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Aleksandr Malyutin v. Condoleezza Rice

April 13, 2012


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


Plaintiff Aleksandr Malyutin, proceeding pro se, filed this action against (1) Condoleezza Rice, former Secretary of State; (2) Michael Chertoff, former Secretary of Homeland Security; (3) William Burns, former U.S. Ambassador to Russia; (4) Daniel Russell, former Deputy Chief of Mission at the U.S. Embassy in Moscow, Russia; (5) John Beyrle, former U.S. Ambassador to Russia;*fn1 and (6) Eric Rubin, former Deputy Chief of Mission at the U.S. Embassy in Moscow (collectively "Defendants"). Plaintiff alleges that since 2007, the Defendants have engaged in an ongoing conspiracy to harass and intimidate Plaintiff in order to deter him from pursuing a breach of contract action against a private company in New Jersey state court. Presently before the Court are Plaintiff's [11] Motion to Strike Notice of Appearance; Plaintiff's [12] Motion for Leave to Amend/Correct Civil Cover Sheet;*fn2 and Defendants' [13] Motion to Dismiss Plaintiff's Complaint. For the reasons stated below, Plaintiff's Motion to Strike Notice of Appearance is DENIED, Plaintiff's Motion for Leave to Amend/Correct Civil Cover Sheet is GRANTED, and Defendants' Motion to Dismiss is GRANTED.


A. Malyutin I

Plaintiff originally filed suit against Defendants Rice, Burns, Russell, Kurt Amend (former Consul General for the U.S. Embassy in Moscow), and two Doe Defendants in January 2009. Plaintiff alleged the Defendants illegally denied his application for a visa to enter the United States and otherwise conspired to prevent Plaintiff from pursuing a breach of contract claim in state court in New Jersey. Malyutin v. Rice, No. 09-93 (D.D.C. Filed Jan. 15, 2009) ("Malyutin I"). Judge Emmett G. Sullivan dismissed the case for lack of subject matter jurisdiction, holding the doctrine of consular non-reviewability barred the Court from reviewing consular decisions regarding visas, and thus the Court lacked subject matter jurisdiction over Plaintiff's claims. Id., Mem. Opin., ECF No. [37]. The Court of Appeals for the District of Columbia Circuit summarily affirmed the dismissal. Id., Mandate of the U.S. Ct. of Appeals, ECF No. [46]. The Court incorporates Judge Sullivan's discussion of the factual allegations in Malyutin I herein. Id., Mem. Opin. at 1-4.

B. Current Litigation

In contrast to the detailed and precise allegations of Plaintiff's amended complaint in Malyutin I, most of Plaintiff's seventy one page Complaint in this case is comprised of incomprehensible legalese and conclusory assertions. The Court does its best to distill the limited factual allegations in the Complaint. In essence, Plaintiff, a Russian national, proceeding pro se, [S]eeks judgment against Defendants,. . . for actual damages resulting from certain conspiratorial actions that Defendants, acting under color of federal law and being personally involved as direct participants in the activities alleged in this complaint, knowingly and deliberately took, each time with a class-based invidiously discriminatory animus behind their actions, through the meeting of the minds, in clear absence of any jurisdiction for taking such actions or performing such functions, against Plaintiff by interfering with, obstructing, and eventually defeating the due course of justice in state judicial proceedings . . ., violating Plaintiffs fundamental right of access to the state court . . ., obstructing a state court order and preventing Plaintiff from performing his duties under such order, endeavoring to destruct and eventually causing destruction of Plaintiff's material evidence in connection with, and altering the outcome of state judicial proceedings, whereby Plaintiff sustained injury in fact, was deprived of the equal protection of the laws and the equal privileges under the laws suffering class-based discrimination on account of Plaintiffs exercise of his fundamental and constitutional rights being a member of certain suspect and protected classes. Compl. ¶ 5. Plaintiff alleges he arrived in the United States in January 2007 and gave Defendants notice that he came to the United States to initiate a breach of contract action in New Jersey,*fn3 outlined his travel plans, and warned Defendants to preserve evidence relevant to claims Plaintiff might have against Defendants if they interfered with his lawsuit. Id. at ¶ 37. By "certain means," this written notice was personally delivered to Defendants Rice, Chertoff, Burns, and Russell. Id. After receiving this notice, Defendants reportedly "conspir[ed] among themselves for that matter [] to personally implement [sic] certain plan and pattern of conduct against Plaintiff in order to, inter alia, obstruct the course of justice in Plaintiff's state court litigation." Id. Defendants subsequently launched a pattern of conduct comprised of

C "ongoing harassment and putting pressure on and creation of a hostile and intimidating environment";

C "verbal intimidation and threats of physical injury to Plaintiff personally"; C "preventing Plaintiff from performing his duties under [state court] orders," including "making Plaintiff miss certain deadlines" and "destruction of Plaintiff's material evidence";

C "bringing in new members of Defendants' conspiracy"; and C "controlling Plaintiff's whereabouts and preventing Plaintiff from, and punishing Plaintiff" for attending state court and participating in "certain court-related matters."

Id. With few exceptions cited below, Plaintiff fails to provide any additional detail as to the specifics of this "conduct."

At some point, Plaintiff claims, Defendants Rice, Chertoff, Burns, and Russell personally contacted each other and exchanged information regarding the Plaintiff. Compl. ¶ 37 n.21. "Defendant Rice also advised the other Defendants, by certain means, that she planned to personally visit Moscow, Russia several times and that, therefore, she would be able to use such her visits [sic] to, inter alia, personally coordinate and further, by certain means, Defendants' conspiratorial actions against Plaintiff." Id.Defendants Rice and Chertoff then instructed "certain third parties" including employees of the State Department and Department of Homeland Security ("DHS") that "any incoming correspondence and/or communications from Plaintiff must be forwarded and delivered to Defendant Rice personally." Id. at ¶ 39. Defendants also had access to "certain records" in connection with Plaintiff's state court litigation and "used all such and certain other information to further their ongoing conspiracy." Id. at ¶ 40.

When Plaintiff left the United States in March 2007, "certain employees of the DHS," orally advised Plaintiff that "they had received certain instructions from the very top of the DHS to act accordingly against Plaintiff, . . . that Plaintiff better give up his state court litigation . . ., and that it was touch and go if Plaintiff would be able to proceed any further with his pending state court litigation." Compl. ¶ 41. Plaintiff claims he was subsequently threatened by DHS employees, indicating "that his whereabouts were being controlled and that if he would fail to do what he had just been asked to do, then Plaintiff would be punished including physically, and that such punishment could happen to Plaintiff both in the US and overseas." Id. The "[s]ame situation and conversation" was repeated by unnamed officials in Moscow before Plaintiff boarded a United States bound plane in April 2007. Id. Upon arriving in the United States, Plaintiff was allegedly "interrogated with unconcealed hostility" by individuals "who advised Plaintiff that they had received certain instructions from the very top of DHS to act this way against Plaintiff," and repeated the previous threats made against Plaintiff regarding his participation in the New Jersey litigation. Id. at ¶ 43.

"Sometime before November 2007" the Defendants decided to make Plaintiff miss upcoming deadlines in the state court litigation. Compl. ¶ 53. As part of the conspiracy, Plaintiff claims Defendants "by certain means, [organized] a car accident in order to injure Plaintiff in his person and cause him bodily harm." Id. at ¶ 54. Plaintiff was "repeatedly struck with fear of ongoing intimidating and life threatening harassment which this time was severe enoughto interfere with and alter the course of justice in Plaintiff's state court proceedings by, inter alia, making Plaintiff take a break from his ongoing discovery process." Id. Plaintiff returned home to Russia in November 2007. Id. at ¶ 56. Around that same time, Defendants decided to personally arrange for phone calls to be made to Plaintiff in Moscow, repeating the threats previously made against Plaintiff by DHS employees. Id. at ¶ 57. Defendants further conspired to prevent Plaintiff "from escaping Defendants' control and sneaking into the United States through certain foreign countries." Id. at ¶ 60. In December 2007, Plaintiff claims he contacted several foreign missions in Moscow, each of which advised Plaintiff that he would be harmed if he did not stay away from the missions. Id. at ¶ 62. Due to this "hostile, intimidating, and life threatening environment," Plaintiff missed his deposition for the state court litigation.

Id. at ¶ 63. Over the course of the next several months, the Defendants reportedly perpetuated the conspiracy and "hostile environment" which eventually led to the dismissal of Plaintiff's state court case. Id. at ¶ 67; see Malyutin v. Aqua Prods. ...

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