United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 20, 2009 Decided June 9, 2009
No. 08-7074
RALPH NADER, ET AL.,
APPELLANTS
v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-02136)
Oliver B. Hall argued the cause and filed the briefs for
appellants.
Joseph E. Sandler argued the cause for appellees. With
him on the brief were Douglas K. Spaulding, Lasagne A.
Wilhite, Kim M. Watterson, Marc E. Elias, John Hardin
Young, Lawrence Noble, Laurence E. Gold, Lyn Utrecht, and
Michael B. Trister.
Before: SENTELLE, Chief Judge, and TATEL and
GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
2
TATEL, Circuit Judge: Believing himself the victim of a
concerted effort to thwart his 2004 presidential bid, Ralph
Nader sued an array of influential Democrats in late 2007 for
malicious prosecution and abuse of process. His complaint
alleges a far-reaching civil conspiracy whose object was to
deplete his resources by forcing him to defend meritless ballot
eligibility challenges in nearly twenty states. The district
court dismissed the complaint, concluding that Nader’s suit, if
successful, would punish the Democrats for activity protected
by the First Amendment. Nader appeals, arguing that the
district court misapplied the applicable First Amendment test.
Because the district court’s approach and the merits of
Nader’s claims present state law issues of first impression, we
think it best to resolve this case on simpler and more certain
grounds. Both here and in the district court the parties fully
briefed the question whether Nader’s suit exceeded the
applicable statute of limitations. Agreeing with defendants
that the complaint itself demonstrates its untimeliness, we
affirm on this ground alone.
I.
Because the district court granted defendants’ motion to
dismiss, Nader’s allegations “must be taken as true.” Chalabi
v. Hashemite Kingdom of Jordan, 543 F.3d 725, 726 (D.C.
Cir. 2008). So read—and citing various newspaper articles to
bolster its claims—the complaint relates the following events.
Blaming Nader for their defeat in 2000, the Democrats
were eager to find a way to prevent him from siphoning off
their votes in the next election. Am. Compl. ¶ 1. Thus,
“[d]efendants and their co-conspirators decided to try to
prevent Mr. Nader from running for president if he announced
his candidacy in 2004.” Id. ¶ 45. At a not-so-secret meeting
at the time of the 2004 Democratic National Convention in
Boston, the alleged conspirators fleshed out a plan to “launch
3
a nationwide legal assault on Mr. Nader’s campaign, which
would drain the campaign of money, time and other
resources, in a deliberate attempt to use the sheer burden of
litigation itself as a means to prevent Mr. Nader from running
for public office.” Id. ¶ 45; see also id. ¶ 48 (quoting, without
attribution, account of Four Seasons meeting in Janice
D’Arcy, Anti-Nader Forces Coordinate Strategy, HARTFORD
COURANT, July 27, 2004, at A1). According to Nader, the
Democratic National Committee organized and paid for the
meeting, with key attendees including such influential
Democratic Party strategists as Toby Moffett, Elizabeth
Holtzman, Robert Brandon, and Stanley Greenberg. Id. ¶ 46.
Their plan entailed using three soft-money organizations—
The Ballot Project, The National Progress Fund, and Uniting
People for Victory—that would begin raising funds in earnest
at the convention. Id. ¶¶ 50–51. Moffett, President of The
Ballot Project, became the point man for the anti-Nader legal
effort. See id. ¶¶ 46–52, 60–63. He told the press at the
convention: “‘This guy [Nader] is still a huge threat’ . . . .
‘We’re just not going to make the same mistake we made in
2000.’” Id. ¶ 51 (quoting, without attribution, David
Postman, Nader Foes Seek Funding from Democratic Donors,
SEATTLE TIMES, July 28, 2004 at A1).
Nader alleges that in order to avoid the 2000 “mistake,”
Moffett began coordinating an effort to challenge Nader’s
ballot access “not only in . . . ‘battleground’ states but in as
many other states as possible, in order ‘to drain him of
resources and force him to spend his time and money.’” Id.
¶ 47 (quoting, without attribution, Katharine Q. Seelye,
Convictions Intact, Nader Soldiers On, N.Y. TIMES, Aug. 2,
2004, at A14 (internal quotation marks omitted)). This
strategy entailed wide-ranging coordination with a diverse
array of alleged co-conspirators. Moffett enlisted local
Democratic parties to launch challenges to Nader’s ballot
4
access in their respective states. Id. ¶ 52 (quoting Steve
Terrell, Fears of Nader Keep Dems on Offensive, SANTA FE
NEW MEXICAN, July 29, 2004, at A4); see also id. ¶¶ 54, 57.
DNC officials filed several ballot access complaints in their
own names. Id. ¶ 56. Labor unions and their members
participated in acts of sabotage or harassment, endeavoring to
derail Nader’s efforts at mustering sufficient valid signatures
for ballot access. See, e.g., id. ¶ 69. While litigating a ballot
challenge in Maine, Nader uncovered that the plaintiff was
working in close coordination with the DNC, which was in
fact paying for her lawyers. Id. ¶ 118. “Moffett told the New
York Times, ‘We’re doing everything we can to facilitate
lawyers in over 20 states.’” Id. ¶ 60 (quoting Katharine Q.
Seelye, Democrats’ Legal Challenges Impede Nader
Campaign, N.Y. TIMES, Aug. 19, 2004, at A24). According
to Nader, the effort eventually enlisted over 50 law firms
performing millions of dollars of legal work. Id. ¶ 61.
Pennsylvania represented an especially contentious forum,
with hundreds of attorney hours and innumerable volunteers
dedicated to scouring Nader’s petitions for excludable
signatures. See id. ¶¶ 179–90. In addition to the ballot access
challenges ultimately brought in eighteen different states, the
alleged co-conspirators filed five complaints with the Federal
Elections Commission. Id. ¶¶ 126, 135, 227.
Moreover, Nader alleges, the Democrats’ own words
demonstrate that they brought these challenges without regard
for their merit and with the ulterior purpose of bleeding his
campaign dry. Nader quotes Moffett telling the Washington
Post that “[w]e wanted to neutralize his campaign by forcing
him to spend money and resources defending these things, but
much to our astonishment, we’ve actually been more
successful than we thought we’d be in stopping him from
getting on at all.” Id. ¶ 62 (quoting Jonathan Finer & Brian
Faler, Nader Unsure of Ballot Spot in Many States, WASH.
5
POST, Aug. 24, 2004, at A9). Acknowledging the same
purpose to the New York Times, Moffett said that they had
sued Nader in swing states and safe states alike “‘to drain him
of resources and force him to spend his time and money.’”
Id. ¶ 47 (quoting Seelye, Convictions Intact, Nader Soldiers
On, supra, at A14). Nader alleges that DNC Chairman Terry
McAuliffe promised to support him in some states if he would
voluntarily avoid the battlegrounds, and that the Democrats’
first legal complaint came on the very day Nader rejected this
offer. Id. ¶ 3. Thus, Nader claims, the Democrats’ “admitted
purpose for bringing these lawsuits . . . was not to vindicate
valid legal claims, but rather to bankrupt Nader-Camejo’s
campaign by forcing the candidates to spend their limited
resources of time, talent and money on the defense
of unfounded lawsuits.” Id. ¶ 4. He believes that the
Democrats’ record bears him out: although winning a handful
of their challenges, they “eventually lost the vast majority of
lawsuits they filed.” Id. ¶ 62.
President Bush’s reelection quieted the conflict. All state
ballot challenges had been resolved in the weeks prior to the
election, and though the Democrats still had a handful of FEC
complaints pending, each was dismissed in due course
without further proceedings. In early 2005, however, the law
firm that prosecuted the successful ballot access challenge in
Pennsylvania, Reed Smith LLP, won an award of costs that it
eventually pursued by writ of attachment in the Superior
Court of the District of Columbia in the summer of 2007.
Id. ¶¶ 194, 201–03. Nader opposed the attachment, claiming
to have recently discovered a fraud in the underlying suit in
the form of undisclosed ties between Reed Smith and justices
of the Pennsylvania Supreme Court. See id. ¶¶ 194–203.
That dispute remains pending in Superior Court, see id. ¶ 203,
though the Commonwealth Court of Pennsylvania has already
refused to reopen its award of costs, see In re Nomination
6
Paper of Ralph Nader, No. 568 M.D. 2004, slip op. at 7–9
(Pa. Commw. Ct. Dec. 4, 2008).
This brings us to the case before us, which followed
closely on the heels of the Reed Smith attachment. Nader
first filed his complaint in Superior Court on October 30,
2007, naming as defendants the Democratic National
Committee, Kerry-Edwards 2004, The Ballot Project,
America Coming Together, the Service Employees
International Union, John Kerry, Jack Corrigan, Toby
Moffett, Elizabeth Holtzman, Robert Brandon, Mark Brewer,
and Reed Smith LLP. He alleged malicious prosecution,
abuse of process, civil conspiracy, and federal civil rights
violations. Defendants removed the case to federal court
where, for procedural reasons having nothing to do with the
issues before us, Nader then dropped his federal claims. This
left only the state law claims, which defendants moved to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Among other things, the Democrats argued that Nader’s
complaint was barred by the statute of limitations, insufficient
to state a claim, and precluded by the First Amendment.
Accepting defendants’ First Amendment theory that the
complaint was barred by the so-called Noerr-Pennington
doctrine, the district court granted the motion to dismiss. See
generally Eastern R.R. Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 132 n.6 (1961); United Mine
Workers v. Pennington, 381 U.S. 657 (1965). Noerr and
Pennington are antitrust cases, but they stand for the
proposition that when a person petitions the government for
redress, the First Amendment prohibits any sanction on that
action—for instance, a Sherman Act penalty for anti-
competitive behavior—so long as the petition was in good
faith. See, e.g., Covad Commc’ns Co. v. Bell Atl. Corp., 398
F.3d 666, 667 (D.C. Cir. 2005). For this purpose, the
7
Supreme Court has treated lawsuits as petitions, see,
e.g., Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S
731, 741 (1983) (citing Cal. Motor Transp. Co. v. Trucking
Unlimited, 404 U.S. 508, 510 (1972)). And discussing Noerr-
Pennington, we have said that “it is hard to see any reason
why, as an abstract matter, the common law torts of malicious
prosecution and abuse of process might not in some of their
applications be found to violate the First Amendment,”
Whelan v. Abell, 48 F.3d 1247, 1254 (D.C. Cir. 1995). The
district court thus thought that before Nader could bring such
claims, he had to show that the Democrats’ ballot challenges
fell within the Noerr-Pennington bar’s “sham exception,” i.e.,
that their lawsuits were “(1) . . . objectively baseless in the
sense that no reasonable litigant could realistically expect
success on the merits and (2) . . . brought with the specific
intent to further wrongful conduct through the use of
governmental process—as opposed to the outcome of that
process.” Nader v. Democratic Nat’l Comm., 555 F. Supp. 2d
137, 157 (D.D.C. 2008) (citing Prof’l Real Estate Investors,
Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60–61 (1993))
(internal quotation marks and brackets omitted). Assuming
for the sake of argument that the Democrats’ lawsuits were in
fact objectively baseless, the district court found that Nader
had at least failed to allege facts sufficient to satisfy the sham
test’s second element—that is, inappropriate subjective intent.
Nader, 555 F. Supp. 2d at 158–161. It thus dismissed the
complaint under Noerr-Pennington without reaching the
Democrats’ statute of limitations defense. Id. at 145.
Nader appeals, arguing that even if Noerr-Pennington
applies, his allegations—fully credited as they must be on a
motion to dismiss—easily satisfy the sham test. On the
merits, the Democrats defend the district court’s decision and
then argue that, even if Nader can overcome Noerr-
Pennington, he failed to state claims for abuse of process and
8
malicious prosecution. They also renew their claim that
Nader’s complaint came too late. Because the district court
decided these issues on a motion to dismiss, our review is de
novo. See Chalabi, 543 F.3d at 729 (reviewing timeliness de
novo); Kaemmerling v. Lappin, 553 F.3d 669, 676 (D.C. Cir.
2008) (reviewing decision on motion to dismiss de novo).
II.
We begin by briefly addressing the elements of the torts
at issue. Under District of Columbia law, “[c]ivil conspiracy
is not an independent tort but only a means for establishing
vicarious liability for an underlying tort.” Hill v. Medlantic
Health Care Group, 933 A.2d 314, 344 (D.C. 2007) (internal
quotation marks omitted). A claim for civil conspiracy thus
fails unless the elements of the underlying tort are satisfied.
See Executive Sandwich Shoppe, Inc. v. Carr Realty Corp.,
749 A.2d 724, 738 (D.C. 2000) (“[C]ivil conspiracy depends
on performance of some underlying tortious act.” (internal
quotation marks omitted)). Indeed, because its only purpose
is to spread liability for a successful tort claim to all agreeing
parties regardless of whether they actually committed the
tortious act, a civil conspiracy claim incorporates not only
every substantive element of the underlying tort, but also its
statute of limitations. See, e.g., Diamond v. Davis, 680 A.2d
364, 366 n.4 (D.C. 1996) (citing with approval Thomas v.
News World Commc’ns, 681 F. Supp. 55, 73 (D.D.C. 1988)).
Of the substantive torts Nader alleges, malicious
prosecution is the more straightforward. In the District of
Columbia, malicious prosecution requires: “(1) [that] the
underlying suit terminated in plaintiff’s favor; (2) malice on
the part of the defendant; (3) lack of probable cause for the
underlying suit; and (4) special injury occasioned by the
plaintiff as the result of the original action.” Morowitz v.
Marvel, 423 A.2d 196, 198 (D.C. 1980). In other words, the
9
victor may sue the vanquished for a baseless suit if it was
brought with malicious disregard for its validity and caused
injury over and above the ordinary costs of litigation. And
although “injuries to reputation, emotional distress, loss of
income, and substantial expense in defending have all been
held to fall outside the scope of the definition of special
injury,” Joeckel v. Disabled Am. Veterans, 793 A.2d 1279,
1282 (D.C. 2002) (internal quotation marks omitted), we long
ago held that, as a matter of District of Columbia law,
repetitious malicious actions may satisfy this element, see
Soffos v. Eaton, 152 F.2d 682, 683 (D.C. Cir. 1946) (“[O]ne
who twice sues another maliciously and without probable
cause is responsible to him in damages.”).
Abuse of process presents more complicated issues.
Although we observed in Whelan that, under its most
expansive interpretation, this tort could be used even against
someone who sues successfully while harboring an improper
motive, see 48 F.3d at 1257, the District of Columbia Court of
Appeals has given the tort a narrower construction while
leaving its exact elements far from clear. See, e.g., Morowitz,
423 A.2d at 198 (holding that while “ulterior motive” is
insufficient, the “critical concern . . . is whether process was
used to accomplish an end unintended by law, and whether
the suit was instituted to achieve a result not regularly or
legally obtainable.”). According to the District of Columbia
Court of Appeals, abuse of process “lies where the legal
system has been used to accomplish some end which is
without the regular purview of the process, or which compels
the party against whom it is used to do some collateral thing
which he could not legally and regularly be required to do.”
Bown v. Hamilton, 601 A.2d 1074, 1079 (D.C. 1992) (internal
quotation marks omitted). We know at least that suits
intended primarily to achieve their lawful purpose need not be
brought with a pure heart. See, e.g., Scott v. District of
10
Columbia, 101 F.3d 748, 755–56 (D.C. Cir. 1996) (holding
that attempt to secure conviction was not abuse of process
even where defendant alleged police officers had “ulterior aim
of covering up their use of excessive force”). Still, the
District of Columbia Court of Appeals has yet to provide
precise guidance on the question of how “collateral” the
“thing [that] could not legally and regularly be required,”
Bown, 601 A.2d at 1079, must be to support an abuse of
process claim, which represents the essential question in
determining the boundary between everyday litigation and
tortious abuse of court procedures.
Nader’s theory simplifies the issue, however. Because
the Democrats were, after all, bringing ballot challenges to
achieve their goal of keeping Nader off the ballot—a perfectly
natural means to what is a perfectly lawful end in and of
itself—the only way they could even theoretically have
abused the legal process was by filing such claims knowing
that they were false. Nader’s theory of either tort thus
requires him to prove a pattern of filings that were objectively
baseless and intentionally so.
This discussion should make clear that Nader’s civil
conspiracy theory, which aggregates the Democrats’ many
challenges into a single pattern of baseless litigation, is
essential to the validity of his claims. Nader’s theory of
special injury for malicious prosecution, as well as his theory
of the “collateral” end for abuse of process, both turn on his
ability to demonstrate that the Democrats employed a pattern
of baseless litigation to deprive him so dramatically of
resources as to leave him unable to meaningfully campaign
for the presidency. Reviewing the allegations of a broad
Democratic strategy recited in the complaint, see, e.g., Am.
Compl. ¶¶ 45–66, and even in the headers of his briefs to this
court, see, e.g., Appellants’ Opening Br. 11 (“Conspirators
11
Filed Twenty-Nine Complaints . . . in an Effort to Use a
Pattern of Baseless and Repetitive Claims as a Means to Bar
the Candidates from Running For Public Office During the
2004 General Election.”), we think it plain that it is this
aggregated, conspiratorial theory of misuse of the judicial
process that Nader has actually brought. Indeed, although the
complaint recites some facts from each individual forum
where Nader’s access was challenged, see Am. Compl. ¶¶ 72–
227, it contains no facts tending to show that any individual
claim was objectively baseless other than its relation to the
scheme and the large number of failed claims overall.
On the merits, this aggregated theory presents interesting
legal issues of first impression. First is the applicability of
Noerr-Pennington. If Nader in fact concedes that his theory
requires him to prove a pattern of deliberately false filings, no
Noerr-Pennington problem could arise because “[h]owever
broad the First Amendment right to petition may be, it cannot
be stretched to cover petitions based on known falsehoods.”
Whelan, 48 F.3d at 1255. But if Nader argues that he can
prevail on abuse of process without such proof, see Oral Arg.
Tr. 34–37, we would then have to decide—or perhaps certify
to the District of Columbia Court of Appeals—the question of
the exact scope of abuse of process in relation to the Noerr-
Pennington doctrine. See Whelan, 48 F.3d at 1257 (raising
precisely this concern). Moreover, even were Nader to
concede that he must prove a strategy of repeatedly filing
deliberately false claims, a difficult question would remain as
to whether his complaint can actually allege as much where,
as here, it acknowledges that the Democrats were batting
between .172 and .263 depending on whether one counts
filings or forums—far above the perfect failure rate we might
expect for a strategy without any basis at all. In other words,
we would need to decide whether Nader must prove that the
Democrats’ overall strategy was itself objectively baseless or
12
whether it would be sufficient for Nader to show only that the
Democrats’ strategy resulted in more than one baseless suit.
Then, assuming Nader’s claim could survive despite the
Democrats’ handful of wins, we would face the choice of law
problem in marking the boundary between a Democratic loss
and a baseless lawsuit. If the question is the baselessness of
the strategy writ large, then perhaps District of Columbia
law would suffice. But if each suit requires separate
consideration, we would face nineteen separate legal
standards, each having at least three inquiries: (1) What
makes a valid ballot challenge in State X? (2) What is State
X’s law of probable cause for purposes of malicious
prosecution? and (3) Does State X have a special standard for,
say, sending a letter to an election commission or for election
law issues in general? Almost all these legal issues are
questions of state law on which we lack instructive
precedents. And this list is hardly exhaustive.
Such problems convince us to rely on the statute of
limitations as the better-marked path to disposition. Although
we normally prefer to address the district court’s rationale,
“we may affirm on any ground properly raised,” Jones v.
Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009) (internal
quotation marks omitted), and choosing such an alternative
makes particular sense where, as here, it means avoiding
questions of state law on which we have little guidance from
the state courts.
III.
With respect to the statute of limitations, we begin from
common ground. The D.C. Code sets the statute of
limitations for malicious prosecution at one year. See D.C.
CODE § 12-301(4). The D.C. Code contains no specific
provision for abuse of process, however, and the District of
Columbia Court of Appeals has never decided whether its
13
similarity to malicious prosecution brings it within this one-
year period or whether it instead falls within D.C. Code
section 12-301(8)’s three-year catch-all. See D.C. CODE § 12-
301(8). Because the court appears to interpret limitations
provisions in favor of claimants, however, see, e.g., Saunders
v. Nemati, 580 A.2d 660, 663–64 (D.C. 1990) (holding that
tort based on verbal abuse not covered by one year statute of
limitations for assault), we think it safest to assume that the
limitations period for abuse of process is three years. For
malicious prosecution, the limitations period would ordinarily
run from the date on which the underlying action terminated
in the defendant’s favor; for abuse of process, it would
ordinarily run from the date on which abusive process last
issued. We say ordinarily because it would normally be
obvious to a victim of a malicious or abusive suit at the time
of suit that every element of either tort claim was met. Cf.
D.C. CODE § 12-301 (“[T]he period specified below [runs]
from the time the right to maintain the action accrues.”).
Nader filed his complaint on October 30, 2007. Thus, even
assuming Nader can properly allege abuse of process, and that
the statute of limitations for abuse of process is in fact three
years, Nader’s timely filing window cannot stretch back any
earlier than October 30, 2004. And significantly for our
purposes, Nader nowhere disputes that every one of the
Democrats’ challenges terminated more than one year before
he filed his complaint and that no process issued against him
in any of those proceedings within three years of this suit.
Nader nonetheless insists that the statute of limitations
presents no bar. His primary argument is that because both
the DNC and the Kerry Campaign denied any involvement in
the state ballot challenges, he may charge the Democrats in
general with fraudulently concealing the coordinated and
conspiratorial nature of their conduct, thereby depriving him
of the notice necessary to start the running of the limitations
14
period. See, e.g., Richards v. Mileski, 662 F.2d 65, 72 (D.C.
Cir. 1981) (tolling limitations period for plaintiff who “knew
that the charges against him were based on misrepresentation”
because he lacked constructive knowledge that “defendants
deliberately conspired” against him). In Nader’s view, the
Democrats’ fraudulent denials “were intended to conceal, and
did in fact conceal, the Defendants’ participation in the
unlawful conspiracy alleged in the Amended Complaint, and
even the existence of the conspiracy itself, until after the
conclusion of the 2004 General Election.” Appellants’ Reply
Br. 26–27. To be sure, the Democratic Party and the Kerry
Campaign may well have tried to conceal coordinating with
The Ballot Project’s effort—certain kinds of coordination
have serious implications for campaign finance laws. But at
least under District of Columbia law, the question isn’t
whether tortfeasors have tried to fraudulently conceal their
conduct, it’s whether they succeeded. See, e.g., Riddell v.
Riddell Washington Corp., 866 F.2d 1480, 1494 (D.C. Cir.
1989) (“Clearly, the doctrine of fraudulent concealment does
not come into play, whatever the lengths to which a defendant
has gone to conceal the wrongs, if a plaintiff is on notice of a
potential claim.” (internal quotation marks omitted)). And
although we have said that “a defendant who has engaged in
fraudulent concealment, in order to make out a defense based
on the plaintiff’s lack of due diligence, must show something
closer to actual notice than the merest inquiry notice,” id. at
1491, the District of Columbia Court of Appeals has since
expressly disagreed, holding that “the standard is in fact the
same in all cases to which the discovery rule applies,
regardless of the presence or absence of fraud,” Diamond,
680 A.2d at 381; see also id. at 376–79. That standard is
knowledge of “(1) an injury; (2) its cause in fact; and (3)
some evidence of wrongdoing,” id. at 379, and it includes not
only what Nader knew, but what he could by reasonable
diligence have known, see id. at 381.
15
Under that standard, Nader’s argument, set forth in his
brief, that the Democrats “did in fact conceal . . . the existence
of the conspiracy” is belied by the facts he alleges in his
complaint. Because every victim of a baseless suit
immediately knows their injury and its cause in fact, the
question is only whether the allegations in the complaint
establish that Nader knew, or should have known, of “some
evidence” of a conspiracy to abusively deploy a pattern of
baseless suits against him. The answer to that question is yes.
Nader’s complaint supports its allegations with a series of
newspaper articles that on their face reveal the existence of
the very conspiracy of which Nader now complains. For
example, the complaint quotes Moffett’s statements about
The Ballot Project coordinating attorneys in twenty states
and being astonished at their own legal success. The
conspiratorial planning session immediately before the
convention was reported in an article Nader cites, and the
complaint references the fact that the Democrats’ very first
challenge came on the day that Nader declined an offer from
DNC Chairman Terry McAuliffe to support Nader in certain
states if he would give up his campaign in others. The
complaint even quotes from a deposition in which the plaintiff
in the Maine litigation admits that the Democratic Party was
paying for her lawyers, and it notes that the Michigan case
was filed in the name of the Vice Chair of the DNC himself,
Am. Compl. ¶ 123. Although the complaint omits these
details, the Washington Post article that Nader himself cites
reported on August 24, 2004 that Nader was being “[d]ogged
by an unprecedented public relations and legal campaign
against him by the Democratic Party and like-minded
groups,” and that same story quotes a Nader spokesman
complaining that “[i]n 2000, we didn’t have to waste so much
time fending off dirty tricks.” Finer & Faler, supra, at A1
(emphasis added); cf. Kaempe v. Myers, 367 F.3d 963–65
16
(D.C. Cir. 2004) (considering content of document on motion
to dismiss where complaint relied on that document’s terms).
Together, these facts demonstrate Nader’s actual knowledge
of his cause of action—particularly the revelation in Maine
and the statement by his spokesman. But even if not, it would
be strange if the Washington Post could discover facts about
Nader’s life that he couldn’t reasonably discover himself,
especially because, unlike the Post writers, Nader could have
read about it in the paper.
We find a comparison to the facts of Richards v. Mileski
instructive. See 662 F.2d at 67–69. In 1955, the United
States Information Agency fired Richards based on an
informant’s false allegation that Richards engaged in
homosexual behavior. Though Richards obviously knew then
that the allegations were false, he failed to sue until 23 years
later when he first discovered that the informant’s report had
not actually misled the government, but had instead been
concocted by the government investigators themselves with
the aid of an unreliable informant. See id. at 67–68. We
concluded that Richards’s claims were nonetheless timely,
calling it “no mere ‘detail’ in 1955 that the false charges
against Richards had been fabricated as part of a deliberate
conspiracy against him, or that his own superiors rather than
an unknown informant were the source of his misery.”
Id. at 69. Indeed, we emphasized that Richards’s new claims
for fraud, defamation, intentional infliction of emotional
distress, and violation of his constitutional rights were distinct
from the claims available before the revelation of government
malfeasance: “[p]ossible claims of wrongful discharge or
coerced resignation, which are not raised in this suit, are
entirely separate from the causes of action for which Richards
now seeks his day in court.” Id. at 69; see also id. at 67 n.1
(listing claims).
17
Nader’s case, involving only newly discovered
participants in already known conduct, is worlds apart.
Indeed, even had the complaint left any doubt about Nader’s
constructive knowledge of the DNC’s involvement in 2004, a
later revelation of the national party’s role would change
nothing about the claim Nader could have brought in August
2004 against Moffett and his alleged co-conspirators—other
than adding a new target. Unlike the facts in Richards, the
involvement of the DNC here does not alter the fundamental
nature of the wrong at issue, and so the addition of this co-
conspirator cannot resuscitate Nader’s claim against the entire
conspiracy. See Fitzgerald v. Seamans, 553 F.2d 220, 229
(D.C. Cir. 1977) (affirming summary judgment on claims
against conspirators known at time of injury, even while
tolling period for a conspirator who successfully concealed
his involvement).
But perhaps Nader’s argument is more limited: that even
if his claim is untimely as against the conspiracy in general,
he may still sue those particular defendants whose
involvement was effectively concealed until later. See
Appellant’s Reply Br. 26–27 (apparently distinguishing
between knowledge of the conspiracy and knowledge of
defendants’ involvement). We endorsed such a principle in
Fitzgerald, 553 F.2d at 229, and the District of Columbia
Court of Appeals has since agreed, see Diamond, 680 A.2d at
380. The viability of such a theory turns on the known
relationships among the co-conspirators, however, and
although the District of Columbia Court of Appeals explained
in Diamond that this will often be a question of fact, it held
there that “the relationship of the defendants, together with
other facts, may establish as a matter of law that a reasonable
plaintiff with knowledge of the misconduct of one [co-
conspirator] would have conducted an investigation as to the
other.” Id. Here, the complaint identifies only the DNC and
18
the Kerry Campaign as having attempted to conceal their
roles. See Am. Compl. ¶¶ 64–65; see also id. ¶ 204 (alleging
that Reed Smith concealed that it had been retained by the
DNC). Elsewhere, however, the complaint establishes that
the DNC’s role was hardly a secret. Nader surely had inquiry
notice of a claim against the DNC when he discovered it was
paying the lawyers in the Maine dispute. And given the
relationship between the Kerry Campaign and the DNC at the
time of the 2004 election, we cannot see how the campaign
would have fallen outside the zone of reasonable suspicion
after that.
As a fallback, Nader argues that Reed Smith’s recent
attachment against him in Superior Court makes his entire
claim timely as a continuing tort. In the District of Columbia,
a continuing tort requires “(1) a continuous and repetitious
wrong, (2) with damages flowing from the act as a whole
rather than from each individual act, and (3) at least one
injurious act within the limitation period.” Beard v.
Edmondson & Gallagher, 790 A.2d 541, 547–48 (D.C. 2002)
(internal quotation marks and ellipsis omitted). Nader’s
theory fails the test’s second element because the damages
flowing from the attachment are self-evidently separate from
those related to the ballot challenges. His alleged injury from
the pattern of baseless ballot challenges was having been
deprived of resources for the 2004 presidential election, and
whatever damages the recent attachment may have caused, it
could not possibly have contributed to harming Nader’s
campaign three years earlier. If this attachment was in fact
abusive then Nader might have recourse through a separate
suit—assuming, of course, that dispositions in the
Pennsylvania courts have not yet precluded the issue. Even
so, he may not use the attachment to pry open a timely-filing
window now firmly closed.
19
IV.
Whatever the Democrats tried to conceal, Nader’s own
complaint reveals his constructive knowledge of “some
evidence of wrongdoing” by each current defendant more
than three years before he filed his suit. Because Nader’s
complaint is thus untimely on its face, we affirm on this
limitations ground without addressing the district court’s
decision or the ultimate merits of Nader’s theory of the case.
So ordered.