Klayman v. Judicial Watch, Inc.
Klayman v. Judicial Watch, Inc.
Opinion of the Court
Plaintiff seeks reconsideration of this Court's [433] Order and [434] Memorandum Opinion denying leave to amend his Second Amended Complaint ("SAC"). ECF No. 440. Upon consideration of the briefing,
I. BACKGROUND
At the risk of repetition, some of the Court's prior decision warrants repetition to emphasize certain exigencies of this case. As the Court discussed in its January 19, 2018, opinion, this case was docketed nearly twelve years ago, and trial on the parties' remaining claims is scheduled for February 26, 2018. See Jan. 19, 2018 Mem. Op. at 1. That opinion also recites, in part, the string of this Court's prior rulings that have found, in summary, that Plaintiff's only remaining claims in this case are certain of his allegations of breach of contract asserted in Counts Seven and Eight of his SAC. Id. at 2 (citing Mem. Op. and Order, ECF No. 401 ("June 15, 2017 Mem. Op. and Order"), at 3 (citing Klayman v. Judicial Watch, Inc. ,
(1) Defendants' alleged failure to make a good faith effort to remove Plaintiff as guarantor of a lease for Judicial Watch's headquarters;
(2) Defendants' failure to pay health insurance for Plaintiff's children;
(3) Defendants' filing a motion to strike Plaintiff's appearance in a Florida litigation;
(4) Defendants' failure to provide Plaintiff with access to documents regarding a client; and
(5) Defendants' alleged disparagement of Plaintiff and misrepresentations of the reasons for his departure from the organization.
Id. at 2, 7. The Court also previously determined that Plaintiff is foreclosed from pursuing damages for the tort of intentional infliction of emotional distress ("IIED") under the above-described allegations that remain. Id. at 2 (citing June 15, 2017 Mem. Op. and Order at 5, 19). The Court rejected Plaintiff's argument that the tort of *212IIED "merged" with his existing breach of contract claims, such that he could recover damages for emotional distress under the latter claims. June 15, 2017 Mem. Op. and Order at 15-19. Plaintiff's remaining allegations did not meet the threshold requirement for such a merger under District of Columbia case law, namely that they be tortious independent of the existence of the contract. Id. at 16-19 (citing Choharis v. State Farm Fire & Cas. Co. ,
After the Court ruled on June 15, 2017, that Plaintiff could not recover for the tort of IIED under the operative SAC, Plaintiff sought the Court's permission to amend the SAC to add a claim for the tort of IIED. Order, ECF No. 402, at 3. Despite the Court's indication on several occasions that such a request "would be met with extreme skepticism by this Court, given the stage of proceedings in this matter, and the likely futility of such a claim," the Court granted Plaintiff's request. Id. (quoting June 15, 2017 Mem. Op. and Order at 15) (internal quotation marks omitted). After an extension, Plaintiff filed his [407] Motion for Leave to Amend the Second Amended Complaint ("Motion to Amend") on July 18, 2017. The Court denied Plaintiff's [407] Motion in its [433] Order and [434] Memorandum Opinion of January 19, 2018, and Plaintiff filed the present [440] Motion for Reconsideration on January 30, 2018. Plaintiff's [440] Motion for Reconsideration was opposed and fully briefed by February 12, 2018.
II. LEGAL STANDARD
A. Motion to Amend
For ease of reference, the Court recalls the standard that it applied when ruling on Plaintiff's [407] Motion to Amend. In cases where plaintiffs have already amended their complaint, Federal Rule of Civil Procedure 15(a)(2) provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave [and] [t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2) ; see Willoughby v. Potomac Elec. Power Co. ,
"When evaluating whether to grant leave to amend, the Court must consider (1) undue delay; (2) prejudice to the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff has previously amended the complaint." Howell v. Gray ,
"Because amendments are to be liberally granted, the non-movant bears the burden of showing why an amendment should not be allowed." Abdullah v. Washington ,
B. Motion for Reconsideration
Under Federal Rule of Civil Procedure Rule 54(b), "any order ... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). As it has before, the Court again shares the view in this district that a Rule 54(b) motion may be granted "as justice requires." E.g., Coulibaly v. Tillerson , Civil Action No. 14-189,
"In general, a court will grant a motion for reconsideration of an interlocutory order only when the movant demonstrates: '(1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order." Zeigler v. Potter ,
However, "motions for reconsideration ... cannot be used as an opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle *214for presenting theories or arguments that could have been advanced earlier." Estate of Gaither ex rel. Gaither v. District of Columbia ,
C. Interlocutory Appeal
A district judge may certify a non-final order for appeal if it "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."
III. DISCUSSION
A. Motion for Reconsideration
1. Plaintiff's Attempt to Recover for IIED Under the Second Amended Complaint
At the threshold, the Court rejects Plaintiff's attempt to relitigate this Court's June 15, 2017, decision that Plaintiff is unable to pursue damages for the tort of IIED under his remaining breach of contract claims. Plaintiff's present motion instead seeks reconsideration of this Court's January 19, 2018, decision on his [407] Motion to Amend. In the course of reaching its January 19, 2018, decision, the Court found it necessary to recall the premise for Plaintiff's request to introduce an IIED claim, namely the Court's finding that he could not recover damages for the tort of IIED on the basis of the operative SAC. Justice does not require permitting Plaintiff now to use this Court's supporting reference to its June 15, 2017, decision as a lever to obtain reconsideration of that decision more than seven (now eight) months later. Even if Plaintiff's attempt to revisit that decision were timely, his re-hashing of the "merger" doctrine does not demonstrate any "clear error" of law by this Court.
2. Plaintiff's Attempt to Add an IIED Claim
Now the Court turns to Plaintiff's objection to its decision to deny his motion to amend the SAC. Of the bases for filing a motion for reconsideration, Plaintiff asserts that the Court has committed a "clear error" of law. Mot. for Recons. at 2. But again the Court is unpersuaded that it committed legal error when it considered the undue delay, prejudice, and futility of the proposed amendment, together with Plaintiff's two previous amendments, and, without reaching the bad faith factor, denied Plaintiff's motion to amend in an exercise of its discretion. See Jan. 19, 2018 Mem. Op. at 4-7 (quoting Howell v. Gray ,
Plaintiff quibbles about the rationale for delays in this case. See Mot. for Recons. at 1, 8-9. While the Court could address the long timeline in detail, in the Court's view the reasons for delays in this case are irrelevant to the present issue. The fact of the matter is that more than eleven years elapsed between Plaintiff's filing of his [1] Complaint on April 12, 2006, and his efforts to add an IIED claim in his [407] Motion to Amend on July 18, 2017. More than eleven years also elapsed from the filing of his [12] Second Amended Complaint on June 14, 2006. Plaintiff had years to seek leave to introduce an IIED claim, which is a very specific claim for which at least a substantial part of the relevant facts occurred before the filing of this case, and all occurred long ago. By the very nature of a distress claim, Plaintiff would have been intimately aware of the facts that caused his alleged distress at the time that the distress was caused.
Only briefly shall the Court address Plaintiff's comment that a stay contributed to the delay in this case. Mot. for Recons. at 1; Reply Mem. at 2. The Court must make clear that the stay was in place for less than five of the aforementioned eleven years (October 11, 2011-May 4, 2016); Plaintiff did not move to preserve his right to seek leave to amend and add the IIED claim; and it was Defendants, not Plaintiff, who ultimately sought to lift that stay. Nor did Plaintiff quickly seek to add an IIED claim once the stay was lifted. Rather, he sought leave on July 18, 2017, to amend his SAC on the eve of trial, then planned for October 2, 2017. Apr. 20, 2017 Pretrial Hr'g Tr., ECF No. 398, at 30 ("THE COURT: .... October 2nd we'll aim for ...."); id. at 33 ("MR. KLAYMAN: .... We've got an October trial date."). Discovery had long since concluded. See "Amended" Scheduling and Procedures Order, ECF No. 60, at 2 (providing for the completion of discovery on May 15, 2008).
If the Court had granted Plaintiff's [407] Motion to Amend in January 2018, on the eve of trial rescheduled at Plaintiff's request for February 2018, see Order, ECF No. 426, then Defendants would have been significantly prejudiced in defending against his new IIED claim. At no point has Plaintiff alleged sufficient facts to put Defendants on notice of the need for discovery into this very specific claim. See, e.g. , Opp'n Mem. at 5 ("There is no identification of symptoms, sources, length, resolution, effects, etc." in "three versions of the Complaint, Answers to Interrogatories, Supplemental Answers to Interrogatories, Second Supplemental Answers to Interrogatories, Initial Disclosures, and the Joint Pretrial Statement[.]"). Instead, Plaintiff mentioned a series of unfortunate events without distinguishing which part, if any, truly was caused by Defendants' actions. See, e.g. , Mot. for Recons. at 14 (citing unrelated back injury); Mot. for Leave to Amend the Second Am. Compl., ECF No. 407, at 4 ("The termination of health insurance, in conjunction with Defendant Judicial Watch's disparagement and other outrageous conduct, his recent divorce, and the serious nature of his back injury , all worked in concert and gave rise to emotional distress, which Defendants intended to vindictively inflict." (emphasis added) ).
*216The Court accepts Defendants' quite plausible assertion that, if Plaintiff had pled an IIED claim, they would have sought a medical examination and made other efforts to test Plaintiff's claim that some cognizable portion of his emotional distress could be attributed to Defendants rather than other causes. See Opp'n Mem. at 5 (citing the "need for a delayed trial, additional discovery, expert designations, independent medical examinations, independent psychiatric examinations, additional exhibits and additional witnesses"). "[F]aded memories" and the likelihood of "lost records and evidence" would be among the many obstacles to investigating Plaintiff's IIED claim now. Id. at 6. Consequently, the Court stands by its legal ruling that the addition now of an IIED tort claim to the remaining breach of contract claims would be a substantial change in the nature of the case that would prejudice Defendants. See Jan. 19, 2018 Mem. Op. at 5-6 (citing Djourabchi v. Self ,
Adding an IIED claim would be futile for similar reasons. Plaintiff does not disagree with this Court's recitation of the elements of a prima facie case of IIED: "(1) extreme and outrageous conduct on the part of the defendant[s], which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress." Jan. 19, 2018 Mem. Op. at 6 (quoting Futrell v. Dep't of Labor Fed. Credit Union ,
Previously, the Court determined that Plaintiff's proposed Third Amended Complaint lacked the factual detail necessary to show that Defendants acted "outrageously." See Jan. 19, 2018 Mem. Op. at 6 ("Plaintiff provides nowhere near the degree of specific allegations necessary to sustain a claim that Defendants engaged in behavior 'outrageous' and 'extreme' enough 'to go beyond all possible bounds of decency.' " (quoting Futrell v. Dep't of Labor Fed. Credit Union ,
*217As for the severity of Plaintiff's alleged distress, Plaintiff's admission that he "never sought a medical expert for his extreme emotional distress," Mot. for Recons. at 11, does not help him prove how outrageous Defendants' activity allegedly was. District of Columbia "case law sets a high standard, requiring 'emotional distress of so acute a nature that harmful physical consequences might be not unlikely to result.' " Ortberg v. Goldman Sachs Grp. ,
The Court remains unconvinced that Plaintiff's IIED claim meets the plausibility standard for surviving a motion to dismiss. See Jan. 19, 2018 Mem. Op. at 6 (citing Ashcroft v. Iqbal ,
In light of the foregoing, justice does not require the Court to reconsider its decision, in an exercise of its discretion, to deny Plaintiff's [407] Motion to Amend.
3. Plaintiff's Attempt to Assert Other Claims
The Court also must dispose of Plaintiff's last-ditch efforts to make other claims that either no longer or never were a part of his case. His proposed Third Amended Complaint would not only have added an IIED claim, but also would have re-introduced all the claims that the Court previously dismissed or on which it previously granted summary judgment. The IIED claim shows up as the tenth claim in what otherwise appears to be a copy of his nine-count SAC. See Third Am. Compl., ECF No. 407-1, at 31-33. As discussed above, only parts of Counts Seven and Eight of that SAC remain viable.
Only lately has Plaintiff raised the argument that he should be able to recover for alleged defamation and tortious interference with business relationships under the non-disparagement clause of the Severance Agreement. See, e.g. , Order, ECF No. 442, at 2 (describing January 31, 2018, pretrial conference). In his [440] Motion for Reconsideration, Plaintiff made no more than a passing reference to these claims. Mot. for Recons. at 6 ("When Defendant contacted C-SPAN, CNN and other media sources, and intentionally and maliciously interfered with Plaintiff's business opportunities, disparaged and lied to them about Plaintiff, and told them not to have Plaintiff as a guest on their television or radio shows, despite the breach of the non-disparagement clause in the Severance Agreement, the colorable claims of interference with prospective business opportunities and defamation exist." (emphasis added) ). Like the discussion above of Plaintiff's argument that the tort of IIED "merged" with his remaining breach of contract claims, these fresh claims go beyond the scope of the Court's decision to deny him leave to add an IIED claim to the SAC. The Court nonetheless addresses these claims here in the interest of resolving issues expeditiously ahead of trial scheduled for February 26, 2018.
It is true that Paragraph 17 of the Severance Agreement, entitled "Non-Disparagement,"
*218prohibits not only "disparaging" but also "defamatory" remarks. Confidential Severance Agreement, ECF No. 265-1, at 9 ¶ 17. But the Court has already dismissed Plaintiff's separate defamation claim, Count Nine of the SAC, in which Plaintiff did not even cite this paragraph of the Severance Agreement. Mem. Op., ECF No. 319, at 70 ("In summary, the Court GRANTS both JW and the Individual Defendant's [sic] motions for summary judgment as to Count Nine of the Second Amended Complaint, which alleges that Defendants defamed Klayman by making allegedly false statements to JW employees and to the media."); Second Am. Compl., ECF No. 12, at 30-31.
At the January 31, 2018, pretrial conference, Plaintiff seemed to claim that the Court's summary judgment on the defamation claim did not reach the factual issues that Plaintiff has been including in his disparagement allegations. But this argument is new. In response to his [440] Motion for Reconsideration, Defendants (again) briefed defamation case law and summarily concluded that "[a]mong the categories of conduct alleged by Klayman, none qualify [sic] as defamation." Opp'n Mem. at 9-10. Yet, despite his own summary treatment of the latest incarnation of his defamation claim in his [440] Motion for Reconsideration, his [447] Reply supplies no support for suddenly reading defamation into his remaining non-disparagement claim based on breach of contract. Any conclusory attempt to conflate defamation with disparagement simply by referring to them in the same breath is unavailing. See, e.g. , Reply Mem. at 11 ("Moreover, in conjunction with Defendant's harassing defamation and disparagement, they also made misrepresentations to the media regarding the reason for Plaintiff's departure.").
Plaintiff's attempt to recover for alleged tortious interference with business relationships fares no better. One element that Plaintiff would be required under District of Columbia case law to plead is damage resulting from Defendants' conduct. See, e.g. , Opp'n Mem. at 10 (citing, e.g., Banneker Ventures, LLC v. Graham ,
*219Accordingly, the Court treats as conceded Defendants' opposition to Plaintiff's informal and half-hearted attempt at this late hour to recover for defamation and tortious interference with business relationships under the remaining non-disparagement allegation.
B. Interlocutory Appeal
Permitting Plaintiff to appeal this decision on an interlocutory basis would significantly delay the ultimate termination of this litigation. With a jury trial scheduled to start less than one week from issuance of this decision, Plaintiff-and Defendants-are so close to a final judgment in this nearly twelve-year-old litigation that a piecemeal appeal would keep them much longer from that goal. There have been pretrial and trial dates set at various times throughout this litigation. Defendants have not been the cause of delays as to those scheduling matters.
Moreover, the Court is not convinced that there is a "controlling question of law,"
With the benefit soon of a final judgment, Plaintiff (or Defendants) may take the entire case up on appeal. The interest in avoiding piecemeal litigation is at last so close to being vindicated. To permit an interlocutory appeal at this juncture would severely undermine judicial economy, including the interest of this Court in managing the remainder of its docket. Accordingly, in an exercise of its discretion, the Court denies Plaintiff's request to certify the Court's [433] Order for appeal.
IV. CONCLUSION
For all of the foregoing reasons, the Court DENIES Plaintiff's [440] Motion for Reconsideration of the Court's Substantive Order of January 19, 2018. The following allegations of breach of contract asserted in Counts Seven and Eight of Plaintiff's Second Amended Complaint remain viable:
(1) Defendants' alleged failure to make a good faith effort to remove Plaintiff as guarantor of a lease for Judicial Watch's headquarters;
(2) Defendants' failure to pay health insurance for Plaintiff's children;
(3) Defendants' filing a motion to strike Plaintiff's appearance in a Florida litigation;
(4) Defendants' failure to provide Plaintiff with access to documents regarding a client; and
(5) Defendants' alleged disparagement of Plaintiff and misrepresentations of the reasons for his departure from the organization.
An appropriate Order accompanies this Memorandum Opinion.
The Court's consideration has focused on the following documents:
• Pl.'s Mot. for Reconsideration of the Ct.'s Substantive Order of Jan. 19, 2018, ECF No. 440 ("Pl.'s Mot.").
• Defs.' Opp'n to Pl.'s Mot. for Reconsideration [ECF 440] of the Ct.'s Substantive Order or [sic] Jan. 19, 2018, ECF No. 444 ("Opp'n Mem.");
• Pl.'s Reply to Defs.' Opp'n to Pl.'s Mot. for Reconsideration of the Ct.'s Substantive Order or [sic] Jan. 19, 2018, ECF No. 447 ("Reply Mem.").
In the alternative, Plaintiff also makes "a motion for reconsideration under Federal Rule of Civil Procedure 59(e)." Mot. for Recons. at 19; see also
Some lingering discovery and associated disputes dragged beyond the official May 15, 2008, termination of discovery but concluded later in 2008.
For the same reason that Plaintiff cannot recover for alleged tortious interference with business relationships, he also cannot recover damages for alleged loss of reputation, which Plaintiff again appears to seek. See Mot. for Recons. at 7. It was to determine whether Plaintiff could support such a reputation claim that the Court previously permitted Plaintiff to try to identify any documentation of damages among discovery produced in this case. See June 15, 2017 Mem. Op. and Order at 2-3, 8-15. His inability to do so precludes him from pursuing damages on either claim.
Reference
- Full Case Name
- Larry KLAYMAN v. JUDICIAL WATCH, INC.
- Cited By
- 10 cases
- Status
- Published