Plaintiffs, through undersigned counsel, hereby respectfully submit this Opposition to Defendant Bruce Lindsey’s Motion to Dismiss ("Lindsey Motion").

MEMORANDUM OF LAW

Plaintiffs, Dolly Kyle Browning and publishing company Direct Outstanding Creations Corporation, bring this lawsuit against Deputy White House Counsel Bruce Lindsey for threatening and intimidating Mrs. Browning; infringing upon her right to freely communicate with the media and public about her long-standing relationship with President Clinton; interfering with Plaintiffs’ efforts to publish a "semi-autobiographical" novel depicting Mrs. Browning’s life story, including her relationship with President Clinton; attempting to obstruct Mrs. Browning’s truthful testimony in the Paula Corbin Jones civil rights/sexual harassment lawsuit against President Clinton ("the Jones case"); defaming Mrs. Browning for refusing to conceal or lie about her relationship with President Clinton and; on information and belief, directing others to do the same.

Bruce Robert Lindsey was Campaign Director for the Clinton-Gore Presidential Campaign in 1991-1992. He met Clinton in 1968 while working in Senator William Fulbright’s office, and the two have worked together for many years. When Clinton won election to the Office of President of the United States, Lindsey entered the White House as Assistant to the President, Senior Advisor, and Director of Presidential Personnel. In 1994, he became Assistant to the President and Deputy White House Counsel, and continues to hold that position today.

Bruce Lindsey has been described by fellow White House colleagues as President Clinton’s closest confidant and "chief protector."

Indeed, fellow Arkansan and former Deputy Assistant to the President, Bill Burton, stated quite clearly that "[t]here is no end to which Bruce wouldn’t go for the [P]resident . . .. There are things Bruce would do for the [P]resident that nobody else on [e]arth would do, and Bruce wouldn’t even think twice about it." By all accounts, Lindsey is Clinton’s closest and most loyal confidant next to Mrs. Clinton." In turn, President Clinton’s trust in him is so absolute, Mr. Lindsey is commonly known as "the keeper of [Clinton’s] secrets."

Lindsey’s willingness to use whatever means necessary to protect President Clinton is profoundly demonstrated by his conduct toward Dolly Kyle Browning and others with knowledge of presidential misconduct. He uses his position to intimidate and silence them and, if that does not work, threatens they will be "destroyed" if they reveal what they know. In Mrs. Browning’s case, the threats began in January 1992, when the media discovered that she and President Clinton had a long-standing sexual relationship.

Hiding the truth about President Clinton’s relationship with Mrs. Browning was critical to Clinton and Lindsey. The Gennifer Flowers story had just broken, and the success of Clinton’s presidential campaign depended on his ability to conceal his numerous extramarital relationships from the public. Another "adultery" story would likely have ended their hopes for the Presidency:

With Star magazine about to break Mrs. Browning’s story, the threats to her came swiftly. They came first through someone she knew personally, her brother, who was working on Clinton’s presidential campaign at the time. He told her that Mr. Clinton and his campaign advisors wanted her to deny the story about their relationship that was about to be published in the press. Intimidating phone calls followed and, to ensure the intimidation worked, concluded a few days later when her brother called again from Mr. Clinton’s campaign headquarters in New Hampshire to pass along the threat "if you cooperate with the media, we will destroy you." Mrs. Browning did not know what they might do to "destroy" her, but she imagined the worse. She had

known Clinton since childhood, and could reveal many things about him. The threat to "destroy" evoked all kinds of thoughts and fears for herself and her family.

Plaintiffs learned later that the threat "to destroy" is virtually a trademark of Bruce Lindsey. Ms. Linda Tripp received the identical threat directly from Lindsey himself. During one of her recent depositions, Ms. Tripp testified that in 1993-94 she told Mr. Lindsey of her concerns about the apparent misuse of FBI files by the Clinton White House. His response was startling:

* * *

None of her information about the misuse of FBI files appeared to be news to him. She not only took his words as a threat to her professional future, but also feared that "an accident would befall [her]" because of what she knew.

Similar threats to other women with knowledge of presidential misconduct are well documented. Juanita Broaddrick was afraid to come forward about her allegations against Clinton for fear she would be "destroyed" like so many of the other women. Gennifer Flowers had repeated break-ins to her home, threats to her and her mother, and her neighbor, who had photographs of Clinton entering her apartment, was beaten just before Clinton announced his candidacy for President. Monica Lewinsky made her fears known in telephone conversations with Linda Tripp. On one of the tapes made public by The New York Times last October, Ms. Lewinsky is reported to have stated to Ms. Tripp,"I would not cross those people for fear of my life." Speaking of President Clinton, she also stated that "my mother’s big fear is that he’s going to send someone out to kill me." Paula Jones stated on Larry King Live that "through this whole thing I’ve felt very scared, and want to watch where I’m going all time, never really be alone." Sally Perdue, a former Miss Arkansas, claims that a known democratic party operative tried to hush her up during the 1992 campaign about her alleged affair with Clinton. She says that the man stated to her that they "knew that I went jogging by myself and he couldn’t guarantee what would happen to my pretty little legs."

Elizabeth Ward Gracen has stated that she received numerous anonymous telephone calls during which the caller warned her to keep quiet about her relationship with Clinton. She also received threats and, ultimately, was audited by the IRS. In September 1998, Ms. Gracen told The Toronto Sun: "I think Clinton is a very dangerous, manipulative man." Kathleen Willey

experienced several threatening incidents — nails in her car tires, the disappearance of her family cat, and a jogger who inquired about the prior two incidents, asking "[d]on’t you get the message?"

Th threats against Mrs. Browning continued as well. But Clinton and Lindsey apparently needed a more permanent solution to the problem she presented. They were particularly concerned because they knew she was writing a book, soon to be published, which depicted her 30-year relationship with Clinton. Thus, in the Fall of 1993, Lindsey made a point of passing another threat to Mrs. Browning, this time in person. He confronted Mrs. Browning’s sister in Little Rock, Arkansas, and warned her, "we’ve read your sister’s book and we don’t want it published." Plaintiffs were confused and frightened. They could not figure out how Lindsey had obtained a copy of the manuscript. It had not been distributed publicly, nor provided to a literary agent. When Mrs. Browning’s sister asked Mr. Lindsey how he obtained it, he walked away refusing to answer.

The book was not finalized until the Summer of 1994, just after Mrs. Browning and Mr. Clinton attended their thirtieth high school reunion in Hot Springs, Arkansas. Indeed, her meeting and conversation with Mr. Clinton at the reunion became the Prologue to her book, finalizing the story and completing the manuscript. When Mrs. Browning informed him at their meeting that the book was finished, his distress was obvious: "So, now I guess you’ll publish it. Just put the hook in and rip my guts out." Mr. Clinton knew he had a major problem on his hands. He did not want the book published.

Thus, in the Fall of 1994, Lindsey intensified his efforts, on Clinton’s behalf, to limit what Mrs. Browning could reveal about her relationship with Clinton. This time, he forced Mrs. Browning to curtail her speech by threatening to defame her if she did not. As Mrs. Browning later testified in the Jones case:

Id. (emphasis added). Because of the threats and intimidation from President Clinton and his agents, particularly Bruce Lindsey, Mrs. Browning was prevented from telling the full, true story of her life. Any description of her thirty-three relationship with Clinton was severely curtailed, even the words she was allowed to use. Otherwise, not only would she be defamed, they threatened to "destroy" her as well.

Having effectively been forced to agree to their terms, however, Mrs. Browning believed they would now let her publish her book without interference. As Plaintiffs learned later, and described in their Amended Complaint, that was not to be the case. On information and belief, Mr. Clinton, acting individually and through various agents, sought and conspired to prevent Mrs. Browning’s manuscript from being published through various tortious acts, including disparaging the book, threatening and intimidating Mrs. Browning and potential publishers, defaming Mrs. Browning, and other acts as yet undiscovered.

The problem for Clinton and Lindsey reemerged when Lindsey found out that Mrs. Browning had been subpoenaed to testify in the Jones case in October 1997. Clinton and Lindsey directed Clinton’s lawyers to draft a motion to quash the deposition subpoena (and other documents), and pressured Mrs. Browning to file it with the court. But, she insisted on telling the truth under oath regardless of the ramifications. Clinton and his agents then followed through on their threats to defame Mrs. Browning. They called her a liar, told the public she was out to get the President, and portrayed her as a woman who cared only for money.

As a result of his unlawful conduct, Plaintiffs filed their Amended Complaint against Bruce Lindsey on September 17, 1998. Contrary to Mr. Lindsey’s arguments in his motion to dismiss, he has effectively been served with legal process, and Plaintiffs claims against him are well pled and timely. They allege that through a continuing course of unlawful conduct, he tortiously interfered with their business opportunities (Am. Comp. at ¶¶ 87-92), violated Mrs. Browning’s First Amendment rights (id. at ¶¶ 136-141), intentionally inflicted emotional distress upon Mrs. Browning (id. at ¶¶ 120-123), participated in a civil conspiracy (id. at ¶¶ 142-46), and acquired and maintains the Office of the President of the United States through a pattern of racketeering activity (id. at ¶¶ 124-135). As demonstrated herein, Mr. Lindsey’s arguments for dismissal of these claims are contrary to the law, the facts, or both, and must, respectfully, be rejected.

In reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must accept all Plaintiffs’ factual allegations in the Amended Complaint as true, and liberally construe them in the light most favorable to the Plaintiffs. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Hosey v. Jacobik, 966 F. Supp. 12, 13 (D.D.C. 1997). In addition, the Plaintiffs must be granted every favorable inference that can be derived from the facts alleged. Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996); Kowal, 16 F.3d at 1276; Wiggins v. Hitchens, 853 F. Supp. 505, 508 n.1 (D.D.C. 1994).

Moreover, a complaint may not be dismissed unless it appears beyond doubt that the Plaintiffs can prove no set of facts in support of their claims that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Modderno v. King, 82 F.3d 1059, 1063 (D.C. Cir. 1996). As the United States Supreme Court has clearly stated:

Scheuer, 416 U.S. at 236 (quoting Conley, 355 U.S. at 45-46 (emphasis added)). Accord Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), quoted in H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-250 (1989); Modderno, 82 F.3d at 1063; Kowal, 16 F.3d at 1276.

2. Lindsey’s Motion Must Be Denied Because He Has Been Effectively Served With Legal Process.

In arguing that he has not "properly" been served, Mr. Lindsey ignores the purpose of Fed. R. Civ. P. 4 and instead erroneously focuses on the technical specifications of the rule. That approach has been rejected by this Court, and is contrary to modern federal practice. The primary function of the service of process rules is to bring prompt notice of the commencement of an action to a defendant’s attention. Lindsey has unquestionably received such notice. In fact, Lindsey has on at least three (3) occasions since this action was commenced against him actually received a Summons and copy of Plaintiffs’ Amended Complaint. Still, citing no legal authority whatsoever to support his position, he complains that service on him was technically defective and therefore the action against him should be dismissed. His arguments distort the law on service of process, and have been rejected in this Court’s prior rulings. As such, his motion must respectfully be denied.

Based on the law in this jurisdiction, service of process has been effected on Mr. Lindsey. This Court’s reasoning in Hagmeyer v. United States Department of Treasury, 647 F. Supp. 1300 (D.D.C. 1986) is directly on point. In Hagmeyer, defendants argued that the Court lacked personal jurisdiction over them because they were not served in a manner prescribed by Rule 4. Id. at 1303. According to the defendants, "unauthorized persons" had accepted the summons and complaint on their behalf and, in addition, process was received at their "offices," rather than their "dwelling places." Id. The Court rejected these arguments and stated that the "primary function" of Rule 4 is to bring notice of an action to the defendant’s attention. The federal courts, including this Court, construe Rule 4 liberally to achieve that goal:

Id. at 1303 (italics in original) (emphasis added).

The Court held that even though service on the particular defendants did not conform precisely to the specifications contained in Rule 4, the defendants were nevertheless subject to the Court’s jurisdiction:

As in Hagmeyer, Lindsey also received prompt notice of the pending suit at his place of employment. On September 16, 1998, two (2) days after the Amended Complaint was filed, a professional process server delivered the summons and Amended Complaint for Mr. Lindsey at the White House Counsel’s Office. See Plaintiffs’ Motion to Deem Lindsey Served at Exhibits 1, 3, 7. Mr. Derek Howard received and signed for the documents and delivered them to Mr. Douglas Band, a staff assistant in the White House Counsel’s Office. Id. at Exhibit 7 (Declarations of Derek Howard and Douglas Band). Upon receipt of the documents, Mr. Band delivered them to the main Counsel’s Office in the West Wing of the White House. Id. (Declaration of Douglas Band at ¶ 5). Shortly thereafter, on September 29, 1998, Mr. Lindsey sent a letter to Plaintiffs’ counsel confirming his receipt and review of the documents. Id. at Exhibit 3. Thus, as in Hagmeyer, service upon Lindsey has been lawfully effected and he is therefore subject to this Court’s jurisdiction.

In fact, there are several reasons for the Court to deem Lindsey effectively served in this case. First, immediately upon filing their Amended Complaint, Plaintiffs served him at the White House Counsel’s Office. See id. at Exhibit 1. Second, Lindsey’s actual receipt of the Summons and Amended Complaint at his place of employment is acknowledged and undisputed. See id. at Exhibit 3. Third, Plaintiffs made numerous good faith attempts at substantial cost to serve him at home as well. In fact, Plaintiffs’ professional process servers made at least seven (7) attempts to do so. See id. at Exhibit 4. When Lindsey could not be found at home, Plaintiffs contacted him by letter and served him by first-class mail, certified mail, and facsimile.

Tellingly, in arguing that he has not been served, Mr. Lindsey completely ignores this case authority, and cites none to support his own position. Plaintiffs conclude that he cannot distinguish their case precedent and refuses to acknowledge the law on this issue much the same as he refuses to acknowledge that he has been served.

The United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") has stated conclusively that the purpose of Fed. R. Civ. P. 4 is to ensure that a defendant receives actual notice that a lawsuit is pending against him. To that end, it advocates that the provisions of Rule 4 be liberally construed, not technically interpreted as Mr. Lindsey argues. Following those guidelines, this Court has ruled, in circumstances almost identical to these, that even when service on a defendant does not conform precisely to the technical requirements of Rule 4, service is effected and the defendant is subject to the Court’s jurisdiction where prompt notice of the suit was received at his place of employment. The result is the same even if an unauthorized person received and signed for the service, as long as the summons and complaint were brought promptly to the defendant’s attention. Mr. Lindsey’s arguments distort the law on service of process and nullify this Court’s prior rulings. As such, his motion must respectfully be denied.

In the unlikely event this Court determines that Mr. Lindsey has not been effectively served, rather than dismiss this matter without prejudice, the Court should extend the time for service and direct U.S. Marshals to effect service on Mr. Lindsey. Under the law, an extension should be granted when, as here, Plaintiffs have made a reasonable effort to serve process on Mr. Lindsey. Indeed, in this case, the facts not only establish good cause for an extension, they demonstrate that a permissive extension is warranted even if good cause is not established to the Court’s satisfaction. "[I]f the plaintiff shows good cause for the failure [to serve a defendant within 120 days after filing the complaint], the court shall extend the time for service for an appropriate period." Fed. R. Civ. P. 4(m) (emphasis added). In fact, "[w]here the plaintiff has made a reasonable effort to serve [the] defendant, Congress intended that the 120 day deadline be extended." Geller v. Newell, 602 F. Supp. 501, 502 (S.D.N.Y. 1984) (citing 1982 U.S. Code Cong. & Admin. News 4434, 4442).

Under the law of this jurisdiction, Plaintiffs have plainly established good cause. See Moore v. Agency for Int’l Dev., 994 F.2d 874, 877 (D.C. Cir. 1993) (good cause shown where there were two attempts to serve defendants, defendants had actual notice of the lawsuit and were represented by counsel, and defendants delayed responding to the complaint); cf. Hagmeyer, 647 F. Supp. at 1303-04. Other federal court rulings also indicate that good cause has been shown under the facts of this case.

In addition, courts have discretion to extend the time for service even where good cause is not shown:

1 J. Moore, Moore’s Federal Practice § 4.83 (1998) (emphasis added).

Good cause has easily been established here because, inter alia, Plaintiffs effectively served Mr. Lindsey at the White House Counsel’s Office and, because of his refusal to acknowledge service, attempted on at least eight (8) other occasions to serve him at home. Based on Plaintiffs’ good faith efforts to serve Mr. Lindsey, he has in fact received a Summons and copy of the Amended Complaint on at least three (3) occasions since the commencement of this lawsuit. Indeed, Mr. Lindsey himself has acknowledged actual receipt of the Summons and Amended Complaint. He has corresponded with Plaintiffs= counsel with respect to the allegations made against him. And, he has filed documents in this proceeding. See Plaintiffs’ Motion at Exhibits 1, 3-5, 7-8. Plaintiffs have made more than a reasonable effort to serve Mr. Lindsey and, since Congress intended that the 120- day deadline be extended where reasonable efforts to serve a defendant have been made, the Court should grant Plaintiffs’ request for an extension in this case.

Even if the Court does not find good cause for an extension, based upon the facts of this case, a permissive extension of time certainly is warranted. Any delay in attempting to serve Mr. Lindsey at home was occasioned by Plaintiffs’ belief, based on this Court’s aforementioned decision in Hagmeyer, that Mr. Lindsey had effectively been served with process at his place of employment. Given direct case precedent, which conforms almost precisely with the facts in this case, Plaintiffs were justified in their belief, and thus a permissive extension is warranted.

If the Court does extend the time of service for good cause, Plaintiffs also request that the Court direct U.S. Marshals to effect service of process on Lindsey. Fed. R. Civ. P. 4(c)(2) states that "[a]t the request of the plaintiff . . . the court may direct that service be effected by a United States marshal, deputy United States marshal, or other person or officer specially appointed by the court for that purpose." Id. Actual personal service directly upon Lindsey by a United States Marshal may be the only way to resolve this issue without causing enormous undue additional delay and expense to the Court and Plaintiffs.

Lindsey adopts by reference Defendant Clinton’s arguments for dismissal, but in doing so undercuts Clinton’s position by admitting that Plaintiffs may adequately have pled their claim for tortious interference. In fact, based on the Supreme Court’s decision in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 162 (1993), Plaintiffs have amply pled this claim. Moreover, as demonstrated herein, Plaintiffs’ claim is also timely.

In Leatherman, the Supreme Court reaffirmed its long-standing position that:

Id. at 1163 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) (emphasis added)). Thus, Plaintiffs are not required to establish in detail the facts upon which they base their claims. They need only provide "fair notice" of those claims and the grounds upon which they rest. Plaintiffs’ have more than complied with this requirement, and have sufficiently pled all the essential elements of a tortious interference claim.

Tortious interference with business opportunities protects business opportunities that are "commercially reasonable to anticipate" at the time of the defendant’s unlawful conduct. See Whelan v. Abell, 953 F.2d 663, 673 (D.C. Cir. 1992). Accordingly, Plaintiffs alleged that "Mrs. Browning had a reasonable expectation that she would be able to sell the rights to her manuscript to a publisher for publication." Am. Comp. at ¶ 88. Although such a well-pled allegation must be accepted as true for purposes of a motion to dismiss, Lindsey nonetheless claims, without any basis, that this was not a reasonable expectation. Whether Plaintiffs’ expectations were reasonable or not can only be determined by the trier of fact after discovery and presentation of all the evidence. Thus, because Lindsey’s claim is improper at this pleading stage of the case, it must, respectfully, be rejected outright.

Importantly, however, Plaintiffs’ Amended Complaint demonstrates much more than a mere subjective anticipation of a publishing contract and book sales, as Lindsey disingenuously suggests. Indeed, Plaintiffs show not only that was it commercially reasonable to anticipate selling their book, but that the commercial possibilities were enormous. The book was receiving favorable national press coverage, and Plaintiffs engaged a New York literary agent to market it. Am. Comp. at ¶¶ 45-47. In October 1995, Esquire magazine praised the book, and in February 1996, Publishers Weekly, the leading industry publication, declared that the book was so compelling it "could knock Primary Colors right out of the headlines." Id. at ¶¶ 46-47. Also, in the Spring of 1996, Mrs. Browning’s literary agent reported that she had contacted publishers about publication of the book. Id. at ¶ 48. Mrs. Browning also contacted publishers on her own. Id. at ¶ 49. These well pled allegations certainly show that there was more than a reasonable likelihood that Plaintiffs would be able to sell their book, and that it would likely be an overwhelming commercial success. Id. at ¶ 88.

2. Plaintiffs Also Amply Pled That Lindsey Knew of the Book’s Commercial Possibilities and Interfered with Third Parties To Prevent Its Publication.

Plaintiffs allege that Lindsey threatened Mrs. Browning about publishing her book, Purposes of the Heart. In the Fall of 1993, he passed a warning to her sister that he and President Clinton did not want it published: "[W]e’ve read your sister’s book and we don’t want it published." Id. at ¶ 38 (emphasis added). The logical and reasonable inference that must be drawn for purposes of a motion to dismiss is that Lindsey knew, because of the national press coverage and the book’s revelations about Clinton, that it had significant commercial possibilities. Consequently, he and Clinton sought to prevent its publication.

Plaintiffs further allege, on information and belief, that Lindsey and Clinton also interfered with other third parties to achieve their desired goal:

Id at ¶ 50.

Thus, in light of the book’s favorable media attention, Plaintiffs’ professional efforts to publish it, the significant damage publication would likely do to Clinton’s presidency, Lindsey’s well-established role of protecting President Clinton from such damaging occurrences, and his threat that Clinton and his agents did not want the book published, Plaintiffs must be granted the logical and reasonable inference that follows — Clinton and Lindsey took these actions and used the substantial resources and prestige of their offices to make certain Plaintiffs’ book was not published. Obviously, discovery is necessary to demonstrate precisely how they were able to prevent its publication, but President Clinton’s well-known contacts in the entertainment industry suggest that it was not very difficult.

In any event, the Court must grant Plaintiffs every favorable inference that can be derived from the facts alleged, and may not dismiss their claim unless it appears beyond doubt that they can prove no set of facts that would entitle them to relief. Since they have plainly alleged facts in support of their claims that would entitle them to relief, Mr. Lindsey’s motion to dismiss this claim must be denied.

3. Plaintiffs Amply Pled a Nexus Between Lindsey’s Conduct and Their Injuries.

By adoption of Clinton’s arguments, Lindsey presumably also claims that Plaintiffs are required to plead that "but for" his tortious interference, they would have secured a publishing contract for their book. However, District of Columbia law imposes no such requirement on Plaintiffs. In Bennett Enterprises, Inc. v. Domino’s Pizza, Inc., 45 F.3d 493, 499 (D.C. Cir. 1995), the D.C. Circuit expressly stated that "resultant damage" is what is required, not "but for" causation. Plaintiffs’ Amended Complaint expressly alleges "resultant damage." See, e.g., Am. Comp. at ¶¶ 45-49, 55, 59 and 92. Plaintiffs state that they received no offers to publish. Had no success selling the publishing or subsidiary rights. Suffered damage to their business and property. And were damaged in other ways as well. For purposes of the underlying motion, these allegations must be accepted as true. This argument is unsupported by the law in this Circuit as well as the allegations in the Amended Complaint. Consequently, it must be rejected as well.

In addition to asserting the wrong legal standard, Lindsey also adopts Clinton’s erroneous factual claims. Mrs. Browning has not been trying to sell the book for ten (10) years, and did not seek to publish it in 1988. Cf. Clinton Motion at 20. Indeed, the manuscript was not completed until late 1994, when Mrs. Browning added the Prologue, which comprised an accurate account of her meeting with President Clinton at their thirtieth high school reunion in July 1994. As the Amended Complaint makes clear, Mrs. Browning only sent an initial draft of the manuscript to a publisher in 1988 for comment. Am. Comp. at ¶ 21. Indeed, Plaintiffs specifically allege that Mrs. Browning continued to work on the manuscript "over the next several years." Id. The first mention of when Mrs. Browning and/or her literary agent actually contacted publishers about publishing the book was in the Spring of 1996. Id. at ¶ 48. Thus, Lindsey’s argument that he could not have caused Plaintiffs’ harm because their inability to publish the book predated his alleged tortious conduct, is simply not borne out by the factual allegations.

Finally, by adopting Clinton’s arguments, Lindsey also erroneously claims that because Plaintiffs could have promoted the book themselves, he cannot be responsible for its lack of success. See Clinton Motion at 21. Indeed, whether Plaintiffs could have successfully promoted the book is not relevant to Lindsey’s tortious conduct. Moreover, this is a factual issue that cannot be decided at this stage of the case. So is their argument that "many publishers (with a wide range of political beliefs and stances toward the President) independently decided that they had no interest in the book" is also a factual issue. Id. All valid factual disputes involve matters of proof, and must await discovery and trial. In a motion to dismiss, the factual allegations in the Amended Complaint must be taken as true. Thus, Lindsey, like Clinton, has failed to demonstrate that this claim should not go forward.

Mr. Lindsey also incorrectly argues that the tortious interference claim against him is time-barred. He is wrong because Plaintiffs not only allege tortious conduct by him occurring in 1993 and 1994, but also several other acts in his individual capacity and as an agent for President Clinton that extend beyond the 1993-94 time period. For example, Plaintiffs allege that publication of The New Yorker article disparaging Plaintiffs’ book was done at the direction and/or request of Mr. Clinton "or his agents." Am. Comp. at ¶ 51 (emphasis added). This is a logical inference since, as Plaintiffs also allege, "Ms. Mayer is a reporter who has close ties to, and has taken actions on behalf of, Mr. Clinton . . . members of the White House Staff, and the Clinton Administration," including "actions, designed to aid Mr. Clinton . . . and harm perceived critics." Id. at ¶ 54.

Plaintiffs further allege that the actions of "[d]efendants and their agents" prevented the sale of Plaintiffs’ book, in that "Mr. Clinton and his agents" published false, misleading, disparaging and defamatory statements" about Dolly Kyle Browning and her book. Id. at ¶¶ 59, 83 (emphasis added). Plaintiffs also plainly state that these actions by "Mr. Clinton and his agents," and "individuals acting on his behalf," including Mr. Lindsey and others, have caused Plaintiffs’ damages. Id. at ¶ 85 (emphasis added).

Moreover, Plaintiffs clearly allege that:

* * *

Id. at ¶ 86 (emphasis added).

Again, all of these factual allegations must be taken as true, and all possible inferences must be drawn in Plaintiffs’ favor. As such, and given that Bruce Lindsey is President Clinton’s most loyal protector, the keeper of his secrets, and the one who will do anything for him — indeed, his primary "agent" — all of these allegations plainly include him. Indeed, Plaintiffs’ express allegations show that it was Lindsey who threatened them not to publish the book, nor reveal to the media Mrs. Browning’s long-term relationship with Clinton. These tortious activities extend well into 1997 and 1998, and easily fall within the three-year limitations period.

In addition to Plaintiffs’ allegations of tortious conduct by Lindsey well into the limitations period, there is another reason Plaintiffs’ claims are timely — the discovery rule. Plaintiffs did not know, and, prior to May 1997, had no reason to know about Defendants’ tortious interference with the publication and sale of their book When Lindsey forced the "deal" on Mrs. Browning in the Fall of 1994, Plaintiffs assumed that Mr. Clinton and his agents would not interfere with the publication of their book. Id. at ¶ 43. In May 1997, however, Jane Mayer’s false and disparaging New Yorker article was published, thereby giving Plaintiffs their first hint of the "destruction" threatened by Clinton’s agents, including his closest confidant, Bruce Lindsey. Id. at ¶¶ 31-33, 43-44, 138-140.

Under District of Columbia law, a tort action accrues when the plaintiff has knowledge of, or by the exercise of reasonable diligence should have knowledge of (1) the existence of the injury, (2) its cause in fact, and (3) some evidence of wrongdoing.’" Thus, in accordance with the discovery rule, the limitations period for Plaintiffs’ tortious interference claim did not begin to run until May 1997 at the earliest. Plaintiffs are therefore well within the three-year limitations period for their tortious interference claim against Lindsey and the other Defendants.

Plaintiffs’ claim is also timely, and the limitations period likely begins even later than May 1997, based upon the "continuing tort" doctrine adopted by this Circuit:

As this Court held in Rochon v. FBI:

Application of the doctrine in the District of Columbia was reaffirmed by this Court in 1996:

All of the alleged unlawful acts by President Clinton and his agents, especially Bruce Lindsey, consist of a "continuous chain of tortious activity" causing continuing injury over a period of years. No single incident can "fairly or realistically" be identified as the cause of all the significant harms Plaintiffs have suffered. Rather, the harms alleged flow from the cumulative and synergistic effect of all President Clinton’s and his agents’ wrongful conduct.

Importantly, the "continuing tort" doctrine encompasses not only Lindsey’s tortious conduct, but the tortious conduct of the other Defendants as well, and for which Lindsey is vicariously liable. In Count VIII of their Amended Complaint, Plaintiffs allege a civil conspiracy. Am. Comp. at ¶ 142-146. The D.C. Circuit has stated that:

Further, "[a]n individual who joins an already formed conspiracy knowing of its unlawful purpose may be held responsible for acts done in furtherance of the conspiracy both prior to and subsequent to his joinder." Thus, accepting Plaintiffs’ allegations as true, the civil conspiracy herein began in approximately January 1992, during Defendant Clinton’s first presidential campaign. The alleged unlawful conduct by Lindsey occurred in 1993 and 1994. By joining in this unlawful conspiracy, he is liable for all of the acts done in furtherance of its unlawful goals. The tortious acts alleged by Plaintiffs continue up to and including at least March 20, 1998. See Am. Comp. at ¶ 81. As such, Plaintiffs allegations against Mr. Lindsey are well within all applicable limitations periods.

Plaintiffs allege that Lindsey, acting in his individual capacity but under color of law arising from the substantial powers vested in him as Deputy White House Counsel, and acting as an agent of the President of the United States, deprived Mrs. Browning of rights guaranteed to her under the First Amendment to the United States Constitution by threatening to defame her if she spoke publicly about her long-standing relationship with Mr. Clinton. See id. at ¶¶ 136-139.

Plaintiffs also allege that Lindsey’s conduct was knowing, malicious, willful and specifically intended to deprive Mrs. Browning of her constitutional rights, or done with deliberate indifference to those rights, as demonstrated by Lindsey’s threat to Mrs. Browning. Id. at ¶140. As a result of Lindsey’s conduct, Mrs. Browning suffered substantial actual and compensatory damages. Id. at ¶ 141. Based on Bivens v Six Unknown Named Agents, 403 U.S. 388 (1971), Plaintiffs adequately state a claim for relief.

In Bivens, the Supreme Court, characterizing the issue presented, specifically stated:

Id. at 397. The Supreme Court further stated: "The very essence of civil liberty certainly consists in the right of every individual to claim protection of the laws, whenever he receives an injury." Id. at 397, citing Marbury v. Madison, 1 Cranch 137, 163 (1803). Indeed, this Circuit has expressly held that a Bivens action exists to enforce the First Amendment. Spagnola v. Mathis, 809 F.2d 16 (D.C. Cir. 1986), citing Dellums v. Powell, 566 F.2d 167, 195 (D.C. Cir. 1977).

Thus, to properly assert a Bivens claim, a plaintiff must allege: (1) that an official acted under color of federal law and (2) that the official action has deprived him of some federal right. The allegations of the Amended Complaint meet these requirements.

Lindsey argues that "the mere fact" that he is a government official does not necessarily mean that he acted under color of federal law so as to satisfy one of the Bivens requirements. Lindsey Motion at 11, citing Laxalt v. McClatchy, 622 F. Supp. 737, 747 (D. Nev. 1985). He also states that "there is no allegation" that he did "anything — officially or otherwise — to interfere with plaintiff’s First Amendment right." Id.

The Laxalt case does not help Lindsey. In Laxalt, a United States senator brought an action for libel, conspiracy, and intentional infliction of emotional distress allegedly caused by a series of newspaper articles purporting to link the senator to organized crime. The defendant newspaper alleged a Bivens counterclaim, based on the senator’s having written a letter demanding a retraction on senate stationary. The Laxalt court dismissed the counterclaim, reasoning that the senator did not act under color of federal law since he was required under state law to write the letter demanding retraction, and that the senator’s actions were no different than any other private citizen. 622 F. Supp. at 747, 748. Clearly, the Court’s justifications in Laxalt for dismissing the newspaper’s counterclaim are simply inapplicable to this case. Additionally, there is no legal basis for the threats and other conduct directed toward Mrs. Browning and potential publishers, and the conduct alleged is grossly different from that of any other private citizen. Contrary to Lindsey’s mischaracterization, he acted under the color and authority of his office by threatening and intimidating Mrs. Browning to prevent her from exercising her First Amendment rights.

Lindsey also erroneously argues that Plaintiffs fail to allege that he threatened to defame Mrs. Browning: "One would search the Amended Complaint in vain trying to find a reference to Mr. Lindsey ‘threatening to defame [Mrs. Browning].’ No such allegation exists." Lindsey Motion at 11. Contrary to Mr. Lindsey’s contention, Plaintiffs have made such an allegation in their Amended Complaint:

Am. Comp. at ¶ 44 (emphasis added); see also id. at ¶¶ 42-43. Mr. Lindsey threatened Mrs. Browning that if she did not agree to severely limit was she stated publicly about her relationship with President Clinton, he would "tell lies" about her. This is plainly a threat to defame.

Lindsey erroneously cites three cases holding that defamation, by itself, cannot support a Bivens claim. Lindsey Motion at 11. However, since all of these cases focus on defamation as the basis for a Bivens claim, they are not on point. Violations of Mrs. Browning’s First Amendment rights, not defamation, is the basis for her Bivens claim against Lindsey.

Plaintiffs’ Bivens claim against Lindsey is also timely. After referring to Plaintiffs’ allegations of his conduct against Mrs. Browning in 1993 and 1994, Lindsey argues that Plaintiffs’ Bivens claim is untimely because "both dates are more than three years prior to the filing of plaintiffs’ Amended Complaint." Id. at 12. However, Lindsey erroneously ignores Plaintiffs’ allegations of other conduct by him, the "discovery rule,"and the "continuing tort" doctrine.

Mr. Lindsey’s characterization of the Amended Complaint ignores other alleged tortious conduct intended to violate Mrs. Browning’s First Amendment rights, and prevent publication of her book. This conduct is alleged against Mr. Clinton "and his agents," is related and continuing, and extends into the limitations period. See Am. Comp. at ¶¶ 50, 51, 54, 59, 83, 85, 86. Since the factual allegations in the Amended Complaint must be taken as true and all favorable inferences drawn in Plaintiffs’ favor, all of these allegations must be deemed to include Mr. Lindsey, particularly since he is President Clinton’s most trusted "agent." These allegations are not limited to the 1993-94 time period, and include conduct easily within the limitations period.

Plaintiffs’ Bivens claim also is timely because of the "discovery rule." There is no allegation in the Amended Complaint showing that Plaintiffs had reason to know prior to May 1997, at the earliest, that publishers were being intimidated. Since the Amended Complaint was filed in September 1998, Plaintiffs clearly are within the three-year limitations period for their Bivens claim against Mr. Lindsey.

Plaintiffs’ Bivens claim also is timely because of the "continuing tort" doctrine. This doctrine provides that when a tort involves continuing injury, the limitations period begins to run at the time the tortious conduct ceases. All of the unlawful acts by Mr. Lindsey, President Clinton, and his agents, consist of a continuous chain of tortious activity where no single incident can realistically be identified as the cause of significant harm. It is the cumulative effect of this continuing injury on Plaintiffs that is actionable. This conduct includes that of Mr. Lindsey, and the other co-conspirators for which he is vicariously liable.

Plaintiffs have more than sufficiently stated a claim for intentional infliction of emotional distress against Bruce Lindsey. Nevertheless, he argues that Mrs. Browning’s claim is time-barred, and that his alleged tortious conduct is not sufficiently outrageous. Lindsey Motion at 6-8. As with his tortious interference argument, Lindsey ignores Plaintiffs’ allegations indicating that his tortious conduct went well beyond 1993-94. All of the allegations against Mr. Clinton’s "agents" and "each and every Defendant" apply to the emotional distress claim, include Mr. Lindsey, and clearly are not confined to 1993-94. Plaintiffs allegations indicate that Mr. Lindsey intentionally inflicted emotional distress upon Mrs. Browning over the period from 1993 to 1998. Accordingly, Mrs. Browning’s claims are not time-barred.

Additionally, contrary to Mr. Lindsey’s argument, the "continuing tort" doctrine applies to the emotional distress claim as well. But cf. id. at 7-8. In attempting to distinguish the Rochon opinion, Lindsey quotes another part of the opinion that states:

Id. at 7-8 (emphasis added), quoting Rochon, 691 F.2d at 1563 n.20.

Tellingly, in making this argument, Lindsey ignores that portion of Rochon that provides an exception to the limitations period when the defendant is vicariously liable for the actions of others that occurred within the limitations period. In Rochon, there was no such vicarious liability because the Court dismissed the conspiracy claim that would have made the particular defendants vicariously liable. Yet, the Court in Rochon curiously noted that even if the conspiracy charge had survived, the "continuing tort" theory would apply "only to the conspiracy claim itself." Since "conspiracy" is not a separate tort, the Court must have meant that the theory would apply to the conduct committed by the defendants’ co-conspirators within the limitations period. Thus, since Plaintiffs have properly alleged a civil conspiracy, the statute of limitations does not protect Lindsey from liability for the intentional infliction of emotional distress on Mrs. Browning by his co-conspirators within the limitations period.

Lindsey’s is also wrong when he argues that his alleged tortious conduct was not "outrageous." Under District of Columbia law, Plaintiffs have amply demonstrated that it was. Generally,

More specifically, the court must review all of the surrounding factual circumstances to determine whether the conduct was indeed outrageous:

Further, "[r]epeated harassment may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability." Homan, 711 A.2d at 820. "Where reasonable persons may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability." Id. at 818 (citing Drejza v. Vaccaro, 650 A.2d 1308, 13116 (D.C. 1994) (quoting, Restatement § 46 comment h) (emphasis added).

The facts alleged by Plaintiffs clearly show that Lindsey’s conduct was outrageous, particularly given the context in which it occurred. As President Clinton’s most loyal and trusted agent, he personally threatened Mrs. Browning warning her not to publish her book. Am. Comp. at ¶ 38 (emphasis added). In doing so, he used the full force of the Executive Branch to threaten and intimidate her. He also prevented her from exercising her constitutional right to free speech, and pursuing her chosen career path as a writer. He threatened that the White House would tell lies about her unless she agreed to severely limit her speech about her long-standing relationship with President Clinton. See id. at ¶¶ 43-44, 138-140. His purpose, to conceal President Clinton’s misconduct. Their goal, to acquire and retain control of the Office of President of the United States. As a public servant, officer of the court, and fellow American, his conduct violated every principle upon which this country was built.

This kind of conduct by high government officials is directly contrary to our beliefs and values as Americans. For Lindsey to misuse the inherent authority and prestige of the Office of President of the United States to threaten an American citizen who is telling the truth — and who they know is telling the truth — is so far beyond the range of acceptable conduct as to be intolerable in our society. Using their power and influence to silence and defame citizens in violation of the law, and in dereliction of their duties as officers of our judicial system goes beyond all bounds of decency. Such conduct is outrageous. If there is any doubt about whether it is, or if reasonable people can differ after examining Lindsey’s conduct, it is for the jury to make the determination. Lindsey’s argument that his alleged misconduct is not outrageous is wrong, and his motion to dismiss this claim must, respectfully, be denied.

In seeking dismissal of Plaintiffs’ RICO claim, Lindsey adopts Clinton’s flawed arguments that Plaintiffs failed to plead a pattern of racketeering activity or an acquisition injury. Lindsey Motion at 10; Clinton Motion at 29-41. Plaintiffs effectively disposed of those arguments in their Opposition to Defendant Clinton’s Motion to Dismiss at 23-31, and respectfully refer the Court to that filing.

Lindsey also argues, again incorrectly, that Plaintiffs’ claim is untimely. While the RICO statute provides a four-year limitations period, there has been a split of authority among the U.S. Circuit Courts as to when the limitations period accrues for a RICO claim. In Ridell v. Ridell Washington Corp., 866 F.2d 1480, 1489-90 (D.C. Cir. 1989), the D.C. Circuit assumed, without deciding, that the four-year statute of limitations begins to run when the plaintiff discovers the existence and source of his or her injury. Lindsey admits that this Circuit follows the discovery rule, but nevertheless erroneously argues that Plaintiffs’ claim is barred because

Lindsey Motion at 10.

This argument is wrong because when Lindsey formulated and concluded the "deal" with Mrs. Browning in 1994, Plaintiffs had every reason to believe that Mr. Clinton and his agents would not interfere with publication of their book. Am. Comp. at ¶ 43. It was not until May 1997, when Defendant Jane Mayer’s false, disparaging article about the book appeared in The New Yorker magazine, that Plaintiffs discovered the threats and intimidation by Lindsey and Clinton’s other agents had begun to materialize. See id. at ¶ 31-32. Their injury was not discovered prior to that time, and the source became evident once the injury was discovered. As Plaintiffs alleged, Jane Mayer has close ties to, and has taken actions on behalf of President Clinton and the White House. Id. at ¶ 54. Thus, pursuant to the discovery rule adopted in Ridell, where the limitations period begins to accrue when the plaintiff discovers the existence and source of his or her injury, Plaintiffs’ RICO claim did not accrue until May 1997 at the earliest, well within the four-year limitations period.

Plaintiffs’ claim also is timely because of the "continuing tort" doctrine. This doctrine provides that when a tort involves continuing injury, the limitations period begins to run at the time the tortious conduct ceases. All of the unlawful acts by Mr. Lindsey, President Clinton, and his agents, consist of a continuous chain of tortious activity where no single incident can realistically be identified as the cause of Plaintiffs’ harm. It is the cumulative effect of this continuing injury on Plaintiffs that is actionable.

Finally, Plaintiffs’ claim is timely because the racketeering activities alleged in this case are included in their civil conspiracy claim, which involves Clinton, Lindsey, and various other Clinton agents, named and unnamed. Their threats and intimidation, violations of constitutional rights and, inter alia, destruction of professional lives and reputations have been directed at anyone with knowledge of presidential misconduct, including Plaintiffs. As part of this conspiracy to acquire and retain the Office of President of the United States through a pattern of racketeering activities, Lindsey is liable for the injuries caused by others’ actions taken in furtherance of those goals, not simply his own:

Further, "[a]n individual who joins an already formed conspiracy knowing of its unlawful purpose may be held responsible for acts done in furtherance of the conspiracy both prior to and subsequent to his joinder." Thus, accepting Plaintiffs’ allegations as true, the civil conspiracy herein began in approximately January 1992, during Defendant Clinton’s first presidential campaign. The alleged unlawful conduct by Lindsey occurred in 1993 and 1994. By joining in this unlawful conspiracy, he is liable for all of the acts done in furtherance of its unlawful goals. The tortious acts alleged by Plaintiffs continue up to and including at least March 20, 1998. See id. at ¶ 81. As such, Plaintiffs allegations against Mr. Lindsey are well within the applicable limitations period.

In the unlikely event the Court decides that any of Plaintiffs’ allegations should be pled more specifically, then Plaintiffs respectfully request leave to amend for that purpose. It is well-accepted law that when a plaintiff is facing the possibility of a dismissal, "[i]n the absence of prejudice to defendant ¼ the court will permit an amendment under Rule 15(b) to prevent a dismissal." 5 C. Wright & A. Miller, Federal Practice & Procedure § 1312, at 714 (1990); accord Alley v. Resolution Trust Corp., 984 F.2d 1201 (D.C. Cir. 1993) (when plaintiff has imperfectly stated what may be an arguable claim, leave to amend is ordinarily in order) (emphasis added); Fed. R. Civ. P. 15(a) (leave to amend "shall be freely given when justice so requires") (emphasis added).

Lindsey argues that since the underlying tort claims against him are not actionable, nor is the civil conspiracy claim. Lindsey Motion at 12. As demonstrated above, however, the substantive torts alleged by Plaintiffs — tortious interference with business opportunities, violations of First Amendment rights, intentional infliction of emotional distress, and acquisition and maintenance of the Office of President of the United States through a pattern of racketeering activity — are actionable under the law of this jurisdiction. Plaintiffs’ civil conspiracy claim therefore must proceed as well.

All of Plaintiffs’ claims against Lindsey are well pled and timely. Lindsey’s attempt to deny service, ignore and mischaracterize key allegations in the Amended Complaint, avoid application of established legal doctrines like the "discovery rule" and the "continuing tort" doctrine, and misconstrue and misapply case law will not work. Lindsey has failed to establish that he has not been properly served, or present any valid reason why Plaintiffs’ well-pled claims should not go forward. Accordingly, Lindsey’s motion to dismiss must, respectfully, be denied, and Plaintiffs’ case should be allowed to proceed to discovery.

Plaintiffs also respectfully request oral argument.

Respectfully submitted,

JUDICIAL WATCH, INC.

___________________________

Larry Klayman, Esq.

D.C. Bar No. 334581

___________________________

Deborah E. Berliner, Esq.

D.C. Bar No. 422238

___________________________

Allan J. Favish, Esq.

501 School Street, S.W., Suite 725

Washington, DC 20024

(202) 646-5172

Attorneys for Plaintiffs

I hereby certify that on April 12, 1999 a true and correct copy of the foregoing Plaintiffs’ Opposition to Defendant Bruce Lindsey’s Motion to Dismiss was served via first-class mail, postage prepaid, upon the following:

Attorneys for Defendant William Jefferson Clinton:

David E. Kendall, Esq.

Nicole K. Seligman, Esq.

WILLIAMS & CONNOLLY

725 12th Street, N.W.

Washington, DC 20005

Bruce R. Lindsey, Esq.

The White House

West Wing, Second Floor

1600 Pennsylvania Avenue, N.W.

Washington, DC 20500

Stuart F. Pierson, Esq.

TROUTMAN SANDERS, LLP

1300 I Street, N.W., Suite 500 East

Washington, DC 20005

John D. Aldock, Esq.

Matthew M. Hoffman, Esq.

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, DC 20036

Floyd Abrams, Esq.

Kathy Silberthau Strom, Esq.

CAHILL GORDON & REINDEL

1990 K Street, N.W., Suite 950

Washington, DC 20006-1103

___________________________

Allan J. Favish