Klayman v. Judicial Watch, Inc. ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
LARRY KLAYMAN )
individually, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-cv-2604 (TSC)
)
)
JUDICIAL WATCH, INC. )
A District of Columbia Corporation, et al. )
)
)
Defendants. )
)
MEMORANDUM OPINION
For the reasons set forth below, the court will dismiss this action sua sponte.
A. BACKGROUND
Plaintiff Larry Klayman brings this action against Judicial Watch, Incorporated, its
Directors, Thomas J. Fitton, Paul Orfanedes, Christopher Farrell, and United States District
Court Judge Colleen Kollar-Kotelly. These Defendants are the same persons Klayman sued in
Klayman v. Judicial Watch, Inc., 6-cv-670-CKK (D.D.C) (hereinafter “Judicial Watch I”),
except for Judge Kollar-Kotelly, who presided over the earlier case. 1
An attorney proceeding pro se, Klayman is the “founder and former Chairman, General
Counsel and Treasurer of Judicial Watch.” Klayman v. Judicial Watch, Inc., 247 F.R.D. 10, 11
(D.D.C. 2007). He left Judicial Watch in 2003, at which time he executed a severance
agreement with the JW Defendants specifying that his departure would be “treated for all
1
The court will refer to Judicial Watch, Fitton, Orfanedes, and Farrell collectively as the “JW
Defendants,” unless otherwise necessary for the sake of clarity.
1
purposes as a voluntary resignation.” Id. at 11–12, 14 (internal quotations omitted). The
agreement and subsequent conflicts between Klayman and the JW Defendants formed the basis
of Judicial Watch I, which involved a variety of claims, including breach of contract, Lanham
Act violations, and defamation. Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 112, 117
(D.D.C. 2009).
During Judicial Watch I, Klayman filed at least five motions for recusal/disqualification
of both Judge Kollar-Kotelly and Magistrate Judge Alan Kay, who was also assigned to the case.
See Judicial Watch I, 6-cv-670-CKK, ECF Nos. 298, 304, 414, 587, 606. Those motions were
denied. Id., ECF Nos. 314, 316, 425, 603, 607. Klayman also pursued one interlocutory appeal,
id., ECF No. 320, but the Court of Appeals dismissed the matter for failure to prosecute.
Klayman v. Judicial Watch, 9-7068 (D.C. Cir. Dec. 1, 2009). He also filed three unsuccessful
mandamus petitions, two of which sought to remove Judge Kollar-Kotelly. See In re Klayman,
8-5218; 13-5258; 18-7024 (D.C. Cir.). The Court of Appeals denied the petitions and Klayman
unsuccessfully sought certiorari in one instance. See In re Klayman, 13-5258 (D.C. Cir.).
After resolution of some claims on summary judgment, Judicial Watch I ended with a
verdict in favor of the defendants, who had countersued Klayman. Judicial Watch I, 6-cv-670-
CKK, 2019 WL 1244079, *at 31 (D.D.C. Mar. 18, 2019). Klayman responded by filing several
unsuccessful Rule 50 and Rule 59 motions to alter the judgment or grant a new trial. See
Judicial Watch, Inc., 6-cv-670-CKK, ECF Nos. 571, 587.
Undeterred, Klayman filed a motion pursuant to Rule 60 seeking relief from the Judicial
Watch I final judgment. Id., ECF No. 587. He raised numerous challenges, including the
amount of the damage award, the judge’s rejection of certain jury instructions and defenses. He
2
also continued asking Judge Kollar-Kotelly to disqualify herself due to alleged personal animus,
judicial bias, and prejudice against him. Id. at 15.
Judge Kollar-Kotelly denied the motion, Judicial Watch, Inc., 6-cv-670-CKK, ECF Nos.
603, 604, and Klayman sought reconsideration, raising many of the same arguments he had
raised in the initial motion, including the allegations of judicial bias. Id., ECF No. 606. He also
challenged the Judge’s decision to allow his former wife to testify about his alleged spousal
abuse. Id. at 9–12. He further claimed to have recently discovered evidence that “Defendants”
falsely testified during Judicial Watch I. Id. at 9–12, 22. Pointing to Fitton’s deposition
testimony during a Florida lawsuit, Klayman claimed he had evidence that the “Defendants”
committed fraud during Judicial Watch I, when they testified about Klayman’s reasons for
leaving Judicial Watch. Id. at 9–12, 22–24. Klayman claimed Judge Kollar-Kotelly’s alleged
bias against him was the reason she allowed the testimony of his former wife and the JW
Defendants’ “fraudulent” testimony, which he contends was prejudicial, negatively impacted the
jury decision, and justified setting aside the jury verdict due to “fraud on the court.” Id. at 7, 9–
12, 23.
Judge Kollar-Kotelly denied the motion to reconsider, finding, among other things, that
there was no evidence of fraud. Judicial Watch, Inc., 6-cv-670-CKK, ECF No. 607; ECF No.
608, Mem. Op. at 2–4. She also found that Klayman had failed to meet the high standard to
establish fraud on the court. Id., ECF No. 608. At 7:10 p.m. on August 28, 2019, Klayman
moved the court to stay enforcement of the judgment pending appeal, arguing that the verdict
and judgment would likely be reversed because the court purportedly permitted the Defendants
to give false and prejudicial testimony. Id., ECF No. 609, at 2–3.
3
Less than thirty minutes later, Klayman filed this case (hereinafter “Judicial Watch II”)
seeking Rule 60 relief from the judgment in Judicial Watch I. He named the same JW
Defendants from Judicial Watch I, and alleged fraud, misrepresentation, misconduct, fraud on
the court, perjury, and subornation of perjury. (ECF No. 1, Compl.) Klayman continued to
assert that Judge Kollar-Kotelly’s rulings against him were evidence of bias. (Compl. ¶¶ 44–47.)
Despite the clear connection to Judicial Watch I, on the Judicial Watch II case coversheet
Klayman checked “No” in response to the query “Related Case(s) If Any.” (See ECF No. 1-7;
ECF No. 2.) This representation violated Local Rule 40.5(b)(2), which provides that “parties
shall notify the Clerk of the existence of related cases . . . . [a]t the time of filing any civil,
including miscellaneous, action” and “indicate, on a form to be provided by the Clerk, the name,
docket number and relationship of any related case pending in this Court or in any other United
States Court.” 2
Before Judge Kollar-Kotelly could rule on his motion to stay, Klayman filed a Notice of
Appeal in Judicial Watch I, challenging Judge Kollar-Kotelly’s trial decisions, as well as her
denial of his post-trial motions. Judicial Watch I, 6-cv-670-CKK, ECF No. 613. He raised
many of the same arguments he had previously raised and asked the Court of Appeals to assign a
new trial judge to the case. Klayman v. Judicial Watch, Inc., 19-7105 (D.C. Cir.), ECF. No.
1863536.
2
This representation likely violated the Rules of Professional Conduct governing members of
the D.C. bar. See D.C. R. of Prof’l Conduct R. 3.3(a)(1) (“A lawyer shall not knowingly . . .
[m]ake a false statement of fact or law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer, unless correction would require
disclosure of information that is prohibited by Rule 1.6.”); id. 3.4(c) (“A lawyer shall not . . .
[k]nowingly disobey an obligation under the rules of a tribunal except for an open refusal based
on an assertion that no valid obligation exists.”).
4
Several days later, on September 10, 2019, Judicial Watch II was randomly assigned to
the undersigned. Upon review of the Complaint, which specifically noted that Klayman was
proceeding pro se, and was challenging the judgment in Judicial Watch I, this court transferred
the case to the court’s calendar committee consistent with Local Civil Rule 40.5 as an earlier
related case. 3 The following day, the calendar committee reassigned Judicial Watch II to Judge
Kollar-Kotelly. (ECF No. 4.) A little over four hours later, Klayman filed an Amended
Complaint, (ECF No. 5, Am. Compl.), adding Judge Kollar-Kotelly as a defendant in Judicial
Watch II, and the calendar committee transferred the case back to the undersigned. See LCvR
Rule 40.5(c)(2) (“[If] good cause for the transfer [to the Judge with the earlier related case] does
not exist, [the committee] may return the case to the transferring judge.”)
Klayman brings claims for relief from judgment pursuant to Federal Rule of Civil
Procedure 60. He asks this court to vacate the judgment in Judicial Watch I or alternatively asks
this court to order Judge Kollar-Kotelly to vacate the judgment. He further seeks damages from
the JW Defendants for the alleged fraud and misrepresentations they committed during the
Judicial Watch I trial but does not seek damages from Judge Kollar-Kotelly.
3
“Civil, including miscellaneous, cases are deemed related when the earliest is still pending on
the merits in the District Court and they (i) relate to common property, or (ii) involve common
issues of fact, or (iii) grow out of the same event or transaction or (iv) involve the validity or
infringement of the same patent. Notwithstanding the foregoing, a case filed by a pro se litigant
with a prior case pending shall be deemed related and assigned to the judge having the earliest
case.” LCvR 40.5(a)(3). “Where the existence of related cases in this Court is revealed after the
cases are assigned, the judge having the later-numbered case may transfer that case to the
Calendar and Case Management Committee for reassignment to the judge having the earlier case.”
LCvR 40.5(c)(2).
5
B. STANDARDS OF REVIEW
1. Pro Se Litigants
Normally, courts in this Circuit “afford a liberal reading to a complaint filed by a pro se
plaintiff.” Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014) (citations omitted).
The D.C. Circuit “has not yet decided, however, whether that rule applies when the pro se
plaintiff is a practicing lawyer like Klayman.” Id. (citations omitted). Nonetheless, several
courts in this district have found that pro se attorney litigants are “not automatically subject to
the very liberal standards afforded to a non-attorney pro se plaintiff because an attorney is
presumed to have a knowledge of the legal system and need less protections from the court.”
Richards v. Duke Univ., 480 F. Supp. 2d 222, 234 (D.D.C. 2007); see also Curran v. Holder, 626
F. Supp. 2d 30, 33 (D.D.C. 2009); Penkoski v. Bowser, No. 20-CV-01519 (TNM), 2020 WL
4923620, at *14 (D.D.C. Aug. 21, 2020).
Regardless of whether the court applies the less stringent pleading standard, a complaint
“must plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of
misconduct.’” Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, at 678–79). “Factual allegations must be enough to
raise a right to relief above the speculative level” and move the plaintiff’s claims “across the line
from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555, 570 (2007).
Given Klayman’s thirty-five years of practice in this court 4 and his extensive experience
with federal litigation, 5 the court holds his complaint to a more stringent pleading standard than
4
The court takes judicial notice of the fact that the United States District Court for the District
of Columbia’s records indicate Klayman was admitted to practice in this court in 1985.
5
A February 8, 2021 PACER search reveals that Klayman has represented himself or Judicial
Watch in at least 59 federal court matters.
6
that of the typical non-attorney pro se litigant. But even if this court were to apply the more
lenient standard, it would still dismiss this action.
2. Sua Sponte Dismissal
Pursuant to 28 U.S.C. § 1915, courts are authorized to dismiss an action “at any time if
the court determines” the action is “frivolous,” “malicious,” or “fails to state a claim on which
relief may be granted.” 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). “Dismissal remains appropriate
where the plaintiff’s complaint provides no factual or legal basis for the requested relief.”
Thomas v. Wilkins, 61 F. Supp. 3d 13, 17 (D.D.C. 2014), aff’d, No. 14-5197, 2015 WL 1606933(D.C. Cir. Feb. 23, 2015) (citation and internal quotation marks omitted).
C. ANALYSIS
This case is based on Klayman’s allegation that one or more of the JW Defendants
committed fraud by making false statements while testifying in Judicial Watch I, and that Judge
Kollar-Kotelly purportedly “has a conflict of interest” and “furthered the fraud and other
misconduct.” (Am. Compl. ¶ 7.) Klayman contends the fraud in Judicial Watch entitles him to
relief from the judgment pursuant to Rules 60(b)(3), 60(b)(6) and 60(d)(3). (Am. Compl. ¶¶ 43,
79–96.)
1. Klayman has not pled facts supporting his fraud allegations.
A fraud claim requires a “false representation.” Hall v. Nielsen, No. 18-cv-461 (JEB),
2018 WL 5840663, at *8 (D.D.C. Nov. 8, 2018) (citations omitted). The purported “fraud”
Klayman claims to have recently discovered rests on his mischaracterization of the testimony in
both Judicial Watch I and the Florida lawsuit. Klayman alleges that despite the fact that he
voluntarily resigned from Judicial Watch, the JW Defendants “falsely and fraudulently testified .
7
. . during the trial” that he left because of sexual harassment allegations. (Am. Compl. ¶¶ 30–33,
41–44, 54.) He further asserts that Fitton’s subsequent testimony in a Florida lawsuit provides
evidence of the alleged fraud. (Am. Compl. ¶¶ 68–69.) The record does not support either
assertion.
During Orfanedes’ trial testimony in Judicial Watch I, he was asked “What was it about
the circumstances that caused your concern?” He responded that he had two concerns. 6
(Compl., Ex. 1.) First, he was concerned about “allegations” that Klayman gave “this
individual” Judicial Watch funds to further Klayman’s romantic interests. (Id.) Second, he “was
obviously concerned that [Judicial Watch] could be subject to some sort of sexual harassment
allegations or lawsuit. . . .” (Id.) 7 Orfanedes did not testify that Klayman left Judicial Watch
because of sexual harassment allegations, but that Orfanedes was concerned about allegations
circulating that Klayman had sexually harassed someone—allegations that might result in a
lawsuit. Thus, Klayman has not presented evidence supporting his contention that one of the JW
6
Klayman provided only one page of the transcript, omitting the preceding testimony that
would have provided broader context to this line of questioning.
7
Orfanedes testified:
I was obviously concerned that we could be subject to some sort of sexual
harassment allegations or lawsuit. I wasn’t sure if these were welcomed advances
by Mr. Klayman. Obviously, that’s an issue when you have someone – he was, at
the time, a treasurer and on the board of directors. He used the title chairman.
Obviously, there’s a power relationship there. That’s the kind of situation that is
always, you know, of great concern when there’s, perhaps, a romantic relationship
or – there is a question about whether these are unreciprocated. So I was very
concerned about potential sexual harassment allegations.
(Compl., Ex. 1., at 2.)
8
Defendants provided “false testimony . . . to the jury concerning the reasons why [Klayman] left
Judicial Watch.” (Am. Compl. ¶ 54; see id. ¶¶ 66, 75, 84.)
Also unavailing is Klayman’s reliance on evidence in the Florida litigation that allegedly
establishes fraud in Judicial Watch I. Klayman sued Fitton in Florida for defamation, claiming
that Fitton told Roger Stone that Judicial Watch ousted Klayman because of sexual harassment.
Klayman v. Fitton, 19-cv-20544-JEM (S.D. Fla.), Compl. ¶¶ 16–20. During his deposition in the
Florida case, Fitton was asked if he had told anyone that Klayman had been ousted for sexual
harassment and he responded that he had not done so because Klayman had not been ousted for
sexual harassment. 8 (Id.) Fitton’s testimony does not imply that Orfanedes testified falsely.
8
Fitton testified:
KLAYMAN: Are you saying that you never told anyone that I was -- regardless -- let’s
take attorneys out of it. Have you ever -- you have told other people in
addition to -- strike that. You have told other people excluding attorneys
that I was ousted from Judicial Watch because of a sexual harassment
complaint?
A: You have to ask the question again.
KLAYMAN: Read it back, please.
A: Please.
KLAYMAN: Let me rephrase it. I’m taking attorneys out of this question. I’m saying
you have told others who aren't attorneys over the course of the last 16
years since I left Judicial Watch that I was ousted because of a sexual
harassment complaint?
A: No, because that’s not true. You weren't ousted as a result of a sexual
harassment complaint.
(Compl., Ex. 2, Fitton Dep. at 44–45.)
9
Moreover, Klayman’s view that Fitton “was forced to admit that Plaintiff was in fact not ousted
because of a sexual harassment,” (Am. Compl. ¶ 68), is irrelevant because Klayman has not
proffered any evidence indicating that Fitton previously stated otherwise. Thus, Klayman’s
fraud claim will be dismissed.
2. Klayman has not pled facts establishing he is entitled to relief pursuant to Rule 60.
Even if Klayman had pled facts supporting his fraud allegations, Rule 60 does not
provide an avenue for relief from Judicial Watch I in this court.
a. Motions pursuant to Fed. R. Civ. P. 60(b)
Rule 60(b) provides that “[o]n motion and just terms, the court may relieve a party. . .
from a final judgement, order or proceeding” on six bases. Klayman relies on two of those
bases: the fraud provision found in Rule 60(b)(3), and the “catchall provision” in Rule 60(b)(6),
see Gen. Med., P.C. v. Horizon/CMS Health Care Corp., 475 F. App’x 65, 75 (6th Cir. 2012),
which allows relief for “any other reason that justifies relief.” Because the catchall provision
“grants federal courts broad authority to relieve a party from a final judgment . . . provided that
the motion is . . . not premised on one of the grounds for relief enumerated in clauses (b)(1)
through (b)(5),” the Supreme Court requires a showing of “extraordinary circumstances” to
prevail. Salazar ex rel. Salazar v. D.C., 633 F.3d 1110, 1116 (D.C. Cir. 2011) (citing Gonzalez
v. Crosby, 545 U.S. 524, 534 (2005)) (internal quotation marks omitted).
Klayman cannot obtain relief from the judgment under these provisions because they do
not empower this court to provide the relief he seeks. He properly moved for relief under Rule
60(b)(3) and (b)(6) before Judge Kollar-Kotelly in Judicial Watch I, and she denied the motions.
10
6-cv-670-CKK, ECF No. 606 at 23; ECF No. 607. 9 He cannot now obtain review or reversal of
her rulings by this court pursuant to subsection (b), because “[f]ederal district courts lack the
power to void other federal courts’ orders through a collateral attack.” McNeil v. Harvey, No.
CV 17-1720 (RC), 2018 WL 4623571, at *5 (D.D.C. Sept. 26, 2018), motion for relief from
judgment denied, No. CV 17-1720 (RC), 2019 WL 1003582 (D.D.C. Feb. 28, 2019) (citing
Celotex Corp. v. Edwards, 514 U.S. 300, 313 (1995)); see Lewis v. Green, 629 F. Supp. 546, 553
(D.D.C. 1986) (“In essence, the plaintiff seeks a writ of mandamus to require Judge Green to
vacate her earlier orders. This Court, however, lacks authority to issue such orders, if such an
order were appropriate. A writ of mandamus may be issued only by a superior court, the court of
appeals in this case.”); Jones v. U.S. Supreme Court, 10-cv-910 (JDB), 2010 WL 2363678, at *1
(D.D.C. June 9, 2010), aff’d Jones v. Supreme Court of U.S., 405 F. App’x 508 (D.C. Cir. 2010),
aff’d, 563 U.S. 914 (2011) (“To the extent plaintiff seeks injunctive relief stemming from rulings
[by another judge], he is in the wrong court. This court is not a reviewing court and cannot
compel . . . other Article III judges . . . to act.”).
Klayman is well aware of this principle. In Klayman v. Kollar-Kotelly, 892 F. Supp. 2d
261, 262 (D.D.C. 2012), he sued Judge Kollar-Kotelly, challenging her decisions in Judicial
Watch I. The district court dismissed the lawsuit, Klayman appealed, and the Court of Appeals
affirmed the dismissal, explaining that “one district court does not have jurisdiction to review the
decisions of another district court or federal appellate court.” Klayman v. Kollar-Kotelly, No.
12-5340, 2013 WL 2395909, at *1 (D.C. Cir. May 20, 2013) (citations omitted).
9
Klayman also sought relief under subsection (b)(2) which applies to “newly discovered
evidence.” Judicial Watch I, 6-cv-670-CKK, ECF No. 606 at 22. Further, as discussed below,
he alleged fraud on the court. See id. at 23.
11
Accordingly, Klayman’s attempt to use Rule 60 subsection (b) to once again collaterally
attack Judge Kollar-Kotelly’s rulings and the judgment in Judicial Watch I fails. To the extent
he is entitled to relief, he must find refuge in subsection (d), discussed below, which allows an
independent action to challenge an order or final judgment. 10
b. Independent Actions Pursuant to Rule 60 subsection (d)
Fed. R. Civ. P. 60(d) provides that Rule 60 “does not limit a court’s power to . . .
entertain an independent action to relieve a party from a judgment, order, or proceeding” or “to
set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(1), (d)(3). 11 A party “cannot
use an independent action as a vehicle for the relitigation of issues,” however. In re Salas, No.
18-00260, 2020 WL 6054783, at *22 (Bankr. D.D.C. Oct. 13, 2020) (internal quotation marks
omitted) (citing Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir. 1985)). Rather,
“an independent action must meet a stringent and demanding standard,” In re Salas, 2020 WL
6054783, at *22, because it “is a proceeding that sounds in equity and ‘is available only to
prevent a grave miscarriage of justice.’” Sieverding v. Am. Bar Ass’n, 439 F. Supp. 2d 111, 114
n.1 (D.D.C. 2006) (citing United States v. Beggerly, 524 U.S. 38, 45, 47 (1998)).
10
“If an independent action for relief from a judgment is brought in the court that gave
judgment, there is ancillary jurisdiction over the action despite the absence of a federal question
or of diversity of citizenship or of the requisite amount in controversy.” 11 Fed. Prac. & Proc.
Civ. § 2868 (3d ed).
11
In prior versions of the Federal Rules of Civil Procedure, Rule 60 did not contain a subsection
(d); instead subsection (b) contained the independent action language. The 2007 Amendment
restyled Rule 60 and added subsection (d) but did not change the meaning. See Fed. R. Civ. P.
60(b) advisory committee’s note to 2007 amendment; Hunt v. Nationstar Mortg., LLC, 779 F.
App’x 669, 671 (11th Cir. 2019) (observing that subsection (d) was formerly a part of subsection
(b)). Accordingly, some older cases cite to subsection (b) when discussing the independent
action provision, now found in subsection (d).
12
Klayman has not met this standard because the issues he raises here are the same ones he
raised before Judge Kollar-Kotelly in Judicial Watch I. See Judicial Watch I, 6-cv-670-CKK,
ECF No. 606 at 22–23; ECF No. 587 at 5. Moreover, Klayman raised many of these same issues
on appeal to the D.C. Circuit. See Klayman v. Judicial Watch, Inc., 19-7105 (D.C. Cir.), ECF
No. 1844088 at 8. Because he had adequate remedies at law, and indeed took advantage of
them, Klayman is “procedurally barred” from bringing an independent action seeking relief from
the judgment or orders in Judicial Watch I. See Duse v. IBM Corp., 212 F.R.D. 58, 62 (D. Conn.
2002), aff’d sub nom. Duse v. Int’l Bus. Machs. Corp., 75 F. App’x 44 (2d Cir. 2003) (denying
relief where plaintiff raised the issue of fraud in the original action); Sieverding, 439 F. Supp. 2d
at 114 n.1 (D.D.C. 2006) (noting that an independent action may be brought only in the “the
absence of any adequate remedy at law”) (citing Bankers Mortg. Co. v. United States, 423 F.2d
73, 79 (5th Cir. 1970), cert. denied, 399 U.S. 927 (1970)); Mitchell v. Rees, 651 F.3d 593, 598
(6th Cir. 2011) (rejecting independent action where plaintiff failed to take advantage of “several
opportunities . . . to remedy the error” on appeal).
“Equitable relief from a judgment will be granted to a party thereto only where adequate
relief cannot be obtained by other proceedings.” Neisloss v. Bush, 293 F.2d 873, 880 n.16 (D.C.
Cir. 1961) (citation omitted). Typically, “the proper procedure when a judgment has been
improperly obtained is to take further steps in the court rendering the judgment or to use some
form of appellate procedure,” both of which Klayman has done. Id. at 880 n.16. These
procedures apply even where “the misconduct alleged is dishonesty by a member of a court.” Id.at 880 (citing Root Ref. Co. v. Universal Oil Prods. Co., 169 F.2d 514 (3d Cir. 1948)).
Where such procedures are not available, a party may bring an independent action, as was
the case in Turner v. Pleasant, 663 F.3d 770, 773 (5th Cir. 2011). In Turner, a personal injury
13
case tried without a jury, plaintiffs claimed the trial judge was biased against them because of his
relationship with defense counsel. Id. The Fifth Circuit initially upheld the lower court’s denial
of plaintiffs’ Rule 60 motion due to a lack of factual support. Id. at 773–74. Years later,
Congress impeached the trial judge after a Department of Justice investigation revealed that he
was friends with the defense expert and was friends with the defense attorney who represented a
company that had been secretly providing the judge with all expense-paid hunting trips, and had
shared a hotel room with the judge while the personal injury case was on appeal. Id. at 774–76.
Relying on the congressional impeachment report which included details from the Department of
Justice investigation, as well as details about plaintiffs’ personal injury case, plaintiffs filed an
independent action seeking relief from the judgment. Id. at 774. The Court of Appeals
permitted the action, reasoning that the complaint contained sufficient factual allegations that the
defense attorney, witness and the judge had conspired to prevent the proper administration of
justice. Id. at 777. Here, unlike the Turner plaintiffs, Klayman had an adequate remedy at law
to prosecute his claims of fraud on the court.
Even in the absence of such a remedy, Klayman’s fraud on the court claims would fail.
“‘Fraud upon the court’ is a distinct subclass of the broader category of ‘fraud.’” Synanon
Church v. United States, 579 F. Supp. 967, 974 (D.D.C. 1984), aff’d, 820 F.2d 421 (D.C. Cir.
1987). Fraud upon the court is “directed to the judicial machinery itself and is not fraud between
the parties or fraudulent documents, false statements or perjury.” Baltia Air Lines, Inc. v.
Transaction Mgmt., Inc., 98 F.3d 640, 642 (D.C. Cir. 1996) (citations omitted). “Neither perjury
nor fabricated evidence constitutes fraud upon the court for purposes of [subsection (d)], as both
can and should be exposed at trial.” Hunt v. Nationstar Mortg., LLC, 779 F. App’x 669, 671
(11th Cir. 2019) (citations omitted). “Examples include the bribery of a judge or the knowing
14
participation of an attorney in the presentation of perjured testimony.” Baltia Air Lines, Inc., 98
F.3d at 643 (citation omitted). A party alleging fraud upon the court must present “clear and
convincing evidence.” Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1477 (D.C. Cir. 1995)
(citations omitted).
Klayman has not met this standard. As noted above, the record does not support his
allegations of fraudulent testimony during Judicial Watch I. Similarly, his claims that Judge
Kollar-Kotelly engaged in purported fraud and/or judicial misconduct are wholly devoid of any
factual basis, and consist of unsupported allegations that she:
• “sanctioned and willfully furthered the fraud,” (Am. Compl. ¶ 8);
• made “prejudicial remarks and [exhibited] biases” against Klayman, (Am. Comp.
¶ 48);
• exhibited “extrajudicial bias and prejudice,” (Am. Compl. ¶ 61);
• sanctioned Klayman by refusing to allow him to use some exhibits, call witnesses
or obtain certain discovery, (Am. Compl. ¶ 45);
• made “intentional legal errors,” (Am. Comp. ¶ 48); and
• “has a conflict of interest since her actions and inactions resulted in the necessity
of bringing this Complaint, and through these actions and inactions she has
ratified, adopted and turned a blind eye toward and acquiesced in and furthered
the fraud and other misconduct which give rise to the serious allegations set
forth. . . .” (Am. Compl. ¶¶ 7, 83.)
These allegations against a sitting judge of this court do not meet the Rule 8 pleading
requirements. While Klayman need not proffer “detailed” allegations, the Federal Rules of Civil
Procedure “demand more than ‘an unadorned, the-defendant-unlawfully-harmed-me accusation’”
with no factual support. See McNair v. D.C., 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (citing
Twombly, 550 U.S. at 570). Likewise, Klayman’s unsupported allegations do not present “clear
and convincing evidence” of fraud upon the court. See Bowie v. Maddox, 677 F. Supp. 2d 276,
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282 (D.D.C. 2010) (finding plaintiff failed to present clear and convincing evidence of fraud
where he alleged the judgement and verdict were procured through a forged affidavit, but
proffered only “bare allegations and hypotheses”); Ramirez v. Dep’t of Justice, 680 F. Supp. 2d
208, 210 (D.D.C. 2010) (rejecting Rule 60 claims where plaintiff relied “only on conjecture and
unsupported assertions” to support his allegations that the judge was biased and had colluded
with defendants to present perjurious affidavits to the court); see Jordan v. U.S. Dep’t of Labor,
331 F.R.D. 444, 451 (D.D.C. 2019), aff’d sub nom. Jordan v. U.S. Dep’t of Labor, No. 19-5201,
2020 WL 283003 (D.C. Cir. Jan. 16, 2020), cert. denied sub nom., Jordan v. Dep’t of Labor, No.
20-241, 2020 WL 6121685 (U.S. Oct. 19, 2020) (rejecting fraud on the court claims where
plaintiff’s allegations of judicial impropriety and opposing counsel misconduct were “based on
words taken out of context from” defendant’s “briefs, declarations, and th[e] Court’s prior
opinions,” but were not backed by factual allegations of fraud). Klayman cannot bring an
independent action based on “fraud on the court simply because he disagrees with” Judge Kollar-
Kotelly’s rulings. See Jordan, 331 F.R.D. at 452.
3. Klayman improperly named Judge Kollar-Kotelly as a Defendant
Even if Klayman was entitled to bring an independent action pursuant to Rule 60(d), he
still could not bring such an action against Judge Kollar-Kotelly. While he seeks monetary relief
from the JW Defendants, Klayman makes clear he does not seek such relief from Judge Kollar-
Kotelly. Instead, he asks this court to set aside or “order” Judge Kollar-Kotelly to set aside the
judgment in Judicial Watch I. (Am. Compl. ¶¶ 88, 98, 110.). As previously discussed, Klayman
is or ought to be aware this court has no power to “order” Judge Kollar-Kotelly to do any such
thing.
More importantly, Judge Kollar-Kotelly is “immune from liability for her role” as the
presiding judge in Judicial Watch I. See Lewis v. Green, 629 F. Supp. 546, 552–53 (D.D.C.
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1986) (discussing judicial immunity where plaintiffs filed suit in federal district court against a
federal judge and sought reversal of her prior decisions). The fact that Klayman does not seek
damages from Judge Kollar-Kotelly does not alter this analysis. “It is well established that
judges are immune from damages for actions undertaken within their jurisdiction. The policies
underlying judicial immunity from damages dictate that immunity be conferred in suits, such as
this,” where a party essentially “seeks an injunction compelling a judge to alter an earlier
decision.” Id.; see Jenkins v. Kerry, 928 F. Supp. 2d 122, 134–35 (D.D.C. 2013) (rejecting
argument that, in the absence of a damages claim, plaintiff could proceed with lawsuit against
judges over their judicial rulings).
Moreover, “[u]nder the doctrine of judicial immunity, a judge will not be deprived of
immunity because the action [s]he took was in error, was done maliciously, or was in excess of
h[er] authority.” Thomas v. Wilkins, 61 F. Supp. 3d 13, 18–19 (D.D.C. 2014), aff’d, No. 14-
5197, 2015 WL 1606933 (D.C. Cir. Feb. 23, 2015) (internal quotation marks and alterations
omitted) (citing Stump v. Sparkman, 435 U.S. 349, 356 (1978)) (dismissing claims against
federal district court judge who allegedly “sabotaged the entire case by falsifying documents,
destroying documents, and infiltrating the administrative office of the clerk to perpetuate his
malicious endeavors”) (internal quotation marks omitted). Litigants who allege judicial
impropriety have other options for obtaining relief, and the legal system does not put judges in a
position where they “have to fear that unsatisfied litigants may hound [them] with litigation
charging malice or corruption.” Lewis, 629 F. Supp. at 553 (citing Pierson v. Ray, 386 U.S. 547,
554 (1967)).
Finally, Klayman’s assertion that Judge Kollar-Kotelly is a necessary party to this
litigation pursuant to Federal Rule of Civil Procedure 19, (Am. Compl. ¶ 8) “does not pass the
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straight-face test.” Kisela v. Hughes, 138 S. Ct. 1148, 1154 (2018) (internal quotation marks
and citations omitted). Rule 19(a)(1)(A) provides that a person “must be joined as a party if . . .
in that person’s absence, the court cannot accord complete relief among existing parties.” Even
if she were not immune to suit, Judge Kollar-Kotelly’s presence as a defendant would not be
necessary for this court to fashion equitable relief. Indeed, before he added Judge Kollar-
Kotelly as a defendant, Klayman simply asked this court to set aside or vacate her rulings. (See
Compl. ¶¶ 87, 97, 109.) After adding Judge Kollar-Kotelly as a defendant, he included an
alternative demand for this court to “order” her to set aside the judgment in Judicial Watch I,
(Am. Compl. ¶¶ 88, 98, 110), despite being well aware that this court is not empowered to do
so.
The fact that Klayman named Judge Kollar-Kotelly as a defendant in this action
immediately after this case was reassigned to her raises the specter of judge shopping by
attempting to circumvent this court’s local case assignment rules. Indeed, Klayman asserts that
“this Amended Complaint should not be and cannot be assigned as related to this District Court
Judge, Defendant Kotelly, who presided over the underlying judgment,” ostensibly because of
her alleged bias. (Am. Compl. ¶ 7.) This blatant attempt to manipulate the court’s local rules
arguably constitutes a violation the D.C. Bar’s Rules of Professional Conduct. See D.C. R. Prof.
Conduct 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a
good-faith argument for an extension, modification, or reversal of existing law.”). Manipulation
of the court’s rules, involving unsupported accusations against a respected judge of this court,
cannot be sanctioned.
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D. CONCLUSION
For the reasons set forth above, by separate order, this court will dismiss this action.
Date: February 16, 2021
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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