Klayman v. Kollar-Kotelly

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN, )
)
Plaintiff, )
)
v. ) Civil Case No. 11-1775 (RJL)
)
HONORABLE COLLEEN )
KOLLAR-KOTELLY, eta/. )
)
Defendants. )
~PINION
(September 2012) [# 6 and# 11]
Plaintiff Larry Klayman ("plaintiff' or "Klayman") brings this action against U.S.
District Judge Colleen Kollar-Kotelly ("Judge Kollar-Kotelly"), U.S. Circuit Judge David
Sentelle ("Chief Judge Sentelle"), the Judicial Council for the District of Columbia
("Judicial Council of the D.C. Circuit"), and the Office of the Circuit Executive
(collectively, "defendants"), seeking equitable and injunctive relief. Before the Court are
plaintiffs Motion to Change Venue [Dkt. # 6] and defendants' Motion to Dismiss [Dkt. #
11]. Upon consideration of the parties' pleadings, relevant law, and the entire record
herein, defendants' Motion to Dismiss is GRANTED and plaintiffs Motion to Change
Venue is accordingly DENIED AS MOOT.
BACKGROUND
On October 5, 2011, plaintiff filed this action against Judge Kollar-Kotelly, Chief
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Judge Sentelle, the Judicial Council of the D.C. Circuit and the Office ofthe Circuit
Executive. See Compl. ~~ 2-5 [Dkt. # 1]. The basis for plaintiffs suit stems from his
involvement in two cases before Judge Kollar-Kotelly: (1) Sataki v. Broadcasting Board
of Governors, No. 10-534 (D.D.C. filed Apr. 2, 2010) ("Sataki") and (2) Klayman v.
Judicial Watch, Inc., No. 06-670 (D.D.C. filed Apr. 12, 2006) ("Judicial Watch").
Compl. ~~ 10-15.
The former, Sataki, was a sexual harassment and employment discrimination and
retaliation case in which plaintiff represented the alleged victim. /d. ~ 10. Alleging that
Judge Kollar-Kotelly harbored a personal bias against him, plaintiff claims that such
prejudice colored her disposition toward, and caused adverse rulings against, his client,
and attempted to have Judge Kollar-Kotelly disqualified or have the Sataki case
reassigned. /d. ~~ 10-13. Both attempts failed, however, and Judge Kollar-Kotelly
ultimately dismissed that case. 1 /d. ~~ 11, 17; Order, Dec. 21, 2010, Sataki [Dkt. # 86];
Order, Oct. 22, 2010, Sataki [Dkt. # 77].
Also assigned to Judge Kollar-Kotelly, Judicial Watch involves breach of contract
claims, among others, filed by the plaintiff against Judicial Watch, Inc., a public interest
organization plaintiff founded. Compl. ~ 14. In that case, plaintiff similarly alleged that
1 Although plaintiff appealed Judge Kollar-Kotelly's decision to dismiss the Sataki case,
our Court of Appeals ultimately dismissed the appeal for failure to prosecute. See Order,
July 26, 2011, Sataki, No. 11-5015 (D.C. Cir. filed Apr. 2, 2010). This case is now
closed.
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Judge Kollar-Kotelly's personal bias against him led to erroneous rulings on the scope of
discovery and various motions in the case, and plaintiff again moved to disqualifY her
from the case. !d.~~ 14-16; Motion to DisqualifY Judge, Jul. 26, 2010, Judicial Watch
[Dkt. # 345]. Judge Kollar-Kotelly denied the disqualification motion. Compl. ~ 17;
Order and Mem. Op., Oct. 13, 2010, Judicial Watch [Dkt. ## 355-56]. Plaintiff pursued
both a mandamus petition and an interlocutory appeal, but our Court of Appeals denied
plaintiff's mandamus petition and dismissed the interlocutory appeal for lack of
prosecution. See Praecipe, July 24, 2008, Judicial Watch [Dkt. # 21 0], mandamus
denied, Order, July 25, 2008, In re Larry Klayman, No. 08-5218 (D.C. Cir. filed Jul. 24,
2008) (per curiam); Notice oflnterlocutory Appeal, June 25, 2009, Judicial Watch [Dkt. #
320], appeal dismissed for lack ofprosecution, Order, Sept. 1, 2009, Klayman v. Judicial
Watch, Inc., No. 09-7068 (D.C. Cir. filed Apr. 12, 2006). That case is still pending
before Judge Kollar-Kotelly. Judicial Watch.
Believing that Judge Kollar-Kotelly's refusal to remove herself from both the
Sataki and Judicial Watch cases was "so prejudicial to the fair and impartial
administration of justice," Compl. ~ 17, plaintiff filed an Ethics Complaint against her
before the Judicial Council of our Circuit. Claiming that Chief Judge Sentelle
"summarily dismissed" the Ethics Complaint without proper consideration of its merits,
plaintiff subsequently filed a Petition for Review of the dismissal of the Ethics
Complaint. !d. ~~ 20-21. Five days later, it was dismissed without any analysis or
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explanation. !d.
Plaintiff filed the instant action on October 5, 20 11, alleging that the defendants'
judicial acts violated his Constitutional rights and requesting various forms of equitable
and injunctive relief, including "an actual bona fide consideration" of his Ethics
Complaint against Judge Kollar-Kotelly and her removal from the bench. !d. ~~ 23-27.
On December 5, 2011, defendants moved to dismiss this case pursuant to Federal Rule of
Civil Procedure 12(b )( 6) for failure to state a claim upon which relief may be granted and
Federal Rule of Civil Procedure 12(b)(l) for lack of subject matter jurisdiction. Defs.'
Mot. to Dismiss [Dkt. # 11]. For the following reasons, defendants' Motion to Dismiss
is GRANTED, and plaintiffs Motion to Change Venue is DENIED AS MOOT.
STANDARD OF REVIEW
A court may dismiss a complaint that does not fall within its subject-matter
jurisdiction. Fed. R. Civ. P. 12(b)(l). To survive a Rule 12(b)(l) motion to dismiss,
plaintiff bears the burden of demonstrating that jurisdiction exists over his claim. Khadr
v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). The Court, in tum, "must accept
as true all well-pleaded factual allegations and draw all reasonable inferences in favor of
the plaintiffs." Logan v. Dep 't of Veteran. Affairs, 357 F. Supp. 2d 149, 153 (D.D.C.
2004) (quoting Fitts v. Fed. Nat'/ Mortg. Ass 'n, 44 F. Supp. 2d 317, 321 (D.D.C. 1999).
Even so, a court "may give the plaintiffs factual allegations closer scrutiny and may
consider materials outside the pleadings" when evaluating its ability to hear a claim.
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Logan, 357 F. Supp. 2d at 153 (citing Fed. R. Civ. P. 12(b)(l)); see also Grand Lodge of
the Fraternal Order ofPolice v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001). "If
the district court finds that it lacks subject matter jurisdiction, it must dismiss the case,
and without prejudice." Paul v. Didizian, 819 F. Supp. 2d 31, 34 (D.D.C. 2011); see
Fed. R. Civ. P. 12(h)(3).
ANALYSIS
Defendants contend that plaintiffs claims should be dismissed because this Court
has no jurisdiction to enjoin, or issue a writ of mandamus against, a judge on this Court or
the Court of Appeals. Defs.' Mem. in Supp. ofMot. to Dismiss ("Defs.' Mem.") at 1-2
[Dkt. # 11]. Plaintiff counters that jurisdiction exists on multiple grounds, including
federal question jurisdiction under 28 U.S.C. § 1331, mandamus jurisdiction under 28
U.S.C. § 1361, and "Bivens Action" jurisdiction under Bivens v. Six Unknown Named
Agents of Fed. Bureau ofNarcotics, 403 U.S. 388 (1971). Pl.'s Opp'n to Defs.' Mot. to
Dismiss ("Pl.'s Opp'n") at 11-17 [Dkt. # 23]. Unfortunately, plaintiff has failed to
demonstrate a valid basis for this Court's jurisdiction, and his complaint, for the
following reasons, must be dismissed.
Plaintiff claims that the Court has federal question jurisdiction over the complaint
because the complaint alleges "unconstitutional violations of Plaintiffs [sic] rights under
the 1st, 4th, 5th, 9th, 14th, and other amendments to the United States Constitution."
Pl.'s Opp 'n at 11 (citing Compl. ~ 7). Plaintiffs constitutional claims appear to be based
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upon the right to privacy and the right to due process. Pl.'s Opp'n at 11-12. However,
plaintiff cites no law demonstrating that the injuries he alleges equate to constitutional
violations. Indeed, the cases he relies upon-from courts outside our Circuit-do not
relate at all to judicial bias or harm stemming from judicial mistreatment. See Pl.'s
Opp'n at 11-12 (citing Shirshekan v. Hurst, 669 F. Supp. 238, 239 (C.D. Ill. 1987) and
Beerly v. Department ofTreasury, 768 F. 2d 942 (7th Cir. 1985)). Thus, absent a
cognizable constitutional harm, plaintiffs claims cannot merit jurisdiction under either
the federal question statute or Bivens. See Alec L. v. Jackson, 2012 WL 1951969, at *3
(D.D.C. May 31, 2012) ("When determining whether a district court has federal question
jurisdiction ... , the jurisdictional inquiry depends entirely upon the allegations in the
complaint and asks whether the claim as stated in the complaint arises under the
Constitution or laws of the United States. If a federal claim has been alleged, the district
court has subject matter jurisdiction unless the purported federal claim is clearly
immaterial and made solely for the purpose of obtaining jurisdiction or is wholly
insubstantial and frivolous.") (citations and internal quotation marks omitted); Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (Court in Bivens recognized "an implied
private action for damages against federal officers alleged to have violated a citizen's
constitutional rights") (emphasis added).
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Next, plaintiffs claim of mandamus jurisdiction is equally meritless. Plaintiff
relies upon 28 U.S.C. § 1361, which Congress did not intend to apply to members ofthe
judicial branch and which no court has said otherwise. See Trackwell v. US.
Government, 472 F.3d 1242, 1246 (lOth Cir. 2007) ("The context of[§ 1361] argues for,
not against, exclusion of the judiciary from its compass."); Liberation News Serv. v.
Eastland, 426 F.2d 1379, 1384 (2d Cir. 1970) ("[The] history demonstrates to us that, in
enacting [§1361], Congress was thinking solely in terms ofthe executive branch .... ").
Thus, having failed to demonstrate any basis for subject matter jurisdiction,
plaintiffs complaint must be, and hereby is, dismissed. Plaintiffs Motion for Change of
Venue is hereby denied as moot. An appropriate Order shall accompany this
Memorandum Opinion.
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