But Not for the Torrential Rains, Captain Bligh Would Have Died of Thirst, Lacking Fresh Drinking Water, and Would Have Been DEPRIVED A PROSECUTION! Who Gave Him a Sex Tent? I Mean Sextant. LOL
Bligh Was Probably Mapping Unchartered Islands to Assist His Task Force on Return to Pitcairn Island, and Be Like, "Jesus Shall Be Arriving Directly, Having Been Detained".
Co
unty of Arlington
Count One: Virginia Freedom of Information Act
1. Paragraphs 1 to 164 are incorporated by reference.
2. In accordance with Va. Code § 2.2-3704(A), with few exceptions, “all public records shall be open to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth during the regular office hours of the custodian of such records”, and “[a]ccess to such records shall be provided by the custodian in accordance with this chapter by inspection or by providing copies of the requested records, at the option of the requester.”
3. In accordance with Va. Code § 2.2-3704(B)(3), “[a]ny public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester”, or, in this instance, inform the requester in writing that “[t]he requested records could not be found or do not exist”; “[h]owever, if the public body that received the request knows that another public body has the requested records, the response shall include contact information for the other public body.”
4. Yet, on or about March 15, 2023, Respondent The County had advised Affiant that it possessed no records regarding the cost of dispatching four patrol cars and almost two dozens law enforcement officers to his former residence, and the “proffered explanation is unworthy of credence”, Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248 (1981), while “[f]ailure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of this chapter.” Va. Code § 2.2-3704 (E)
5. In accordance with Va. Code § 2.2-3713(A), “[a]ny person, including the attorney for the Commonwealth acting in his official or individual capacity, denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction, supported by an affidavit showing good cause”, and “[s]uch petition may be brought in the name of the person notwithstanding that a request for public records was made by the person's attorney in his representative capacity.”
6. In accordance with Va. Code § 2.2-3713(A)(1), “[i]n a case involving a local public body,” a plaintiff is authorize to present a complaint “to the general district court or circuit court of the county or city from which the public body has been elected or appointed to serve and in which such rights and privileges were so denied;” however, as in evidence at Exhibit FF, in denial of equal protection and due process, Affiant has been banned from filing pleadings with the Arlington County judiciary.
7. According to the Department of Justice (DoJ), “Courts have no authority to grant relief in the nature of mandamus if the plaintiff has an adequate legal remedy aside from mandamus,” Staff, “215. Mandamus,” DoJ, https://www.justice.gov/jm/civil-resource-manual-215-mandamus (accessed April 17, 2023) (citing U.S. ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540 (1937); Spielman Motor Co. v. Dodge, 295 U.S. 89 (1935); Whittier v. Emmet, 281 F.2d 24 (D.C. Cir. 1960); Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973); Lovallo v. Froehlke, 468 F.2d 340 (2d Cir. 1972), cert. denied, 411 U.S. 918 (1973), and “[m]andamus does not supersede other remedies; it only comes into play when there is a want of such remedies.” Id. (citing Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969), cert. denied, 397 U.S. 941 (1970)).
Count Two: Section 1983
8. Paragraphs 1 to 171 are incorporated by reference.
9. Affiant’s civil rights have been violated, having been deprived of information to which he is rightfully entitled under the VFOIA, Va. Code 2.2-3700, et seq., entitling him to redress in an award of attorney fees, under 42 U.S.C. §§ 1983 and 1988.
10. As observed in Doe v. Tangipahoa Par. Sch. Bd., 631 F. Supp. 2d 823 (E.D. La. 2009) “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”, id. (quoting Elrod v. Burns, 427 U.S. 347 (1976)), and, as noted above, is a political candidate, and it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office”, Monitor Patriot Co., 401 U.S., at 265, entitled to the requested information, mindful that “no public body shall be required to create a new record if the record does not already exist”, Va. Code 2.2-3700(D), and acknowledging that “[n]o public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body.” Va. Code 2.2-3700(F).
11. Moreover, at least with regard to the issue of abortion, it has been said that, under Roe v. Wade, 410 U. S. 113 (1973), “the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), and, such that the legislature has provided that, “[a]n information may be filed by the attorney for the Commonwealth based upon a complaint in writing verified by the oath of a competent witness”, Va. Code § 19.2-217, “[b]ecause of the stringent standard of proof the law imposes upon the prosecution, [finders of fact] must acquit unless they find each element of the crime charged to have been proved beyond a reasonable doubt.” Ellison v. Commonwealth, 273 Va. 254 (2007), and, just as a defendant “cannot claim a violation of his Sixth Amendment rights by reason of delays of his own making”, U.S. v. Terrack, 515 F.2d 558 (9th Cir.1975), as noted above, under 18 U.S.C. § 1519, “[w]hoever knowingly. . . conceals, covers up, falsifies, or makes a false entry in any record. . . with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States. . . , shall be fined under this title, imprisoned not more than 20 years, or both.”
12. Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
13. Moreover, under 42 U.S.C. § 1988(b),
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 12361 of title 34, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
14. This controversy arises consequent to a violation of Affiant’s constitutional rights, and Affiant is entitled to such relief as deemed proper under 42 U.S.C. § 1983 and 1988(b).
Count Three: Section 1985
15. Paragraphs 1 to 178 are incorporated by reference.
16. Pursuant to 42 U.S.C. § 1985(3), “[i]f two or more persons in any State or Territory conspire. . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person. . . as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators”.
17. And, as averred above, regarding the denial of a statutory right, Affiant avers a direct and actual injury, as detailed above, entitling him to relief under 42 U.S.C. § 1985(3).
18. And, in accordance with 42 U.S.C. § 1986, “[e]very person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action” (emphasis added), while, under Fed.R.Crim.Pro. 6(a), “[w]hen the public interest so requires, the court must order that one or more grand juries be summoned.”
Election Officials
Count One: Civil Conspiracy
19. Paragraphs 1 to 182 are incorporated by reference.
20. As noted above, “’[u]nder Virginia law, the elements of a common law civil conspiracy are (i) an agreement between two or more persons (ii) to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means, which (iii) results in damage to plaintiff’ through an overt action done pursuant to the agreement”, Marcantonio, 155 F. Supp. 3d, at 619 (quoting William, 28 F.Supp.3d, at 553) (citing Skillstorm, Inc., 666 F.Supp.2d, at 610)), and clear and convincing evidence establishes that John O’Bannon, in individual capacity and in official capacity, as Chairman, along with SBE, and Gretchen Reinemeyer, in individual and in official capacity, as Registrar, along with ACEB, did, in fact, conspire to impede the efforts of Affiant to qualify for the November ballot, engaging in a Ponzi Scheme, first accepting signed petitions, completed in accordance with Va. Code § 24.2-521(B)(4), in Arlington at ACEB in January, and then invalidating previous petitions, on the patently false rational that they were required to be delivered to SBE in Richmond, constituting a civil conspiracy and violation of rights guaranteed under the Fourteenth and Fifteenth Amendments, and, worse, “to the detriment of the public.” Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011).
21. As noted above, under 18 U.S.C. § 242, “[w]hoever, under color of any law, . . . willfully subjects any person. . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. . . on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both.”
22. As noted above, Election Officials did further invalidate signed petitions, completed in accordance with Va. Code § 24.2-521(B)(4), on the rationale that it was a fatal defect to identify the district in which the signatories resided as the 49th House District, not the Third House District, while permitting Respondent Lopez to solicit donations, totalling $72,061.00, on January 1, 2022, Staff, “Lopez for Delegate -Alphonso,” supra, while representing to the public that he was seeking election in the 49th House District, a representation of a material fact, known to be false, with intent to mislead, resulting in unfair competition, and accruing, therefor, an unjust enrichment, where all parties presumably “expressly agreed to be bound by the express contract”, involving “the same subject matter” and sharing presumptively the same rights, Park Eldenwood Assoc. v. Firestone Capital Corp., 26 Va. Cir. 70 (1991).
23. “To state a claim for quantum meruit recovery under Virginia law, the plaintiff must establish three elements: (1) a benefit received by the defendant from the plaintiff; (2) knowledge of the benefit by the defendant; and (3) the defendant’s acceptance and/or retention of the benefit without remuneration to the plaintiff would be inequitable, leading to unjust enrichment.” Gutterman Iron & Metal Corp. v. Figg Bridge Developers, LLC, 82 Va. Cir. 304 (2011) (citing Centex Constr. v. Acstar Ins. Co., 448 F.Supp.2d 697 (E.D.Va.2006); Nossen v. Hoy, 750 F.Supp. 740 (E.D.Va.1990) (citations omitted); E.E. Lyons Constr. Co. v. TRM Dev. Corp., 25 Va. Cir. 352 (1991)).
24. “Virginia certainly recognizes claims for quantum meruit recovery based upon an implied contract between the parties”, Id. (citing Marine Dev. Corp. v. Rodak, 225 Va. 137 (1983); Kern v. Freed Co., 224 Va. 678 (1983) (citations omitted)); however, “’[a]t the demurrer stages, it is too early to determine whether there is an adequate remedy at law’ that would prelude quantum meruit recovery”, Id. (quoting Elegant Homes of Va., Inc. v. Boberski, 70 Va. Cir. 377 (2006) (Charlottesville City) (citing Faulknier v. Shafer, 264 Va. 2107 (2002)), while Affiant avers that the equitable result would recognize the same definition regarding a material, or immaterial, defect to apply equally to both parties to the election related transactions.
Count Two: Declaratory Relief
25. Paragraphs 1 to 188 are incorporated by reference.
26. Under 28 U.S.C. § 2201(a), “[i]n a case of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought”, and “[a]ny such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.”
27. With regard to Respondent Election Officials, “By. . . [their] conduct, as disclosed by the record, the [respondent]. . . is estopped from questioning the verity of the record.” Hill v. Woodward, 78 Va. 765 (1884).
28. Their “evident knowledge of the pendency of this suit and its object, . . . [their] seeming acquiescence, and. . . delay and refusal to speak, though not served with notice in the regular way, makes it proper for. . . [them] to remain silent now that others have acquired rights while. . . [they were] standing by in silence, if not in actual acquiescence.” Id.
29. “It was not only competent for. . . [them] to speak in time and be made a party if. . . [they] had not been, but it was. . . [their] duty.” Id.
30. Accordingly, in declaratory relief, Affiant seeks a declaration regarding his qualification for the November ballot, having presented the required number of valid signatures, in accordance Va. Code § 24.2-506, retroactively applied to reflect the date upon which he had qualified.
Count Three: Injunctive Relief
31. Paragraphs 1 to 194 are incorporated by reference.
32. But not for extenuating circumstances, described above, pursuant to Va. Code § 16.1-77(6), pertaining to General District Courts, “[j]urisdiction to try and decide any cases pursuant to § 2.2-3713 of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) or § 2.2-3809 of the Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq.), for writs of mandamus or for injunctions.”
33. Moreover, in the ordinary course, pursuant to Va. Code § 8.01-184, “[i]n cases of actual controversy, circuit courts within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed and no action or proceeding shall be open to objection on the ground that a judgment order or decree merely declaratory of right is prayed for.”
34. Furthermore, in the ordinary course, pursuant to Va. Code § 8.01-620, “[e]very circuit court shall have jurisdiction to award injunctions, including cases involving violations of the Uniform Statewide Building Code, whether the judgment or proceeding enjoined be in or out of the circuit, or the party against whose proceedings the injunction be asked resides in or out of the circuit”, and, accordingly, this case would be presented properly before that court, under Va. Code § 8.01-184.
35. It has been restated by many courts that “the granting of an injunction is an extraordinary remedy and rests on sound judicial discretion to be exercised upon consideration of the nature and circumstances of a particular case.” Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44 (2008)).
36. However, “if ‘the loss entailed upon. . . [the defendant] would be excessively out of proportion to the injury suffered by. . . [the plaintiff], or a serious detriment to the public, a court of equity might very properly ... deny the injunction and leave the parties to settle their differences in a court of law.” Levisa Coal Co., 276 Va. at 44 (citing Clayborn v. Camilla Red Ash Coal Co., 128 Va. 383 (1920)).
37. Under principles of equity, an injunction is a remedy “by which a court tells someone what to do or not to do,” eBay Inc. v. MercExchange, L. L.C., 547 U.S. 388 (2006), and it plainly is “never awarded as of right.” Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).
38. Although the Virginia Supreme Court has not yet articulated a standard regarding the grant of injunctions, the Courts of the Commonwealth had generally adhered to the rules promulgated by the federal courts in Blackwelder Furniture Co. v. Seilig Mfg Co., Inc., 550 F.2nd 189 (4th Cir. 1977), which applied a balancing test of four factors, i.e. the likelihood of irreparable harm to the plaintiff if a preliminary junction is not granted, the likelihood of harm to the defendant if the preliminary injunction is granted, the likelihood that the plaintiff will prevail on the merits, and the public interest, but at least one Commonwealth Court has rejected the balancing test, making mandatory the presence of all the enumerated factors. Real Truth About Obama, Inc. v. Fed. Elec. Com., 575 F.3d 342 (4th Cir. 2009) (citing Winter, 129 S. Ct., at 365.)
Irreparable Harm
39. Paragraphs 1 to 202 are incorporated by reference.
40. “The highest standard, strict scrutiny, applies where ‘[w]here certain ‘fundamental rights’’ are involved, and requires that legislation or actions ‘limiting these rights may be justified only by a ‘compelling state interest,’’ requiring legislation and action ‘must be narrowly drawn to express only the legitimate state interests at stake.’” Hawkins v. Grese, 68 Va. App. 462 (Va. Ct. App. 2018) (quoting Roe v. Wade, 410 U.S. 113 (1973).
41. Furthermore, “[s]uch fundamental rights include not only those listed in the Bill of Rights but additional implied rights protected by the Fourteenth Amendment”. Id.
42. Yet further, “[a] statute challenged on equal protection grounds is evaluated under ‘strict scrutiny’ if it interferes with a ‘fundamental right’ or discriminates against a ‘suspect class’”, Gray v. Commonwealth, 274 Va. 290 (Va. 2007) (quoting Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988)), and Affiant is, by birth, a Negro. But see Marianna Sotomayor and Mike Memoli, “Biden apologizes for saying African Americans ‘ain’t black’ if they back Trump re-election,” NBC News, May 22, 2020.
43. In the alternative, “a statute will ordinarily survive an equal protection challenge if ‘the challenged classification is rationally related to a legitimate governmental purpose.’” Gray, 274 Va., at 290 (quoting Kadrmas, 487 U.S. at 458 (“rational basis” test)), and employing either of which analysis, a reasonable trier of fact would find for the Affiant, upon the facts of record.
44. Since on or about January 1, 2023, to the present, Respondent Election Officials have acted in conspiracy to obstruct, hinder and prevent Affiant’s attempts to qualify for the ballot, in deprivation of a codified right of any qualified resident of the Commonwealth to do so, pursuant to Va. Code § 24.2-506, and in deprivation of rights to all citzens of the United States under the Fourteenth and Fifteenth Amendments.
45. Whether in a Balanced Factor jurisdiction or a Four-Prong Test jurisdiction, the most insurmountable obstacle for a Plaintiff to overcome in a petition for temporary injunction is ‐15‐ to persuade a reviewing court that irreparable injury has been sustained, and, it has been stated, “Speculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant.” U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001) (citation omitted).
46. It is insufficient to allege that “the harm will occur only in the indefinite future,” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86 (3d Cir. 1992), or much less if there is just a “mere possibility,” Winter, 129 S. Ct. 365, and “the moving party. . . [has made] a clear showing of immediate irreparable harm,” Campbell Soup Co., 977 F.2d, at 86, as time is of the essence, particularly under the presently indefinite restriction on civil liberties.
47. Causes of action importing petitions for injunctive relief, traditionally have been most prevalent and most successful in the intellectual property jurisprudence of trademark, patent and copyright, where the issues revolve have revolved around the injury to reputation and goodwill, and where courts have generally recognized a presumption, favoring a greater public interest than in the case of private interests. See Carling Brewing Co. v. Phillip Morris, Inc., 277 F. Supp. 326, 335 (N.D. Ga. 1967) (“infringement of a trademark is, by its very nature, an activity which causes irreparable harm—irreparable in the sense that no final decree of a court can adequately compensate a plaintiff for the confusion that has already occurred.”). See also American Metropolitan Enterprises of N.Y. v. Warner Bros. Records, Inc., 389 F.2d 903, 905 (2d Cir. 1968); Petro Franchise Sys. v. All Am. Properties, 607 F. Supp. 2d 784, 793-96 (W.D. Tex. 2009).
48. As observed in Tangipahoa Par. Sch. Bd., 631 F. Supp., 2d, at 823 “[t]he
loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”, Id.. (quoting Elrod, 427 U.S., at 347).
49. Moreover, a deprivation of a substantive right has been recognized as an irreparable harm within this Circuit, Cohen v. Rosenstein, 691 F. App’x 728, (Mem)–730 (4th Cir. 2017).
50. Under the FOIA, a district court “has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant”, 5 U.S.C. § 552(a)(4)(B), just as under the FACE Act, a “court may award appropriate relief, including temporary, preliminary or permanent injunctive relief”, 18 U.S.C. § 248(c)(1)(B), none of which have been awarded during past actions, dismissed without prejudice, while courts have at least said, perhaps in mere dicta, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”, Tangipahoa Par. Sch. Bd., 631 F. Supp. 2d, at 823 (quoting Burns, 427 U.S., at 347).
Public Interest
51. Paragraphs 1 to 214 are incorporated by reference.
52. To satisfy the constitutional muster, as noted above, the challenger must establish that no set of circumstances exists under which the Act would be valid,” McCullen v. Coakley, 573 F. Supp. 2d 382 (D. Mass. 2008), aff’d, 571 F.3d 167 (1st Cir. 2009) (quoting U.S. v. Salerno, 481 U.S. 739 (1987).
53. The Constitution is not suspended, not even for the worst emergency, in a rule of law, and “’if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution’”. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (quoting Mugler v. Kansas, 123 U. S. 623 (1887); Minnesota v. Barber, 136 U. S. 313 (1890); Atkin v. Kansas, 191 U. S. 207 (1903)).
54. No set of circumstances, nor even any rational basis determination, exists to justify the conduct of the Election Officials in attempts to thwart the qualification for the November ballot, particularly in a municipality where it has been recognized that “[o]nslaught, commando, and scorched earth come to mind”, and that “[t]hose are usually employed in relation to the fall campaign when yet another Republican, an ‘independent’ who is really a Republican, or a real independent (often a pesky candidate who finds a way onto the ballot almost every year) is about to be drubbed in an election in the small but intensely political county just across the Potomac from the nation’s capital.” Cragg Hines, “Arlington Dems Pour It On, Boost ‘Regular’ Dem Mary Kadera to Big Victory in School Board Caucus Over “Insurgent Candidate,” supra.
Prejudice to Defendants
55. Paragraphs 1 to 218 are incorporated by reference.
56. As in the matter, Schlegel v. Bank of Am., N.A., 505 F. Supp. 2d 321 (W.D. Va. 2007), in capacity of a candidate committee, Affiant’s “complaint alleges that Defendant[s] ha[d] conspired to injure Plaintiff in his business, trade, or reputation and, therefore, that Defendant has violated Virginia Code § 18.2–499.” Id.
57. “Under Virginia Code § 18.2–500, ‘[a]ny person who [is] injured in his reputation, trade, business or profession by reason of a violation of § 18.2–499’—Virginia’s conspiracy statute—may seek relief in a civil court.” Schlegel, 505 F. Supp. 2d, at 321 (quoting Va.Code Ann. § 18.2–500 (West 2007)).
58. “In turn, the relevant portion of Virginia Code § 18.2–499 imposes liability on “[a]ny two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of ... willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever....” Schlegel, 505 F. Supp. 2d, at 321 (quoting Va.Code Ann. § 18.2–499 (West 2007)).
59. “To ultimately prevail under the Virginia conspiracy statute, a plaintiff must prove by clear and convincing evidence the following elements: (1) concerted action; (2) legal malice; and (3) causally related injury.” Id. (citing Va. Vermiculite, Ltd. v. W.R. Grace & Co.—Conn., 144 F.Supp.2d 558 (W.D.Va.2001), aff’d on other grounds sub nom., Va. Vermiculite, Ltd. v. Historic Green Springs, Inc., 307 F.3d 277 (4th Cir.2002). See also Multi–Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 108 F.3d 522 (4th Cir.1997).
60. “’Concerted action’ reflects the statutory requirement that a plaintiff ultimately prove that someone ‘combined, associated, agreed, mutually undertook, or concerted together’ with someone else in the injurious conduct.” Id. (citing Va.Code Ann. § 18.2–499 (West 2007); Simmons v. Miller, 261 Va. 561 (2001)).
61. “This means that a plaintiff must prove that the defendants ‘combined together to effect a preconceived plan and unity of design and purpose’,” Id. (quoting Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F.Supp.2d 483, 499 (E.D.Va.2003) (internal quotation marks omitted)), with the “common design” described as “the essence of the conspiracy.” Ibid. (quoting Id.)
62. “To survive a motion to dismiss, then, a plaintiff ‘must at least plead the requisite concert of action and unity of purpose,’ id., and must do so ‘in more than mere conclusory language.” Ibid. (quoting Id.) (internal quotation marks omitted)
63. “’Legal malice’ requires showing ‘that the defendant acted intentionally, purposefully, and without lawful justification’ to injure the plaintiff”, Id. (quoting Simmons v. Miller, 261 Va. 561 (2001)), and “[a] plaintiff need not prove that the defendant’s primary and overriding purpose was to injure the plaintiff's reputation, trade, or business, but, importantly, the plaintiff must prove that such a purpose was at least one of the purposes of the conspiracy.” Ibid. (citing Id.)
64. Affiant avers that, as had been his experience as still the record holder for challenger votes by a challenger in New Jersey’s 31st Legislative District, opposing the former Assembly Speaker and Mayor of Bayonne, it was the purpose, through delay, of the conspiracy to prevent Affiant from attaining the “pole position”, appearing on the ballot with the other Arlington Democrats, who, as informed voters did in Bayonne, voted for Affiant rather than their own mayor, and requiring a massive Get Out the Vote (GOTV) effort by Arlington Democrats on Election Day, as they had mobilized against him in his 2017 race for the Arlington Public School Board, an illegitmate and unlawful purpose for Respondent Election Officials.