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Klayman v. Judicial Watch, Inc.

United States District Court, District of Columbia

August 7, 2019

LARRY KLAYMAN, Plaintiff,
v.
JUDICIAL WATCH, INC., et al., Defendants.

          MEMORANDUM OPINION [1]

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         Plaintiff/Counter-Defendant Larry Klayman seeks reconsideration of the Court's decision to deny his post-trial motions in this matter. Once again he also pursues voluntary recusal or disqualification of the Court. And lastly, Klayman makes his latest request for sanctions against Defendant/Counter-Plaintiff Judicial Watch, Inc. (“Judicial Watch”) and Counter-Plaintiff Thomas J. Fitton.

         For their part, Judicial Watch and Fitton want attorney's fees and costs for prevailing in this matter, and ask that Klayman's wages be garnished to ensure that they begin recovering for their favorable judgment.

         Upon consideration of the briefing, [2] the relevant legal authorities, and the record as a whole, in an exercise of its discretion the Court shall DENY Klayman's [587] Motion for Reconsideration of the Court's Order Denying Motion for Judgment Notwithstanding the Verdict (“Motion for Reconsideration”); DENY Klayman's [587] Renewed Motion for Voluntary Recusal or Disqualification; DENY Klayman's [592] Motion for Sanctions; RESOLVE Judicial Watch's and Fitton's [585] Motion for Attorney Fees and Costs; LIFT THE STAY on Judicial Watch's [595] Writ of Attachment on a Judgment; and LIFT THE STAY on Fitton's [596] Writ of Attachment on a Judgment.

         I. BACKGROUND

         This is the eightieth substantive Memorandum Opinion, Order, or combination thereof issued by the Court or Magistrate Judge Alan Kay in this thirteen-year litigation. See Klayman v. Judicial Watch, Inc., Civil Action No. 06-670 (CKK), 2019 WL 1244079, at *2 n.4 (D.D.C. Mar. 18, 2019) (listing each such decision).[3] For a discussion of recent past proceedings, the Court refers the reader to its March 18, 2019, decision denying Klayman's post-trial motions. Id. at *2-*4.

         Only certain proceedings following that March 18, 2019, decision are currently relevant. First, Judicial Watch and Fitton sought attorney's fees and costs for this litigation, but the Court stayed briefing of that motion after Klayman moved for reconsideration of the March 18, 2019, decision and for voluntary recusal or disqualification of the undersigned. See Min. Orders of Apr. 17, 2019, and Apr. 26, 2019. Although Judicial Watch and Fitton filed an opposition to the Motion for Reconsideration and the Renewed Motion for Voluntary Recusal or Disqualification, Klayman did not file a reply by the appointed deadline of May 6, 2019. See Min. Order of Apr. 15, 2019. Instead, on May 16, 2019, Klayman sought sanctions for the representations in Judicial Watch's and Fitton's opposition. Most recently, Judicial Watch and Fitton sought garnishment of Klayman's wages at Freedom Watch, Inc., pursuant to the Court's judgment of March 18, 2019. See Final Judgment, ECF No. 584. But the Court invited briefing regarding its proposal to hold the writs in abeyance pending its resolution of the Motion for Reconsideration and the Renewed Motion for Voluntary Recusal or Disqualification, and instructed the Clerk of Court to stay issuance of the requested Writs of Attachment on a Judgment pending the Court's further order. Min. Order of July 24, 2019.

         All necessary briefing of the pending motions has concluded, [4] leaving them ripe for resolution.

         II. LEGAL STANDARD

         A. Motion for Reconsideration of Final Judgment

         Pursuant to Federal Rule of Civil Procedure 60(b), a district court is permitted to “relieve a party or its legal representative from a final judgment, order, or proceeding” on one of six enumerated grounds, including, for example, “mistake, inadvertence, surprise, or excusable neglect, ” or “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1)-(6). The party moving under Rule 60(b) bears the burden of proving entitlement to that relief. Norris v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011) (citing, e.g., Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383-84 (1992)). “The decision to grant or deny a rule 60(b) motion is committed to the discretion of the District Court.” Kareem v. FDIC, 811 F.Supp.2d 279, 282 (D.D.C. 2011) (quoting United Mine Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469, 476 (D.C. Cir. 1993)) (internal quotation marks omitted), aff'd, 482 Fed.Appx. 594 (D.C. Cir. 2012) (per curiam); see also Smalls v. United States, 471 F.3d 186, 191 (D.C. Cir. 2006) (applying abuse of discretion standard to review of such a motion).

         B. Motion for Voluntary Recusal or Disqualification

         1. Motion Pursuant to Section 455(a)

         Klayman moves to recuse this Court pursuant to 28 U.S.C. § 455(a), which requires a federal judge to recuse herself “in any proceeding in which [her] impartiality might reasonably be questioned.” “[T]o be disqualifying, the appearance of bias or prejudice must stem from an extrajudicial source.” United States v. Barry, 961 F.2d 260, 263 (D.C. Cir. 1992). Under the well-recognized “‘objective' standard” in this Circuit, “[r]ecusal is required when ‘a reasonable and informed observer would question the judge's impartiality.'” SEC 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) (en banc) (per curiam), cert. denied, 534 U.S. 952 (2001)). “This standard requires that [the Court] take the perspective of a fully informed third-party observer who ‘understand[s] all the relevant facts' and has ‘examined the record and the law.'” United States v. Cordova, 806 F.3d 1085, 1092 (D.C. Cir. 2015) (quoting United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008)) (second alteration in original). As a result, “bald allegations of bias or prejudice” do not suffice. Karim-Panahi v. U.S. Cong., Senate & House of Representatives, 105 Fed.Appx. 270, 275 (D.C. Cir. 2004) (per curiam).

         In the context of Section 455(a), “unfavorable judicial rulings alone almost never constitute a valid basis for reassignment.” United States v. Hite, 769 F.3d 1154, 1172 (D.C. Cir. 2014); see also United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995) (per curiam) (“That a judge commits error, of course, is by itself hardly a basis for imputing bias or even the appearance of partiality.”). As the Supreme Court has observed, judicial rulings by themselves “cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved.” Liteky v. United States, 510 U.S. 540, 555 (1994). Therefore, dissatisfaction with a court's rulings “[a]lmost invariably” provides “proper grounds for appeal, not for recusal.” Id. (emphasis added). In addition, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings . . . do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. Consequently, courts in this Circuit have routinely held that a claim of bias predicated on a court's rulings does not, standing alone, warrant recusal. See, e.g., Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1301 (D.C. Cir. 1988) (finding that because plaintiff's motions to recuse “were based entirely upon the district court's discovery rulings in this case, their denial was clearly proper”), cert. denied, 488 U.S. 825 (1988); Cotton v. Washington Metro. Area Transit Auth., 264 F.Supp.2d 39, 42 (D.D.C. 2003) (determining that claim of bias based on court's discovery rulings did not warrant recusal).

         The Court of Appeals recognizes the trial court's discretion in handling Section 455(a) motions. See Loving Spirit Found. Inc., 392 F.3d at 493 (applying abuse of discretion standard).

         2. Motion Pursuant to Section 144

         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” in the case, “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. Sec. 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) (“[D]isqualification is not automatic upon submission of affidavit and certificate . . . .”).

         The question of whether the motion and supporting affidavit are 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.”), cert. denied sub nom. Mitchell v. United States, 431 U.S. 933 (1977); 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.” Loving Spirit Found. Inc., 392 F.3d at 492. “ In such circumstances, some courts have required the affidavit to be filed ‘at the earliest moment.'” Id. (quoting United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993); James v. District of Columbia, 191 F.Supp.2d 44, 47 (D.D.C. 2002) (quoting Sykes, 7 F.3d at 1339)). 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. Inc., 392 F.3d at 496 (citing Berger v. United States, 255 U.S. 22, 35-36 (1921)); see also United States v. Hanrahan, 248 F.Supp. 471, 474 (D.D.C. 1965) (“[W]hen 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 (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. (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. Inc., 392 F.3d at 496; see 28 U.S.C. § 144 (requiring that the affidavit “be accompanied by a certificate of counsel of record stating that it is made in good faith”). The certification requirement is key to the integrity of the recusal process and “guard[s] against the removal of an unbiased judge through the filing of a false affidavit.” Loving Spirit Found. Inc., 392 F.3d at 496.

         Once it is established that the affidavit has been properly certified by counsel of record and that the facts set forth therein have been stated with sufficient particularity, the Court must then

ascertain[] whether these facts would fairly convince a sane and reasonable mind that the judge does in fact harbor the personal bias or prejudice contemplated by the statute. It is well established that the facts must give fair support to the charge of a bent mind that may prevent or impede impartiality. The basis of the disqualification is that personal bias or prejudice exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. The factual allegations must establish by more than a prima facie case, but not beyond a reasonable doubt that the mind of the judge is closed to justice; that the judge has a personal bias or prejudice against the affiant which is of such a nature, and of such intensity, that it would render the judge unable to give the affiant the fair trial to which every litigant is entitled. Obviously, such a showing could rarely be made.

Hanrahan, 248 F.Supp. at 475-76 (citations and internal quotation marks omitted). “Importantly, to be disqualifying, the alleged bias usually ‘must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'” Robertson, 691 F.Supp.2d at 78 (quoting United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); citing Liteky, 510 U.S. at 554).

         Because the Court of Appeals has not determined whether to apply an abuse of discretion or de novo standard of review to the denial of a Section 144 motion, this Court shall conservatively assume, arguendo, that such a motion should be handled in the first instance as a matter of law. SeeUnited States v. Williamson, ...


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