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Klayman v. Judicial Watch

June 25, 2009

LARRY KLAYMAN, PLAINTIFF,
v.
JUDICIAL WATCH, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Currently pending before the Court is Plaintiff Larry Klayman's ("Klayman") Objections to Magistrate Judge Alan Kay's March 24, 2009 [301] Memorandum Opinion and [302] Order, which granted Defendants' [218] Motion for Sanctions for Plaintiff's Failure to Comply with Court Order and prohibits Plaintiff from testifying to or introducing into evidence any documents in support of his claims for damages or in support of his defenses to Defendants' counterclaims. In addition, Klayman has also moved for disqualification of Magistrate Judge Kay. Although Klayman does not specify, it appears that he argues Magistrate Judge Kay should be disqualified pursuant to 28 U.S.C. § 455(a), which requires a federal judge to recuse himself "in any proceeding in which his impartiality might reasonably be questioned." Klayman's motion appears to principally assert that Magistrate Judge Kay's rulings in this case, as well as his alleged "liberal" political views, create an appearance of bias that requires recusal. Upon searching consideration of Klayman's Objections, Defendants' Opposition, Klayman's Reply, the relevant case law, and the entire record herein, the Court concludes that: (a) Plaintiff's request that this Court disqualify Magistrate Judge Kay is DENIED, as the Court concludes that recusal is neither required nor warranted; and (b) Klayman's Objections [304] to Magistrate Judge Kay's March 24, 2009 Memorandum Opinion and Order must be OVERRULED, and Magistrate Judge Kay's [302] Order shall be AFFIRMED accordingly.

I. BACKGROUND

The Court shall assume familiarity with the numerous opinions issued by both this Court and Magistrate Judge Kay, which set forth in detail the factual background and allegations of this case, and shall therefore provide only a brief summary of the instant case as is necessary to provide context for resolution of Klayman's objections now before the Court. See Klayman v. Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 140978 (D.D.C. Jan. 17, 2007); Klayman v. Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 1034936 (Apr. 3, 2007); and Klayman v. Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 1034937 (Apr. 3, 2007) (hereinafter "Klayman I"). Defendant Judicial Watch, Inc. is a 501(c)(3) organization formed under the laws of the District of Columbia and headquartered in the District of Columbia. Klayman I, 2007 WL 1034937, *2. Defendant Fitton is President of Judicial Watch, Defendant Orfanedes is the Secretary and a Director of Judicial Watch, and Defendant Farrell is a Director of Judicial Watch. Id. Plaintiff Larry Klayman is the self-described founder and former Chairman, General Counsel and Treasurer of Judicial Watch, who resides in and practices law in the State of Florida. Id. Klayman, an attorney, is currently representing himself pro se in this matter.

Klayman's Second Amended Complaint and Judicial Watch's Amended Counterclaim in this action include various legal claims stemming from events that occurred after Klayman left Judicial Watch in September 2003. Id. Many of these claims arise out of the Severance Agreement entered into by Klayman and Judicial Watch on September 19, 2003. Id. The Court need not address the specifics of the parties' claims at this time, other than to note that, inter alia, Klayman asserts claims against the Defendants under the Lanham Act for unfair competition in the form of false advertising and false endorsements and for breach of contract relating to the Severance Agreement. 2d Am. Compl. ¶¶ 97-106; 115-162. Judicial Watch asserts counterclaims against Klayman under the Lanham Act for trademark infringement, unfair competition in the form of false advertising and false association, and cybersquatting. Am. Count. ¶¶ 84-116.

On December 3, 2007, this Court referred the instant case to Magistrate Judge Kay for disposition of all pending and future discovery-related motions pursuant to Local Civil Rule 72.2(a). See Docket No. [85]. As is relevant to Klayman's Objections, on November 2, 2007, Defendants served on Klayman their Supplemental Requests for Production of Documents. See 3/12/08 Mem. Order, Docket No. [117], at 4. Klayman's responses were due on December 6, 2007. Id. No responses were provided by that date, however, and on December 17, 2007, counsel for Defendants sent a letter to then-Plaintiff's counsel indicating that they would file a motion to compel unless they received the documents by December 19, 2007. Id. On December 18, 2007, Klayman served Responses on Defendants, in which he asserted various objections and claims of privilege, but did not provide any documents responsive to Defendants' Supplemental Requests or provide a privilege log substantiating his claims of privilege. Id. at 4-5. On January 9, 2008, Defendants again warned Klayman that they would file a motion to compel if they did not receive responsive documents. Id. at 5. Klayman failed to produce the documents, and Defendants filed a motion to compel on February 6, 2008. Id. at 5; Defs' Suppl. Requests Mot. to Compel, Docket No. [106-2]. Specifically, Defendants requested that Magistrate Judge Kay compel Klayman to produce materials responsive to document requests nos. 1-57 and 60, and also requested that Klayman be required to pay the fees and costs incurred by Defendants in filing their motion to compel. 3/12/08 Mem. Order at 5. Each of the document requests at issue relate, in large part, to Defendants' counterclaims, and many also relate to Klayman's claims for damages. See id. at 8, 9.

On March 12, 2008, Magistrate Judge Kay granted Defendants' motion as to all but one document request. See 3/12/08 Order, Docket No. [117]. Because the document requests sought relevant information and Klayman had not adequately demonstrated that the requests were improper, Magistrate Judge Kay ordered Plaintiff to supplement his responses to the documents within ten days. Id. at 11. In addition, Magistrate Judge Kay granted Defendants' request for monetary sanctions, awarding Defendants costs and attorneys' fees.*fn1 Id. at 12. Klayman filed objections to the Order, see Docket No. [125], which were overruled by this Court, see Docket No. [167]. Magistrate Judge Kay's March 12, 2008 Memorandum Order was therefore affirmed in its entirety. See id.

Thereafter, on July 7, 2008, Magistrate Judge Kay held a Status Conference after the scheduled close of discovery to address any outstanding discovery issues. On July 9, 2008, Magistrate Judge Kay issued an Order addressing all such remaining discovery issues and memorializing the schedule set during the Status Conference. See 7/9/08 Order, Docket No. [200]. As Magistrate Judge Kay noted in his July 9, 2008 Order, "Plaintiff represented [at the July 7, 2009 Status Conference] that he will be able to provide [the] documents [sought by Defendants] to Defendants by July 25, 2008." Id. at 2. Magistrate Judge Kay further stated that "[t]he Court cautions Plaintiff to be mindful of this deadline, as further noncompliance with his discovery obligations will expose him to risk of sanctions." Id. Klayman, however, failed once again to produce the responsive documents to Defendants.

Thereafter, on August 12, 2008, Defendants filed a motion requesting that Klayman be precluded from testifying or admitting any purported evidence in support of any of his alleged claims for damages or in support of his alleged defenses to Defendants' counterclaims as a sanction for his failure to produce the requested discovery as required by Magistrate Judge Kay. See Defs.' Mot. for Pl.'s Failure to Comply with Court Order, Docket No. [218]. Significantly, Klayman did not respond to Defendants' motion for sanctions nor did he produce the requested documents. 3/24/09 Mem. Op. at 6. Indeed, as of March 24, 2009-more than six months after Klayman's opposition to Defendants' motion would have been due-Klayman had yet to respond in anyway to either Defendants' motion for sanctions or the outstanding document requests.*fn2

Consequently, Magistrate Judge Kay issued a Memorandum Opinion and Order, dated March 24, 2009, treating Defendants' motion as conceded pursuant to LCvR 7(b). Id. at 7. Magistrate Judge Kay nonetheless proceeded to consider the substantive merits of Defendants' request for sanctions and reviewed in detail the procedural history surrounding Defendants' outstanding document requests. See generally id. Magistrate Judge Kay ultimately concluded that Klayman's failure to produce the relevant material severely prejudiced both the Defendants and the judicial system, and that Klayman, in refusing to comply with the Court's discovery orders, acted willfully and with full knowledge that his actions were not in accordance with the Federal Rules and Magistrate Judge Kay's orders. Id. at 8-9. As prior attempts to ensure Klayman's compliance through application of the lesser sanction of monetary costs and fees had proved fruitless, Magistrate Judge Kay granted Defendants' request to prohibit Klayman from testifying or introducing into evidence any documents in support of his claims for damages or in support of his defenses to Defendants' counterclaims. Id. at 9. Klayman now objects to this Order.

II. LEGAL STANDARD AND DISCUSSION

As discussed above, Klayman has combined his objections to Magistrate Judge Kay's March 24, 2009 Order with a request to disqualify Magistrate Judge Kay. The Court shall begin first by addressing Klayman's request to disqualify Magistrate Judge Kay before than turning to a discussion of the March 24, 2009 Order and consideration of Klayman's objections to that ruling.

A. Disqualification of Magistrate Judge Kay is Neither Appropriate or Necessary

As stated above, Klayman has moved for disqualification of Magistrate Judge Kay. Although Klayman does not specify the legal authority for this request, it appears that he contends that Magistrate Judge Kay should be disqualified pursuant to 28 U.S.C. § 455(a).*fn3 Under section 455(a), a litigant is permitted to seek recusal of a federal judge "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). In assessing section 455(a) motions, the D.C. Circuit applies an "objective" standard: "Recusal is required when 'a reasonable and informed observer would question the judge's impartiality.'" S.E.C. v. Loving Spirit Found. Inc., 392 F. 3d 486, 493 (D.C. Cir. 2004) (quoting United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001), cert. denied, 534 U.S. 952 (2001))). Here, although Klayman's briefing is far from a model of clarity, it appears that he alleges two sources of bias that he contends would cause a "reasonable and informed observer" to question Magistrate Judge Kay's impartiality. First, Klayman asserts that various ...


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