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Klayman v. Judicial Watch

October 13, 2010

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") [345] Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This represents Klayman's second attempt to disqualify this Court in this case based on the allegation that certain of the Court's rulings, combined with the fact that the undersigned was appointed by former President William J. Clinton, are evidence that the Court has an extra-judicial bias or prejudice against him. As the Court previously made clear in denying Klayman's initial request for disqualification, such allegations are legally insufficient to support a request for disqualification. Klayman's most recent filings offer no new factual or legal support to the contrary. Accordingly, upon a searching review of Klayman's motion and the parties' respective briefing, the relevant case law and statutory authority, and the entire record herein, the Court shall DENY Klayman's [345] Motion to Disqualify the Court pursuant to 28 U.S.C. § 144. In addition, the Court has conducted its own independent review of the record and is satisfied that no reasonable and informed observer would question this Court's impartiality. Accordingly, for the reasons set forth below, the Court concludes that recusal is neither required nor warranted in this case.

I. BACKGROUND

The Court shall assume familiarity with the numerous opinions issued by both this Court and Magistrate Judge Alan 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 the motion 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). 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 v. Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 1034937, at *2 (Apr. 3, 2007). 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.

The instant litigation was initially filed by Klayman on April 12, 2006. See generally Compl. Resolution of this matter has been delayed for several years, largely as a result of Klayman's own repeated failure to comply with the Court's deadlines in this matter. See, e.g., May 12, 2008 Order, Docket No. [166] (describing Klayman's efforts to "stonewall" and "obstruct[]" discovery in this matter); Mar. 24, 2009 Order, Docket No. [301] (describing the "voluminous number of filings in this case resulting from Klayman's obstinance at every stage of this case"); see also Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 98, 106-08 (D.D.C. 2009) (describing Klayman's demonstrated failure to comply with Court-ordered deadlines).

The parties finally reached the summary judgment stage in late 2008. However, after the parties' cross-motions for summary judgment were ripe but before the Court had an opportunity to rule on them, Klayman filed his first request for disqualification of this Court. See Pl.'s Mot. for Recusal and/or Disqualification, Docket No. [298]. Klayman moved the Court to recuse itself pursuant to 28 U.S.C. § 455(a), which permits a litigant to seek recusal of a federal judge "in any proceeding in which his impartiality might reasonably be questioned." As set forth in his motion, Klayman alleged that recusal was warranted under section 455(a) for largely the same reasons he now claims require recusal under section 144, namely: (1) various rulings issued by the Court created an appearance of bias against him; and (2) that the undersigned was appointed to the federal bench by former President Clinton, against whose administration Klayman was a self-described "strong and controversial advocate," created an appearance of bias as well. See id. By Order and Memorandum Opinion dated June 25, 2009, the Court denied Klayman's motion for recusal, finding that "Klayman's allegation that recusal is warranted or that an appearance of bias against him has been created because of the Court's rulings in this case, along with the fact that the undersigned was appointed by former President William J. Clinton, completely lack merit." Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 98, 111 (D.D.C. 2009). The Court therefore proceeded to rule on the parties' cross-motions for summary judgment.

With the parties' dispositive motions resolved, the instant case proceeded to the pretrial stage of litigation, and the Court held an initial pretrial status conference on April 30, 2010. Because of deficiencies in the parties' Joint Pretrial Statement - particularly as concerns Klayman's portion of the statement - the pretrial status was continued until July 7, 2010, and the parties were ordered to submit an amended Joint Pretrial Statement. See Apr. 30, 2010 Order, Docket No. [334]. The pretrial conference and the parties' deadline for submitting their amendments were subsequently continued upon motion by Klayman for an extension of time. See June 6, 2010 Order, Docket No. [338]. The parties' revisions to the Joint Pretrial Statement were therefore due by no later than July 12, 2010, and the final pretrial status conference was scheduled for August 6, 2010. Id.

Klayman, however, did not file the required modifications to the Joint Pretrial Statement by July 12, 2010, as ordered, instead filing that same day a Motion to Stay all Proceedings Pending Adjudication of Motion to Disqualify Trial Judge. See Docket No. [341]. Importantly, Klayman did not actually file the proposed motion to disqualify at that time; he instead simply indicated that he intended to file a motion to disqualify pursuant to section 144 by no later than July 16, 2010, and therefore requested a stay of all proceedings.*fn1 Id. However, July 16, 2010, came and went without any such motion being filed. Rather, on July 19, 2010, three days past his own proposed deadline, Klayman instead filed a Notice with the Court repeating his intention to file a motion to disqualify and indicating that such motion would now be filed by no later than July 20, 2010. See Docket No. [343]. Once again, however, Klayman failed to file the proposed motion by his own proposed deadline of July 20, 2010. Indeed, it was not until July 26, 2010, that Klayman filed the now-pending Motion to Disqualify pursuant to 28 U.S.C. § 144. See Pl.'s Mot. to Disqualify, Docket No. [345].

As set forth in the present Motion to Disqualify, Klayman contends that disqualification of this Court is necessary because: (1) judicial rulings in this case, and in a separate, unrelated civil action in which Klayman serves as counsel of record, are evidence of the Court's extra-judicial bias against him; and (2) the undersigned was appointed to the federal bench by former President Clinton and is alleged to have connections to and associations with the Democratic party, and is therefore biased against Klayman, who states that he filed numerous lawsuits against the Clinton administration and has a self-described reputation of being "anti-Democratic." See generally Pl.'s Mot. to Disqualify. Defendants filed an opposition to the Motion on August 12, 2010, asserting that it is both untimely and legally insufficient to support disqualification in this case and is yet another attempt by Klayman to further delay resolution of this matter. See Defs.' Opp'n, Docket No. [347]. After a delay of three weeks resulting from Klayman's multiple requests for an extension of time, see Docket Nos. [349]; [350]; [351]; [352], Klayman filed a reply in support of his Motion on September 15, 2010. See Pl.'s Reply, Docket No. [354]. Accordingly, the Motion to Disqualify is now fully briefed and ripe for this Court's resolution.

II. LEGAL STANDARD AND DISCUSSION

To recuse a judge under section 144, a litigant must submit, along with its motion, an affidavit stating "the facts and the reasons for [its] belief that bias or prejudice exists." 28 U.S.C. § 144. Upon the filing of a "timely and sufficient affidavit," section 144 mandates that the assigned "judge shall proceed no further, but another judge shall be assigned to hear such proceeding." Id.; see also Bhd. of Locomotive Firemen and Enginemen v. Bangor & Aroostook R.R. Co., 380 F.2d 570, 576 (D.C. Cir. 1967) ("The disqualification statute, 28 U.S.C. § 144, is mandatory and automatic, requiring only a timely and sufficient affidavit alleging personal bias or prejudice of the judge."). "Importantly, the mere fact that a party has filed a § 144 motion, accompanied by the requisite affidavit and certificate of counsel, does not automatically result in the challenged judge's disqualification." Robertson v. Cartinhour, 691 F. Supp. 2d 65, 77 (D.D.C. 2010); see also United States v. Miller, 355 F. Supp. 2d 404, 405 (D.D.C. 2005) ("disqualification is not automatic upon submission of affidavit and certificate"). Rather, recusal is required only upon the filing of a "timely and sufficient affidavit." 28 U.S.C. § 144.

The question of whether the motion and supporting affidavit is both timely and legally sufficient is for this Court to determine in the first instance. United States v. Haldeman, 559 F.2d 31, 131 (D.C. Cir. 1976) ("It is well settled that the involved judge has the prerogative, if indeed not the duty, of passing on the legal sufficiency of a Section 144 challenge."); see also United States v. Heldt, 668 F.2d 1238, 1272 n.69 (D.C. Cir. 1981) (noting that "under section 144 . . . the transfer to another judge for decision is 'at most permissive"') (quoting Haldeman, 559 F.2d at 131). First, with respect to the timeliness of the motion, section 144 is itself silent as to "what the timeliness requirement means where, as in this case, the recusal motion rests on events occurring after proceedings began." S.E.C. v. Loving Spirit Found., Inc., 392 F.3d 486, 492 (D.C. Cir. 2004). In such circumstances, courts "have required the affidavit to be filed 'at the earliest moment.'" Id. As the D.C. Circuit has made clear, the timeliness requirement is "[c]rucial to the integrity of the judicial process," as it "ensures that a party may not wait and decide whether to file based on 'whether he likes subsequent treatment that he receives.'" Id. (quoting In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st Cir. 1960)).

Second, in determining whether the affidavit sets forth a legally sufficient basis for disqualification, the Court "must accept the affidavit's factual allegations as true even if the judge knows them to be false." Loving Spirit Found., 392 F.3d at 496; see also United States v. Hanrahan, 248 F. Supp. 471, 474 (D.D.C. 1965) ("when presented with an application and affidavit such as this one, a Court may not pass upon the truth or falsity of the allegations, but must accept them as true for the purpose of determining the legal sufficiency of the affidavit"). However, the affidavit "must state facts as opposed to conclusions, and while the information and belief of the affiant as to the truth of the allegations are sufficient, mere rumors and gossip are not enough." Hanrahan, 248 F. Supp. at 474 (internal citations omitted). "The identifying facts of time, place, persons, occasion and circumstances must be set forth, with at least that degree of particularity one would expect to find in a bill of particulars." Id. (internal citations omitted). Importantly, given the requirement that the Court accept the facts stated in the affidavit as true, the statute mandates that "the attorney presenting the motion [] sign a certificate stating that both the motion and declaration are made in good faith." Loving Spirit Found., 392 F.3d at 496; see 28 U.S.C. ...


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