Mike Lindell has finally filed his lawsuit against Dominion voting machines. This was the long promised lawsuit that Lindell claimed would have Trump back in the White House. A review of the lawsuit inexplicably finds that the requested relief does not include seeking that the judge reinstate Trump to the Presidency. Rather, Lindell seeks $1.6 billion from Dominion, the same amount it sued him for.

Also missing is a single shred of evidence, or even any specific assertion, that Dominion machines miscounted, fraudulently counted, changed the votes of, etc, even a single ballot.  Rather, the Complaint asserts that all of Lindell’s attacks on Dominion as a fraudulent actor were justified primarily because:

1.  Dominion acquired a company, that previously acquired a company that once had vote counting software problems over a decade ago.

2.  In October 2020 a Georgia judge found that Dominion’s machines were susceptible to being hacked by outside actors.  No evidence that Dominion’s machines were actually hacked by outside actors is provided or even alleged.  

Rather than asserting fraud, which would have to be pled with particularity, this lawsuit mostly suggests that Dominion is simply not good at making its machines secure and maybe, just possibly, somebody  might have hacked them.  It does not allege deliberate fraud by the company as Lindell repeatedly did.  Nor does the lawsuit mention at all that Georgia verified the Dominion machine count with 100% hand count audit of the paper ballots.  

Lindell’s primary cause of action in this case is rooted in a legally infirm premise, that Dominion is an arm of the government, a state actor.  The argument is that since Dominion (a private company) provides voting machines to states, that this means it is performing a government function.  In the words of the Complaint, “as a result of Dominion’s contracts with government entities, it is delegated responsibility to administer public elections—a core governmental function.”

This premise is essential to much of the rest of the lawsuit because the primary cause of action asserted by Lindell is that by suing him for defamation, and otherwise trying to get him to stop telling lies about Dominion, that Dominion has attacked his rights of free speech.  Lindell claims this creates a cause of action under 18 U.S.C. § 1983 which allows those who have suffered loss of their civil rights under color of state authority to sue the state actors responsible.  The law expressly states that denying someone their privileges under the Constitution (such as free speech) is an infringement of their civil rights.  

But what must a private company do to rise to being a state actor for purposes of § 1983?  The Supreme Court directly addressed this question in the case of Lugar v. Edmonson Oil Company (1981).  The court found a private company becomes a state actor only “when there is a usurpation or corruption of official power by the private litigant.”

Not only does Lindell provide no evidence of such “corruption of official power” by Dominion, he does not even allege it.  For this reason, his Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6).  Under this rule a facially deficient complaint must be dismissed when, even presuming the well pled facts within it to be true, those alleged facts fail to state a cause of action for which the court can grant relief.  Since under the facts alleged Dominion is, by law, not a state actor the Complaint’s causes of action based on it being a state actor should be dismissed.  

Lindell claims that with this lawsuit he will now get full discovery against Dominion and prove the massive fraud he claimed in his defamatory allegations.  There are two things wrong with that: 

1. Dismissal under 12(b)(6) occurs before any discovery occurs.  Why allow discover when the Complaint as written cannot win regardless of what is found? 

2. Whatever rights to discovery Lindell would get by this lawsuit he already has because of Dominion’s defamation suit against him.  Discovery goes both ways and as the Defendant in that case Lindell certainly has a right to any discovery reasonably aimed at showing that his claims against Dominion are actually true.  

I can see the headlines now, “Mike Lindell Loses My Pillow Case.”  

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