASON LOREA,

Defendants.

MICHAEL CORWINS 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. ISPACs 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.
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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. Corwins publishing allegedly
1
stolen emails and providing
allegedly stolen emails that were not related to matters of public importance to the New Mexico
Attorney Generals (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 J amie 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. J une 16, 2014).
Accordingly, Mr. Corwins 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.
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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 Martinezs 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 ISPACs 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. Corwins complaints, the AG
conducted an investigation into Mr. Corwins allegations of corruption and AG investigators
requested additional email documentation from Mr. Corwin, which he provided.
Mr. Corwins 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. Corwins 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. Corwins 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.

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2. On J anuary 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 J anuary 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 J une 5, 2012, Mr. Corwin sent another letter to the FBI and the AG with additional
information gleaned from his investigation.

6. On J une 12, 2012, Mr. Corwin asked the AG to investigate possible corruption within the
PED. With a follow up letter on J une 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 J une 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 J uly 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. Corwins possession, including
those of a private nature. Mr. Corwin forwarded the emails in his possession to the AG
on J uly 16, 2012. On J uly 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 J uly 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
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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 plaintiffs 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;
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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).
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at issue were obtained through the interception of a communicationtheir 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.
Appx 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.
Corwins 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:
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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 plaintiffs 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. Appx at 840
(granting summary judgment to defendants where plaintiffs 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
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emails were obtained by a prohibited interception of communications. He had no knowledge of
Mr. Estradas 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 Meml 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. Corwins 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.
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A. The FWA Is Unconstitutional as Applied to Mr. Corwins 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. Corwins
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 FWAs 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. Corwins 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. Corwins 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).
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Mr. Corwins 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. Corwins 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 press
4
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. KerrMcGee Corp., 563 F.2d 433, 437 (10th Cir. 1977); Protecting the New
Media: Application of the Journalists 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).

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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. Corwins 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 strangers
illegal conduct does not suffice to remove the First Amendment shield from speech about a
matter of public concern. Id. at 535. Accordingly, Mr. Corwins actions are protected speech
and cannot serve as the basis for a viable claim under the FWA.
B. Mr. Corwins 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 AGs
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investigator at the explicit request of the AG. Such actions are protected by Mr. Corwins 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
citizens 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 Assn, 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 Amendments right to petition the
government for redress.
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On J une 12, 2012, Mr. Corwin asked the AG to investigate the actions of the PED. With
a follow up letter on J une 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 J une 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 J uly 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. Corwins possession, including those of a private nature. Mr. Corwin sent those to
the AG on J uly 16, 2012. On J uly 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 J uly 23, 2012.
Mr. Corwins 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. Commrs 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
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constitutional right to petition the government. See, e.g., Sierra Club, 349 F. Supp. at 939
(dismissing defendants 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
concertand pursuing compatible, even parallel, aims is not enough to warrant that inference.
Zinna, 428 F. Appx 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.
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Doc. 1 at 17. The complaints 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. Appx 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 Entmt, 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,
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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 ones 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 J une 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 J une 2012, Defendants disseminated
the stolen emails to media outlets and an email from Martinezs 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 J une 11, 2012. See United States v. Estrada, No. 1:13-cr-
01877-WJ (Doc. 36-3) (Interview of J ay 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, J une 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 J ay 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).
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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 J une 11 and 12, 2012, Plaintiffs were placed on
inquiry notice that something had gone wrong with Governor Matrinezs @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 Governors emails had been hijacked before J une 19, 2012
when GoDaddy canceled the account.
That date is confirmed by statements made by the Martinez Administration to the press.
On J une 28, 2012 at 12:05 a.m., the Albuquerque J ournal 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.
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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
J une 18, 2012, the same week that GoDaddy canceled the email account. Further, the
Albuquerque J ournals J une 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 Governors 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 J une 19, 2012, and most likely on J une 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 J une 19, 2014, a week before Plaintiffs filed their Complaint on J une 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 J une 26, 2014 Complaint,


6
Like the McCleskey Interview, the J une 28, 2012 article is subject to judicial notice as a matter
of public record. See, e.g., Pace, 519 F.3d 1067.
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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 4
th
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










Case 1:14-cv-00599-MV-SMV Document 17 Filed 10/24/14 Page 20 of 21
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 angelo.artuso@brytewerks.com

Mark E. Braden MBraden@bakerlaw.com

Gerald G. Dixon jdixon@dsblaw.com

Theodore J . Kobus, III tkobus@bakerlaw.com

Eric A. Packel epackel@bakerlaw.com

Steven S. Scholl sscholl@dsblaw.com

J ames C. Wilkey jwilkey@dsblaw.com


/s/ Kristina Martinez
Kristina Martinez

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