UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

WILLIAM J. FEDERER,

Plaintiff,

v. Case No. 4:02CV00738 CEJ

RICHARD A. GEPHARDT, et al.

Defendants.

____________________________________

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION

TO DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION

Plaintiff, Mr. William J. Federer, by counsel, hereby submits this memorandum in opposition to Defendants’ motion to dismiss his complaint for lack of subject matter jurisdiction:

INTRODUCTION

In their initial response to Mr. Federer’s complaint in this case, Defendants moved for dismissal based on alleged lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Defendants have not filed a motion to dismiss Mr. Federer’s complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Neverthless, Defendants argue in their 12(b)(1) motion that Mr. Federer’s cause of action under 42 U.S.C. § 1985(3) should be dismissed because Mr. Federer has failed to plead facts sufficient to sustain his sole federal claim in this case; and, therefore, this Court lacks subject matter jurisdiction over Mr. Federer’s complaint. Defendants improperly support their Fed. R. Civ. P. 12(b)(1) motion with the standard for dismissal under Fed. R. Civ. P. 12(b)(6). Defendants’ 12(b)(1) motion must, therefore, be denied. However, even under the standard for dismissal using Fed. R. Civ. P. 12(b)(6), Defendants’ motion must be denied because Mr. Federer has amply pleaded the facts necessary to sustain a cause of action under 42 U.S.C. § 1985(3).

STATEMENT OF FACTS

In the instant action, Mr. Federer has pleaded that he was harmed by gross abuses of power and illegal activities conducted by the Defendants in concert. Mr. Federer was the Republican candidate opposing Defendant Gephardt in the 2000 U.S. congressional election. During his campaign, Mr. Federer was twice assaulted by Defendant Larrew, a paid member of Defendant Gephardt’s campaign staff. Defendant Larrew then falsely claimed that he had been assaulted by Mr. Federer. See Complaint at ¶¶ 19-31, and ¶¶ 65-80. This was done at the behest of Defendants Gephardt and Aboussie, who then used their political influence with the St. Louis County Counselor’s Office to ensure that a bogus charge of assault would be filed against Mr. Federer. The purpose of ensuring that an assault charge was filed against Mr. Federer was to enable Defendants to exploit the incident in the news media, in order to destroy Mr. Federer’s political campaign. Defendant Gephardt reveals such political strategies in his book, An Even Better Place – America in the 21st Century 204 (1999): “Government mechanisms . . . can be manipulated to help generate, publicize, and promote [scandalous or embarrassing] charges. And the media, of course, serve as a powerful accomplice.”

In his complaint, Mr. Federer has met each and every pleading requirement to sustain a cause of action under 42 U.S.C. § 1985(3). He alleged that the Defendants conspired to deprive him of equal privileges and immunities guaranteed by federal law and by the United States Constitution. Further, Mr. Federer has clearly pleaded that Defendants’ conspiracy was predicated on his membership in the Republican party, his affirmative acts in opposition to incumbent congressional representative Defendant Gephardt and in support of his own campaign, in addition to his political associations and religious affiliation. Mr. Federer’s complaint aptly states that Defendants conspired to deprive him of his “civil rights,” including the right to effectively campaign for federal office and his First Amendment right to advocate his own election and that Defendants conspired to misuse the St. Louis County justice system to that end. These are clearly “privileges and immunities” to which Mr. Federer is entitled under federal law. In regard to Defendants’ efforts to deprive him of his First Amendment rights, specifically, Mr. Federer also properly alleged that (1) state action was involved with the conspiracy and (2) that the aim of the conspiracy was to influence the activity of the state. See Complaint at ¶¶ 10-63.

ARGUMENT

I. Defendants’ Motion to Dismiss Mr Federer’s Complaint for Lack of Subject Matter Jurisdiction Should be Denied Because the Motion is Not Properly Supported.

A motion to dismiss an action for lack of subject matter jurisdiction is filed under Fed. R. Civ. P. 12(b)(1). A motion to dismiss an action for “failure to state a claim upon which relief can be granted” is filed under Fed. R. Civ. P. 12(b)(6). It is procedural error for the district court to convert a 12(b)(1) motion into a 12(b)(6) motion. Brown v. U.S., 151 F.3d 800, 803 (8th Cir. 1998); see also, Godfrey v. Pulitzer Publishing Co., 161 F.3d 1137, 1142 (8th Cir. 1998) (The district court was reversed and the case was remanded “for erroneous jurisdictional analysis.”^[1] The district court erroneously granted the defendant’s Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, because the motion essentially challenged an element of the plaintiffs’ cause of action under Rule 12(b)(6).). The United States Supreme Court has ruled on the issue as follows:

Jurisdiction . . . is not defeated . . .by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy.

Trimble v. Asarco, Inc., 232 F.3d 946, 953 (8th Cir. 2000) (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)).

“It is important to distinguish dismissal under Fed. R. Civ. P. 12(b)(1) from dismissal under Fed. R. Civ. P. 12(b)(6)” because “the distinction is one that the Supreme Court has always recognized,” and “the way in which the facts are handled under [Rule] 12(b)(1) differs significantly from the correct approach for the purpose of Rule 12(b)(6).” Trimble, 232 F.3d at 954 (quoting LaSalle Nat’l Trust v. ECM Motor Co., 76 F.3d 140, 143-44 (7th Cir. 1996)). Under Rule 12(b)(6), the averments of a plaintiff’s pleading are assumed to be true, and the court may not dismiss the plaintiff’s claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Burton v. Richmond, 276 F.3d 973, 975 (8th Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In contrast, if a plaintiff has pleaded a federal cause of action, it cannot be dismissed under Fed. R. Civ. P. 12(b)(1) unless the facts as pleaded are “so implausible, patently without merit, or insubstantial that they fail[] for jurisdictional purposes.” Trimble, 232 F.3d at 953 (citing LaSalle, 76 F.3d at 143).^[2] Therefore, to defeat a federal claim under Rule 12(b)(1), the defendant’s burden is even more strenuous than under Rule 12(b)(6). “Only the most extreme cases will fail the jurisdictional test of substantiality.” Id. (quoting LaSalle, 76 F.3d at 143).^[3]

In their “Motion to Dismiss the Complaint for Lack of Subject Matter Jurisdiction,” the Defendants herein do not argue that Mr. Federer’s factual allegations are implausible, without merit, or otherwise unworthy of belief. To the contrary, Defendants argue that Mr. Federer’s complaint should be dismissed because the facts pleaded fail to state a legally cognizable claim under federal law, “even if they are taken to be true for the purposes of [the] motion.” Def. Mem. at 1. Hence, Defendants improperly conflate a 12(b)(1) motion with a 12(b)(6) argument. “The distinction between a claim that is ‘wholly frivolous for jurisdictional purposes’ and one that is ‘doomed on the merits’ is neither merely academic nor unnecessary.” Trimble, 232 F.3d at 954. Rather, “the distinction is based on longstanding policy and practical considerations which are not trivial and cannot be overlooked.” Id. Because Defendants have not filed a 12(b)(6) motion in this case and their 12(b)(1) motion is not properly supported, their motion to dismiss Mr. Federer’s complaint should be denied. To rule in favor of Defendants on their 12(b)(1) motion because Mr. Federer has failed to state a claim under the 12(b)(6) standard would be contrary to clearly stated Supreme Court and Eighth Circuit precedent. Nevertheless, Mr. Federer’s claims are pleaded sufficiently to withstand either a 12(b)(1), or a 12(b)(6) motion.

II. Mr. Federer’s Claims are Material to a Federal Cause of Action and are Properly Pleaded.

To adequately plead a cause of action under 42 U.S.C. § 1985(3), a plaintiff must set forth the following facts:

(1) that the defendants did “conspire,” (2) “for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or equal privileges and immunities under the laws,” (3) that one or more of the conspirators did, or caused to be done, “any act in furtherance of the object of the conspiracy,” and (4) that another person was “injured in his person or property or deprived of having and exercising any right or privilege of a citizen of the United States.”

Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996) (quoting City of Omaha Employees Betterment Ass’n v. City of Omaha, 883 F.2d 650, 652 (8th Cir. 1989)). Defendants in this case have not argued that the first, third, or fourth elements of a § 1985(3) claim were inadequately pleaded in Mr. Federer’s complaint. Defendants only take issue with the facts stated in Mr. Federer’s complaint respecting the second element of a § 1985(3) claim.

A. Mr. Federer has pleaded that Defendants’ conspiracy to deprive him of privileges and immunities under the law was predicated on his membership in a class that is protected under 42 U.S.C. § 1985(3).

In regard to the second element of a 42 U.S.C. § 1985(3) claim, the plaintiff must demonstrate membership in a class that is protected under § 1985(3) and that the defendants’ deprivation of plaintiff’s rights was predicated on plaintiff’s membership in such class. Larson, 76 F.3d at 1454; see also, Means v. Wilson, 522 F.2d 833, 839 (8th Cir. 1975) (Deprivation of rights subject to redress under § 1985(3) requires that conspirators are motivated by invidious, discriminatory class-based animus.). The Eighth Circuit has recognized political affiliation and/or political party membership as a “class” protected under 42 U.S.C. § 1985(3). Means, 522 F.2d at 840. Hence, where a complaint alleges that a plaintiff has been deprived of equal protection of the law, or equal privileges and immunities under the law, resulting from a conspiracy motivated by the defendants’ animus toward the plaintiff based on the plaintiff’s political affiliation or political party membership, the second element of a § 1985(3) claim has been sufficiently pleaded.^[4]

Defendants herein readily admit that Mr. Federer alleged they had conspired against him “out of animus toward [his] . . . political party membership.” Def. Mem. at 8; see also Complaint at ¶ 54. However, Defendants attempt to persuade the Court that either (1) political party membership or affiliation is not a recognized “class” under § 1985(3), or (2) Mr. Federer has not alleged facts sufficient to support a “finding” that Defendants’ conspiracy was related to Mr. Federer’s political affiliation. Id. at 8-9. Both of these contentions are entirely devoid of merit.

1. Political party membership or affiliation is recognized as a “class” for the purpose of a cause of action under 42 U.S.C. § 1985(3).

In urging the Court to decide that political party membership or affiliation is not a “class” for the purpose of § 1985(3) protection, Defendants cite Seventh and Fourth Circuit interpretations of Supreme Court precedent. However, the Eighth Circuit has clearly and correctly spoken on the issue and has decided that political party membership or affiliation is a recognized “class” under § 1985(3). In Means v. Wilson, the Eighth Circuit found that the plaintiffs in that case were a class “within the ambit of 42 U.S.C. § 1985(3)” due to their affirmative acts of supporting one candidate in an election and attempting to oust the incumbent candidate. 522 F.2d at 840.^[5] The Means Court rendered this finding on the basis that, for qualification as a “class” under § 1985(3):

There need not necessarily be an organizational structure of adherents, but there must exist an identifiable body with which the particular plaintiff associated himself by some affirmative act. It need not be an oath of fealty; it need not be an initiation rite; but at least it must have an intellectual nexus which has somehow been communicated to, among and by the members of the group.

Id. at 839-40 (quoting Westberry v. Gilman Paper Co., 507 F.2d 206, 215 (5th Cir. 1975)).^[6]

Therefore, contrary to Defendants’ contention, this Court should find the Sixth Circuit’s ruling in Conklin v. Lovely, 834 F.2d 543 (6th Cir. 1987), instructive because Conklin is perfectly consistent with the Eighth Circuit’s decision in Means. See Def. Mem. at 9. Conklin, which was decided 12 years after Means, interpreted Supreme Court precedent in Griffin v. Breckenridge, 403 U.S. 88 (1971), as narrowed by the Supreme Court in United Brotherhood of Carpenters v. Scott, 463 U.S. 825 (1983).^[7] In Conklin, consistent with the Eighth Circuit’s decision in Means, the Sixth Circuit ruled that “§ 1985(3)’s protection reaches clearly defined classes, such as supporters of a political candidate.” 834 F.2d at 549 (quoting Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973)). The Sixth Circuit’s decision on this issue in Conklin was premised on the Supreme Court’s mention that § 1985(3) may apply to a “class” based on political views, although it did not actually decide the issue in United Brotherhood of Carpenters. See 463 U.S. at 837.

In their argument that this Court should dismiss Mr. Federer’s complaint based on “subject matter jurisdiction,” Defendants claim that Mr. Federer has not identified himself as a member of a proper “class” for the purpose of his claim under 42 U.S.C. § 1985(3). Yet, Mr. Federer clearly pleaded that Defendants’ conspiracy to deprive him of his constitutionally endowed right to run for federal office and to advocate his own election was “predicated upon animus toward [Mr. Federer] because of his social, political, and religious views, his political party membership and his support of a candidacy in opposition to Defendant Gephardt.” Complaint at ¶ 54; see also id. at ¶ 53. Indeed, Defendants belie their own mistaken contention that “§ 1985(3) does not encompass politically-motivated conspiracies” by aptly disclosing that 42 U.S.C. § 1985 was enacted to protect “equal access to political power” from purely private conspiracies to undermine the constitutional rights of others, based on protected class affiliation. Def. Mem. at 9 and 2, respectively.

2. Mr. Federer has sufficiently pleaded that Defendants’ conspiracy to deprive him of rights protected under § 1985(3) was based on his political party membership and/or affiliation.

In the alternative, Defendants argue that “even if animus toward a political party could be a sufficient basis for a § 1985(3) action, Plaintiff’s claim must fail because he has not alleged facts that could support a finding that Defendants conspired against Plaintiff out of animus for his political affiliation.” Def. Mem. at 9 (emphasis added). But, the Federal Rules of Civil Procedure only require Mr. Federer to submit a “short and plain statement” of facts sufficient to support his claim. Fed. R. Civ. P. 8(a)(2); see also, Kwoun v. Southeast Mo. Prof’l Standards Review Org., 622 F. Supp. 520, 528 (E.D. Mo. 1985) (citing Means, 522 F.2d at 840) (stating that, with respect to a § 1985(3) claim, “a short plain statement of the facts sufficient to give fair notice of the claim asserted is sufficient”). If the requirements of pleading a cause of action under 42 U.S.C. § 1985(3) include an allegation that the defendants conspired to deprive the plaintiff of certain rights based on membership in a class, which includes political party affiliation or membership, then the plaintiff is not required to plead more than that. The plaintiff is not required to plead facts sufficient to “support a finding” that the defendants conspired on that basis. That is the function of a trial.

Nevertheless, Defendants argue that Mr. Federer’s § 1985(3) claim must fail because the “gravamen” of his complaint “appears to be that Defendants disliked Plaintiff because he was Congressman Gephardt’s political opponent.” Def. Mem. at 9. This argument is disingenuous, to say the least, especially after the Defendants readily admitted that Mr. Federer’s pleading “alleged that Defendants acted out of animus toward [his] . . . political party membership, and his support of a candidacy in opposition to Defendant Gephardt.” Id. at 8. To support this convoluted argument, Defendants cite Shortbull v. Looking Elk, 677 F.2d 645, 649 (8th Cir. 1982), misquoting the Court as holding that the plaintiff’s “allegation that appellees discriminated against him because of his [sic] political opposition to them is not actionable under § 1985(c).”^[8] Def. Mem. at 9. Curiously, Defendants have omitted the operative word from this quote. The Shortbull court decided that the plaintiff’s claims failed because he merely alleged that “appellees discriminated against him because of his individual political opposition to them,” upholding the rule that “there must be a discriminatory animus toward a class, not toward an individual qua individual.” 677 F.2d at 649 (quoting Carchman v. Korman Corp., 456 F. Supp. 730, 734 (E.D. Pa. 1978)) (emphasis added). In this sense, the Eighth Circuit found that the plaintiff’s allegations in Shortbull were distinguishable from the plaintiff’s claims in Means v. Wilson, because “class-based animus does not include personal animus.” Id. (citing Duff v. Sherlock, 432 F. Supp. 423, 429 (E.D. Pa. 1977)).^[9]

Clearly, the allegations of Mr. Federer’s pleading are distinguishable from the plaintiff’s facts in Shortbull and are analogous to the claims of the plaintiff in Means. As in Means, Mr. Federer’s standing under § 1985(3) is predicated on his political party membership and political affiliation. Complaint at ¶ 54. Mr. Federer has further alleged that his class membership was demonstrated by his affirmative acts in support one candidate in an election (himself) and his attempt to oust the incumbent candidate (Defendant Gephardt). Id.; see also Means, 522 F.2d at 840. In contrast, nowhere in his complaint does Mr. Federer allege that Defendants’ conspiracy was predicated on an individual vendetta between himself and Defendant Gephardt. Hence, Defendants’ contention that an individual vendetta constitutes the “gravamen” of Mr. Federer’s complaint is simply untenable. B. Mr. Federer’s complaint amply pleaded violation of rights subject to protection under 42 U.S.C. § 1985(3).

Also pertinent to the second element of a cause of action under 42 U.S.C. § 1985(3), the deprivation of “equal protection of the laws, or equal privileges and immunities under the laws” complained of must adversely affect the plaintiff’s rights under federal law. Because § 1985(3) “‘provides no substantive rights itself’ . . . [t]he rights, privileges and immunities that § 1985(3) vindicates must be found elsewhere.” United Brotherhood of Carpenters, 463 U.S. at 833 (quoting Great American Fed. Savings and Loan Ass’n v. Novotny, 422 U.S. 366, 372 (1979)). In Griffin, 403 U.S. 88, the Supreme Court “emphatically declared that [§ 1985(3)] was intended to reach private conspiracies that in no way involved the State.” United Brotherhood of Carpenters, 463 U.S. at 834. Then, in United Brotherhood of Carpenters, the Supreme Court narrowed Griffen, holding that although § 1985(3) does not require State action in every case, “an alleged conspiracy to infringe First Amendment rights is not a violation of § 1985(3) unless it is proved that the State is involved with the conspiracy, or that the aim of the conspiracy is to influence the activity of the State.” Gill v. Farm Bureau Life Insurance Co. of Mo., 715 F. Supp. 945, 946 (E.D. Mo. 1989) (citing verbatim, United Brotherhood of Carpenters, 463 U.S. at 830) (emphasis added).

1. Mr. Federer has pleaded facts regarding violation of his rights, which do not require state action, per se, under § 1985(3).

Noting that under Fed. R. Civ. P. 8, only “notice pleading” is required, this Court has stated that, in regard to a conspiracy claim filed under 42 U.S.C. § 1985(3), “technical niceties of pleading are not required.” Kwoun v. Southeast Mo. Prof’l Standards Review Org., 622 F. Supp. 520, 528 (E.D. Mo. 1985). Hence, Defendants assertion that “Section 1985 conspiracy claims must be pled with specificity,” citing irrelevant Fifth Circuit case law, is simply mistaken. Def. Mem. at 7 (citing Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976, 978 (5th Cir. 1979)). As this Court duly recognized in Kwoun:

In Means v. Wilson, the complaint alleged that the defendant conspired with “private individuals” and two other named individuals to ensure defendant was re-elected. Means v. Wilson, 522 F.2d at 840-41. Upon no more than the above, the Eighth Circuit found that the plaintiff had stated a cause of action under 42 U.S.C. § 1985(3). Id.

622 F. Supp. at 529 (emphasis added).

In his complaint, Mr. Federer adequately pleaded that Defendants “conspired amongst themselves and with others to disrupt, harass, intimidate, and otherwise harm Mr. Federer in the exercise of his civil rights and to prevent Mr. Federer from continuing to effectively exercise his civil rights,” all for the purpose of ensuring Defendant Gephardt’s reelection. Complaint at ¶¶ 51 and 54. Mr. Federer also described, in detail, the precise activity conducted by Defendants that constituted violation of his civil rights. Complaint at ¶¶ 10-48. According to this Court’s ruling in Kwoun, Mr. Federer is not required to plead his § 1985(3) claim with any more specificity.

Regardless, Mr. Federer’s First Amendment rights were not the only civil rights violated by Defendants’ conspiracy, as Defendants claim. Because Mr. Federer is legally qualified to hold congressional office in the federal government, his right to campaign for such office is undoubtably a “privilege” under federal law. See 42 U.S.C. § 1985(3); see also U.S. Constitution, Article I § 2(1)-(2) and Complaint at ¶¶ 55-56.^[10] Although the right to run for federal office does not necessarily rise to the level of a “fundamental right” for the purpose of strict-scrutiny constitutional analysis, such as a First Amendment right, the right to run for federal office is certainly Mr. Federer’s civil right as a qualified U.S. citizen. See Stiles v. Blunt, 912 F.2d 260, 264-65 (8th Cir. 1990);^[11] see contra, Lippitt v. Cipollone, 404 U.S. 1032, 1033 (1972) (“The right to run for public office seems a fundamental one.”). Nevertheless, as this Court held in Kwoun, 622 F. Supp. at 528, Mr. Federer is only required to give Defendants “fair notice of the claim asserted,” and there is no heightened pleading standard for a § 1985(3) claim, as Defendants mistakenly contend. It is sufficient that Mr. Federer alleged violation of his “civil rights,” which obviously encompasses his right to campaign for federal office, the “privilege” of any qualified U.S. citizen.

2. Mr. Federer’s complaint clearly alleges that state action was involved in Defendants’ conspiracy to deprive him of his First Amendment rights.

In United Brotherhood of Carpenters, the Supreme Court “held” that for a conspiracy to violate First Amendment rights to be actionable under 42 U.S.C. § 1985(3), either (a) the state must be involved with the conspiracy, or (b) the aim of the conspiracy must be to influence the activity of the state. Gill, 715 F. Supp. at 946 (citing 463 U.S. at 830). The state is involved with the conspiracy if one or more of the conspirators is a state actor, and a private party becomes a state actor by reaching an “understanding” with state officials and participating wilfully in “joint activity” with state officials. Steele v. City of Bemidji, 257 F.3d 902, 906 (8th Cir. 2001) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)). But, obviously, if the “aim of the conspiracy is to influence the activity of the state,” then there is no need for the state to be wilfully “involved” in the conspiracy, as the former is the alternative to the latter in pleading “state action” under 42 U.S.C. § 1985(3). Mr. Federer has adequately pleaded facts sufficient to meet either requirement.

In his complaint, Mr. Federer alleged that after a police report had been filed, falsely accusing Mr. Federer of assaulting Defendant Larrew, Defendant Aboussie contacted the St. Louis County Counselor, Patricia Reddington, to ensure that charges would be filed in time to exploit the staged incident in the local news media. Complaint at ¶¶ 37-45 and 52. Mr. Federer also alleged in his complaint that Patricia Reddington has “close political ties to Defendant Aboussie,” and that Patricia Reddington only filed the false charges against Mr. Federer “at the insistence of Defendant Aboussie.” Complaint at ¶¶ 42 and 44. And, contrary to Defendants’ assertion that Mr. Federer did not allege “any public official did anything differently” as a result of Defendant Aboussie’s illegal manipulation of Patricia Reddington and the criminal justice system, Def. Mem. at 7, Mr. Federer clearly stated that the false charges were filed against him on “Columbus Day, a national holiday” on which “the St. Louis County Counselor’s Office was closed.” Complaint at ¶ 43.

Hence, Mr. Federer has amply pleaded that the “aim” of Defendants’ § 1985(3) conspiracy was to “influence the activity of the state.” United Brotherhood of Carpenters, 463 U.S. at 830. Contrary to Defendants’ assertion, at the pleading stage Mr. Federer is not required to go into detail about how Defendants influenced and utilized state actors in order to sufficiently state a claim under § 1985(3). Mr. Federer is only required to allege that Defendants’ objective was to influence the activity of the state. See Kwoun, 622 F. Supp. at 528-29 (There is no heightened pleading standard for claims under § 1985(3)). In addition, Mr. Federer also pleaded that Defendant Aboussie and Patricia Reddington reached an understanding in regard to the false charges filed against Mr. Federer and that Defendants were willing participants in joint activity with the County Counselor’s Office. Mr. Federer alleged that Ms. Reddington filed false charges against him at the behest of Defendant Aboussie^[12] and that Ms. Reddington’s statements to the news media were coordinated with an attorney hired by the Gephardt campaign. Complaint at ¶¶ 41-46. These allegations are entirely distinguishable from the plaintiff’s allegations in Steele, which asserted that a private shopping mall had been transformed into a state actor because mall officials reported the plaintiff’s activities to the police, without more. 257 F.3d at 906.^[13] See Def. Mem. at 7-8. Hence, Mr. Federer also pleaded that the state was involved in Defendants’ conspiracy.

CONCLUSION

Defendants erroneously support their motion to dismiss this case for lack of subject matter jurisdiction using the standard for dismissal under Fed. R. Civ. P. 12(b)(6). Even assuming Defendants had filed a motion to dismiss under Rule12(b)(6), Mr. Federer’s federal cause of action under § 1985(3) has been properly pleaded. Therefore, this Court has subject matter jurisdiction over Mr. Federer’s complaint. Defendants’ motion to dismiss this case should be DENIED.

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing attached opposition memorandum was hand delivered on this 23rd day of July, 2002, to the following recipients:

Rebecca Jackson, Esq.

Edward Dowd, Esq.

BRYAN CAVE, LLP

Suite 3600

211 North Broadway

St. Louis, MO 63102

Attorneys for Defendants Gephardt and Aboussie

Larry Hale, Esq.

HALE LAW FIRM

1221 Locust

St. Louis, MO 63102

Attorney for Defendant Larrew

__________________________________

George Luberda

^[1]See Trimble v. Asarco, Inc., 232 F.3d 946, 955 (8th Cir. 2000) (citing Godfrey, 161 F.3d at 1142).

^[2]Another way to state the basic difference between how facts are properly handled under Rule 12(b)(1), as opposed to Rule 12(b)(6), is that under Rule 12(b)(1) the court is free to assume the facts presented are not worthy of belief, while under Rule 12(b)(6) the court must assume the facts presented are true. See Trimble, 232 F.3d at 955 (quoting LaSalle, 76 F.3d at 144).

^[3]In Trimble, the Eighth Circuit found that LaSalle was “instructive” because “the Seventh Circuit very aptly explained why it is important to distinguish dismissals under Fed. R. Civ. P. 12(b)(1) from dismissals under Fed. R. Civ. P. 12(b)(6).” 232 F.3d at 954 (emphases in original).

^[4]It is noteworthy that the Supreme Court specifically stated “the predominant purpose of § 1985(3) was to combat the prevalent animus against [African-Americans] and those who championed their cause, most notably Republicans.” United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 836 (1983). In his complaint, Mr. Federer clearly pleaded that Defendants’ conspiracy to undermine his civil rights was predicated on his membership and affiliation with the Republican Party. Complaint at ¶¶ 2 and 54.

^[5]The challenging candidate was, himself, a member of this same “class,” rendering the analogy to the instant case abundantly obvious. See analogy to Means, infra.

^[6]The Means court noted that Westberry was withdrawn by the Fifth Circuit, ruling en banc. Regardless of the outcome in the Fifth Circuit, the Eighth Circuit found the reasoning cited from Westberry to be persuasive in light of the Supreme Court’s decision in Griffin v. Breckenridge, 403 U.S. 88 (1971). Means, 522 F.2d at 840.

^[7]Griffin held that 42 U.S.C. § 1985(3) provides a cause of action against private conspiracies, i.e., those not involving state action, to deprive citizens of equal protection of the law, or equal privileges and immunities. See Means, 522 F.2d at 838. Means applied the rule in Griffin. Griffin was narrowed by the Supreme Court in United Brotherhood of Carpenters, such that a deprivation of First Amendment rights, specifically, requires state action in order to qualify for relief under § 1985(3). The Supreme Court also held in United Brotherhood of Carpenters that § 1985(3) does not reach conspiracies motivated by animus toward others “on account of their economic views.” 463 U.S. at 837 (emphasis in original). However, United Brotherhood of Carpenters in no way affects the holding in Means, that political affiliation constitutes a “class” under 42 U.S.C. § 1985(3), as demonstrated by the Sixth Circuit’s holding in Conklin.

^[8]Prior to being recodified as § 1985(c) in 1976, the statute was codified as § 1985(3). See Shortbull, 677 F.2d at 647 n.3. Apparently, it has been recodified again as § 1985(3) in the United States Code, under Chapter 42.

^[9]In Shortbull, the plaintiff also argued that the defendants had conspired against him because of his status as a non-enrolled member of a particular faction of the Sioux Tribe. 677 F.2d at 649-50. The Eighth Circuit also denied the plaintiff’s § 1985(3) claim because one’s status as a “non-enrolled member” of a political party does not substitute for status as a protected “class,” such as membership in a political party or clear political affiliation, as in Means v. Wilson. Id.

^[10]Defendants erroneously state that “a private conspiracy to interfere with an election is not actionable, per se, under § 1985(3) unless it is directed toward interference with the right to caste a ballot.” Def. Mem. at 4 (citing Means, 522 F.2d at 838). Means v. Wilson does not support any such claim. On page 838 of Means, the Eighth Circuit held that the right to vote is a right of national citizenship and, therefore, Congress has the constitutional authority to guarantee that right by statute, namely 42 U.S.C. § 1985(3).

^[11]The Stiles court refused to employ “strict scrutiny” review, choosing instead the mere “rational-relation test,” to analyze the constitutionality of a law setting the minimum age for state representatives at 24 years. The Court refused to review the law under “strict scrutiny,” because it found that “the right to run for pubic office, unlike the right to vote, is not a fundamental right.” 912 F.2d at 265 (citations omitted). Nonetheless, Stiles demonstrates that the right to run for public office is a “privilege” protected by federal law. However, there is no law to support a contention that § 1985(3) only protects those civil rights deemed sufficiently “fundamental” to warrant strict-scrutiny review in the context of a statute’s constitutionality.

^[12]Defendant Aboussie is the most powerful state political operative in St. Louis, if not in all of Missouri. It is doubtful that Democratic county appointees, such as Patricia Reddington, could refuse her wishes without jeopardizing their careers. But, such facts need not be pleaded to sufficiently state a claim under 42 U.S.C. § 1985(3).

^[13]In addition, Mr. Federer is prepared to demonstrate that when Defendant Gephardt, via Defendant Aboussie, ordered Defendant Larrew to follow Mr. Federer with a video camera and stage a physical altercation, Defendant Gephardt was acting in the capacity of his federal office. Again, Mr. Federer is not required to plead such specific facts in order to sufficiently state a claim under 42 U.S.C. § 1985(3), given that he has already sufficiently pleaded state action. Kwoun, 622 F. Supp. at 528-29.