North Dakota Human Rights Coalition et al v. Patriot Front et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
North Dakota Human Rights Coalition, et 	)
al., 	)
) 	ORDER
Plaintiffs, 	)
)
vs. 	) 	Case No. 3:23-cv-160
)
Patriot Front, et al., 	)
)
Defendants. 	)
Defendants Thomas Rousseau and Trevor Valescu move to dismiss the complaint for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and for lack of
standing. Doc. 18; Doc. 21. Plaintiffs North Dakota Human Rights Coalition (the “Coalition”),
Immigrant Development Center (“IDC”), and Plaintiff Doe oppose the motion. Doc. 24. As
explained below, the motion to dismiss is granted in part and denied in part.
I. 	FACTUAL BACKGROUND
Downtown Fargo is home to the International Market Plaza (the “Market”). Doc. 1. In the
Market, there are shops, restaurants, grocery stores, and an after-school program, all designed to
support immigrant entrepreneurs. Id. The IDC, a nonprofit organization, is the landlord of the
Market, and Plaintiff Doe is the Executive Director of the IDC. Id. The Coalition is another
nonprofit organization that advocates for human rights. Id.
This case involves the vandalism of the Market in September 2022. Doc. 1 at 1-3. As
alleged, individuals affiliated with Patriot Front, which is alleged to be a “white supremacist
group,” trespassed onto the Market and spray-painted Patriot Front designs across the front of the
Market’s building. Id. at 1-2. A few days later, Patriot Front members also vandalized the Market’s
street-facing wall. Id. at 3. Along with suing the Patriot Front, the Plaintiffs also sued the
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unidentified members of the Patriot Front who vandalized and conspired to vandalize the Market
(John Does 1-10), Thomas Rousseau, who is alleged to be the National Director of the Patriot
Front, and Trevor Valescu, who is alleged to be a member of the Patriot Front and the Network
Director of the organization’s Network 11, which supervises activities in North Dakota. Id.
The Plaintiffs allege the vandalism is part of a broader pattern of discriminatory and racist
conduct and is part of the Patriot Front’s nationwide campaign to promote their white supremacist
agenda. Id. at 2-3. Because of the vandalism, the Plaintiffs allege they became concerned for their
physical safety and felt threatened. Id. at 4. They also claim that employees and customers curtailed
or eliminated their use of the Market after the vandalism. Id. at 4.
The Plaintiffs allege a mix of federal and state law claims. For the federal claims, they
allege conspiracy to violate civil rights under 42 U.S.C. § 1985(3), action for neglect to prevent
interference with civil rights under 42 U.S.C. § 1986, and action to make and enforce contracts
under 42 U.S.C. § 1986. For the North Dakota state law claims, they allege conversion, trespass,
trespass to chattel, and civil conspiracy. Rousseau and Valescu move to dismiss the complaint for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). They also raise a standing
challenge.
II. 	LAW AND ANALYSIS
A. 	Standing
Starting with standing, Rousseau and Valescu argue that the Plaintiffs do not have standing
to bring their claims because they have not alleged some concrete, particularized, and actual injury
in fact. They also argue that the Coalition, as an organization, has no standing.
A federal court “must be satisfied that it has jurisdiction before it turns to the merits of
other legal arguments” in each case. Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046,
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1050 (8th Cir. 2006). “Subject matter jurisdiction defines the court’s authority to hear a given type
of case.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (quoting United States
v. Morton, 467 U.S. 822, 828 (1984)). Federal Rule of Civil Procedure 12(b)(1) requires dismissal
if the court lacks subject matter jurisdiction over a claim. Because the facts are essentially
undisputed and the challenge is based on the complaint, the motion is a facial attack on jurisdiction.
Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 637 (8th Cir. 2003).
To invoke subject matter jurisdiction in federal court, a plaintiff must have Article III
standing. See Disability Support All. v. Heartwood Enterprises, LLC, 885 F.3d 543, 545 (8th Cir.
2018); Wolfe v. Gilmour Mfg. Co., 143 F.3d 1122, 1126 (8th Cir. 1998). “To establish Article III
standing, plaintiffs must show (1) an injury in fact, (2) a causal relationship between the injury and
the challenged conduct, and (3) that a favorable decision will likely redress the injury.” Animal
Legal Def. Fund v. Vaught, 8 F.4th 714, 718 (8th Cir. 2021). An injury in fact is “the actual or
imminent invasion of a concrete and particularized legal interest.” Kuehl v. Sellner, 887 F.3d 845,
850 (8th Cir. 2018) (citations omitted).
As to injury-in-fact, a plaintiff must show “an invasion of a legally-protected interest which
is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical.”
Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir. 1994). “For an injury to be ‘particularized,’
it must affect the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, 578 U.S. 330,
339 (2016), as revised (May 24, 2016) (internal citation and quotation omitted). “A ‘concrete’
injury must be ‘de facto’; that is, it must actually exist.” Id. at 340. If a plaintiff lacks Article III
standing, a federal court has no subject-matter jurisdiction over the claim, and the action must be
dismissed. Higgins Elec., Inc. v. O’Fallon Fire Prot. Dist., 813 F.3d 1124, 1128 (8th Cir. 2016).
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Standing as to Doe and the IDC is resolved easily. Doe alleges she “experienced emotional,
and mental and physical anguish, including chest pains.” Doc. 1 at 6. She also alleges she incurred
the costs of additional security measures, including installation of security cameras at her
residence. Id. The IDC alleges that the vandalism caused a decrease in rental payments and
required additional security needs. Id. These alleged injuries are concrete, particularized, and
actual injuries sufficient to establish standing.
Standing as to the Coalition is a closer call. For its injury, the Coalition alleges it assisted
with the vandalism cleanup, and participated in fundraising and generating support on behalf of
the affected communities. Doc. 1 at 6-7. And because of those efforts, the Coalition claims it spent
less time writing grant applications to further its mission. Doc. 1 at 7.
An organization may establish standing based on an injury to itself (as opposed to its
members). To establish organizational standing, the organization must show “a concrete and
demonstrable injury to an organization’s activities which drains its resources and is more than
simply a setback to its abstract social interests.” Nat’l Fed’n of Blind of Mo. v. Cross, 184 F.3d
973, 979 (8th Cir. 1999). “[T]he deflection of an organization’s monetary and human resources”
is enough to establish an injury. Ark. ACORN Fair Hous., Inc. v. Greystone Dev., Co., 160 F.3d
433, 434 (8th Cir. 1998). Here, while the allegations are sparse, the Coalition does allege it
deflected monetary and human resources that drained some of its resources. That is enough to meet
the threshold standing inquiry. See Huizenga v. Indep. Sch. Dist. No. 11, 44 F.4th 806, 811 (8th
Cir. 2022) (“‘The standing inquiry is merely a threshold inquiry’; it does not present the ‘higher
hurdles’ of pleading a claim to relief on the merits under Federal Rule of Civil Procedure 12(b)(6).”
(citation omitted)).
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B. 	Federal Rule of Civil Procedure 12(b)(6)
Rousseau and Valescu also move to dismiss the complaint for failure to state a claim upon
which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). Federal Rule of Civil
Procedure 8(a) requires a pleading to contain only “a short and plain statement of the claim
showing that the pleader is entitled to relief.” But a complaint may be dismissed for “failure to
state a claim upon which relief can be granted,” and a party may raise that defense by motion. Fed.
R. Civ. P. 12(b)(6). In reviewing a motion to dismiss for failure to state a claim under Rule
12(b)(6), the court accepts as true the factual allegations in the complaint and draws all reasonable
inferences in the plaintiff’s favor. Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014)
(citation omitted). Although the factual allegations need not be detailed, they must be sufficient to
“raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citation omitted). The complaint must “state a claim to relief that is plausible on its face.”
Id. at 570.
1. 	42 U.S.C. § 1981 Claim
Rousseau and Valescu assert the Plaintiffs’ 42 U.S.C. § 1981 claim fails because they did
not identify “any contracts under which they have rights which have been impaired due to the
vandalism.” Doc. 21 at 13. Under § 1981, all persons within the jurisdiction of the United States
shall have “the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”
42 U.S.C. § 1981(a). This includes “the making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.” Id. § 1981(b). The elements of a § 1981 claim include (1) membership in a protected
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class, (2) discriminatory intent on the part of the defendant, (3) engagement in a protected activity,
and (4) interference with that activity by the defendant. Gregory, 565 F.3d at 469.
Here, the factual allegations in support of the § 1981 claim are:
Defendant John Does 1-4 acted with discriminatory intent in targeting individual
Plaintiffs, all of whom are members of a protected class. As a result of Defendants’
actions targeting individual Plaintiffs, Defendants interfered with Plaintiffs’
protected activity, including their right to make and enforce contracts.
Doc. 1 at 28. Reading the complaint in the light most favorable to the Plaintiffs, they have alleged
sufficient facts as to each element of the § 1981 claim. And Rousseau and Valescu do not dispute
that the Plaintiffs properly allege their protected class status and that the Defendants acted with
discriminatory intent in vandalizing the Market. They do challenge the third element, and question
whether the Plaintiffs properly allege that they were engaged in a protected activity. Rousseau and
Valescu argue that the Plaintiffs have not identified any specific contracts that were interfered with
as a result of the vandalism. To be sure, the factual allegations identifying contracts in the
complaint are thin, but the Plaintiffs do allege some deprivation of financial benefit in rental and
lending contracts. Doc. 1 ¶ 19. Whether the Plaintiffs will be able to identify any specific contracts
that the Defendants interfered with to survive summary judgment is certainly an open question.
But at this stage of the litigation, the focus is on plausibility and whether there are sufficient factual
allegations to support the claim. That standard is met as to this claim—the complaint plausibly
alleges a § 1981 claim, and the motion to dismiss that claim is denied.
2. 	42 U.S.C. §§ 1985(3) and 1986 Claims
Rousseau and Valescu next challenge the Plaintiffs’ 42 U.S.C. § 1985(3) claim. Section
1985(3) provides a civil remedy for private conspiracies to deprive others of legal rights. Griffin
v. Breckenridge, 403 U.S. 88, 104 (1971). To state a § 1985(3) claim, the Plaintiffs must plausibly
allege (1) a conspiracy of two or more persons; (2) for the purpose of depriving another of equal
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protection or of equal privileges and immunities under the laws; (3) an act in furtherance of the
conspiracy; and (4) an injury or deprivation of a legal right. Federer v. Gephardt, 363 F.3d 754,
757-58 (8th Cir. 2004). Importantly though, “Section 1985(3) provides no substantive rights itself;
it merely provides a remedy for violation of the rights it designates.” Great Am. Fed. Sav. & Loan
Ass’n v. Novotny, 442 U.S. 366, 372 (1979). “The rights, privileges, and immunities that § 1985(3)
vindicates must be found elsewhere.” Scott, 463 U.S. at 833. Additionally, the federal substantive
right (or predicate right) “found elsewhere” must be “guaranteed against private impairment.” Bray
v. Alexandria Women’s Health Clinic, 506 U.S. 263, 274 (1993).
The Plaintiffs allege the impaired federal substantive right is the right to enjoy a place of
public accommodation—the Market—without fear or intimidation on account of race, religion, or
nationality. Doc. 1 at 24-25, 32. Rousseau and Valescu argue that, under Bray, a private conspiracy
claim under § 1985(3) must implicate interstate travel or the Thirteenth Amendment’s prohibition
on involuntary servitude. Doc. 21 at 17-18. But that is a limited reading of Bray. In Bray, the
United States Supreme Court noted the right to interstate travel, as well as the right to be free from
involuntary servitude, were examples of rights “protected against private, as well as official,
encroachment.” 506 U.S. at 278. It did not hold that those rights were the only rights capable of
sustaining a § 1985(3) claim.
The case law confirms that § 1985(3) claims are not limited by the examples in Bray.
Indeed, the United States Court of Appeals for the Tenth Circuit held that “a racially motivated
conspiracy to interfere with one’s enjoyment of a place of public accommodation” is a viable §
1985(3) claim. See Fisher v. Shamburg, 624 F.2d 156,162 (10th Cir. 1980). And a federal district
court in Virginia came to the same conclusion in a separate case involving Patriot Front. Sealed
Plaintiff v. Patriot Front, Case No. 3:22-cv-00670-MHL (E.D. Va. Mar. 31, 2024).
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Accepting the factual allegations as true and reading the complaint in the light most
favorable to the Plaintiffs, they have plausibly alleged a § 1985(3) claim. They allege a conspiracy
among the Defendants to deprive the Plaintiffs of their civil rights, and they alleged acts in
furtherance of the conspiracy, including the vandalism to the Market. They allege two predicate
rights as the basis for the § 1985(3) claim—(1) the right to make and enforce contracts, and (2) the
right to enjoy a public accommodation. Again, whether the Plaintiffs can ultimately prove their §
1985(3) claim is an open question to be resolved another day. At this point, they have plausibly
alleged a § 1985(3) claim, and the motion to dismiss that claim is denied.1
The same analysis also applied to the Plaintiffs’ 42 U.S.C. § 1986 claim. A cause of action
under § 1986 depends on the existence of a claim under § 1985. Brandon v. Lotter, 157 F.3d 537,
539 (8th Cir. 1998). Rousseau and Valescu argue the § 1986 claim fails because § 1985(3) claim
fails. But the § 1985(3) claim survives, and so does the § 1986 claim.
3. 	State Law Claims
With the federal claims resolved, what remains are the North Dakota state law claims for
conversion, trespass, trespass to chattel, and civil conspiracy. Doc. 1 at 28-32. Rousseau and
Valescu also move to dismiss these claims for failure to state a claim.
Under North Dakota law, conversion is “a tortious detention or destruction of personal
property, or a wrongful exercise of dominion or control over the property inconsistent with or in
defiance of the rights of the owners.” Kluver v. SGJ Holdings, LLC, 988 N.W.2d 569, 576 (2023).
Rousseau and Valescu specifically argue that the complaint fails to allege that either of them
1 Rousseau and Valescu also raise a Counterman v. Colorado challenge to the § 1985(3) claim.
600 U.S. 66 (2023). They argue it adds a mens rea requirement to the claim. But it is unclear
whether Counterman (a case that involved the constitutionality of a criminal statute) applies to a
federal civil case. Even assuming it did apply, the existence of a mens rea is largely a factual
dispute, making it inappropriate to resolve on a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6).
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committed the tortious act. Doc. 21 at 26. And their argument is correct—the complaint does not
allege that Rousseau and/or Valescu engaged in a tortious detention, destruction, or control over
the property at issue. So, conversion is not plausibly alleged as to Rousseau and Valescu, and the
motion to dismiss the conversion claim is granted as to both of them.
The same analysis and result apply to the trespass to chattel claim. Trespass to chattel
“requires dispossession of the property impairment of the condition, quality or value of the
property, loss of use of the property, or other harm.” Sagebrush Res., LLC v. Peterson, 2014 ND
3, ¶ 19, 841 N.W.2d 705, 712 (citing Restatement (2nd) of Torts § 218 (1965)). “One who commits
a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if he
dispossesses the other of the chattel.” Restatement (Second) of Torts § 218 (1965) (cleaned up)
(emphasis added). There is no allegation that Rousseau and Valescu are the individuals who
“impaired” the condition of the property or dispossessed the property from its rightful owner. So,
the motion to dismiss the trespass to chattel claim is granted.
Next, civil trespass is a common law tort in North Dakota. The North Dakota Supreme
Court has defined trespass as “an intentional harm where a person intentionally and without a
consensual or other privilege enters land in possession of another or any part thereof or causes a
thing or third person so to do.” Tibert v. Slominski, 2005 ND 34, ¶ 15, 692 N.W.2d 133, 137
(cleaned up). The complaint alleges that Rousseau and Valescu, through their leadership,
coordination, and instruction, caused Patriot Front members to enter the IDC’s property without
consent, for the purpose of vandalizing the Market. Doc. 1 at 8-12, 30. That is sufficient to state a
claim for civil trespass, and the motion to dismiss that claim is denied.
Finally, a note on the civil conspiracy claim. Civil conspiracy is:
a combination of two or more persons acting in concert to commit an unlawful act
or to commit a lawful act by unlawful means, the principal element of which is an
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agreement between the parties to inflict a wrong against or injury upon another and
an overt act that results in damages.
Peterson v. North Dakota Univ. Sys., 2004 ND 82, ¶ 27, 678 N.W.2d 163. Rousseau and Valescu
did not move to dismiss this claim, and there are sufficient facts in the complaint to support a
plausible civil conspiracy claim. So, the claim will survive dismissal.
III. 	CONCLUSION
The Court has carefully reviewed the entire record, the parties’ filings, and the relevant
law. For the reasons above, Rousseau’s and Valescu’s motion to dismiss (Doc. 18) is GRANTED
IN PART AND DENIED IN PART. The conversion and trespass to chattels claims are
DISMISSED as to Rousseau and Valescu. The Plaintiffs may proceed on all of the remaining
claims.
IT IS SO ORDERED.
Dated this 9th day of September, 2024.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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