Klayman v. Judicial Watch, Inc. ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN,
Plaintiff,
v. Civil Action No. 06-670 (CKK)
JUDICIAL WATCH, INC., et al.,
Defendants.
MEMORANDUM OPINION
(February 20, 2018)
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, 1 the relevant legal authorities, and the record as a whole, the Court
DENIES Plaintiff’s [440] Motion for Reconsideration of the Court’s Substantive Order of January
19, 2018 (“Motion for Reconsideration”), for the reasons set forth below and in the Court’s
Memorandum Opinion of January 19, 2018, ECF No. 434 (“Jan. 19, 2018 Mem. Op.”), which is
expressly incorporated herein.
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., 628 F. Supp. 2d 112, 118 (D.D.C. 2009)
(Kollar-Kotelly, J.))). Those remaining allegations are as follows:
(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;
1
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.”).
1
(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 IIED “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., 961 A.2d 1080 (D.C. 2008)) (finding that Defendants would have no independent
duty apart from any they may have under the Severance Agreement in this case as to allegations
(1)-(5) above). “Accordingly, as all of the remaining claims sound in breach of contract, and do
not constitute independent torts, recovery of emotional distress damages is foreclosed by Choharis,
the controlling authority for this purpose.” Id. at 19.
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.,
100 F.3d 999, 1003 (D.C. Cir. 1996) (finding that leave to amend a complaint is within the court’s
discretion and “should be freely given unless there is a good reason . . . to the contrary”), cert den.,
520 U.S. 1197 (1997); Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (noting that “it
is an abuse of discretion to deny leave to amend unless there is sufficient reason”).
2
“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, 843 F. Supp. 2d 49,
54 (D.D.C. 2012) (citing Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)). “Courts that have found an undue delay in filing [a
proposed amended complaint] have generally confronted cases in which the movants failed to
promptly allege a claim for which they already possessed evidence.” United States ex rel. Westrick
v. Second Chance Body Armor, Inc., 301 F.R.D. 5, 9 (D.D.C. 2013). An amendment would be
prejudicial if it “substantially changes the theory on which the case has been proceeding and is
proposed late enough so that the opponent would be required to engage in significant new
preparation”; it would “put [the opponent] to added expense and the burden of a more complicated
and lengthy trial”; or it raises “issues . . . [that] are remote from the other issues in the case.”
Djourabchi v. Self, 240 F.R.D. 5, 13 (D.D.C. 2006) (internal quotation marks omitted). With
respect to the futility of an amendment, a district court may properly deny a motion to amend if
“the amended pleading would not survive a motion to dismiss.” In re Interbank Funding Corp.
Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (citing, e.g., Foman, 371 U.S. at 182).
“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, 530 F. Supp. 2d
112, 115 (D.D.C. 2008).
B. Motion for Reconsideration 2
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, 2017 WL 4466580, at *5 (D.D.C. Oct. 5, 2017) (Contreras, J.); United States
v. Dynamic Visions, Inc., 321 F.R.D. 14, 17 (D.D.C. 2017) (Kollar-Kotelly, J.); Singh v. George
Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (Lamberth, J.) (quoting Cobell v. Norton,
224 F.R.D. 266, 272 (D.D.C. 2004) (Lamberth, J.)). The proponent carries the burden of proving
“that some harm, legal or at least tangible, would flow from a denial of reconsideration,” and
accordingly persuading the Court that in order to vindicate justice it must reconsider its decision.
2
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 id. at 2 (claiming that arguments for relief
under Rules 54(b) and 59(e) are “interchangeable”). However, he does not furnish support for
any argument that the Court’s [433] Order and/or [434] Memorandum Opinion constitute a
“judgment” subject to the kind of “motion to alter or amend a judgment” provided for under that
rule. See Fed. R. Civ. Pro. 59(e); see also Fed. R. Civ. Pro. 54(a) (defining “judgment” as, inter
alia, “any order from which an appeal lies” (emphasis added)). The implication of Rule 59(e)’s
inclusion in Rule 59, entitled “New Trial; Altering or Amending a Judgment,” is that the judgment
is final. In any event, the Court proceeds to consider whether Plaintiff is entitled to his request for
the same relief under Federal Rule of Civil Procedure 54(b).
3
Dynamic Visions, Inc., 321 F.R.D. at 17 (quoting Cobell, 355 F. Supp. 2d at 540) (internal quotation
marks omitted).
“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, 555 F.
Supp. 2d 126, 129 (D.D.C. 2008) (quoting Keystone Tobacco Co., Inc. v. U.S. Tobacco Co., 217
F.R.D. 235, 237 (D.D.C. 2003)), aff’d No. 09-5349, 2010 WL 1632965 (D.C. Cir. Apr. 1, 2010).
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 for presenting theories or
arguments that could have been advanced earlier.” Estate of Gaither ex rel. Gaither v. District of
Columbia, 771 F. Supp. 2d 5, 10 & n.4 (D.D.C. 2011)) (quoting Secs. & Exch. Comm’n v. Bilzerian,
729 F. Supp. 2d 9, 14 (D.D.C. 2010)) (internal quotation marks omitted).
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.” 28 U.S.C. § 1292(b) (2016); see also Z St. v. Koskinen, 791 F.3d 24, 28 (D.C. Cir.
2015). The decision whether to certify a case for interlocutory appeal is within the discretion of
the district court. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 761 (D.C. Cir. 2014), cert.
denied sub nom., U.S. ex rel. Barko v. Kellogg Brown & Root, Inc., 135 S. Ct. 1163 (2015).
“Because certification runs counter to the general policy against piecemeal appeals, this process is
to be used sparingly.” Sai v. Dep’t of Homeland Sec., 99 F. Supp. 3d 50, 59 (D.D.C. 2015).
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.
4
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, 843 F. Supp. 2d 49, 54 (D.D.C. 2012) (citing Atchinson
v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996) (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)))). Indeed, Plaintiff cites nearly the same factors back to the Court in his [440] Motion for
Reconsideration, and does not take issue with any discrepancies. Mot. for Recons. at 8 (“undue
delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies, or
futility” (quoting Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999)). As best
the Court understands, Plaintiff mostly disagrees with the way that the Court has applied these
factors to the facts of this case.
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). 3
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
3
Some lingering discovery and associated disputes dragged beyond the official May 15, 2008,
termination of discovery but concluded later in 2008.
5
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)).
The 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, 240 F.R.D. 5, 13 (D.D.C. 2006)).
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, 816 A.2d 793, 808 (D.C. 2003)) (internal quotation marks omitted); see also Mot.
for Recons. at 14 (citing, e.g., Amobi v. D.C. Dep’t of Corrs., 755 F.3d 980, 995 (D.C. Cir. 2014)).
Rather, he selectively cites District of Columbia case law for the proposition that the “extreme and
outrageous conduct” element must be put to the jury “[w]here reasonable parties may differ.” Mot.
for Recons. at 14 (quoting Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998), amended on other
grounds, 720 A.2d 1152 (D.C. 1998)). But Homan also makes clear that the “threshold decision”
of “whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as
to permit recovery, or whether it is necessarily so” “is for the court to determine, in the first
instance.” Homan, 711 A.2d at 818 (quoting Drejza v. Vaccaro, 650 A.2d 1308, 1316 (D.C. 1994))
(internal quotation marks omitted). “Generally, a case of intentional infliction of emotional
distress is made out only if ‘the recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id. (quoting
Restatement (Second) of Torts § 46 cmt. d (Am. Law Inst. 1965)).
6
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,
816 A.2d 793, 808 (D.C. 2003))). Defendants ably list the kinds of factual details that one might
expect in a viable claim. See Opp’n Mem. at 7-8. For example, with respect to his allegation that
Defendants’ non-payment of insurance contributed to his alleged emotional distress, Plaintiff
could be expected to show, for example, “[h]ow emotional distress arose from the non-payment of
insurance, whether the children went without coverage, whether there were unpaid medical bills,
whether the children obtained coverage from another source, etc.” Id. at 8.
As 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., 64 A.3d 158,
164 (D.C. 2013) (quoting Kotsch v. District of Columbia, 924 A.2d 1040, 1046 (D.C. 2007)).
“Unlike other intentional infliction of emotional distress plaintiffs, [Plaintiff] did not complain of
any symptoms of emotional distress, like a loss of sleep or an inability to concentrate.” Id.
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, 556
U.S. 662 (2009)). “Determining whether a complaint states a plausible claim for relief will . . . be
a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (other citation
omitted).
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,
7
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,”
prohibits 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, 225 F. Supp. 3d 1, 13-14 (D.D.C. 2016) (reciting elements
of claim for tortious interference with a prospective business advantage)); Browning v. Clinton,
292 F.3d 235, 242 (D.C. Cir. 2002). At the Court’s January 19, 2018, hearing, “Plaintiff admitted
that he was unable to identify, among documents produced by Defendants, any evidence of the
amount of monetary damages attributable to his alleged lost business opportunities with CNN and
C-SPAN.” Order, ECF No. 436, at 3 (citing June 15, 2017 Mem. Op. and Order at 22 (calling for
8
Plaintiff’s submission of documents to this effect “solely from the present discovery record”)). 4
Moreover, Defendants briefed case law in their response to Plaintiff’s cursory reference in his
[440] Motion for Reconsideration, see Opp’n Mem. at 10, and Plaintiff made no effort to defend
his claim in his [447] Reply. Again, Plaintiff does not explain in his [447] Reply why the Court
should read a tortious interference claim into the non-disparagement claim proceeding shortly to
trial.
Accordingly, 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,” 28
U.S.C. § 1292(b), amidst its January 19, 2018, decision on the [407] Motion to Amend that could
support such an extraordinary measure. Perhaps Plaintiff could seek in the Court of Appeals to
refine the District of Columbia’s merger doctrine, but again, the Court’s June 15, 2017 decision
that the tort of IIED had not merged with his remaining breach of contract claims was not at issue
in Plaintiff’s [407] Motion to Amend, nor did the Court reconsider that decision in its [433] Order
and [434] Memorandum Opinion.
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
4
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.
9
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.
Dated: February 20, 2018
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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