19

- 2211 Tafuto v. Donald J. Trump for President


## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 21 st da y of September , two thousand twenty

. 3 4 PRESENT: 5 ROBERT D. SACK , 6 ROBERT A. KATZMANN , 7 RICHARD C. WESLEY , 8 Circuit Judges. 9

_____________________________________ 10 11 Louis Tafuto , 12 13 Plaintiff

- Appellant , 14 15

v. 19

- 2211 16 17 Donald J. Trump for President Inc. , Republican 18 National Committee, RNC, Reinhold Richard 19 Priebus, AKA Reince Priebus, Donald John 20 Trump, Kellyanne Conway, Michael Richard 21 Pence , 22 23 Defendant s -

Appellee s , 24 25 Michael R i chard Pence , 26 27 Defendant. 28

_____________________________________ 29 30 31 FOR PL AINTIFF

- APPELLANT: Louis Tafuto , pro se, Warwick, NY

. 32FOR DEFENDANT S

- APPELLEE S : Lawrence S. Rosen, Patrick McPartland, Jared 33 E. Blumetti, LaRocca Hornik Rosen & 34 Greenberg LLP, New York, NY

. 35 36
Appeal from a judgment of the United States District Court for the Southern District of 37

New York ( Swain
, J

. )

. 38

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 39

DECREED that the judgment of the district cour t is AFFIRMED

. 40
Appellant Louis Tafuto , pro se , sues Donald J. Trump for President, Inc., Donald Trump, 41
Reinhold Richard (“Reince”) Priebus, the Republican National Committee, Michael Pence, and 42
Kellyanne Conway under 42 U.S.C. §§ 1983 and 1985 and Bivens v. Six Unknown Named Agents 43
of Federal Bureau of Narcotics , 403 U.S. 388 (1971), alleging violations of the First, Fifth, and 44

Fourteenth Amendment s and the New York Fair Campaign Code. He alleg es that the defendants 45
engaged in a “digital gerrymandering” campaign to “ dilute ” anti

- Trump votes by knowingly 46
spreading Russian

- backed disinformation in Democratic strongholds and swing states during the 47
2016 presidential election

. 48

The district court dismissed the suit for lack of standing, ruling that Tafuto ’s injury was 49

too generalized and that he had not established causation between the Trump campaign’s alleged 50

actions and the election result. The district court then denied Tafut o ’s Fed eral R ule of Civ il 51

P rocedure 59(e) motion for reconsideration

. This appeal followed. 52
We review the district court’s dismissal of a complaint for lack of standing de novo

. 53
Cortlandt St. Recovery Corp. v. Hellas Telecomms. S.À.R.L.

, 790 F.3d 411, 4 17 (2d Cir. 2015). At 54
the pleading stage, we “accept as true all material allegations of the complaint
, and construe the 553 complaint in favor of the complaining party

. ” Pennell v. City of San Jose , 485 U.S. 1, 7 (1988)

. 1 1

We review the denial of a Rule 59(e) motion for abuse of discretion. 2 Munafo v. Metro. Transp. 2

Auth. , 381 F.3d 99, 105 (2d Cir. 2004)

. 3

To establish standing, a plaintiff must demonstrate, first, an injury in fact

— “an invasion of 4
a legally protected inte rest which is (a) concrete and particularized, and (b) actual or imminent, 5
not conjectural or hypothetical” ; second, “ a causal connection between the injury and the conduct 6

[ he ] complain [ s ] of ” ; and third, that it is “ likely, as opposed to merely speculati ve, that the injury 7
will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 560

– 61 8

(1992). 9
After careful review of the briefs and record on appeal, we find that the district court 10
properly held that Tafuto does not assert an injury in fact that is concrete and particularized. “For 11
an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Spokeo, 12

Inc. v. Robins , 136 S. Ct. 1540, 1548 (2016). In contrast, “when the asserted harm is a generalized 13
grievance shared in substantially equal measure by all or a large class of citizens, that harm alone 14
normally does no t warrant exercise of jurisdiction.” Warth v. Seldin , 422 U.S. 490, 499 (1975 ) ; 15

1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.

2 Tafuto’s notice of appeal refers only to the denial of his Rule 59(e) motion. However, we construe pro se notices of appeal “liberally, taking the parties’ intentions into account.” Shrader v. CSX Transp., Inc. , 70 F.3d 255, 256 (2d Cir. 1995). Because T afuto’s brief on appeal addresses both the dismissal order and the denial of the Rule 59(e) motion, and because his notice of appeal is timely as to both, see Fed. R. App. P. 4(a)(4)(iv) ; Fed

. R. Civ. P. 59(e), we evaluate each of these decisions.4 see also Crist v. Comm’n on Presidential Debates , 262 F.3d 193, 195 (2d Cir. 2001) ( “[A] voter 1
fails to present an injury

- in

- fact when the alleged harm is abstract and widely s hared

. . . . ”). Here, 2

Tafuto asserts that defendants’ digital gerrymandering campaign diluted anti

- Trump votes and 3
resulted in his vote “not carry[ing] equal weight to that of other citizens voting in the same 4

election.” B ut these allegations assert an in jury that was generalized and widely shared by millions 5

of voters

. T he district court therefore did not err in determining that Tafuto did not suffer a 6
cognizable injury

- in

- fact. 7

Tafuto further argues that Gill v. Whitford , 138 S. Ct. 1916 (2018), supports his argument 8
that he properly alleged standing. But Gill is inapposite

. Gill held that partisan gerrymandering 9
can constitute a cognizable injury for standing purposes when the plaintiff lives in a gerrymandered 10
legislative district, but the Court specifi cally declined to extend its holding beyond the legislative 11

district level , reasoning that the dilution of plaintiffs’ votes was “district specific” and that “[a] 12
plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, 13

assert s only a generalized grievance against governmental conduct of which he or she does not 14
approve.” Id

. at 1930. Gill , therefore, does not support Tafuto’s assertion of a concrete and 15
particularized injury. 16

As to causation, we a lso hold that the district court properly concluded that Tafuto does 17
not allege an injury that is fairly traceable to the defendants ’ challenged conduct. Lujan , 504 U.S. 18

at 560. Tafuto asserts that Trump’s 2016 campaign insiders have effectively admitted i n media 19
interviews that the strategies that Tafuto here challenges resulted in Trump’s victory. But the 20
district court correctly cited Davis v. Garcia, No. 07

- cv

- 9897 (CLB), 2008 WL 2229811 (S.D.N.Y. 215 May 27, 2008)
, to find that Tafuto does not allege suffi cient non

- conclusory facts to establish 1

causation. In Davis , a n African American incumbent candidate who had lost reelection claimed 2
that the defendants, county and federal officials and agencies, diluted the votes of minority voters 3
by conducting a “ widel y publicized, racially motivated ” raid of two city administrative offices 4
shortly before the election. Id. at *3. The court rejected the voter dilution argument, reasoning that 5
“[t]he endless number of diverse factors potentially contributing to the outcom e of elections 6
forecloses any reliable conclusion that voter support of a candidate is fairly traceable to any 7
particular event,” and that it “would have to accept a number of very speculative inferences and 8
assumptions” to find causation between the defen dants’ conduct and the plaintiff’s election loss. 9

Id. at *5. Here, the district court properly relied on Davis for the truism that numerous factors can 10

influence election outcomes

— factors that undercut Tafuto’s causation argument

. 11

We further hold that the district court did not abuse its discretion in denying Tafuto’s Rule 12

59(e) motion . For substantially the same reasons as above, Tafuto cannot demonstrate that the 13

district court overlooked controlling decisions or facts

. We have also reviewed the remainder of 14

Tafuto ’s arguments and find them to be without merit. For the foregoing reasons, we AFFIRM 15

the judgment of the district court

. 16

17 FOR THE COURT: 18 Catherine O ’ Hagan Wolfe, Cler k of Court 19