The opinion of the court was delivered by: Chief Judge Royce C. Lamberth
William C. Bond, proceeding pro se, brings this action against the U.S. Department of Justice ("the DOJ") and DOJ officials (collectively "federal defendants"), the Washington Post, and its reporter Manuel Roig-Franzia (collectively "the Post"). With respect to the federal defendants, Bond seeks damages and mandamus relief for violations of his constitutional rights in connection with the federal defendants' failure to investigate matters that Bond referred to the U.S. Attorney for the District of Maryland for prosecution. With respect to the Post, Bond alleges intentional infliction of emotional distress, breach of contract, fraud, negligent misrepresentation, and civil rights violations under the D.C. Criminal Code and the "federal civil rights act," Am. Compl. at 3, as well as negligent supervision stemming from the publication of an article about Bond in the Washington Post's magazine. Bond seeks damages from the Post as well as injunctive relief.
Before the Court are the federal defendants' motion to dismiss or transfer the case [Dkt. #24], the Post's motion to dismiss [Dkt. #10], and Bond's motion for leave to file a second amended complaint [Dkt. #26], as well as Bond's motions to strike portions of the defendants' briefs, which he includes in his opposition filings [Dkt. ##13, 25]. Upon consideration of these motions, the oppositions thereto, and the record of this case, the Court concludes the defendants' motions to dismiss must be granted and that Bond's motions to strike and for leave to amend his complaint a second time must be denied.
Bond's complaint*fn1 represents the latest in a series of attempts to protect both his reputation and a manuscript that he authored in the early 1990s.*fn2 Bond is no stranger to litigation, and the claims he advances here derive, in part, from suits he has filed and lost in other federal and state courts. Because the facts associated with Bond's prior actions are relevant to the disposition of the present case, the Court retraces the contours of this winding road before arriving at its conclusion in this Court.
A. Bond's Copyright, Conversion, and Invasion of Privacy Actions
In 2001, Bond brought a copyright infringement action in federal court against parties who, after allegedly stealing a copy of his manuscript, sought to use it as evidence in a child custody proceeding involving Bond's now-estranged wife and her ex-husband. Both the U.S. District Court for the District of Maryland and the Fourth Circuit Court of Appeals found that this use of the manuscript fell within the "fair use exception" for copyright-protected works. Bond v. Blum, 317 F.3d 385, 390--91 (4th Cir. 2003). Then, in Maryland state court, Bond sued various parties associated with the child custody case for conversion of his manuscript and invasion of privacy. These lawsuits were unsuccessful. Am. Compl. ¶¶ 9--10.
Bond now maintains that fraud and unethical conduct mired the state and federal proceedings. Specifically, Bond contends that the individual who stole his manuscript perjured himself and failed to produce properly subpoenaed documents during the state proceedings. Bond also avers that this individual's attorney "instructed [him] to not produce the subpoenaed documents and to not testify truthfully under oath" in the Maryland state court. Id. ¶ 12. In addition, Bond alleges that two federal judges who reviewed his case acted unethically by communicating with plaintiff's former counsel and conspiring to deprive Bond of his civil rights.
B. Bond's 2004 and 2006 Criminal Referrals to the DOJ
In an attempt to expose these alleged misdeeds, Bond first referred the matters of perjury and judicial misconduct to the United States Attorney's Office for the District of Maryland ("USAO-MD") in 2004. According to Bond, the Chief of the USAO-MD's criminal division told Bond that "he would be the Government's 'star witness' in their forthcoming prosecution."*fn3
Id. ¶ 19. The Division Chief"was fired" shortly thereafter. Id. ¶ 21. In May 2005, the USAOMD denied Bond's referral in writing, citing "discretion" as a basis for the decision not to investigate. Id. ¶ 22. Bond then submitted his referral for reconsideration "in the summer and fall of 2006" and was rebuffed yet again. Id. ¶ 24. Bond suspected that "illegal discrimination" motivated the refusal to investigate. Id. ¶ 25.
Since these denials, Bond has repeatedly complained to the USAO-MD about "crimes committed against his person" and has requested, unsuccessfully, that his complaints be referred to "other DOJ entities." Id. ¶ 62. Bond alleges Defendant DOJ officials "including persons known and unknown" have, since 2004 until the present, "acted with callous disregard for Plaintiff and his property and have treated Plaintiff with ill will, spite and hatred because of Plaintiff's juvenile past and the subject matter of his stolen property in question." Id. ¶ 71. This failure of DOJ officials to retrieve his property has caused Bond "losses to his reputation, his personal life, his health, and his financial status," as well as "emotional pain and suffering." Id.
C. Bond's FOIA and Fraud Upon the Court Cases and His Collaboration with the Post
In 2007, after his attempts to impel a USAO-MD investigation failed, Bond filed three related actions in federal court: a Freedom of Information Act ("FOIA") complaint against the USAO-MD seeking "to gain the [USAO-MD's] 'final report' of their declined investigation which plaintiff alleged would show illegal discrimination," id. ¶ 25, and two complaints alleging "fraud upon the court" by defendants in the copyright case. Id. Bond believed the USAO-MD documents could "show illegal discrimination" against him on the part of the DOJ. Id. Both the Maryland District Court and the Fourth Circuit dismissed Bond's complaints. Id. ¶ 26. Bond sought review of the dismissals by the Supreme Court, filing a petition for a writ of certiorari in late 2008 for the FOIA case and a separate petition in early 2009 for the two "fraud upon the court" cases.
In December 2008, Bond pitched a story about his petitions before the Court to Washington Post reporter Manuel Roig-Franzia. In 2001, the Washington Post published a story about Bond that Roig-Franzia had authored without Bond's cooperation. Id. ¶ 29. Bond now characterizes the 2001 article as "unflattering," id. ¶ 19, and "a take-down piece complaining about how Plaintiff was living large as a free man in Maryland." Id. ¶ 33. Nevertheless, Bond discussed with Roig-Franzia a "follow up" story "regarding Plaintiff's looming US [sic] Supreme Court petitions for certiorari," id. ¶ 29, that would feature his "legal battle to reclaim his stolen manuscripts . . . complaints of corruption in the Maryland Federal Court and discrimination against his person because of his juvenile record." Id. ¶ 33.
Over the ensuing months, Bond and Roig-Franzia met and communicated by telephone and email about the contents of the proposed story. Id. ¶¶ 30--38, 46--47, 49. According to Bond, at a December 31, 2008 meeting, Roig-Franzia agreed to the following requirements set forth by Bond: "1) that the story was time dependent to be published before the US [sic] Supreme Court set a date to decide whether to grant [Bond's petitions for] certiorari . . . and 2) that whole subjects could not be used for the story." Id. ¶ 33. Moreover, Bond told RoigFranzia in the same conversation that "anything which encroached upon the subject matters of [Bond's] 'life story' was not to be used in the story and/or was off-the-record." Id. ¶ 35. Bond specified that he "would not cooperate" with any story that "resembled in any way the 2001 story," id. ¶ 33, or that featured "the juvenile case or crime, the manuscript and its contents, Plaintiff's mother and other family relations, Plaintiff's wife and present marital discord, Plaintiff's dog, and Plaintiff's finances." Id. ¶ 36. Bond explained to Roig-Franzia that his life story had value and that he wanted to "do something" with it in the future. Id. ¶ 35. The reporter agreed to these "requirements," id. ¶ 37, both at the December 31, 2008 meeting and in a separate telephone conversation in early January 2009. Roig-Franzia assured Bond that "he had nothing to worry about with the replication of the 2001 subject matter because that story had already been written." Id. ¶ 34. After this second exchange, Bond began to cooperate "in earnest" with Roig-Franzia, "giving extensive interviews, supplying experts & [sic] references . . . and agreed for [sic] photographs." Id. ¶ 39.
Bond was eager for the article to be published before the Supreme Court ruled on his petitions. On several occasions, he urged Roig-Franzia to expedite publication. Id. ¶ 42. Bond's first petition was denied before publication of the story. Id. ¶ 40. Bond and RoigFranzia then spoke and "agreed that the second petition was [Bond's] most important" and that "[t]he story would come out in advance of that conference of the Supreme Court." Id. ¶ 42. The second petition was also denied before the article's publication. Id. ¶ 43. After some doubt as to the future of the story, Bond agreed to more interviews and photos "under the continued belief that his legal battle would still be told." Id. at ¶ 47. According to Bond "there were several conversations where [Roig-Franzia] convinced [Bond] not to pull his approval from the story." Id.
The article appeared in the Washington Post's magazine on May 31, 2009, several months after the Court denied Bond's petitions. Id. ¶ 51. Bond was "surprised and humiliated" by the article. Id. ¶ 52. It used "manufactured quotes," id. ¶ 56, and off-the-record quotes that Bond had "made only and expressly for 'back story' use for the reporter's own personal understanding of [Bond's] life and cases." Id. ¶ 55. The article also discussed topics that RoigFranzia had agreed to exclude, id. ¶¶ 52, 55, including quotes from "an Ohio juvenile official" that discussed Bond's juvenile record. Id. ¶ 99. Thus, according to Bond, the article "completely recreated the 2001 Washington Post story which the reporter and plaintiff agreed would never happen" during their December 31, 2008 meeting, id. ¶ 52, and was not even "remotely close to what [Bond] agreed to cooperate with by the agreement entered into on December 31, 2008 and at all times afterward." Id. ¶ 58. Seeking a correct or retraction of the story, Bond contacted the Washington Post's ombudsman "soon after" the May 31, 2009 publication. Id. ¶ 59. According to Bond, the ombudsman "agreed such a correction was in order," but the Post took no further action. Id. Bond followed up with additional requests for a "supervisory editor" to get involved, but the Post did not respond. Id.
Bond now alleges Roig-Franzia breached an "oral contract" as to the content of the story when he included material that he had agreed to exclude. Id. ¶ 88. Bond states that he "never knew the reporter intended to renege on his agreement," id. ¶ 90, and that Roig-Franzia "knew that he was making a false representation to [Bond] and continued to mislead [him]." Id. ¶ 91. Bond also maintains that there are "unknown individuals" at the Post who "are filled with ill will, spite and hatred" toward him and "have taken actual acts to cause harm to [him]." Id. ¶ 103. He alleges the Post failed to supervise Roig-Franzia and "to right the wrong committed by the misuse of the newspaper." Id. ¶ 102. As a result of the Post's actions, Bond claims that he suffered "a loss in value of his life story, loss to his reputation and standing in his community, loss to his relationships and emotional pain and suffering." Id. ¶ 96.
D. Bond's 2010 Criminal Referrals to the DOJ
During his collaboration with Roig-Franzia, Bond sought to intervene in a political corruption case against Thomas L. Bromwell, Sr., a former member of the Maryland Senate. See United States v. Bromwell,222 Fed. Appx. 307, 308 (4th Cir. 2007). Bond believed that certain sealed documents filed in the prosecution of Bromwell contained negative information about an attorney who had represented Bond's adversaries in his copyright action. For reasons not appearing on the record, this attorney was disqualified from representing parties in Bromwell, and Bond sought to unseal documents that contained information about the grounds for his disqualification. The U.S. District Court for the District of Maryland denied Bond's motion to intervene in Bromwell, and the U.S. Court of Appeals for the Fourth Circuit affirmed. United States v. Bromwell,377 Fed. Appx. 312, 312 (4th Cir. 2010).
In June and July of 2010, for reasons not presented in the pleadings, Bond had an "informal meeting" with an unnamed federal circuit court judge before whom he had appeared in prior proceedings. Am. Compl. ¶ 63. Bond states that the judge told him that "the US [sic] Attorney for the District of Maryland was fired in 2004, in part, because of Plaintiff's very case . . . ." Id. ¶ 67. Bond also maintains that the judge shared information revealing his "exceptionally close relationship" with the district court judge who had denied Bond's request to intervene in the Bromwell case. Id. ¶ 81. Subsequently, Bond filed at least one additional criminal referral with the USAO-MD in "late summer 2010," id. ¶ 77, alleging "misuse of public office for private gain" by the district judge, id. ¶ 78, and a conspiracy among the judges presiding over his past cases and other parties "known and unknown" to "deprive Plaintiff of his civil rights." Id. ¶ 83.
Still seeking information about the aforementioned attorney involved in the Bromwell case, Bond also "complained [to the USAO-MD] that the USAO-MD should do something about why the presiding US [sic] District Judge refused to refer the 'disqualified' attorneys to the appropriate Maryland state and federal grievance commissions." Id. ¶ 80. Neither the USAO- MD nor the DOJ responded to this referral. Id. ¶ 84. This failure to investigate has caused Bond "embarrassment" and insecurity about "his basic constitutional rights." Id. ¶ 86.
E. Bond's Claims Before this Court
Bond filed this action on September 23, 2010, alleging both civil rights violations and tort claims. With respect to the federal defendants, Bond alleges that the DOJ and the named and unnamed DOJ officials violated his civil, due process, and property rights when they failed to investigate his 2005 and 2010 criminal referrals. Bond maintains that "there are unknown individuals at the DOJ who are filled with ill will, spite and hatred toward plaintiff who have refused and who continue to refuse to protect [his] civil rights for political reasons." Id. ¶ 85. These officials, Bond contends, have "watched silently while Plaintiff's civil right to due process and his own property have been eviscerated for political and discriminatory reasons." Id. ¶ 71. Bond sues these officials under the federal civil rights act (without specifying which exact laws the federal officials have allegedly violated) and states that he is not advancing a claim under the Federal Tort Claims Act ("FTCA"). Pl.'s Opp'n to Fed. Defs.' Mot. to Dismiss ("Pl.'s Opp'n to Fed. Defs.") at 4. Bond seeks economic, non-economic and punitive damages and asks this Court to order the DOJ "to send their agents to each and every person who has or who may have Plaintiff's copyrighted works, impound those works, and return them to Plaintiff," Am. Compl. ¶ 68, "to account for their denial of Plaintiff's right to his property under color of law and other discriminations by ordering an investigation into these matters by the Office of the Inspector General," id. ¶ 69, and "to seek restitution on behalf of federal tax payers for monies spent unnecessarily" in connection with the Bromwell case. Id. ¶ 82. Bond also asks this Court to order the DOJ's Office of Inspector General to "investigate judicial corruption and why the Defendant DOJ officers refused to do their job." Id. ¶¶ 71, 87.*fn4
With respect to the Post, Bond alleges fraud, intentional infliction
of emotional distress, and breach of contract as well as civil rights
violations under D.C. Criminal Code § 22-3221, the common law, and the
"federal civil rights act." Pl.'s Opp'n to Fed. Defs. at 4.*fn5
Bond also claims that Roig-Franzia, acting with malice, Am.
Compl. ¶ 96, breached an oral contract that delineated the contents of
the story, id. at ¶ 58, stole his "life story", id. ¶ 55, and
"repeatedly invad[ed] Plaintiff's 'confidential' Ohio juvenile record
. . . ." Id. ¶ 99. Finally, he alleges that Roig-Franzia
"intentionally circumvented the Post's safeguards to prevent rogue
reporters from misusing the paper's vast powers . . . ." Id. ¶ 100. At
the same time, Bond alleges that the Post was negligent in its
supervision of Roig-Franzia, id. ¶ 102, and in its failure to "right
the wrong committed by the misuse of their [sic] paper." Id. From the
Post, Bond seeks economic, non-economic and punitive damages, id. ¶
101, as well as the return of photographs, copyright ownership over
the published story, "a prominent story about his legal fight in the
Washington Post and/or the value of such a story." Pl.'s Opp'n to
Washington Post and Manuel RoigFranzia's Mot. Dismiss ("Pl.'s Opp'n to
Post.") at 16.
The Post and the federal defendants have moved separately to dismiss Bond's amended complaint. Federal defendants move for dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and, in the alternative, ...