Memorandum in Support of Motion to Dismiss

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

SINDEELOU THOMSON,
Plaintiff,

v.

JOHN T. DOOLITTLE,
Defendant.

MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT OF DEFENDANT JOHN T. DOOLITTLE

Plaintiff SindeeLou Thomson is a constituent of defendant John T. Doolittle, U.S. Representative for the 4th congressional district of California. Ms. Thomson originally filed this suit in Placer County Superior Court, and we timely removed the action to this court on August 8, 2007 pursuant to 28 U.S.C. § 1446. In her complaint, Ms. Thomson alleges that the Congressman violated California’s anti-spamming law because his congressional office sent her an email on May 25, 2007. She seeks $2,000 in damages.

For the reasons set forth below, this case is frivolous and should be summarily dismissed.

Factual Background

Congressman Doolittle’s office, like most Members’ offices, routinely sends franked
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mail to constituents in the form of e-mails for the purpose of informing constituents about the Congressman’s and the House’s official activities, proposed legislation, and the like. The emails are sent using specialized software, and all such e-mails include opt-out information for constituents who do not want to remain on the Congressman’s e-mail list.

On May 25, 2007, Congressman Doolittle’s office sent an official e-mail to the Congressman’s constituents to inform them of the passage of a Doolittle-sponsored amendment which barred financial lenders from providing mortgages to illegal aliens. A copy of this e-mail (the "Doolittle E-mail") is attached as Exhibit 1 to the Declaration of Dan Blankenburg (Aug. 15, 2007), attached hereto. The Doolittle E-mail was sent to the addresses sindeelouthomson@netscape.net and rthomson916@earthlink.net . Both addresses are registered in the tracking software used by the Congressman’s office to Ronald Thomson, 1033 S. Bluff Dr., Roseville, CA 95678-1141. “1033 S. Bluff Dr.” in Roseville, CA is the address listed for Ms. Thomson on her complaint. It also appears from the tracking software that on March 13, 2006, someone affirmatively opted in to receive e-mails from the Congressman’s office at the rthomson916@earthlink.net address, and that on June 6, 2007, someone affirmatively opted out not to receive e-mail communications from the Congressman’s office at the sindeelouthomson@netscape.net address. No e-mails were sent by Congressman Doolittle’s office to the address sindeelouthomson@netscape.net after June 6, 2007. See Blankenburg Declaration at ¶ 6.

In an effort to resolve this matter amicably, undersigned counsel spoke on Friday, August 10, 2007, with Ms. Thomson (who represented herself at the time), and on Monday, August 13, 2007, with Bari Nejadpour, Ms. Thomson’s newly retained attorney. Although undersigned counsel (i) explained that official e-mails from a congressional office do not constitute “spam” within the meaning of the California statute; (ii) explained that the Congressman is protected by the doctrine of sovereign immunity; and (iii) represented that Congressman Doolittle’s office had removed both the sindeelouthompson@netscape.net and the rthomson916@earthlink.net
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addresses from Congressman Doolittle’s e-mail list, Mr. Nejadpour insisted that Ms. Thomson wanted to have “her day in court.”

ARGUMENT

I. Ms. Thomson Fails to State a Claim.

The Cal. Bus. & Prof. Code §§ 17529.2(a), 17529.4(1) makes it unlawful for “a person or entity . . . [to i]nitiate or advertise in an unsolicited commercial e-mail advertisement.”

“Commercial e-mail advertisement” is defined as “any electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.” Cal. Bus. & Prof. Code § 17529.1(c). Ms. Thomson’s complaint fails to provide information about the offending e-mail she allegedly received on May 25, 2007 sufficient to suggest that it falls within the purview of that statute. For this reason alone, Ms. Thomson has failed to state a claim and her complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1995, 1964-65 (2007) (complaint must be dismissed for failure to state a claim if plaintiff fails to provide more than “labels and conclusions, and a formulaic recitation of the facts. . . . Factual allegations must be enough to raise a right to relief above the speculative level.”).

Accordingly, Ms. Thomson’s complaint must be dismissed for failure to state a claim.

II. The Complaint Must Be Dismissed for Lack of Subject Matter Jurisdiction Because Congressman Doolittle is Immune from Suit.

Ms. Thomson is plainly suing Congressman Doolittle for actions taken in his official capacity. The official duties of Members of Congress extend well beyond purely legislative activities, and include such activities as preparing newsletters to constituents, issuing news releases, making speeches outside Congress, and giving interviews to the press. See, e.g., U.S. v. Brewster, 408 U.S. 501, 512 (1972). Indeed, Williams v. U.S., 71 F.3d 502, 507 (5th Cir. 1995), held that “a primary obligation of a Member of Congress in a representative democracy is to
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serve and respond to his or her constituents.” Communicating with constituents through newsletters and the like is thus a normal and routine part of a Member’s representational duties. See also Operation Rescue Nat’l v. U.S., 975 F. Supp 92, 107 (D. Mass 1997), aff’d, 147 F.3d 68 (1st Cir. 1998).

For actions taken in an official capacity, Congressman Doolittle is protected by the doctrine of sovereign immunity. See generally Keener v. Congress of the United States, 467 F.2d 952, 953 (5th Cir. 1972) (sovereign immunity applies to the legislative branch). See also Hawaii v. Gordon, 373 U.S. 57, 58 (1963) (“[R]elief sought nominally against a[] [government] officer is in fact against the sovereign if the decree would operate against the latter.”). Sovereign immunity is a bar to the exercise of jurisdiction by this Court absent an “unequivocally expressed” waiver of that immunity. See U.S. v. King, 395 U.S. 1, 4 (1969). Here, the complaint does not recite a specific statutory waiver of sovereign immunity, and we are not aware of any.

Accordingly, Ms. Thomson’s complaint must be dismissed for lack of subject matter jurisdiction.

III. Congressman Doolittle Is Entitled to Summary Judgment.

To the extent Ms. Thomson’s complaint centers on the Doolittle E-mail, which was sent on May 25, 2007, the date cited in the complaint, the Congressman is entitled to summary judgment under Rule 56.

First, the Doolittle E-mail, on its face, does not constitute a “commercial e-mail advertisement” within the meaning of the California statute.

Second, the Doolittle E-mail does constitute “franked mail” which is specifically authorized by federal law. “Franked mail” is mail transmitted under the signature of Members of Congress, among others, without prepayment of postage. 39 U.S.C. § 3201(3), (4). The franked mail statute is intended “to assist and expedite the conduct of the official business, activities, and
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duties of the Congress of the United States,” id. § 3210(a)(1),1 by permitting the ready dissemination of, among other things, “the usual and customary congressional newsletter or press release . . .; reports on public and official actions taken by Members of Congress; and discussions of proposed or pending legislation or governmental actions and the positions of the Members of Congress on, and arguments for or against, such matters.” Id. § 3210(a)(3)(B).

[1 “[O]fficial business, activities, and duties” is broadly defined to encompasses:
all matters which directly or indirectly pertain to the legislative process or to any congressional representative functions generally, or to the functioning, working, or operating of the Congress and the performance of official duties in connection therewith, and shall include, but not be limited to, the conveying information to the public . . . .
39 U.S.C. § 3210(a)(2).]

In the House of Representatives, the Commission on Congressional Mailing Standards (“Franking Commission”) is tasked with prescribing rules to ensure compliance by Members of the House with the requirements of the franking statute. See 39 U.S.C. 3210(6)(D). The Franking Commission, among other things, reviews mass mailings that Members intend to send under their frank to ensure compliance with the franking statute. See Franking Commission, “About the Commission,” available on-line at http://cha.house.gov/index.php?option=com_content&task=view&id=169&Itemi....

Moreover, current Franking Commission policy treats certain e-mail communications by Members of the House as “franked mail” for this purpose. See Franking Commission, “Updated E-mail Policy Related to Subscriber Lists,” available on-line at http://cha.house.gov/index.php?option=com_content&task=view&id=172&Itemi.... Under this policy, House Members who send e-mail communications to constituents who have individually subscribed to an e-mail list are “strongly encouraged” to obtain in advance a Franking Commission advisory opinion to ensure compliance with franking content regulations,
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while Members who send e-mail communications to constituents who have not individually subscribed to an e-mail list are required to obtain in advance such a Franking Commission advisory opinion. Id.

In this case, Congressman Doolittle’s office did obtain an advance opinion from the Franking Commission that the Doolittle E-mail constituted “frankable” mail under 39 U.S.C. § 3210(a)(3)(B). See Blankenburg Declaration at ¶ 5, and Exhibits 2, 3.

Franked mail, by definition, does not advertise or promote services or goods within the meaning of the California statute and therefore does not meet the definition of “commercial email advertisement,” i.e., i.e., “spam,” under California law.2

[2 If the California statute purported to cover franked mail – which it does not – it would obviously run afoul of the Supremacy Clause of the Constitution. U.S. Const. art. VI.]

Accordingly, to the extent Ms. Thomson’s complaint centers on the Doolittle E-mail, the
Congressman is entitled to a summary judgment.

CONCLUSION

For all the foregoing reasons, Congressman Doolittle’s Motion to Dismiss and/or for Summary Judgment should be granted.

Respectfully submitted,

GERALDINE R. GENNET
General Counsel
KERRY W. KIRCHER
Deputy General Counsel

/s/ Christine Davenport
CHRISTINE DAVENPORT
Assistant Counsel
Counsel for Defendant John T. Doolittle
August 15, 2007

Statement of Undisputed Facts

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

SINDEELOU THOMSON,
Plaintiff,

v.

JOHN T. DOOLITTLE,
Defendant.

STATEMENT OF UNDISPUTED FACTS

The defendant, in support of his motion for summary judgment filed herewith, submit that the following material facts are undisputed:

1. Plaintiff SindeeLou Thomson is a constituent of defendant John T. Doolittle, U.S. Representative for the 4th congressional district of California. Complaint at 2.

3. On May 25, 2007 Congressman Doolittle’s office sent out an official e-mail newsletter entitled “Doolittle Amendment Passes House: Ends Mortgages for Illegal Aliens” (the “Doolittle E-mail”). Declaration of Dan Blankenburg (Aug. 15, 2007) at ¶ 4 (“Blankenburg Declaration”) and Exhibit 1.

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4. Prior to the release of the Doolittle E-mail on May 25, 2007, Congressman Doolittle’s staff assistant, Candace Dodge, communicated with Jack Dail, Staff Director of the House Commission on Congressional Mailing Standards (“Franking Commission”), to obtain a Franking Commission advisory opinion that the Doolittle E-mail complied with franking content regulations. The Franking Commission gave its preliminary approval on May 24, 2007. Blankenburg Declaration ¶ 5, Exhibits 2, 3.

6. The software that Congressman Doolittle’s office uses to track the history of official e-mails sent from the office to constituents reflects that Congressman Doolittle’s office sent the Doolittle Email to the addresses sindeelouthomson @netscape.net and rthomson916 @earthlink.net on May 25, 2007. Both those addresses are registered in the tracking software to Ronald Thomson, 1033 S. Bluff Dr., Roseville, CA 95678-1141. The tracking software also reflects that on March 13, 2006, someone affirmatively opted to receive e-mails from the Congressman’s office at the rthomson916 @earthlink.net address, and that on June 6, 2007, someone affirmatively opted not to receive e-mails from the Congressman’s office at the sindeelouthomson @netscape.net address. No emails were sent by Congressman Doolittle’s office to the address sindeelouthomson @netscape.net after June 6, 2007. Blankenburg Declaration at ¶ 6.

7. On August 10, 2007, both the sindeelouthomson @netscape.net and the rthomson916 @earthlink.net e-mail addresses were removed from the Congressman’s e-mail list. Blankenburg Declaration at ¶ 7.

Respectfully submitted,

GERALDINE R. GENNET
General Counsel
KERRY W. KIRCHER
Deputy General Counsel
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/s/ Christine Davenport
CHRISTINE DAVENPORT

Assistant Counsel
Counsel for Defendant John T. Doolittle

August 15, 2007