Larry Klayman v. Judicial Watch, Inc. ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2020 Decided July 30, 2021
No. 19-7105
LARRY KLAYMAN,
APPELLANT
v.
JUDICIAL WATCH, INC., ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-00670)
John P. Szymkowicz argued the cause for appellant. With
him on the briefs was John T. Szymkowicz. Larry E. Klayman
entered an appearance.
Richard W. Driscoll argued the cause and filed the brief
for appellee.
Before: WILKINS and RAO, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
2
RAO, Circuit Judge: Larry Klayman founded and ran
Judicial Watch, a conservative watchdog group with the motto
“Because No One is Above the Law.” This appeal concerns his
departure from Judicial Watch in 2003 and the resulting
hostility between Klayman and the Judicial Watch officers
currently at its helm. Klayman filed a complaint against
Judicial Watch and those officers asserting an array of claims,
and Judicial Watch fired back with a series of counterclaims.
During the fifteen years of ensuing litigation, Klayman lost
several claims at summary judgment and then lost the
remaining claims after a jury trial. The jury ultimately awarded
Judicial Watch $2.3 million. On appeal, Klayman raises
numerous issues spanning every stage of litigation, including
discovery, pretrial, trial, and post-trial. Despite the volume of
his challenges, none is meritorious. We affirm the district court.
I.
Larry Klayman founded Judicial Watch in 1994 and
served as its Chairman and General Counsel until his departure
in 2003. Klayman and Judicial Watch have divergent accounts
of why he left the organization. According to Klayman, he left
voluntarily to run for the U.S. Senate. According to Judicial
Watch, it forced Klayman to resign due to his misconduct. We
recount the facts as proven at trial and then recount the lengthy
procedural history of this case.
A.
Klayman’s time at Judicial Watch came to a close after a
meeting in May 2003 with two Judicial Watch officers,
President Thomas Fitton and Secretary Paul Orfanedes.
Klayman told them that his then-wife, Stephanie DeLuca, had
filed a complaint for divorce alleging infidelity and physical
abuse, and he showed them a copy of the divorce complaint.
3
Klayman admitted he was pursuing a romantic relationship
with a Judicial Watch employee. Klayman also told Fitton and
Orfanedes about a violent altercation he had with DeLuca. As
DeLuca later testified, Klayman “put his hands around [her]
neck, and he started to shake [her] and bang [her] head against
the car window.” J.A. 2999. Klayman then “punched his hand
into the radio,” resulting in a broken hand. J.A. 3000. After
hearing this information, Fitton told Klayman to resign.
Negotiations over Klayman’s departure ensued over the next
several months.
Meanwhile, in September 2003, Judicial Watch began
preparing its October newsletter, which was mailed to donors
along with a cover letter signed by Klayman as Judicial
Watch’s “Chairman and General Counsel.” After Klayman
reviewed the newsletter, Judicial Watch sent it to the printer.
While the newsletter was at the printer, Klayman and
Judicial Watch executed a severance agreement in which
Klayman agreed to resign effective September 19, 2003. The
severance agreement contains detailed provisions restricting
the parties’ conduct. For example, it prohibits the parties from
disparaging each other, but places no limits on their ability to
provide fair comment. The agreement also prohibits Klayman
from having access to Judicial Watch donor lists and requires
him to pay personal expenses he owed to the organization.
Judicial Watch paid Klayman $600,000 under the severance
agreement.
After Klayman left Judicial Watch, he ran to represent
Florida in the U.S. Senate. His campaign used American Target
Advertising (“ATA”), the third-party vendor that Judicial
Watch used for its mailings to donors. Through ATA,
Klayman’s campaign obtained the names of Judicial Watch’s
4
donors to use for campaign solicitations. Klayman lost the
primary election for the Senate race.
Klayman then launched an effort he dubbed “Saving
Judicial Watch.” It included a website,
savingjudicialwatch.org, and a fundraising effort directed at
Judicial Watch donors using the names obtained from ATA for
his Senate run. In promotional materials, Klayman asserted that
he left Judicial Watch to run for Senate. See, e.g., J.A. 2606
(“In 2003, I left Judicial Watch to run for the U.S. Senate in
Florida.”); J.A. 2613 (Judicial Watch “created the false
impression I left for some reason other than to run for the U.S.
Senate.”). Klayman contended that Fitton and the Judicial
Watch leadership team had mismanaged and corrupted the
organization and that Klayman should be reinstated to lead
Judicial Watch. After the Saving Judicial Watch campaign
began, Judicial Watch received several letters from past donors
who stated they would not donate to Judicial Watch until
Klayman was reinstated. The hostility between Klayman and
Judicial Watch continued over the next several years.
B.
Klayman filed a complaint against Judicial Watch and
several of its officers in 2006, asserting a panoply of claims. As
relevant here, Klayman alleged that Judicial Watch violated the
Lanham Act, 15 U.S.C. § 1125(a)(1), by publishing a false
endorsement or advertisement when it sent the newsletter
identifying him as “Chairman and General Counsel” after he
had left Judicial Watch. Klayman also alleged that Judicial
Watch breached the severance agreement’s non-disparagement
clause by preventing him from making fair comment about
Judicial Watch. Klayman finally alleged that Judicial Watch
defamed him by telling reporters that he filed this lawsuit as a
tactic to avoid paying the quarter-million dollars he owed
5
Judicial Watch. In addition to damages, Klayman sought to
rescind the severance agreement.
Judicial Watch and its officers asserted counterclaims
against Klayman. Judicial Watch alleged that Klayman
breached the severance agreement by gaining access to Judicial
Watch donor lists and by failing to repay the personal expenses
he had agreed to pay. Judicial Watch also alleged that Klayman
infringed on its trademarks, “Judicial Watch” and “Because No
One is Above the Law,” by using them in his Saving Judicial
Watch campaign. Judicial Watch later added a claim of unfair
competition in violation of the Lanham Act, alleging that
Klayman made false statements when he represented that he
left Judicial Watch to run for Senate.
During discovery, Klayman failed to produce documents
that were responsive to a set of supplemental requests from
Judicial Watch. The magistrate judge ordered him to produce
them. After Klayman still failed to produce those documents,
the district court sanctioned Klayman by precluding him from
presenting any documents, or testifying to them, in support of
his claims and defenses.
The parties filed numerous summary judgment motions.
The district court granted partial summary judgment in favor
of Judicial Watch on several of Klayman’s claims and Judicial
Watch’s counterclaim for the repayment of Klayman’s
personal expenses. This partial summary judgment left only a
few claims for trial, including Klayman’s breach of contract
claim and Judicial Watch’s counterclaims of breach of contract
and Lanham Act violations.
As the trial approached, the district court ordered the
parties to prepare a joint pretrial statement, including a list of
witnesses and exhibits. Klayman submitted a deficient pretrial
6
statement by listing the testimony to be elicited from most
witnesses as “all issues” and his exhibits as “all documents” on
a particular topic. J.A. 1896, 1902. After several failed attempts
at obtaining Klayman’s compliance, the district court
sanctioned Klayman by striking the defective portions of the
pretrial statement. Because the parties could introduce only
witnesses or exhibits listed in the pretrial statement, this
sanction barred Klayman from affirmatively presenting
witnesses or exhibits in support of his claims and defenses at
trial.
A thirteen-day jury trial took place in 2018. The primary
factual issue was the reason for Klayman’s departure. Because
of the sanctions, Klayman could present no evidence at trial
other than his testimony,1 in which he asserted that he left
Judicial Watch to run for the Senate. To support its position
that Klayman was forced to resign, Judicial Watch elicited
testimony from Judicial Watch officers Fitton and Orfanedes
about the meeting in which Klayman told them of his
misconduct. Klayman objected that this testimony was
irrelevant, but the district court overruled the objection.
Judicial Watch also introduced the deposition of DeLuca,
Klayman’s ex-wife, in which she testified that Klayman
physically assaulted her and called her vulgar names. Klayman
objected to the name-calling as irrelevant, but the court
admitted this testimony. The district court instructed the jury,
refusing to give several instructions requested by Klayman.
1
Despite its earlier sanctions precluding Klayman from presenting
testimony or evidence, the court later clarified that Klayman could
testify at trial. Because the sanctions only precluded Klayman from
affirmatively introducing evidence, they did not preclude him from
using documents that Judicial Watch introduced or cross-examining
its witnesses.
7
The jury returned a verdict for Judicial Watch, awarding a total
of $2.3 million.
The district court initially entered a judgment on the
verdict against Klayman on March 15, 2018, a day after the
jury announced its verdict. The court later vacated that
judgment, however, so that Klayman could have more time to
file post-trial motions. Klayman then moved under Federal
Rules of Civil Procedure 50 and 59 for a judgment as a matter
of law, a new trial, or remittitur of the damages. The court
denied his motion and entered a final judgment against
Klayman on March 18, 2019. Klayman moved under Federal
Rule of Civil Procedure 60 for reconsideration of that denial
and also sought the district court’s recusal. The district court
denied that motion on August 7, 2019. Klayman filed his notice
of appeal on September 6, 2019.
After concluding that Klayman’s appeal was timely, we
proceed to address the merits. We have also considered and
reject without written opinion Klayman’s “peripheral
arguments.” Aircraft Serv. Int’l, Inc. v. FERC, 985 F.3d 1013,
1020 n.4 (D.C. Cir. 2021).
II.
Judicial Watch challenges the timeliness of Klayman’s
appeal and so we first address this threshold issue. To appeal a
judgment, a party must file his notice of appeal within thirty
days of entry of the judgment. FED. R. APP. P. 4(a)(1)(A). The
time to appeal is extended, however, upon the timely filing of
certain motions under the Federal Rules of Civil Procedure.
Those motions include one “for judgment under Rule 50(b),”
“for a new trial under Rule 59,” and “for relief under Rule 60
if the motion is filed no later than 28 days after the judgment is
entered.” FED. R. APP. P. 4(a)(4)(A). If one of those motions is
8
filed, the time to appeal is extended until “the entry of the order
disposing of the last such remaining motion,” and the appellant
then has thirty days from that date to appeal. See FED. R. APP.
P. 4(a)(4)(A). Although some refer to this extension as
“tolling” the time for appeal, that description is inaccurate.
Unlike tolling, which merely pauses the clock until a specified
event occurs, Rule 4(a)(4)(A) effectively “re-starts the appeal
time period.” See 16A CHARLES ALAN WRIGHT, ARTHUR R.
MILLER & CATHERINE T. STRUVE, FED. PRAC. & PROC.
§ 3950.4 (5th ed. Apr. 2021 update).
The district court first entered a judgment on the verdict
against Klayman on March 15, 2018. The court then vacated
that judgment to allow Klayman to file post-trial motions.
Klayman filed a motion under Federal Rules of Civil
Procedure 50 and 59, seeking a judgment as a matter of law, a
new trial, or remittitur of the jury verdict. The district court
denied that motion and entered a second judgment—a “final
judgment”—against Klayman on March 18, 2019.
At the outset, the parties both measure the timeliness of
Klayman’s appeal from the “final judgment” entered by the
district court on March 18, 2019—not the now-vacated
judgment on the verdict. See Judicial Watch Br. 22–23;
Klayman Reply Br. 15–16. Because Federal Rule of Appellate
Procedure 4(a)(4)(A) is a claims-processing rule instead of a
jurisdictional rule, we hold the parties to that agreement.2 See
Obaydullah v. Obama, 688 F.3d 784, 790–91 (D.C. Cir. 2012).
2
Given the parties’ agreement and the district court’s finding that the
March 15, 2018, judgment was not a final judgment because it did
not include the calculation of prejudgment interest, the district
court’s vacatur of its judgment on the verdict to provide Klayman
with more time to file post-trial motions does not impact our analysis
of the timeliness of this appeal. We note, however, that a district
9
After the final judgment, Klayman filed a motion for
reconsideration under Federal Rule of Civil Procedure 60. A
motion under Rule 60 extends the time for appeal if it is “filed
no later than 28 days after the judgment is entered.” FED. R.
APP. P. 4(a)(4)(A)(vi) (emphasis added). Klayman filed his
Rule 60 motion twenty-five days after the court entered its final
judgment, so the motion restarted his time to appeal. Klayman
then appealed within thirty days from the district court’s denial
of the second motion. Klayman’s appeal was thus timely.
Under the current Rule 4(a)(4)(A), Klayman’s motion to
reconsider brought under Federal Rule of Civil Procedure 60
qualifies as a motion that can, and did, restart his time to appeal.
In 1993, Federal Rule of Appellate Procedure 4(a)(4)(A) was
amended to add motions under Rule 60. Judicial Watch
attempts to rely on American Security Bank v. John Y. Harrison
Realty for the proposition that “a motion to reconsider the
denial of a motion for a new trial does not operate to toll the
running of the appeal period.” 670 F.2d 317, 320 (D.C. Cir.
1982). Yet when that case was decided, Federal Rule of
Appellate Procedure 4(a)(4)(A)’s list of motions that restarted
the time to appeal did not include motions under Federal Rule
of Civil Procedure 60. See FED. R. APP. P. 4(a)(4)(A) (1981).
court may not vacate a final judgment to provide a party more time
to file a motion for judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50(b) or a motion for a new trial or amended
judgment pursuant to Federal Rule of Civil Procedure 59(b), (d),
or (e). See FED. R. CIV. P. 6(b)(2) (prohibiting district courts from
extending certain deadlines); Wilburn v. Robinson, 480 F.3d 1140,
1144 (D.C. Cir. 2007); Toolasprashad v. Bureau of Prisons, 286 F.3d
576, 582 (D.C. Cir. 2002); see also 4B CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & ADAM N. STEINMAN, FED. PRAC. & PROC.
§ 1167 (4th ed. Apr. 2021 update) (explaining Rule 6(b)(2)’s
prohibition on district courts extending the time to appeal).
10
Our interpretation in American Security Bank of the now-
outdated rule is of no consequence to this case.
Judicial Watch also argues, as a policy matter, that an
appellant should benefit from restarting his time to appeal only
once, preventing the proverbial second bite at the apple.
Because Klayman restarted his time to appeal with his first
motion for a new trial under Rule 59, Judicial Watch maintains
that his second motion asking for reconsideration under
Rule 60 was impermissibly successive. We need not decide
whether an appellant may restart his time to appeal more than
once because Klayman’s motions were not successive for the
purpose of his time to appeal. The parties agree that we
measure the time to appeal from the final judgment. After the
final judgment, Klayman filed only one motion that restarted
his time to appeal—the motion under Rule 60. His earlier
Rule 59 motion, which resulted in the vacatur of the judgment
on the verdict, preceded the final judgment and is therefore
irrelevant for the timeliness of the appeal. Although Klayman
filed multiple post-trial motions, only his second motion
restarted his time to appeal, so we need not determine whether
an appellant may benefit from Federal Rule of Appellate
Procedure 4(a)(4)(A)’s restarting more than once. We hold that
Klayman’s appeal was timely and proceed to the merits.
III.
We begin with the district court’s rulings before trial.
Klayman challenges the district court’s two sanctions against
him for his pretrial conduct. We review the imposition of
sanctions for abuse of discretion. See Dellums v. Powell, 566
F.2d 231, 235 (D.C. Cir. 1977). Neither of Klayman’s
sanctions was an abuse of discretion.
11
A.
First, the district court did not abuse its discretion when it
sanctioned Klayman for his failure to provide any documents
in response to Judicial Watch’s supplemental discovery
requests. After Klayman failed to provide any documents and
instead objected to each request, Judicial Watch moved to
compel his response. The magistrate judge granted the motion,
ordering Klayman to provide documents in response to all but
one request within ten days. Several months later, the
magistrate judge learned that Klayman had not produced any
documents in response and warned him that further
noncompliance would risk sanctions. More than five months
after the magistrate judge’s original order, Klayman had not
produced any documents, so Judicial Watch moved for
sanctions. Klayman provided no response to that motion.
The magistrate judge found Klayman had conceded the
motion, though the judge also found the sanction warranted on
the merits and recommended that the district court sanction
Klayman by precluding him from testifying or presenting
documents to support his claims and defenses. Klayman
objected to the recommendation, but the district court
explained that he had conceded the motion by failing to
respond to it before the magistrate judge. Nonetheless, the
court considered Klayman’s objections on the merits, but
overruled them and entered the sanction.
We need not delve into the merits of this sanction because
Klayman waived his challenge to it by failing to oppose
Judicial Watch’s motion before the magistrate judge. See
D.D.C. LOCAL R. 7(b); D.D.C. LOCAL R. 72.2(b). Although
Klayman objected to the magistrate judge’s recommendation,
“[i]ssues raised for the first time in objections to the magistrate
judge’s recommendation are deemed waived.” Marshall v.
12
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (collecting cases).
Because Klayman conceded the sanction below, he cannot
raise it for our consideration on appeal.
Even if we were to review the merits, we find no abuse of
discretion in the admittedly severe sanction. A district court
may sanction a party who “fails to obey an order to provide or
permit discovery.” FED. R. CIV. P. 37(b)(2)(A). Those
sanctions may include “prohibiting the disobedient party from
supporting or opposing designated claims or defenses, or from
introducing designated matters in evidence.” FED. R. CIV.
P. 37(b)(2)(A)(ii). Choosing a sanction “should be guided by
the concept of proportionality between offense and sanction.”
Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir.
1996) (cleaned up). To assess whether a severe sanction, like
the preclusion of evidence, is warranted, “the district court may
consider the resulting prejudice to the other party, any
prejudice to the judicial system, and the need to deter similar
misconduct in the future.” Id.The district court reasonably determined that these factors
favored sanctioning Klayman. First, Klayman’s refusal to
provide documents resulted in prejudice to Judicial Watch,
because it had to file its summary judgment motions without
an opportunity to review the documents that supported
Klayman’s claims and defenses. Klayman cannot avoid a
finding of prejudice by pointing to the fact that he provided
some discovery, including 1,047 pages of documents and
interrogatory responses. The district court sanctioned Klayman
for not providing discovery in response to particular requests,
and Klayman has not contended that any of the 1,047 pages he
produced were responsive to those requests. That he produced
some discovery does not excuse his failure to produce all
properly requested discovery. Second, Klayman’s repeated
refusal to comply with a court order prejudiced the judicial
13
system. His stonewalling required multiple rounds of judicial
involvement from both the magistrate judge and district court,
“squandering [the] scarce judicial resources (and the resources
of other litigants).” Founding Church of Scientology of Wash.,
D.C., Inc. v. Webster, 802 F.2d 1448, 1458 (D.C. Cir. 1986).
Third, the sanction was reasonably designed to deter future
misconduct. By failing to engage in the discovery process,
Klayman disrespected the court and the judicial process. See
Weisberg v. Webster, 749 F.2d 864, 872 (D.C. Cir. 1984)
(explaining that a court may impose a broad sanction to remove
“an incentive to test the court” because a limited sanction “may
present [a recalcitrant party] with nothing to lose and
something to gain”).
The court’s sanction was proportional to Klayman’s
flagrant refusal to comply with the court’s discovery order. The
district court acted within its discretion by precluding Klayman
from presenting documents in support of his claims and
defenses.
B.
Second, the district court did not abuse its discretion when
it sanctioned Klayman for his inadequate pretrial statement. A
pretrial statement serves to “narrow the issues” for trial and put
“the Court and the parties on notice of which issues of fact and
law are in dispute.” Winmar, Inc. v. Al Jazeera Int’l, 741 F.
Supp. 2d 165, 185 (D.D.C. 2010). The pretrial statement avoids
trial by ambush. Consistent with ordinary practice, the district
court ordered the pretrial statement to include a list of witnesses
and exhibits to be used at trial. Klayman argues that the district
court sanctioned him merely for not providing sufficiently
detailed descriptions of his witnesses and exhibits. That
contention severely distorts the misconduct for which the court
struck Klayman’s pretrial statement.
14
When the district court ordered the parties to prepare a
joint pretrial statement, it warned that the failure to conform
with the order’s directives could result in sanctions. Klayman
rebuffed Judicial Watch’s efforts to confer on the statement as
ordered. He then requested an extension on the eve of the
deadline for the statement, which the district court reluctantly
granted.
In the pretrial statement eventually submitted, Klayman’s
entries flouted the court’s order. First, the order required each
party to submit a witness list identifying the witnesses to be
called and briefly describing the testimony to be elicited. For
sixteen of twenty-three witnesses, Klayman described their
testimony as covering “all issues.” J.A. 1896. And his twenty-
fourth witness listed “[a]ll Judicial Watch employees in the last
six years since Klayman left,” again covering “all issues.”
J.A. 1898. Second, the order required each party to submit a list
identifying the exhibits intended to be used. Instead of listing
specific exhibits as required, Klayman listed eight general
categories of documents, including one category for “[a]ll
correspondence to and from Klayman and Judicial Watch
concerning [a client].” J.A. 1902.
After finding the pretrial statement deficient, the district
court ordered the parties to work together to revise it. Klayman
failed to propose any revisions and sought another extension,
again on the eve of the deadline. Although the district court
granted the extension, it warned Klayman that no further
extensions would be granted and failure to comply would result
in striking his portions of the statement. Klayman failed to meet
the deadline due to a car accident, so the court granted a third
extension coupled with the same warning of sanctions.
Klayman failed to meet the thrice-extended deadline.
Accordingly, the district court sanctioned him by striking his
parts of the pretrial statement, which precluded Klayman from
15
affirmatively presenting any evidence in support of his claims
and defenses at trial. As the facts make plain, the district court
did not sanction Klayman merely for a lack of detail; it
sanctioned him for his “utter[] fail[ure] to discharge his
obligations in the course of pretrial proceedings.” J.A. 2017.
That sanction was reasonable.
Under Federal Rule of Civil Procedure 16, a district court
may sanction a party who “fails to obey a scheduling or other
pretrial order.” FED. R. CIV. P. 16(f) (incorporating the
sanctions of Federal Rule of Civil Procedure 37(b)(2)(A)(ii)–
(vii)). The district court reasonably exercised its discretion by
imposing the sanction on Klayman. First, Klayman’s deficient
pretrial statement prejudiced Judicial Watch. Because his
inadequate pretrial statement failed to narrow the issues for
trial, Klayman deprived Judicial Watch of the notice of the
disputes for trial that a pretrial statement is meant to afford.
Second, as the district court explained, Klayman burdened the
judicial system by failing to conduct “what should have been a
relatively straightforward administrative task.” J.A. 2020.
Because of Klayman’s refusal to prepare an adequate pretrial
statement, the court “spent countless hours attempting to secure
Klayman’s basic compliance” with the court’s order—to no
avail. J.A. 2020. Third, the sanction was necessary to deter
similar misconduct. The process of preparing a pretrial
statement should not be onerous, and Klayman’s sanction
deters others from attempting to make it as onerous as he did.
Klayman contends that he should have received a lesser
sanction, but the sanction of striking the defective parts of his
pretrial statement was proportional to his misconduct. To be
sure, as the district court acknowledged, this sanction was
severe, as it prohibited Klayman from presenting any evidence
at trial. Klayman, however, ignored the district court’s repeated
warnings and the multiple opportunities to comply with a
16
simple directive to present an adequate pretrial statement. The
court attempted a variety of measures to obtain Klayman’s
compliance, but none alleviated his ongoing misconduct.
Accordingly, the court did not abuse its discretion by striking
Klayman’s pretrial statement.
IV.
We next consider the district court’s grant of partial
summary judgment to Judicial Watch, which we review de
novo. See Jeffries v. Barr, 965 F.3d 843, 859 (D.C. Cir. 2020).
To obtain summary judgment, the movant must “show[] that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a). “[A] dispute about a material fact is ‘genuine’ if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Jeffries, 965 F.3d at 859 (cleaned
up).
Klayman challenges the district court’s decision to grant
summary judgment to Judicial Watch on four of his claims and
one of Judicial Watch’s counterclaims. We discuss each in
turn, though no challenge is meritorious.
A.
We begin with the grant of summary judgment to Judicial
Watch on Klayman’s claims under the Lanham Act. Among
other things, the Lanham Act provides a cause of action to
combat consumer confusion about a person’s affiliation, such
as a false endorsement or false advertising. See 15 U.S.C.
§ 1125(a)(1). Klayman alleged that Judicial Watch violated the
Lanham Act by sending a newsletter to its donors that
identified him as “Chairman and General Counsel” after he had
left Judicial Watch. According to Klayman, Judicial Watch’s
17
use of his name in the newsletter amounted to a false
endorsement and false advertisement.
This circuit has yet to address whether a celebrity, which
Klayman asserts he is, may bring a Lanham Act claim based on
misleading or deceptive use of his name or likeness, though
several of our sister circuits have approved of such claims. See
Parks v. LaFace Records, 329 F.3d 437, 445–46 (6th Cir.
2003); Wendt v. Host Int’l, Inc., 125 F.3d 806, 812 (9th Cir.
1997). We need not decide that question today. Even assuming
such a claim is viable, the district court appropriately granted
summary judgment against Klayman in this case.
There was no genuine dispute of material fact that
Klayman authorized the use of his name in the newsletter, so it
was neither a false endorsement nor a false advertisement.
Klayman testified in his deposition that he routinely reviewed
the monthly newsletter before Judicial Watch sent it out, and
he affirmed that he signed the newsletter’s cover letter as
Chairman and General Counsel. As proven by his handwritten
edits on a draft, Klayman edited the newsletter at issue, which
Judicial Watch approved for printing while Klayman still
worked there. When Klayman later resigned, the newsletter had
already been delivered for mailing.
Klayman argues that he did not authorize the use of his
name in the newsletter after he left Judicial Watch. But this
argument ignores that the Lanham Act focuses on “false or
misleading statements of fact at the time they were
made.” Newcal Indus., Inc. v. Ikon Off. Sol., 513 F.3d 1038,
1053 (9th Cir. 2008) (cleaned up) (emphasis added). When
Judicial Watch wrote the newsletter identifying Klayman as
“Chairman and General Counsel,” Klayman was the Chairman
and General Counsel. His subsequent resignation does not
render the newsletter a false endorsement or advertisement.
18
B.
We next consider the district court’s grant of summary
judgment to Judicial Watch on Klayman’s breach of contract
claim. Klayman asserted that Judicial Watch breached the
severance agreement by preventing him from making fair
comment in interviews. The severance agreement prohibited
both parties from disparaging each other and then stated that
“[n]othing in this paragraph is intended to, nor shall be deemed
to, limit either party from making fair commentary on the
positions or activities of the other following the Separation
Date.” J.A. 2586.
Klayman proffered two documents to support this claim.
First, he pointed to an email from Leslie Burdick, a C-SPAN
employee, stating that Fitton “asked that we don’t schedule
Larry [Klayman] on anything related to the case.” J.A. 1278.
Second, Klayman pointed to a memorandum from his
campaign manager stating that “Fitton of Judicial Watch had
requested that CNN not book Mr. Klayman to discuss any
aspect of the case.” J.A. 1247–48.
Both documents, however, are hearsay. Hearsay is a
statement that “the declarant does not make while testifying at
the current trial or hearing” and is offered “to prove the truth of
the matter asserted in the statement.” FED. R. EVID. 801(c). At
summary judgment, a party need not present evidence in a form
that is currently admissible. See FED. R. CIV. P. 56(c). But “[t]o
survive summary judgment,” he “must produce evidence
capable of being converted into admissible evidence.” Greer v.
Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (cleaned up).
As we have explained, when proffered evidence is “sheer
hearsay, it counts for nothing on summary judgment.” Id.(cleaned up).
19
Although Klayman suggests he could have subpoenaed the
“witnesses at CNN and Cspan [sic],” he fails to explain how
those unidentified witnesses’ testimony would be admissible.
Klayman Br. 41. For example, Burdick’s email stated that
Fitton “asked that we don’t schedule Larry on anything related
to the case.” J.A. 1278. It is not clear to whom Fitton made this
request—perhaps he asked Burdick directly or perhaps he
asked someone else at C-SPAN who relayed the request to
Burdick. If it is the latter, Burdick’s statement of what Fitton
told someone else would create an additional layer of hearsay.
The campaign manager’s memorandum contains a similar
problem; it states that Fitton requested that “CNN” not book
Klayman. Yet Klayman has provided no explanation of how he
would cut through these layers of hearsay to have the
statements admitted, and his general reference to calling
witnesses from C-SPAN and CNN is not enough to carry his
burden. Summary judgment was appropriate for Klayman’s
breach of contract claim because he failed to establish how this
hearsay was “capable of being converted into admissible
evidence.” Greer, 505 F.3d at 1315 (cleaned up).
C.
We turn to the district court’s grant of summary judgment
to Judicial Watch on Klayman’s defamation claim. Klayman
alleged that Judicial Watch defamed him by telling reporters
that he filed this lawsuit as a “tactical maneuver designed to
distract attention away from the fact that Klayman owes more
than a quarter of a million dollars to Judicial Watch.” J.A. 31
(emphasis omitted).
To prove defamation, a public figure3 must establish,
among other things, that the defamatory statement was made
3
Klayman has not disputed that he is a public figure.
20
with “actual malice.” Jankovic v. Int’l Crisis Grp., 822 F.3d
576, 589 (D.C. Cir. 2016) (quoting New York Times Co. v.
Sullivan, 376 U.S. 254, 280 (1964)). Actual malice means the
defendant made the statement “with knowledge that it was false
or with reckless disregard of whether it was false or not.” Id.(quoting Sullivan, 376 U.S. at 280). Actual malice
encompasses when “the defendant in fact entertained serious
doubts as to the truth of his publication.” Id. (citation and
quotation marks omitted).
Klayman presented no evidence that Judicial Watch made
its statement with actual malice. Because Judicial Watch knew
that Klayman disputed the debt, he contends that Judicial
Watch had a serious doubt about the truth of its statement.
Judicial Watch, however, had conducted two audits on which
it based its understanding that Klayman owed the debt.
Although Klayman disputed the audits’ findings, he offered no
evidence that Judicial Watch harbored doubt about him owing
the debt. Klayman also argues that Judicial Watch harbored a
serious doubt about the truth of his owing a $250,000 debt
because that amount includes debt owed by his law firm, so
Klayman was not personally liable for all of it. Yet the
severance agreement requires Klayman’s law firm to pay
Judicial Watch a debt of about $80,000, and Klayman
indemnified his firm. Judicial Watch could have reasonably
believed that Klayman was on the hook for his law firm’s debt.
Because Klayman failed to establish a dispute of material
fact that Judicial Watch made its statement with actual malice,
his defamation claim could not survive summary judgment.
D.
We finally consider the district court’s grant of summary
judgment to Judicial Watch on its breach of contract
21
counterclaim. Judicial Watch asserted that Klayman breached
his commitment in the severance agreement “to reimburse
Judicial Watch for personal costs or expenses incurred by him
during his employment.” J.A. 2592. Klayman agreed to pay
those reimbursements within seven days of receiving
notification of the reimbursement amounts.
Undisputed evidence established that Klayman failed to
reimburse Judicial Watch for his personal expenses as required
by the severance agreement. Judicial Watch presented a
declaration from Susan Prytherch, its Chief of Staff, who had
reviewed Klayman’s expenses at Judicial Watch to determine
whether they were personal or business expenses. She attested
that Judicial Watch sent Klayman fifty-one invoices for his
personal expenses that included explanations of the charges
and supporting documentation, but he had not paid any.
Judicial Watch also submitted copies of those invoices.
Klayman renews his argument that the invoices were
fraudulent documents manufactured after the fact. Yet
Klayman has failed to support that assertion with anything
other than his say-so, nor has he provided any evidence that he
did not owe the expenses listed on the invoices. Klayman has
thus failed to create a genuine dispute of material fact, and the
district court correctly granted summary judgment to Judicial
Watch on its counterclaim.
In sum, we affirm the district court’s grant of partial
summary judgment to Judicial Watch.
V.
After the partial summary judgment, only a few claims
remained for trial. We turn to Klayman’s challenges to two
lines of evidence admitted at trial. This court reviews the
22
admission of evidence for abuse of discretion. See Henderson
v. George Wash. Univ., 449 F.3d 127, 132–133 (D.C. Cir.
2006). To preserve a challenge to the admission of evidence for
appeal, however, a party must object and “state[] the specific
ground, unless it was apparent from the context.” FED. R.
EVID. 103(a)(1). When a party raises a new ground for his
objection on appeal, we review only for plain error. See United
States v. David, 96 F.3d 1477, 1481 (D.C. Cir. 1996); accord 1
MCCORMICK ON EVID. § 52 (8th ed. Jan. 2020 update).
A.
Klayman first contends that the evidence of his forced
resignation and name-calling of his ex-wife was irrelevant, but
even if it was relevant, this evidence was too prejudicial to
admit. Because he appears to have objected on this ground
below, we review for abuse of discretion. See Henderson, 449
F.3d at 132–33. Under Federal Rule of Evidence 402, evidence
must be relevant to be admissible. “Evidence is relevant if … it
has any tendency to make a fact more or less probable than it
would be without the evidence” and “the fact is of consequence
in determining the action.” FED. R. EVID. 401.
The evidence regarding Klayman’s forced resignation and
name-calling of his ex-wife was relevant. Judicial Watch
asserted that Klayman engaged in unfair competition in
violation of the Lanham Act by falsely representing in his
Saving Judicial Watch campaign that he left Judicial Watch to
run for U.S. Senate. To prove those statements were false,
Judicial Watch introduced the evidence that Klayman had been
forced to resign due to his misconduct. This evidence of
misconduct included his ex-wife’s testimony about the vulgar
names that Klayman had called her, and she included these
allegations of verbal abuse in her divorce complaint, a copy of
which Klayman had shown to Fitton and Orfanedes.
23
Accordingly, evidence that Klayman was forced to resign due
to misconduct tended to make the fact that he left to run for
Senate less probable than it would have been without that
evidence. See FED. R. EVID. 401(a). And the fact of Klayman’s
departure was of consequence for Judicial Watch’s Lanham
Act claim because it had to prove that Klayman made a false
representation. See FED. R. EVID. 401(b); see also 15 U.S.C.
§ 1125(a)(1). This evidence was therefore relevant.
Even if a piece of evidence is relevant, it may be
inadmissible if it is unfairly prejudicial. FED. R. EVID. 403.
“Unfair prejudice” means “an undue tendency to suggest
decision on an improper basis, commonly, though not
necessarily, an emotional one.” FED. R. EVID. 403 advisory
committee’s note to 1972 amendment. This rule “tilts, as do the
rules as whole, toward the admission of evidence in close
cases.” Henderson, 449 F.3d at 133 (cleaned up).
Klayman argues that the evidence of his forced resignation
was substantially more prejudicial than probative. He contends
that the jury hearing about his pursuit of a relationship with a
Judicial Watch employee and his name-calling of his ex-wife
prejudiced him by inciting the jury to decide based on emotion.
We disagree. Klayman’s pursuit of a relationship with an
employee and alleged verbal abuse of his ex-wife had
significant probative value because a central issue in the case
was whether Klayman left Judicial Watch to run for Senate or
whether he was forced to resign due to his misconduct. To be
sure, evidence of his misconduct carried some risk of prejudice
for Klayman. The district court acted within its discretion,
however, to find that the risk did not substantially outweigh the
evidence’s probative value, particularly because “a district
court virtually always is in the better position to assess the
admissibility of the evidence in the context of the particular
24
case before it.” Sprint/United Mgmt. Co. v. Mendelsohn, 552
U.S. 379, 387 (2008).
B.
Klayman also argues that the evidence of his inappropriate
relationship with a Judicial Watch employee constituted
impermissible character evidence. In particular, he asserts that
this evidence constituted “bad acts” admitted in violation of
Federal Rule of Evidence 404(b). Klayman Br. 61. Although
that rule prohibits the admission of evidence “to prove a
person’s character in order to show that on a particular occasion
the person acted in accordance with the character,” it does not
bar admission if the evidence is used for another permissible
purpose. See FED. R. EVID. 404(b). Judicial Watch offered the
evidence of Klayman’s inappropriate relationship to prove that
he was forced to resign due to his misconduct, thereby
establishing that it was false for Klayman to advertise that he
left Judicial Watch to run for Senate. Because the evidence was
not admitted to show that Klayman acted in conformance with
his character on a particular occasion, Rule 404(b) did not
prohibit its admission.
VI.
We next address Klayman’s challenges to the jury
instructions, or more specifically, the lack of certain
instructions. We review de novo the refusal to provide a
requested instruction. Czekalski v. LaHood, 589 F.3d 449, 453
(D.C. Cir. 2009). Klayman challenges the district court’s
failure to give two instructions.
Klayman first contends the district court should have
instructed the jury on the sanctions it issued against him—what
he describes as an instruction on “why the case was tried in a
25
‘bizarre’ fashion.” Klayman Br. 63 (capitalization omitted).
His proposed instruction reads in full:
The Court has imposed sanctions on Larry
Klayman, which limits his ability to testify and
present evidence to prove the counts of his
second amended complaint against Judicial
Watch and evidence of damages as well as in
his defense. Larry Klayman contends that these
sanctions were the result of personal animus
towards him and my political prejudice against
him, since I was appointed by President Bill
Clinton and my husband actually defended
Secret Service agents in the Monica Lewinsky
scandal of the late 1990’s. Larry Klayman has
sued both Bill and Hillary Clinton many times,
both as the founder, former chairman and
general counsel of Judicial Watch, and
thereafter.
In addition, Larry Klayman contends that I have
acted unethically and has filed two ethics
complaints before the Judicial Council of this
Court and has at least one pending now. Larry
Klayman has previously moved to disqualify
me under 28 U.S.C. § 144, and he contends that
I necessarily should have recused myself under
that statute or at least had another judge or
judges rule on his motion. I refused to do either.
J.A. 2051.
This outlandish instruction is improper. Jury instructions
are meant to “fairly present the applicable legal principles and
standards.” Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549,
26
556 (D.C. Cir. 1993) (cleaned up). Klayman’s instruction states
no law; it describes the fact of Klayman’s sanctions tacked onto
his contentions about the court’s purported bias. A jury
instruction is no place for a litigant’s diatribe. The district court
correctly refused to give Klayman’s instruction.
Klayman also argues that the district court failed to
properly instruct the jury on an element of trademark
infringement. Judicial Watch asserted that Klayman infringed
on its trademarks “Judicial Watch” and “Because No One is
Above the Law.” To establish trademark infringement, Judicial
Watch needed to prove, among other elements, that Klayman’s
use of its trademarks created a “likelihood of confusion”
among consumers. See Am. Soc’y for Testing & Materials v.
Public.Resource.Org, Inc., 896 F.3d 437, 456 (D.C. Cir. 2018).
Klayman argues that the court erred by failing to instruct the
jury that likelihood of confusion requires confusion by an
“appreciable number” of consumers. But his only support for
this proposition comes from two unpublished decisions of our
district court, which are of course not precedential. See In re
Exec. Off. of President, 215 F.3d 20, 24 (D.C. Cir. 2000).
Here the district court instructed the jury on the likelihood
of confusion element by setting out factors to consider. The
district court’s instruction, “when viewed as a whole, … fairly
present[ed] the applicable legal principles and standards.”
Czekalski, 589 F.3d at 453 (cleaned up). This circuit “has yet
to opine on the precise factors courts should consider when
assessing likelihood of confusion,” but we have referred
approvingly to the “multi-factor tests” of our sister circuits.
Am. Soc’y for Testing, 896 F.3d at 456 (citing AMF, Inc. v.
Sleekcraft Boats, 599 F.2d 341, 348–49 (9th Cir. 1979),
abrogated on other grounds by Mattel, Inc. v. Walking
Mountain Prods., 353 F.3d 792 (9th Cir. 2003); Polaroid Corp.
v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961)). The
27
district court’s instruction was also based on a model
instruction. See 3A KEVIN F. O’MALLEY, ET AL., FED. JURY
PRAC. & INSTR. § 159:25 (6th ed. 2012); J.A. 2333. Neither our
sister circuits nor the model instruction mention the number of
consumers likely to be confused. No instruction on the number
of consumers was required for the district court to fairly present
the applicable legal principles on the confusion element.
To warrant provision to the jury, an instruction must fairly
state the law as it is, not how a party wishes it to be. See Joy,
999 F.2d at 556. The district court did not err by refusing to add
a component to its instruction on likelihood of confusion that
has no basis in our precedent.
VII.
We finally consider the jury verdict against Klayman on
Judicial Watch’s breach of contract counterclaim. We review a
district court’s entry of judgment on a jury’s verdict under a
deferential standard. To overturn a jury verdict, a party must
show that “the evidence and all reasonable inferences that can
be drawn therefrom are so one-sided that reasonable men and
women could not disagree.” Scott v. District of Columbia, 101
F.3d 748, 753 (D.C. Cir. 1996). Klayman falls well short of
satisfying this standard.
Judicial Watch asserted that Klayman breached the
severance agreement by using its donor lists for his Senate
campaign and Saving Judicial Watch. In the severance
agreement, Klayman agreed that “following the Separation
Date, he shall not retain or have access to any Judicial Watch
donor or client lists or donor or client data.” J.A. 2574. The jury
found that Klayman breached the severance agreement by
using Judicial Watch’s donor list and awarded Judicial Watch
$75,000 in damages for that claim.
28
Sufficient evidence supported the jury’s verdict that
Klayman accessed Judicial Watch’s donor lists in violation of
the severance agreement. For his Senate campaign’s direct
mailing efforts, Klayman contracted with ATA, Judicial
Watch’s vendor. The contract defined Klayman’s “House
File,” which compiles the donors to be targeted by a campaign,
as Judicial Watch donors who had given more than $5 in the
last eighteen months. See J.A. 2746. Mark Fitzgibbons, an
ATA employee, testified that Klayman’s campaign specifically
targeted Judicial Watch’s donors. Indeed, Klayman admitted
that, when he lost the Senate campaign, he started Saving
Judicial Watch by using the names his Senate campaign had
obtained from ATA. This evidence supports the jury’s verdict
that Klayman violated his agreement not to “have access to any
Judicial Watch donor or client lists or donor or client data.” J.A.
2574. And it certainly refutes Klayman’s contention that the
evidence was so skewed as to prevent a reasonable jury from
concluding he violated the severance agreement.
Klayman maintains that ATA owned the donor names,
which his campaign then rented, so “there was no illegal
taking” of the Judicial Watch donor lists. Klayman Br. 80.
Klayman’s assertion is factually dubious,4 but in any event
legally irrelevant. The severance agreement does not turn on
ownership of the donor names. Rather Klayman agreed to “not
retain or have access to any Judicial Watch donor or client lists
or donor or client data.” J.A. 2574. Klayman has thus failed to
4
The contract between ATA and Judicial Watch indicated that
Judicial Watch owned the donor names. It stated that “[a]ll names,
addresses and related information of contributors … developed
under this Agreement … shall belong exclusively to the Client,”
meaning Judicial Watch. J.A. 2734; J.A. 2736 (“All donors, non-
donors and related information … shall be the sole and exclusive
property of Client.”).
29
establish that the district court entered judgment on a jury
verdict that was “so one-sided that reasonable men and women
could not disagree.” Scott, 101 F.3d at 753.
***
Klayman’s multitude of asserted errors fail. Judge Kollar-
Kotelly presided over this litigation commendably, without any
error that Klayman has identified. For the foregoing reasons,
we affirm the district court in full. The district court did not err
when it sanctioned Klayman, granted partial summary
judgment, admitted evidence, instructed the jury, or entered
judgment on the jury’s verdict.
So ordered.