Slate v. American Broadcasting Companies, Inc. , 12 F. Supp. 3d 30 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GREGORY SLATE,
Plaintiff,
Civil Action No. 09-1761 (BAH)
v.
Judge Beryl A. Howell
AMERICAN BROADCASTING
COMPANIES, INC., et al.,
Defendants.
MEMORANDUM OPINION
Pending before the Court are three motions brought by the plaintiff Gregory Slate: (1) the
plaintiff’s Motion to Vacate, Clarify, Reconsider or Amend this Court’s April 23, 2013 Order
Granting Defendant’s [sic] Motion for Summary Judgment and Motion to Dismiss (“Pl.’s
Reconsideration Mot.”), ECF No. 105, pursuant to Federal Rules of Civil Procedure 59(e), 60(a),
60(b)(1), 60(b)(3), and 60(b)(6),1 which motion seeks to alter or amend the Court’s Order of
April 23, 2013 (“Order”), ECF No. 102; (2) the plaintiff’s Objections and Opposition to
Defendants’ Bill of Costs (“Pl.’s Opp’n to Costs”), ECF No. 106; and (3) the plaintiff’s Request
for Judicial Notice in Support of His Motion to Vacate, Clarify, Reconsider or Amend this
Court’s April 23, 2013 Order Granting Defendant’s [sic] Motion for Summary Judgment and
Motion to Dismiss (“Pl.’s Request Jud. Notice”), ECF No. 107. The Court’s Order challenged
by the plaintiff granted summary judgment to the defendants ABC News, Inc., ABC News
Interactive, Inc., and Disney/ABC International Television, Inc. (collectively, “defendants”), and
also dismissed the action on the additional ground that such a sanction was appropriate for bad-
1
Although the plaintiff asserts that he is moving to alter or amend the judgment pursuant to Federal Rules of Civil
Procedure, he initially cites to D.C. Superior Court Rules and District of Columbia authority. The Court construes
the plaintiff’s motion as intending to rely upon the applicable Federal Rules of Civil Procedure.
1
faith litigation conduct. See Slate v. ABC, Inc., 941 F. Supp. 2d 27, 52 (D.D.C. 2013)
(“Opinion”). For the reasons set forth below, all three of the plaintiff’s motions are denied.
I. BACKGROUND
The factual background of this copyright case over the defendants’ alleged unauthorized
use of less than one minute of video footage, to which the plaintiff claims a copyright, is
thoroughly set out in the Court’s prior Memorandum Opinion and will not be repeated here. See
Slate, 941 F. Supp. 2d at 29‒38. A brief review of the procedural history in this matter is helpful
to provide context for consideration of the plaintiff’s pending motions.
Following the filing of the amended complaint, the plaintiff’s counsel moved to
withdraw, Mot. for Withdrawal of Appearance, ECF No. 13, having advised the plaintiff that
“their withdrawal is an ethical necessity.” Pl.’s Opp’n to Mot. for Withdrawal at 2, ECF No. 14.
Upon hearing the reasons underlying that motion, the motion was granted and the then-presiding
Judge recused himself. See Minute Order (Aug. 19, 2010); Slate, 941 F. Supp. 2d at 32 n.5. The
case was then re-assigned to the current presiding Judge and the plaintiff proceeded pro se. Slate,
941 F. Supp. 2d at 32 n.5.
The ensuing litigation prompted a significant number of discovery disputes, including no
fewer than twelve motions for protective orders and motions to compel and two motions for
sanctions based on the other side’s allegedly impermissible conduct. See ECF Nos. 24, 29, 35,
38, 39, 56, 61, 62, 65, 66, 72, 77, and 78; see also Slate v. ABC, 802 F. Supp. 2d 22, 23 (D.D.C.
2011) (affirming Magistrate Judge’s decision to sequester laptop and external hard drive and
deny plaintiff’s motion to compel production of the hard drives); Slate v. ABC, 274 F.R.D. 350,
351 (D.D.C. 2011)(affirming Magistrate Judge's decision to deny the plaintiff's motion to compel
2
production of records relating to, inter alia, personnel and employment records for defendants’
employees).
Following discovery, the defendants filed Motions for Summary Judgment, ECF No. 93,
and to Dismiss for Bad-Faith Conduct of Litigation, ECF No. 94. These motions were granted on
April 23, 2013. See Order, ECF No. 102. This litigation has not come to an end, however;
instead, the plaintiff has filed the three pending motions in an effort to revive his original claims.
As noted, the plaintiff has moved (1) for reconsideration; (2) to deny the defendants’ Bill of
Costs; and (3) to take Judicial Notice.2 These motions are addressed below.
II. LEGAL STANDARDS
A. Federal Rule of Civil Procedure 59(e)
A motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) “is
discretionary and need not be granted unless the district court finds that there is an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear error or
prevent manifest injustice.’” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). A district court’s denial of a
request for this extraordinary relief is reviewed only for abuse of discretion. See Dyson v.
District of Columbia, 710 F.3d 415, 420 (D.C. Cir. 2013); Messina, 439 F.3d at 759;
Anyanwutaku v. Moore, 151 F.3d 1053, 1058 (D.C. Cir. 1998); Firestone, 76 F.3d at 1208.
Absent a demonstrated intervening change of controlling law or new evidence, the law is
well-settled that litigants may not use Rule 59(e) either to repeat unsuccessful arguments or to
assert new but previously available arguments. As the Supreme Court observed, “Rule 59(e)
permits a court to alter or amend a judgment, but it may not be used to relitigate old matters, or
2
The plaintiff’s appeal to the Court of Appeals for the D.C. Circuit, ECF No. 108, has been held in abeyance until
the resolution of the plaintiff’s motions pending before this Court. See ECF No. 110.
3
to raise arguments or present evidence that could have been raised prior to the entry of
judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (internal quotation
marks and citation omitted); see also Messina, 439 F.3d at 759 (finding no error in denying Rule
59(e) motion where “motion did nothing more than rely on the same arguments that [the movant]
originally made.”) (internal quotation marks and citation omitted). This is because “Rule 59(e)
motions are aimed at reconsideration, not initial consideration,” and arguments raised for the first
time on a Rule 59(e) motion may be deemed “waived.” GSS Grp. Ltd. v. Nat’l Port Auth., 680
F.3d 805, 812 (D.C. Cir. 2012); see also District of Columbia v. Doe, 611 F.3d 888, 896 (D.C.
Cir. 2010) (“[A]n issue presented for the first time in a motion pursuant to Federal Rule of Civil
Procedure 59(e) generally is not timely raised; accordingly, such an issue is not preserved for
appellate review unless the district court exercises its discretion to excuse the party’s lack of
timeliness and consider the issue.”). Thus, “Rule 59(e) is not a vehicle to present a new legal
theory that was available prior to judgment,” Patton Boggs LLP v. Chevron Corp., 683 F.3d 397,
403 (D.C. Cir. 2012), or “a chance for [a party] to correct poor strategic choices.” SEC v.
Bilzerian, 729 F. Supp. 2d 9, 15 (D.D.C. 2010); see also Kattan by Thomas v. District of
Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993) (“[T]his Court has recognized that a losing party
may not use a Rule 59 motion to raise new issues that could have been raised previously.”).
“The strictness with which such motions are viewed is justified by the need to protect both the
integrity of the adversarial process in which parties are expected to bring all arguments before
the court, and the ability of the parties and others to rely on the finality of judgments.” United
States Commodity Futures Trading Comm’n v. McGraw-Hill Cos., Inc., 403 F. Supp. 2d 34, 36
(D.D.C. 2005); accord Silk v. Sandoval, 435 F.2d 1266, 1268 (1st Cir. 1971) (acknowledging
“the complementary interest in speedy disposition and finality, clearly intended by Rule 59”).
4
To constitute “clear error” within the meaning of Rule 59(e), courts have required “‘a
very exacting standard,’” Bond v. U.S. Dep’t of Justice, 286 F.R.D. 16, 22 (D.D.C. 2012)
(quoting Lightfoot v. District of Columbia, 355 F. Supp. 2d 414, 422 (D.D.C. 2005)), such that
the “final judgment must be ‘dead wrong’ to constitute clear error.” Lardner v. FBI, 875 F.
Supp. 2d 49, 53 (D.D.C. 2012) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866
F.2d 228, 233 (7th Cir. 1988)). Indeed, the Seventh Circuit has vividly observed that “[t]o be
clearly erroneous, a decision must strike [a court] as more than just maybe or probably wrong; it
must . . . strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.”
Parts & Electric Motors, 866 F.2d at 233. Hence, a fortiori, “‘[m]ere disagreement does not
support a Rule 59(e) motion.’” United States ex rel. Becker v. Westinghouse Savannah River Co.,
305 F.3d 284, 290 (4th Cir. 2002) (quoting Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir.
1993)).
Similarly, although “[t]he term ‘manifest injustice’ eludes precise definition,” Roane v.
Gonzales, 832 F. Supp. 2d 61, 64 (D.D.C. 2011), it is clear that “manifest injustice” is an
exceptionally narrow concept in the context of a Rule 59(e) motion. The D.C. Circuit has
observed that, under Rule 59(e), “manifest injustice does not exist where . . . a party could have
easily avoided the outcome, but instead elected not to act until after a final order had been
entered.” Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir. 2004) (internal quotation marks
omitted). In a slightly different context, the Circuit has said that manifest injustice arises from
“rulings that upset settled expectations—expectations on which a party might reasonably place
reliance.” Qwest Servs. Corp. v. FCC, 509 F.3d 531, 540 (D.C. Cir. 2007). These cases make
clear that a manifest injustice does not result merely because a harm may go unremedied.
Accord Associated Gen. Contractors of Cal., Inc. v. Cal. State. Council of Carpenters, 459 U.S.
5
519, 536 (1983) (“[T]he judicial remedy cannot encompass every conceivable harm that can be
traced to alleged wrongdoing.”). Instead, “manifest injustice” must entail more than just a clear
and certain prejudice to the moving party, but also a result that is fundamentally unfair in light of
governing law.
B. Federal Rule of Civil Procedure 60
1. Rule 60(a)
Federal Rule of Civil Procedure 60(a) permits the court to “correct a clerical mistake or a
mistake arising from oversight or omission.” FED. R. CIV. P. 60(a). However, the power “to
correct inadvertent ministerial errors may not be used as a guise for changing previous
decisions.” Am. Trucking Ass’ns v. Frisco Transp. Co., 358 U.S. 133, 146 (1958). A motion
under Rule 60(a) can only “be used to make the record speak the truth and cannot be used to
make it say something other than what was originally pronounced.” 11 CHARLES A. WRIGHT &
ARTHUR R. MILLER, FED. PRAC. & PRO. CIV. (3D ED.) § 2854.
2. Rule 60(b)(6)3
The Supreme Court consistently held that courts should hesitate to grant rule 60(b)(6)
motions except in “extraordinary circumstances.” Ackermann v. United States, 340 U.S. 193, 199
(1950); see also Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). The D.C. Circuit has “similarly
observed that Rule 60(b)(6) ‘should be only sparingly used’ and may not ‘be employed simply to
rescue a litigant from strategic choices that later turn out to be improvident.’” Kramer v. Gates,
481 F.3d 788, 792 (D.C. Cir. 2007) (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d
572, 577 (D.C. Cir. 1980)). Under the established Rule 60(b)(6) doctrine, even an intervening
3
Although the plaintiff invokes both Rule 60(b)(1) (“mistake, inadvertence, surprise, or excusable neglect”) and
Rule 60(b)(3) (“fraud . . . , misrepresentation, or misconduct by an opposing party”), nowhere does he brief these
standards separately from Rule 59(e). In fact, he does not specifically allege fraud, misrepresentation, or misconduct
anywhere in his motion for reconsideration. Therefore, the Court similarly does not address those parts of Rule
60(b).
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change in case law is insufficient to meet the extraordinary circumstances standard. See
Gonzalez, 545 U.S. at 536‒38.
III. DISCUSSION
The plaintiff’s motions for reconsideration of the Order and to take judicial notice are
related since the five documents from other judicial proceedings for which he requests judicial
notice are presented to bolster arguments asserted in connection with the reconsideration motion.
See Pl.’s Mem. Supp. Mot. Reconsideration (“Pl.’s Reconsideration Mem.”) at 30-31, ECF No.
105-1; Pl.’s Request Jud. Notice at 3‒4. These efforts are unavailing. The plaintiff’s motion
seeking to “rescind[]” the Order, see Pl.’s Reconsideration Mot., Att. 5 (Proposed Order), ECF
No. 105-5, along with his motion for judicial notice of filings in other courts and his opposition
to the defendants’ bill of costs, are addressed below.
A. The Plaintiff’s Motion for Reconsideration Fails to Meet the Applicable
Standard Under Rule 59(e)
The plaintiff has provided a laundry list of rules, including Rules 59(e), 60(a), 60(b)(1),
60(b)(3), and 60(b)(6), on which his motion for reconsideration of the Order is predicated. At the
outset, the Court concludes that the plaintiff’s reconsideration motion should be evaluated under
the Rule 59(e) standard. First, Rule 60(a) is simply inapplicable since the relief the plaintiff
seeks is not mere revision of a clerical error, but a substantive change in the result of the
litigation. See Bond v. Dep’t of Justice, 286 F.R.D. 16, 22 (D.D.C. 2012) (quoting Am. Trucking
Ass’ns v. Frisco Transp. Co., 358 U.S. 133, 146 (1958) (“[A] party may not use ‘the power to
correct inadvertent ministerial errors . . . as a guise for changing previous decisions.”). Second, it
is the practice in this jurisdiction to construe Rule 60(b) motions filed, as here, within 28 days of
the judgment as Rule 59(e) motions to alter or amend the judgment. See Lightfoot v. Dist. of
Columbia, 355 F. Supp. 2d 414, 420‒21 (D.D.C. 2005) (“The general rule is that a motion for
7
reconsideration is treated as a ‘[Fed.R.Civ.P.] 59(e) motion if filed within [28] days of entry of
the challenged order and as a Rule 60(b) motion if filed thereafter’”) (quoting U.S. v. Pollard,
290 F. Supp. 2d 153, 156 (D.D.C. 2003)); Strumsky v. Washington Post Co., 922 F. Supp. 2d 96,
100 (D.D.C. 2013); Middlebrooks v. Godwin Corp., 279 F.R.D. 8, 11 n.3 (D.D.C. 2011).
Finally, the Rule 60(b) standard is more stringent than the standard under Rule 59(e) and, since
the plaintiff fails to meet the Rule 59(e) standard, it is consequently not necessary to address his
claims for reconsideration under Rule 60(b).4 See United States v. Phillip Morris USA, Inc., 686
F.3d 839, 843 (D.C. Cir. 2012) (contrasting Rule 60’s “high bar for modification” with Rule
59(e)); see also CHARLES A. WRIGHT, ARTHUR R. MILLER,. 11 FED. PRAC. & PROC. CIV. § 2817
(3d Ed.) n. 15 (“Standards governing a motion for reconsideration under Rule 60(b) are
somewhat more restrictive than those governing a motion to alter or amend a judgment under
Rule 59(e).”) (citing Lightfoot v. District of Columbia, 355 F. Supp. 2d 414 (D.D.C. 2005)).
As noted, Rule 59(e) motions are discretionary, and “need not be granted unless the
district court finds that there is an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” Messina v.
Krakower, 439 F.3d at 758 (internal quotations and citation omitted). Such a motion is “‘not
simply an opportunity to reargue facts and theories upon which a court has already ruled.’”
SmartGene, Inc. v. Advanced Biological Labs., SA, 915 F. Supp. 2d 69, 72 (D.D.C. 2013); see
also Bond v. Dep’t of Justice, 286 F.R.D. at 20 (D.D.C. 2012) (“Re-litigating arguments or legal
theories, that could have been raised earlier, do not qualify as an ‘extraordinary circumstance’
under Rule 59(e).”). Further, Rule 59(e) is “not intended to allow a second bite at the apple.”
Oceana v. Evans, 389 F. Supp. 2d 4, 8 (D.D.C. 2005).
4
Indeed, the plaintiff does not indicate in his motion how he intends Rule 60(b), or any of its subparts, to apply, as
his briefing generally discusses application of Rule 59(e). See Pl.’s Reconsideration Mem., generally.
8
Despite the plaintiff’s submission of a lengthy memorandum of 43 pages and over 250
pages of exhibits in support of his motion for reconsideration – not even counting the additional
100 pages filed in connection with his motion to take judicial notice – his effort boils down to
seeking another “bite at the apple.” The plaintiff points to no intervening change of law and
presents no new, let alone material, evidence that was previously unavailable. Instead, the
plaintiff has merely regurgitated arguments raised previously in the dispositive motions and
moved the Court to take judicial notice of irrelevant material pre-dating the Order.
In support of his motion for reconsideration, the plaintiff presents a variety of
overlapping contentions critical of the Opinion for misconstruing the law and the facts, and
relying on an incomplete record, such that, in the plaintiff’s view, relief is required to secure
substantial justice. Pl.’s Reconsideration Mem. at 1. The Court distills the plaintiff’s contentions
for ease of review as follows: (1) the conclusion that the plaintiff’s copyright claim is barred by
collateral estoppel was erroneous, Pl.’s Reconsideration Mem. at 2‒16; (2) dismissal of the
plaintiff’s claims for litigation misconduct was erroneous, id. at 16‒33; and (3) the factual
findings of the Court are not supported by the record, id. at 33‒43. These three distilled grounds
for reconsideration are addressed seriatim below.
1. The Plaintiff Reprises Previously Rejected Arguments Against Finding
His Copyright Claim Barred by Equitable Estoppel
The plaintiff devotes the first 16 pages of his memorandum in support of his motion for
reconsideration to disputing the analysis in the Opinion that concluded the plaintiff’s copyright
infringement claim was barred by equitable estoppel. The plaintiff does not identify any new law
from this Circuit supporting his view of the law, nor does he present any new evidence that
would contradict the Court’s findings and conclusions of law in the Opinion. See Exxon
Shipping, 554 U.S. at 485 n.5. Instead, the plaintiff has re-packaged his prior arguments into
9
essentially three bases for why the equitable estoppel doctrine does not apply to his case, but
those arguments are not sufficient to trigger reconsideration.
First, the plaintiff argues that Boardman v. County of Spokane, No. 94-35703, 1995 WL
444654 (9th Cir. July 26, 1995) (unreported), which was discussed in the challenged Opinion,
“should . . . not be followed in this case because the position of the parties in this case is
fundamentally different from those in Boardman.” Pl.’s Reconsideration Mem. at 3. The plaintiff
argued this point in his Opposition to the Motion for Summary Judgment, see Pl.’s Opp’n to
Mot. for Summ. J. (“Pl.’s Original Opp’n”) at 27‒30, ECF No. 95, and the Court has already
rejected his view of the law, Slate, 941 F. Supp. 2d at 41‒44. The plaintiff concedes that
“although equitable estoppel is not available to determine copyright ownership, it may be
available to determine copyright infringement.” Pl.’s Reconsideration Mem. at 5. This is exactly
how the Court applied the doctrine. As in Boardman, where the issue was not the resolution of a
declaratory judgment action to determine copyright ownership, but rather whether the plaintiff in
that case, like the plaintiff here, is estopped from asserting ownership of disputed material for
purposes of suing the defendants for copyright infringement. Slate, 941 F. Supp. 2d at 43. The
Court concluded that the plaintiff, having represented to the defendants his employment and
agency status with a third-party organization, was equitably estopped from changing course and
suing the defendants for infringement on the grounds that he personally owned the copyright. Id.
at 44 (plaintiff “cloak[ed] himself in an agency relationship with the organization compensated
to create the work,” and “forfeit[ed] any independent ownership of the work”). The Court
expressly determined that resolving whether the plaintiff actually owned the copyright in the
video material or his actual employment status were “irrelevant to its holding.” Id. at 43.
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Second, the plaintiff argues that the doctrine of equitable estoppel does not apply to his
case because the defendants failed to meet the elements of equitable estoppel, including that the
plaintiff knew of the defendant’s allegedly infringing conduct, that the plaintiff’s actions did not
constitute a disavowal of his copyrights, that the defendants’ reliance on his actions was not
reasonable, and that the reliance was not detrimental. See Pl.’s Reconsideration Mem. at 5‒14.
Like his Boardman argument, the plaintiff’s objections to the application of equitable estoppel
also appeared in his opposition memorandum. See Pl.’s Original Opp’n at 26‒33. The Court has
already considered these arguments and found them unpersuasive. Slate, 941 F. Supp. 2d at 44‒
46. Rule 59(e) does not permit a party to relitigate arguments the Court has already considered
absent clear error or manifest injustice, which are not shown here. See Messina, 439 F.3d at 759.
In support of his view that collateral estoppel does not apply to his case, the plaintiff
discusses a case not previously raised in dispositive motion briefing. Specifically, the plaintiff
cites for the first time Danielson, Inc., v. Winchester-Conant Properties, Inc., 322 F.3d 26, 44
(1st Cir. 2003), for the proposition that providing copies of work “is not determinative . . . to
demonstrate the knowledge requirement of equitable estoppel.” Pl.’s Reconsideration Mem. at 9.
The mere citation to a newly discovered case, which was previously available during
consideration of the judgment for which reconsideration is sought, is insufficient to trigger the
necessity for reconsideration and meet the requirements under Rule 59(e). Danielson pre-dates
the Order of this Court by a decade, is not binding on this Court, and, thus, fails to establish a
change in the law.
In any event, even if the plaintiff had cited this case in a timely manner, the Court’s
conclusion would not change since the factual differences in that case render it inapposite. In
Danielson, the copyright owner displayed at public meetings architectural plans, which were
11
then used by the defendant. 322 F.3d at 32. The court concluded this display did not constitute a
publication sufficient to relinquish the owner’s copyright interest, nor did the display amount to a
transfer of copyright interests sufficient to confer knowledge on the copyright owner of the
defendant’s interest in, let alone use of, the plans. Id. at 44. By contrast, in this case, the
plaintiff turned over the video footage, in which he claims a copyright, after a course of dealing
that such delivery was in accord with the material’s authorized use. Thus, this new case citation
falls far short of demonstrating clear error or manifest injustice. See Messina, 439 F.3d at 759.
In short, the Court rejected the plaintiff’s position that the defendants dealt with and
paid the wrong party for the rights to the disputed footage and, instead, concurred with
defendants’ view that the copyright law cannot be exploited to permit “bait-and-switch schemes
whereby a person may hold themselves out as a principal of an organization to form and
implement agreements, and then claim personal ownership and demand more compensation after
all work is completed and paid for.” Defs.’ Reply Mem. Supp. Defs.’ Mot. Summ. J. at 1, ECF
No. 97.
Finally, the plaintiff contends that even if equitable estoppel bars his claims against ABC
News, Inc., “the Court cannot conclude that equitable estoppel bars Plaintiff from bringing
copyright infringement and contributory infringement suits against the other entities to which
Plaintiff has undeniably made no representations whatsoever.” Pl.’s Reconsideration Mem. at
15. Once again, in his original opposition brief, the plaintiff argued that his claims against such
entities should survive for the same reasons, which were rejected. See Pl.’s Original Opp’n at
23‒24. For reasons detailed in the challenged Opinion, the defendants reasonably believed that
they had bought and obtained the right to use the disputed footage in a news story for the ABC
show “20/20” and that they could use this story as ABC News, Inc. normally would, including in
12
normal distribution channels on the internet and other media. Thus, to the extent that the plaintiff
is estopped from asserting copyright ownership in the footage against ABC News, Inc., he is
similarly estopped from such assertion against the related entities also named as defendants.
2. The Record Clearly Supports the Imposition of Sanctions
The plaintiff argues in the next 27 pages of his memorandum in support of his motion for
reconsideration that the Court made “a manifest error of law in concluding that the Plaintiff’s
claim should be dismissed for litigation misconduct. Pl.’s Reconsideration Mem. at 16; id. at
16‒33. Notably, even if this dismissal determination were incorrect, the plaintiff’s claims would
not be revived since judgment has also been entered against him as a legal matter on the merits.
Yet, the plaintiff’s latest memorandum only reinforces the reasons why dismissal was properly
imposed as a sanction. As support for his claim that “manifest error” occurred, the plaintiff
contends, first, that the “clear and convincing” standard was not properly applied in evaluating
the evidence of misconduct and, second, that he was entitled to a hearing before imposition of a
sanction for litigation misconduct. These contentions do not warrant reconsideration.
At the outset, the Court notes that the plaintiff’s argument for reconsideration rehashes
numerous previous factual assertions made by the plaintiff that were contradicted by other
evidence in the record, and have already been resolved against him. Compare, e.g., Pl.’s
Reconsideration Mem. at 22 (discussing “Plaintiff’s statement that he never sent Mendelsohn
receipts”), with Slate, 941 F. Supp. 2d at 31, 49 (discussing evidence demonstrating falsity of
same statement); Pl.’s Reconsideration Mem. at 23 (discussing “Plaintiff’s statement that ABC
did not supply him with any camera equipment”), with Slate, 941 F. Supp. 2d at 33, 34, 35, 49
(noting documentation that the plaintiff requested, received and used camera equipment from
ABC and demonstrating falsity of statement); Pl.’s Reconsideration Mem. at 28 (denying
13
plaintiff’s involvement in his brother’s use of false pretenses to manufacture and collect evidence
from defendants), with Slate, 941 F. Supp. 2d at 51, n. 25 (noting clear evidence that plaintiff
sought in discovery from defendants material that was generated in response to request made via
e-mail from address using name of plaintiff’s brother for information about licensing disputed
footage); and Pl.’s Reconsideration Mem. at 29 (denying “intentionally producing voluminous
amounts of irrelevant and misleading materials”), with Slate, 941 F. Supp. 2d at 50, n. 28 (citing
need for Court’s involvement on at least two occasions to caution plaintiff about his productions,
which included entirely blank VHS tapes, a manual for a pressure washer, a manual for a Honda
engine and other irrelevant materials). With two exceptions, the Court will not re-engage in
parsing the voluminous record in this case since the plaintiff’s twisting of the record through
factual assertions that are variously inaccurate, incomplete or taken out of context, has already
consumed substantial judicial resources. See Slate, 941 F. Supp. 2d at 29 (noting that “the
handling of evidence” has made Court’s task “more complicated” and “more time consuming”).
Two factual issues raised by the plaintiff in his reconsideration briefing are addressed below
merely to illustrate the appropriateness of the sanction imposed.
First, the plaintiff disputes the Court’s conclusion that clear and convincing evidence
demonstrated fabrication of the “August 21, 2006” letter, which the plaintiff produced in
discovery and purported to be from the plaintiff to Michael Mendelsohn, a producer at ABC
News, Inc. for the “20/20” program.5 This letter was purportedly sent by the plaintiff over a year
5
Interestingly, despite the relevance of the “August 21, 2006” letter in establishing at the initiation of the parties’
relationship, the plaintiff’s “independent freelance” status separate from the organization which sold the footage to
the defendants, and the plaintiff’s retention of exclusive rights in his footage, the plaintiff does not cite to, reference
or even allude to this letter in his original pleadings. Instead, the plaintiff attached as an exhibit to his original
complaint a letter, dated March 14, 2008, from the plaintiff to Glenn Ruppel of ABC News, stating that the plaintiff
was “withdraw[ing] any sort of license; either express or implied, to use any portion of my footage for any purpose,”
and that “my footage belongs exclusively to me and is protected from use by anyone other than me.” Compl., ¶ 22,
Ex. D, ECF No. 1-4; see also Am. Compl, ¶ 22, ECF No. 11. By contrast to the “August 21, 2006” letter, which the
defendants deny receiving, the defendants acknowledge receipt of the March 14, 2008 letter. Answer, ¶ 22.
14
before the disputed footage was filmed. The contents of the letter directly undermined the factual
underpinnings of the defendants’ defense, stating, inter alia, that the plaintiff is “an independent
freelance journalist,” rather than an employee or principal of the organization that sold the
footage to the defendants, and that the plaintiff retained exclusive rights in his footage and
required “an explicit licensing agreement . . . before my footage is broadcasted.” Slate, 941 F.
Supp. 2d at 31.
The Court based its conclusion that the letter was fabricated, in part, on another statement
in the letter that: “In terms of compensation, I do not work for free or for expenses only” because
“my recent success, including receiving an Emmy Award for Investigative Journalism, have [sic]
substantially elevated the value of my work.” Id. The nominees for the award, without the
plaintiff’s name, were announced in September, 2006 and plaintiff was not awarded the Emmy
until November, 2006—both dates after the purported date of the letter. Id. at 32. The plaintiff
nonetheless persists in defending the authenticity of this letter, arguing “that Plaintiff’s piece was
eligible to receive an Emmy months before the date on the letter and that the voting for the
winner had occurred before the date on the letter.” Pl.’s Reconsideration Mem. at 19. As the
defendants aptly point out, the plaintiff’s “explanations under oath and to the Court have evolved
from (a) initially testifying that he had won the award prior to writing the letter, …, to (b)
explaining that he knew he was nominated and was simply overconfident that he would win, …
to (c) a suggestion (without any citation to evidence) that he somehow knew about the
nomination of the underlying news broadcast before it was publicly announced because secret
Emmy ‘ballots’ were necessarily submitted prior to a public announcement.” Defs.’ Combined
Opp’n Pl.’s Reconsideration Mot. Recon. & Judicial Notice (“Defs.’ Opp’n”) at 5, ECF No. 111
(emphasis in original). The plaintiff’s current story that he was somehow aware the project had
15
been nominated prior to the public announcement of the original group of nominees, in which he
was not included, by way of explaining the statement in the letter that he had already won by
August 2006, strains credulity and is contradicted by the record evidence, see Slate, 941 F. Supp.
2d at 32 (discussing sworn testimony of Rebekah Cowing, the Executive Director of the
Chicago/Midwest Chapter of the National Academy of Television Arts and Sciences), and, thus,
deserves no additional discussion.6
The second factual matter to be addressed concerns the plaintiff’s characterization that
the Court “ignore[d]” the defendants’ withdrawal of their motion to quash Elizabeth Vargas’
deposition notice when criticizing the plaintiff’s failure to oppose the Defendants’ motion to
quash. Pl.’s Reconsideration Mem. at 30. Indeed, the Court cited the plaintiff’s subpoena of Ms.
Vargas and his threat to seek a contempt citation against her if she failed to appear for the
deposition he had noticed, only to “never oppose[]” the defendants’ motion to quash the
subpoena, as an example of his “abuse of the discovery process.” Slate, 941 F. Supp. 2d at 51.
The facts are clear: when the plaintiff refused to change Ms. Vargas’ deposition date, the
defendants initially moved for a protective order in this Court, ECF No. 62, and when the
plaintiff continued to threaten to seek a contempt sanction against Ms. Vargas in New York if
she failed to attend the deposition, she also moved to quash the subpoena in the issuing court
because that prevented the plaintiff from proceeding with any contempt motion in New York, the
court issuing the subpoena. Vargas, et al. v. American Broad. Cos., No 1:11-mc-00183-P1
(S.D.N.Y.), ECF No. 5; see generally ECF No. 94-1 at 24. The plaintiff failed to oppose
6
The defendants also correctly point out that the plaintiff misrepresents the evidence by asserting that the Emmy
entry was later “corrected” to add plaintiff’s “erroneously omitted” name, Pl.’s Reconsideration Mem. at 19,
ignoring undisputed record evidence that there was no error to be “corrected” and that the plaintiff’s name was
added only because the awarding organization was lobbied to have the plaintiff’s name added to the award in
December 2006. Defs.’ Opp’n at 6 n. 3 (citing Slate, 941 F. Supp. 2d at 47 n. 20).
16
defendants’ emergency motion for a protective order, which this Court granted on June 8, 2011,
nor did he file any opposition to the motion to quash in New York. See Minute Order (June 8,
2011) (“Elizabeth Vargas’s and Defendants’ Emergency Motion for Protective Order to Preclude
Deposition (Document No. 62) is treated as conceded, and is GRANTED.”). Only after this
Court granted the protective order did Ms. Vargas withdraw her motion to quash in New York as
moot. Thus, the Court’s description of these events is entirely accurate as an example of the
plaintiff’s abusive litigation conduct, in which a non-party was required, in an abundance of
caution, to file two duplicative motions to quash in two jurisdictions, to which the plaintiff then
offered no substantive opposition. See Slate, 941 F. Supp. 2d at 51. Moreover, the plaintiff’s
description of these events serve only as yet another example of “half a story, offered to
mislead.” Defs.’ Opp’n at 9, n. 5.
In sum, the plaintiff’s briefing in connection with his pending motion for reconsideration
continues to exhibit the clear and convincing pattern of omissions and obfuscations that
warranted granting the defendants’ motion to dismiss for bad-faith litigation conduct in the first
place. See Slate, 941 F. Supp. 2d at 53; see also Roadway Express, Inc. v. Piper, 447 U.S. 752,
767 (1980); Shepherd v. Am. Broad. Cos., Inc., 62 F.3d 1469, 1478 (D.C. Cir. 1995).
The plaintiff also argues that he was entitled to have a hearing before the sanction was
imposed, citing Chambers v. NASCO, Inc., 501 U.S. 32 (1991). Pl.’s Reconsideration Mem. at
16. In Chambers, the Supreme Court made clear that federal district courts retain an inherent
power to impose sanctions for bad faith conduct and, when such sanctions are imposed for
conduct occurring before other tribunals, a hearing is required. Chambers, 501 U.S. at 57. When,
by contrast, sanctions are imposed for conduct occurring before the court, no hearing is
necessary since the court “had already observed those elements of the litigation most relevant to
17
the criteria for imposing sanctions.” McLaughlin v. Bradlee, 803 F.2d 1197, 1205 (D.C. Cir.
1986); see also Pigford v. Veneman, 307 F. Supp. 2d 51, 58 (D.D.C. 2004) (“As for a hearing,
due process does not require a hearing every time sanctions are imposed.”); Vongnaraj v. United
States, No. Civ. A. No. 91-1462, 1992 WL 84893, at *2 (D.D.C. Apr. 7, 1992) (hearing
unnecessary prior to imposition of Rule 11 sanctions).
To shoehorn this case under Chambers, the plaintiff argues that the Court’s decision to
impose sanctions was based on “conduct that occurred in [sic] outside of this litigation.” Pl.’s
Compined [sic] Reply in Supp. of Pl.’s Mot. to Vacate, Clarify, Reconsider, or Amend (“Pl.’s
Reply”) at 5, ECF No. 113. As support, the plaintiff points to a handful of examples in the
Opinion referencing activity in other tribunals as corroborative evidence for the plaintiff’s
pattern of behavior before this Court, and ignores the extensive description of the plaintiff’s
impermissible behavior before this Court. See id. at 5-6. Contrary to the plaintiff’s protestations,
the behavior that prompted the sanction was the plaintiff’s fabrication of evidence — which
would be sufficient, standing alone, to justify the sanction of dismissal — his misrepresentation
of facts, and his improper behavior during discovery. See Slate, 941 F. Supp. 2d at 46‒53. These
practices occurred before this Court. Therefore, no evidentiary hearing was necessary when the
sanctionable behavior was observed by the Court itself.7
7
To the extent that the plaintiff is asserting a violation of any procedural due process rights, which consist of notice
and an opportunity to be heard, the plaintiff was on notice of the requested sanction of dismissal upon filing of the
defendants’ motion seeking this relief, and if the plaintiff had any right to a hearing, he waived it when he elected
not to make a timely request for such a hearing in his opposition. See LCvR 7(f); see also In re Clark, 223 F.3d 859,
864 (8th Cir. 2000) (“The court may act without a hearing [to impose sanctions] if it has provided an opportunity for
one but no parties in interest request it.”); Sparrow v. Reynolds, 646 F. Supp. 834, 840 (D.D.C. 1986) (holding that a
plaintiff who was “usually so zealous in asserting has rights,” but who had not “asked for a hearing at which to
contest the propriety” of the sanction had “waived any due process objections he might have raised to defendants’
motion.”); Holley v. Guiffrida, 112 F.R.D. 172, 174 (D.D.C. 1986) (failure to request hearing on sanctions waives
any due process right to hearing). The plaintiff made a belated request for a hearing on the defendants’ motions for
summary judgment and dismissal, on October 23, 2012, ECF No. 101, and this was untimely. In any event, as noted
by the Court in the Opinion, this hearing request was denied as unnecessary given the substantial briefing and
voluminous exhibits submitted by the parties, including the exhibits with documentary evidence demonstrating by
18
The plaintiff finally argues that, even if a hearing were not necessary and all the facts
relied upon by the Court were true, imposition “of the harshest sanction available amounts to
sanctioning Plaintiff for proceeding pro se.” Pl.’s Reconsideration Mem. at 32. Instead, he
contends that “[m]onetary sanctions are more appropriate in this case than the most severe
penalty of dismissal.” Id. The plaintiff suggests that the appropriate monetary sanction “for
alleged misconduct that resulted in the deposition of [a witness]” is “$661.05, the cost of [the
witness’] deposition.” Id. at 33. This suggestion underscores the “plaintiff’s lack of respect for
the federal judicial process,” as noted in the Opinion. See Slate, 941 F. Supp. 2d at 51. The
plaintiff has chosen in his pending motion to relitigate the same issues that arose in the plaintiff’s
opposition to the motion to dismiss for bad-faith conduct in litigation, see Pl.’s Opp’n to Mot. for
Dismissal for Bad-Faith Conduct of Litigation at 18, ECF No. 96, and compound the insult
caused by the submission of fabricated evidence by spinning yet another story to try and explain
a document he “submitted … as a critical piece of evidence—indeed the only evidence that the
plaintiff ever put ABC on notice of his non-affiliation with the PCC and his expectation to be
paid directly for his work, prior to his attempts to withdraw any license on March 14, 2008.”
Slate., 941 F. Supp. 2d at 52. His arguments are without merit and do not warrant
reconsideration of the sanction of dismissal.
3. The Court’s Factual Findings are Supported by the Record
The plaintiff points to a number of the Court’s findings, which he contends were not
supported by the record, including the factual issues identified in Part III.A.2, supra. Pl.’s
Reconsideration Mem. at 33‒43. The plaintiff’s arguments were considered by the Court in
clear and convincing evidence the fraudulent nature of the “August 21, 2006” letter. Slate, 941 F. Supp. 2d at 29 n.
1.
19
resolving the motion for summary judgment and found unpersuasive. His attempts to relitigate
the issue now are impermissible under Rule 59(e). See Messina, 439 F.3d at 759.
The plaintiff attempts to clarify the record by submitting twenty-one additional exhibits.
None of these records undermine the rationale of the Court’s decision. The plaintiff has failed to
present any new evidence that was unavailable for production during consideration of the
dispositive motions or to demonstrate any clear error or manifest injustice stemming from the
dismissal. Accordingly, the plaintiff’s motion to vacate, clarify, reconsider or amend the Order is
denied.8
B. Judicial Notice Is Not Warranted Or Timely
The plaintiff requests, under Federal Rule of Evidence 201, that the Court take notice of
five exhibits reflecting “findings and conclusions in prior opinions by courts directly related to
the allegation of discovery misconduct raised by Defendants in this litigation.” Pl.’s Mem. Supp.
Request Jud. Notice at 2, ECF No. 107-1. Federal Rule of Evidence 201 authorizes “[a] court
[to] take judicial notice, whether requested or not of any fact that is not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court
or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” FED.R.EVID. 201(b)-(c). This determination is left in the court’s
8
The plaintiff asserts related complaints about “errors arising from ‘oversight or omission’ in the clerk’s docket
management” and the record being “incomplete [] due to technical problems with the clerk’s docket management
system,” such that “Plaintiff was unable to upload a copy of a deposition transcript and several documents turned
over by Defendants during discovery.” Pl.’s Reconsideration Mem. at 1. As an example, the plaintiff explains that
he “attempted to attach Briana Heard’s Deposition as Exhibit 30 but inexplicable the PACER system would not
allow him to upload this document and a few other exhibits now attached to this motion to reconsider.” Id. at 1 n. 1
(citing “Dkt. 95-2 at 4”). The exhibits filed by the plaintiff at this docket entry, ECF No. 95, were submitted on
October 3, 2011. Thus, if the plaintiff’s failure to submit this documents earlier were truly due to technical
difficulties, he had plenty of time to correct the failure prior to the Court’s issuance of the challenged Order. In any
event, portions of the deposition of the Briana Heard submitted by the defendants were considered by the Court and
referenced in the Opinion. See Slate, 941 F. Supp. 2d at 34 (citing Dep. of Brianna Heard at 11:2-4, 11:20-12:7, ECF
No. 93-26).
20
discretion, but the matters to be noticed must be relevant. Whiting v. AARP, 637 F.3d 355, 364
(D.C. Cir. 2011). The Court concurs with the defendants that the exhibits presented for judicial
notice are “all irrelevant to the Court’s rulings.” Defs.’ Opp’n Mot. Judicial Notice at 1, ECF
No. 111. The reasons for the challenged Order are fully set out in the accompanying Opinion
and are not dependent on the course of litigation before other courts.
Moreover, the proposed exhibits to which the plaintiff seeks judicial notice range in date
from September 12, 2009 to October 14, 2011. See Pl.’s Decl. Supp. Request Jud. Notice, Ex. 1
ECF No. 107-3. Thus, each of these exhibits pre-date the dispositive briefing in this case and are
thereby untimely. Now is not the time to request that the Court consider evidence, which was
apparently available for over a year prior to the filing of the challenged Order granting summary
judgment to the defendants. The plaintiff’s motion to take judicial notice is therefore denied.
C. The Defendants’ Bill of Costs is Appropriate
The plaintiff’s final motion opposing the defendants’ bill of costs asserts that the
defendants are attempting to recover fees that are impermissible under the Local Rules. See Pl.’s
Opp’n Bill of Costs, generally. For example, the plaintiff opposes the recovery of costs for
“litigation support, additional video hours, video archiving, video set-up, archiving, custom tabs,
waiting time, delivery, summary, additional condensed transcripts, expedited services, scanning
OCR, CD ligation packages, overnight delivery, and MPEG video.” Id. at 1. The defendants
counter, however, that, with the exception of one claimed cost, the costs to which the plaintiff
objects are not costs that the defendants are seeking to recover. See Defs.’ Reply in Supp. of Bill
of Costs at 1, ECF No. 112. Thus, all but one of the plaintiff’s objections may be disregarded as
simply irrelevant. The one exception is the submitted $507.60 cost for the original and copy of a
court reporter’s transcript of the deposition of Douglas Brackett (“Brackett Deposition”), who
was designated as an organizational witness to testify on certain topics at a single Rule 30(b)(6)
21
deposition. The plaintiff objects to this cost on the ground that this deposition was “not used on
the record.” Pl.’s Opp’n Bill of Costs at 1. The plaintiff is incorrect regarding the Brackett
Deposition. As the defendants point out, this deposition was put in the record and cited as an
exhibit during the briefing of motions adjudicated by the Court. See, ECF No. 69-8 (excerpts
from D. Brackett testimony filed on May 31, 2011); ECF No. 76-6 (excerpts from D. Brackett
testimony filed on June 15, 2011).
In sum, the plaintiff has not convincingly presented any impermissible costs claimed.
Accordingly, the defendants’ Bill of Costs is granted.
IV. CONCLUSION
For the foregoing reasons, the plaintiff’s pending motions for reconsideration, to take
judicial notice and to deny the defendants’ Bill of Costs are DENIED. An appropriate order
consistent with this Memorandum Opinion will be entered.
Date: December 20, 2013 Digitally signed by Beryl A. Howell
DN: cn=Beryl A. Howell, o=District Court for
the District of Columbia, ou=District Court
Judge,
email=howell_chambers@dcd.uscourts.gov,
c=US
__________________________
Date: 2013.12.20 18:49:38 -05'00'
BERYL A. HOWELL
United States District Judge
22