Klayman v. Judicial Watch, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN,
Plaintiff,
Civil Action No. 06-670 (CKK)
v.
JUDICIAL WATCH, INC., et al.,
Defendants.
MEMORANDUM OPINION
(June 25, 2009)
Currently pending before the Court is Plaintiff Larry Klayman’s (“Klayman”) [298]
Motion for Recusal and/or Disqualification, in which Klayman argues that this Court should
recuse itself pursuant to 28 U.S.C. § 455(a). Klayman contends that recusal is warranted because
the Court’s rulings in this case, along with the fact that the undersigned was appointed by former
President William J. Clinton, create an appearance of bias against him. Defendants oppose the
motion, arguing that Klayman has failed to set forth sufficient grounds for recusal pursuant to
section 455(a) and that Klayman’s motion is an attempt to further delay litigation of the above-
captioned case. Upon searching consideration of Plaintiff’s Motion for Recusal and/or
Disqualification, Defendants’ Opposition, Plaintiff’s Reply, the relevant case law, and the entire
record herein, the Court shall DENY Plaintiff’s motion. For the reasons set forth below, the
Court concludes that recusal is neither required nor warranted.
I. BACKGROUND
The Court shall assume familiarity with the numerous opinions issued by both this Court
and Magistrate Judge Alan Kay, which set forth in detail the factual background and allegations
of this case, and shall therefore provide only a brief summary of the instant case as is necessary
to provide context for resolution of the motion now before the Court. See Klayman v. Judicial
Watch, Inc., Civil Action No. 06-670, 2007 WL 140978 (D.D.C. Jan. 17, 2007); Klayman v.
Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 1034936 (Apr. 3, 2007); and Klayman
v. Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 1034937 (Apr. 3, 2007) (hereinafter
“Klayman I”). Defendant Judicial Watch, Inc. is a 501(c)(3) organization formed under the laws
of the District of Columbia and headquartered in the District of Columbia. Klayman I, 2007 WL
1034937, *2. Defendant Fitton is President of Judicial Watch, Defendant Orfanedes is the
Secretary and a Director of Judicial Watch, and Defendant Farrell is a Director of Judicial Watch.
Id. Plaintiff Larry Klayman is the self-described founder and former Chairman, General Counsel
and Treasurer of Judicial Watch, who resides in and practices law in the State of Florida. Id.Klayman, an attorney, is currently representing himself pro se in this matter.
Klayman’s Second Amended Complaint and Judicial Watch’s Amended Counterclaim in
this action include various legal claims stemming from events that occurred after Klayman left
Judicial Watch in September 2003. Id. Many of these claims arise out of the Severance
Agreement entered into by Klayman and Judicial Watch on September 19, 2003. Id. The Court
need not address the specifics of the parties’ claims at this time, other than to note that, inter alia,
Klayman asserts claims against the Defendants under the Lanham Act for unfair competition in
the form of false advertising and false endorsements and for breach of contract relating to the
Severance Agreement. 2d Am. Compl. ¶¶ 97-106; 115-162. Judicial Watch asserts
counterclaims against Klayman under the Lanham Act for trademark infringement, unfair
competition in the form of false advertising and false association, and cybersquatting. Am.
2
Count. ¶¶ 84-116.
II. LEGAL STANDARD AND DISCUSSION
As explained above, Klayman moves to recuse this Court pursuant to 28 U.S.C. § 455(a),
which permits a litigant to seek recusal of a federal judge “in any proceeding in which his
impartiality might reasonably be questioned.” In assessing section 455(a) motions, the D.C.
Circuit applies an “objective” standard: “Recusal is required when ‘a reasonable and informed
observer would question the judge’s impartiality.’” S.E.C. v. Loving Spirit Found. Inc., 392 F.
3d 486, 493 (D.C. Cir. 2004) (quoting United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C.
Cir. 2001), cert. denied, 534 U.S. 952 (2001))). Here, Klayman alleges two sources of alleged
bias that he contends would cause a “reasonable and informed observer” to question this Court’s
impartiality. First, Klayman contends that various rulings issued by the Court in this case create
an appearance of bias against him. Pl.’s Mot. at 2-4. Second, Klayman argues that, because he
was a “strong and controversial advocate” against the Clinton administration, the fact that the
undersigned was appointed by former President Clinton fosters an appearance of bias against
him. Id. at 4-5. The Court shall address each allegation in turn.
A. The Court’s Rulings are Based Solely on Facts and Evidence in the Record and
Would Not Lead a Reasonable and Informed Observer to Question This Court’s
Impartiality
Klayman alleges that the Court’s rulings in this case have created an appearance of bias
against him. At the outset, the Court notes that although Klayman complains generally of the
Court’s decisions on several issues, he fails to provide any citations to the specific rulings that he
believes are evidence of bias, thereby leaving the Court to speculate as to the particular decisions
(or portions therein) of which Klayman complains. Given that this case was filed more three
3
years ago and has in excess of 300 entries on the public docket, Klayman’s failure to properly
cite to the record, as is his obligation, significantly hampered the Court’s ability to quickly and
efficiently resolve Klayman’s motion to recuse. Nonetheless, where the Court can discern the
particular rulings at issue from its own independent review of the record in this case, the Court
shall address Klayman’s arguments as it understands them.
Before doing so, however, the Court pauses to note that, upon review of Klayman’s
motion to recuse, it is readily apparent that most of his complaints regarding the Court’s rulings
in this case are simply reduced to his displeasure with the substance of the Court’s rulings against
him. In the three years since Klayman filed his complaint in this matter, this Court has issued
nearly sixty orders in this matter (excluding the more than fifty orders issued by Magistrate Judge
Kay). Unsurprisingly, not all rulings have been in Klayman’s favor. The case law is clear,
however, that “judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Liteky, 510 U.S. at 555. As the Supreme Court has observed, judicial rulings by
themselves “cannot possibly show reliance upon an extrajudicial source; and can only in the
rarest circumstances evidence the degree of favoritism or antagonism required . . . when no
extrajudicial source is involved.” Id. Therefore, dissatisfaction with a court’s rulings “almost
invariably” provides a proper ground for appeal—not for recusal. Id. In addition, “opinions
formed by the judge on the basis of facts introduced or events occurring in the course of the
current proceedings . . . do not constitute a basis for a bias or partiality motion unless they display
a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. Thus, to
the extent Klayman merely complains that the Court has ruled unfavorably against him, without
identifying any improper reliance by the Court on extrajudicial facts or evidence, such
4
complaints are not proper grounds for recusal. Nonetheless, to ensure that the Court addresses all
issues raised by Klayman in his motion to recuse and to satisfy its own independent obligation to
recuse itself where its impartiality has been questioned, the Court shall examine the challenged
rulings in greater detail below.
1. The Court’s Discovery Rulings are Based Solely on the Record and Do
Not Provide a Ground for Recusal
First, Klayman, in the instant motion to recuse, primarily focuses on his dissatisfaction
with discovery orders issued in this case. In particular, Klayman sets forth three specific
complaints: (a) Klayman denounces the fact that, “[t]o the best of Plaintiff’s memory the Court
[has] refuse[d] to uphold even one objection” by Klayman to Defendants’ discovery requests,
Pl.’s Mot. at 3; (b) he disapproves of the decision to permit Defendants to obtain certain
discovery from his ex-wife, id.; and (c) he protests the decision precluding him from completing
certain depositions after the close of discovery, id. at 4. According to Klayman, these rulings
together create an appearance of bias on the part of this Court.
a. The mere fact this Court has overruled each of Klayman’s
objections to Magistrate Judge Kay’s orders does not, by itself,
create an appearance of bias.
To the extent Klayman complains that the Court’s orders overruling his objections to
Magistrate Judge Kay’s discovery rulings create an appearance of bias, the Court finds
Klayman’s argument to be wholly without merit. Upon review of Klayman’s motion, it is
evident that he is simply attempting to reargue the substance of the Court’s prior rulings,
asserting—as he has throughout this litigation—that Defendants’ various discovery requests were
“overbroad” and should not have been granted. See Pl.’s Mot. at 3-4. As explained above,
5
however, dissatisfaction with a court’s rulings provides a proper ground for appeal—not for
recusal. Liteky, 510 U.S. at 555. Accordingly, courts in this Circuit have routinely held that a
claim of bias predicated on a court’s rulings—and in particular, a court’s rulings with respect to
the conduct of discovery—do not, standing alone, warrant recusal. See, e.g., Liberty Lobby, Inc.
v. Dow Jones & Co., Inc., 838 F.2d 1287 (D.C. Cir. 1998) (because plaintiff’s motions to recuse
“were based entirely upon the district court’s discovery rulings in this case, their denial was
clearly proper”), cert. denied, 488 U.S. 825 (1988); Cotton v. Washington Metro. Area Transit
Auth., 264 F. Supp. 2d 39, 42 (D.D.C. 2003) (claim of bias based on court’s discovery rulings did
not warrant recusal).
Moreover, reference to the record in this case confirms that a reasonable and informed
observer would not question the Court’s impartiality on this basis. In the time since the Court’s
December 3, 2007 referral of this case to Magistrate Judge Kay for resolution of discovery-
related matters, Magistrate Judge Kay has been called upon to handle a plethora of discovery
disputes, and has done so ably and promptly. In almost every instance, Klayman filed objections
to Magistrate Judge Kay’s rulings. See Docket Nos. [99], [103], [123], [125], [154], [162],
[172], [173], [175], [176], [203], [215], [254], [255]. As this Court repeatedly advised Klayman,
however, his objections consistently failed to comply with Local Civil Rule 72.2(b), which
requires a party objecting to a magistrate judge’s orders to “specifically designate” the parts of
the rulings to which he or she objects and to provide “the basis,” i.e., any legal authority, for the
specific objections. See, e.g., Docket No. [167] at 4 (noting that Klayman’s objections failed to
comply with LCvR 72.2(b)); Docket No. [183] at 4 (same); Docket No. [262] at 4-5 (same).
Nonetheless, the Court, in its discretion, each time declined to strike Klayman’s objections for
6
noncompliance with the local rules and instead proceeded to the merits of Klayman’s objections,
to the extent he had in fact set forth any specific arguments regarding the order(s) at issue. After
carefully reviewing Klayman’s objections, Defendants’ oppositions thereto, and the relevant
briefings below, as well as the applicable case law and the record as a whole, the Court overruled
each of Klayman’s objections, finding neither legal nor factual error on Magistrate Judge Kay’s
part. See Docket Nos. [134], [167], [183], [184], [185], [189], 8/7/08 Minute Order, [261],
[262]. The record thus demonstrates that each ruling was based solely on the record developed in
court, and Klayman has not alleged that these rulings were impermissibly based on any extra-
judicial facts or events, see generally Pl.’s Mot. Consequently, the rulings do not constitute a
valid basis for recusal. See Karim-Panahi v. U.S. Congress, No. 03-5186, 2004 WL 1588167, *4
(D.C. Cir. Jul. 14, 2004) (where plaintiff has failed to point “to anything that would suggest that
[the Court] has formed an opinion on some basis other than her participation in this case,”
recusal is inappropriate).
b. Klayman’s continued dissatisfaction with the Court’s decisions
permitting Defendants to take discovery of his ex-wife is an
insufficient ground for recusal.
Klayman next complains that an appearance of bias arises from the Court’s orders
“[p]ermitting Defendants to take discovery of his ex-wife.” Pl.’s Mot. at 3. As previously
explained, Klayman has failed to identify the specific rulings of which he complains or provide
any citations to the record. See generally id. Defendants’ requests for discovery of Klayman’s
ex-wife, and Klayman’s objections to those requests, have been the subject of a number of
rulings issued by both this Court and by Magistrate Judge Kay. See, e.g., Docket No. [117];
7
5/9/08 Min. Order; Docket No. [206]; 7/31/08 Min. Order; 8/7/08 Min. Order.1 It is therefore
entirely unclear to the Court which of these rulings (or portions thereof) Plaintiff now asserts
create an appearance of bias. For this reason alone, Klayman’s arguments on this point are
insufficient to warrant recusal, as “[a] judge should not recuse himself based upon conclusory,
unsupported or tenuous allegations.” In re Kaminski, 960 F.2d 1062, 1065, n. 3 (D.C. Cir. 1992)
(observing that) (per curiam); see also Ivey v. Nat’l Treasury Employees Union, Civ. Act. No.
05-1147, 2008 WL 4091676, *1 (D.D.C. Sept. 4, 2008) (“general and conclusory” statements are
insufficient to support a motion for recusal).
However, even setting aside Klayman’s failure to adequately support his claim with either
factual or record citations and even assuming that he meant to allege that all of this Court’s
orders relating to discovery of his ex-wife create an appearance of bias, the Court finds that
Klayman’s argument is wholly without merit. Once again, it is evident from Klayman’s motion
that he is simply attempting to re-argue discovery issues that have already been thoroughly
litigated. See, e.g., Pl.’s Mot. at 3 (arguing that “[t]here was absolutely no legal basis to allow
discovery into these issues” and that Defendants’ discovery requests “lack relevance”). Klayman
does not point to any evidence that the Court considered facts or evidence arising from an
extrajudicial source, but simply contends that the rulings were wrongly decided. See id.Although the Court shall not repeat herein the entire reasoning underpinning its Orders, the Court
1
In addition, the Court notes that Klayman also filed a petition for a writ for mandamus
with the D.C. Circuit, in part, seeking review of the discovery orders relating to his ex-wife. See
Docket Nos. [224-1] and [224-2]. The D.C. Circuit denied Klayman’s petition for a writ of
mandamus, as well as his subsequent motion for rehearing en banc. See In re Klayman, No. 08-
5128 (D.C. Cir. Jul. 25, 2008) (denying Klayman’s petition for mandamus) (per curiam); id.(D.C. Cir. Sept. 10, 2008) (denying Klayman’s motion for rehearing en banc) (per curiam).
8
notes that Klayman himself admitted in his Initial Disclosures that his former wife is “familiar
with the facts relating to Klayman’s family health insurance benefits, and Mr. Klayman’s
separation from Judicial Watch.” See 5/28/08 Order at 5. Similarly, during his deposition in this
matter, Klayman testified that he provided documentation regarding his personal expenses to his
ex-wife in her former role as a Judicial Watch employee. See id. Furthermore, as the Court
observed in its December 3, 2007 Memorandum Opinion and Order granting Defendants’ motion
to amend their Counterclaim, Defendants did not seek to include expanded allegations
concerning Klayman’s relationship with his ex-wife until after Klayman amended his own
Complaint to include expanded claims regarding the reason for his departure from Judicial
Watch. Klayman v. Judicial Watch, Inc., 247 F.R.D. 10, 14, n.2 (D.D.C. 2007). The record thus
makes clear that Klayman himself is largely responsible for expanding the scope of the instant
lawsuit in such a way as to make relevant the requested discovery relating to his former wife.
Regardless, it is clear that Klayman is simply displeased with the Court’s discovery
ruling, but that alone does not provide a proper ground for recusal. Liteky, 510 U.S. at 555. “[I]f
disqualification were required ‘merely as a result of counsel’s disagreement with judicial
conclusions reached in the course of litigation, the judicial system would grind to a halt.” Loving
Spirit Found., 392 F.3d at 494 (quoting Barnett v. City of Chicago, 952 F. Supp. 1265, 1269
(N.D. Ill. 1998)). Accordingly, the Court finds that its rulings affirming Defendants’ requests to
take certain discovery of Klayman’s ex-wife do not “constitute a valid basis for a bias or
partiality motion.” Liteky, 510 U.S. at 555.
9
c. The Court’s decision to refuse to compel completion of depositions
after the close of discovery, where the failure to complete the
depositions was solely Klayman’s fault, does not warrant recusal.
Klayman also alleges that an appearance of bias arises from the Court’s “refusal to allow
Plaintiff to complete crucial noticed depositions that were commenced before the close of the
discovery deadline and which the Magistrate Judge had said could be completed due to the non-
appearance of a court reporter.” Pl.’s Mot. at 4. Yet again, Klayman has not identified the
specific ruling(s) upon which his allegations are based nor indicate to which of the many
depositions in this case he is referring. See id. Nonetheless, upon the Court’s own independent
review of the record, it appears that Klayman is most likely referring to this Court’s November
11, 2008 Order, see Docket No. [262], in which it affirmed Magistrate Judge Kay’s September
23, 2008 Memorandum Order denying Klayman’s motion to compel the continued deposition of
Susan Prytherch, see Docket No. [250]. The Court shall therefore proceed to consider the merits
of Plaintiff’s allegation based on the understanding that Klayman is referring to the Court’s
November 11, 2008 Order, notwithstanding his failure to provide the appropriate record
citations, as is required.
Upon consideration of the record in this case, the Court concludes that a reasonable and
informed observer would not question the Court’s impartiality on the basis of its November 11,
2008 Order. In overruling Klayman’s objections to Magistrate Judge Kay’s September 23, 2008
Memorandum Order, the Court found that Klayman had an opportunity to depose Ms. Prytherch,
but failed to complete the deposition before the close of discovery because he had not confirmed
the presence of a court reporter and then refused to wait for one to appear. 11/6/08 Order,
Docket No. [262], at 5-6. Accordingly, the Court concluded, solely based on the record before it,
10
that the failure to complete the deposition prior to the close of discovery was entirely Klayman’s
responsibility. Id. at 6. The Court’s ruling was thus based on the record developed in court and,
as such, does not constitute a valid basis for recusal. See Karim-Panahi, 2004 WL 1588167, *4
(where plaintiff has failed to point “to anything that would suggest that [the Court] has formed an
opinion on some basis other than her participation in this case,” recusal is inappropriate).
Before leaving the subject of Ms. Prytherch’s deposition, however, the Court notes that it
is concerned about Klayman’s continuing reliance on an inaccurate statement of the facts.
Specifically, in his motion to recuse, Klayman affirmatively represents that he was told by
Magistrate Judge Kay that he could complete the deposition of Ms. Prytherch at a later time. See
Pl.’s Mot. at 4. However, as Magistrate Judge Kay clearly stated in his September 23, 2008
Memorandum Order, this statement by Klayman is a misrepresentation of the parties’ exchange
with the Court. See 9/23/08 Order, Docket No. [250], at 3, n.3 (noting that “Plaintiff asserts in
his Motion that the Court ‘ordered orally [in chambers] that [the deposition] would be
concluded,” but that such statement “completely misrepresents the parties’ exchange with the
Court”). Significantly, this is the third time Plaintiff has made this same misrepresentation in
filings to this Court—first, in his motion to compel before Magistrate Judge Kay, see Docket No.
[240] at 2; then, in his objections to Magistrate Judge Kay’s order filed with this Court, see
Docket No. [255] at 4; and finally, in the instant motion to recuse. The Court is troubled by the
fact that Plaintiff continues to mischaracterize the record, despite being twice-advised of the
inaccuracy of such statements. See, e.g., 9/23/08 Order, Docket No. [250], at 3, n.3
(admonishing Klayman for “completely misrepresent[ing] the parties’ exchange with the Court”);
11/6/08 Order, Docket No. [262], at 6 (rejecting as inaccurate Klayman’s unsupported
11
characterization of his exchange with Magistrate Judge Kay). The Court advises Klayman to
refrain from repeating such misrepresentations in any future filings.
2. The Court’s Order Denying Klayman’s Motion for an Extension of Time
is Based Solely on the Record and Does Not Contain Any Language That
Would Cause a Reasonable Observer to Question the Court’s Impartiality
Klayman next argues that the Court’s order denying his request for an extension of time
in which to file his consolidated opposition to Defendants’ motions for summary judgment
creates an appearance of bias.2 Id. at 2-3. Klayman appears to complain both about the
substance of the Court’s ruling—i.e., the fact that the Court denied Klayman’s request for an
extension of time—as well as the Court’s tone as expressed in the ruling. Id. As to the former,
the Court has already explained that, under D.C. Circuit case law, Klayman’s displeasure with
the Court’s ruling is an insufficient ground for recusal. See supra p. at 9. The Court therefore
easily dispenses with Klayman’s assertion that the decision itself creates an appearance of bias.
The latter claim, however, will be addressed as Plaintiff alleges that the Court “mocked”
him and “suggest[ed] he was lying to the Court, without basis to infer such allegations.” Id. at 3.
Klayman, however, has—once again—failed to identify any specific orders (or portions thereof)
that allegedly contain such language. Moreover, the Court, upon its own thorough review of the
relevant rulings, cannot locate any language that could possibly be construed by a reasonable and
informed observer as mocking Plaintiff’s injuries or accusing him of lying. Although the Court’s
orders denying Klayman’s requests for an extension of time contain some language that may
2
To ensure the accuracy of the record, the Court clarifies that Klayman’s motion for
extension of time, as initially filed on December 18, 2008, requested a five-business day
extension, see Docket No. [281], and not a “one business day extension of time” as Klayman
represents in his motion to recuse, Pl.’s Mot. at 2.
12
reasonably be construed as critical of Klayman’s repeated failure to timely comply with the
Court-ordered deadlines in this case, such remarks do not support recusal. As the Supreme Court
as observed, “judicial remarks . . . that are critical or disapproving of . . . counsel, the parties, or
their cases, ordinarily do not support a bias or partiality charge.” Liteky, 510 U.S. at 554.
Rather, “opinions formed by the judge on the basis of facts introduced or events occurring in the
course of the current proceedings . . . do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id. at 555. It is only when judicial remarks “reveal such a high degree of favoritism
or antagonism as to make fair judgment impossible” that recusal is warranted or necessary. Id.;
cf. United States v. Roach, 108 F.3d 1477, 1484 (D.C. Cir. 1997) (“In a controversial, sharply
contested case presided over by an experienced district judge, strongly stated judicial views
rooted in the record should not be confused with judicial bias.”), vacated in part on other
grounds, 136 F.3d 794 (D.C. Cir. 1997). In this case, even if comments made by the Court may
reasonably be construed as “disapproving” or “critical” of Klayman’s well-documented pattern of
delay in this case, such comments solely reflect the Court’s opinions formed on the basis of facts
and events occurring in the course of this litigation and do not suggest such a high degree of
antagonism as to create an appearance of impartiality.
Although the Court need not belabor the point by repeating herein the entire tortured
history of this case, which has been repeatedly set forth elsewhere by this Court and by
Magistrate Judge Kay, even a brief review of the record demonstrates Klayman’s repeated failure
to comply with the Court’s deadlines in this matter. See, e.g., 5/12/08 Order, Docket No. [166]
(describing Klayman’s efforts to “stonewall” and “obstruct[]” discovery in this matter); 3/24/09
13
Order, Docket No. [301] (describing the “voluminous number of filings in this case resulting
from Klayman’s obstinance at every stage of this case”). Indeed, Klayman has filed more than a
dozen requests for extensions of court-ordered deadlines in this matter. See, e.g., Docket Nos.
[17], [20], [34], [100], [112], [136], [148], [234], [237], [278], [283], [287], [306]. The Court
notes that it has approved many of these previous requests for extensions of time. Indeed,
excluding those requests for an extension of time of which Klayman now complains, the Court
has granted his requests for an extension of time in all but one instance.
Given the many requests for an extension of time in this case, when it came time to set a
schedule for briefing dispositive motions, the Court specifically asked the parties to suggest a
schedule with which they would be able to comply. The Court thereafter adopted the schedule
agreed to and suggested by the parties, which afforded both parties a generous month and a half
to file simultaneous opening briefs and more than a month to file simultaneous oppositions. See
Scheduling and Procedures Order, Docket No. [239]. At the September 16, 2009 status hearing,
during which the schedule for summary judgment was set, the Court repeatedly advised the
parties that, given the liberal nature of the dispositive briefing schedule, excuses regarding work
load and other such issues would not be looked upon favorably absent good cause.3
3
Although the Court subsequently agreed, in its discretion, to reset the schedule twice
upon consent motion by Defendants, the Court emphasized that the extension benefitted both
parties by continuing the deadline for filing the parties’ simultaneous cross-motions for summary
judgment, as well as oppositions and replies, by more than three weeks. See 10/22/08 Min.
Order; 11/20/08 Min. Order. Accordingly, both Klayman and Defendants were working under
the same deadlines, which afforded the parties more than two months to file their opening
motions and another four weeks to file their respective oppositions. Although Klayman now
argues that four weeks was insufficient time in which to respond to Defendants’ motions for
summary judgment, the Court notes that, although Defendants filed five separate motions for
summary judgment, the motions largely contain the same principal arguments repeated almost
verbatim, and Defendants also filed a single joint statement of material facts. Furthermore,
14
On December 16, 2008, Klayman filed a motion for an extension of time in which to file
his opposition, asserting that he needed additional time because his secretarial staff had been ill
and because he had been injured in a car accident six weeks previously. See Docket No. [278].
Although Klayman attached an emergency hospital bill for services from November 6, 2008, the
bill showed only that Klayman had been treated and released on the same day, after receiving
certain diagnostic scans. See id., Att. 1. Klayman provided no support for his assertion that the
accident continued to affect his ability to perform legal work more than a month and a half later,
and Defendants pointed out that he was continuing to perform legal work in other cases. See
generally id. Given Klayman’s pattern of delay in this case, the Court, in its discretion,
concluded that he had “not shown sufficient reason for the extension of time requested,”
particularly given that “this Court has repeatedly counseled the parties that no further extensions
to the dispositive motions schedule would be granted without good cause.” 12/18/08 Min. Order.
Thereafter, on December 22, 2008, Klayman filed a second request for an extension of
time, to which he attached a note from his doctor. See Docket No. [283]. As the second motion
simply repeated Klayman’s previous request for an extension of time, the Court construed the
filing as a motion for reconsideration, which it ultimately denied. 12/23/08 Min. Order. In so
doing, the Court observed:
Klayman’s representation that Defendants’ motions compromise “several thousand pages” is
inaccurate. Pl.’s Mot. at 2. Defendants’ joint statement of facts contains roughly 1200 pages of
material and each motion is less than 30 pages in length. See Docket Nos. [265], [266], [267],
[268], [269], [270]. Although the materials attached as exhibits to Defendants’ joint statement
are somewhat bulky, Defendants’ statement—unlike Klayman’s—provided pin cites for all
record citations, thereby considerably easing review of the relevant materials. See Defs.’ Jt.
Stmt., Docket No. [265-1]; 12/01/08 Min. Order (striking Klayman’s Statement of Material Facts
for failure to “include precise citations to the portion of the record upon which Plaintiff relies for
each factual statement,” but permitting him to re-file an appropriate Statement).
15
Although Plaintiff now submits a doctor’s note to the Court, Plaintiff has not
demonstrated that he is unable to work. As Defendants demonstrated in their original
opposition, Plaintiff has—since the date of his November 6, 2008
accident—continued to perform legal work in several civil actions. Indeed, Plaintiff
has filed no less than four separate submissions with this Court regarding his current
request for an extension of time, time which could have been devoted to preparing
the substantive opposition for which he now seeks an extension. The Court is
therefore not persuaded that Plaintiff has shown good reason for reconsideration of
its previous minute order denying his request for an extension of time, particularly
given that the dispositive motions schedule for both parties has been twice reset and
that the Court has repeatedly advised the parties that no further extensions shall be
granted.
Id.Klayman was therefore well aware, in advance of the deadline for filing his oppositions,
that the Court had not agreed to extend the deadline. Nonetheless, Klayman failed to timely file
his consolidated opposition and response statement. Instead, he waited until after the close of
business on the day his opposition was due to again re-file, for the third time, a request for an
extension of time.4 See Docket No. [287]. Klayman subsequently filed an untimely opposition
and response statement, one and two business days after the court-ordered deadline, respectively.
See Docket Nos. [291], [292]. In essence, then, Klayman ignored the Court’s orders and
attempted to grant himself the very same extension of time the Court had twice denied.
Therefore, by Order dated December 30, 2008, the Court denied Klayman’s third attempt
to obtain an extension of time. See Docket No. [293]. In so doing, the Court observed that, as
4
Although Klayman did not timely file any substantive opposition or response statement,
he did submit four substantial filings containing approximately 40 different exhibits. See Docket
No. [284] (containing Exhibit A); Docket No. [285] (containing a duplicate Exhibit A as well as
Exhibits 1 - 20); Docket No. [286] (containing duplicate copies of Exhibit A and Exhibits 1 -
20); Docket No. [288] (containing Exhibit B and Exhibit C, the latter of which includes a
17–page substantive affidavit by Klayman as well as approximately 20 separate communications
between and/or relating to Klayman and Defendants).
16
demonstrated by Defendants, Klayman had continued to perform legal work—both in this case
and in several other civil actions—since he was involved in the vehicle accident almost two
months prior. See 12/30/08 Order, Docket No. [293], at 3-4 (observing that, in the intervening
time, Klayman had filed numerous pleadings with the Court in this case and had also made no
less than ten separate filings in four different actions, including filings for two new cases in
which Klayman is the party plaintiff and is representing himself pro se as in this case).
Significantly, Klayman did not dispute that he had continued to actively perform legal work
during the intervening two months since the accident. See Docket No. [281], at 1-2. The Court
therefore concluded that, in light of the evidence on the record in this case and the unrebutted
evidence provided by Defendants regarding Klayman’s ongoing legal work in several other civil
actions, it “remain[ed] unpersuaded by Plaintiff’s third request for an extension of time.”
12/30/08 Order at 4. Accordingly, the Court refused to “condone Plaintiff’s repeated disregard
for court-ordered deadlines by permitting Plaintiff to late-file his oppositions without good
cause.” Id.5 The Court therefore ordered that Plaintiff’s untimely Opposition, Docket No. [291],
and untimely Response to Defendants’ Statement of Material Facts, Docket No. [292], be
stricken. See id.Thus, it is clear that the Court’s rulings denying Klayman’s request for an extension
expressed only its conclusion that, in light of the record evidence demonstrating Klayman’s
5
The Court notes that, on January 5, 2009, Klayman filed his now-fourth request for an
extension of time. See Docket No. [294]. The Court denied this request by minute order dated
January 1, 2007 as Klayman had not provided an additional facts or legal authority supporting his
request. See 1/7/09 Min. Order (“For the reasons set out in the Court’s December 18, 2008
Minute Order, December 23, 2008 Minute Order, and December 30, 2008 293 Order, the Court
hereby DENIES 294 Plaintiff’s FOURTH request for an extension of time in which to file his
oppositions to Defendants’ motions for summary judgment.”).
17
continued ability to perform legal work both in this case and in several other cases, Klayman had
not shown good cause to justify yet another extension of time. The Court never questioned that
Klayman was involved in a car accident on November 6, 2008, and in no way “mocked”
Klayman’s alleged injuries. This unfounded allegation to the contrary—made without citation to
any record support—is wholly unjustified. Cf. Loving Spirit Found., 392 F.3d at 494(admonishing counsel for including false, unsupported statements in a motion to recuse). The
Court therefore concludes that recusal on the basis of its rulings denying Klayman’s request for
an extension of time in which to file his opposition and response statement is neither warranted
nor appropriate.
3. The Fact that the Court Denied Klayman’s Last Minute Request to Appear
by Telephone at the September 16, 2009 Status Hearing Does Not Support
Recusal
Klayman also complains of the Court’s decision to require Klayman to make an
appearance in person, rather than by telephone, at a status conference in this case. Id. at 4.
Klayman speculates, without any record citations or other support, that the Court denied his
request to appear by telephone as an “apparent punishment.” Id. Although Klayman has—once
again—failed to cite the specific ruling he challenges, the Court understands that he refers to its
September 15, 2008 Minute Order, in which the Court denied his Motion to Appear by
Telephone, Docket No. [236]. The Court explained its decision as follows:
The discovery period in this case has ended, although a few matters remain
outstanding that require the Plaintiff's participation. At the September 16, 2008 Status
Conference, the Court will be discussing how the litigation will be proceeding,
including setting various dates. A telephone conference call does not lend itself easily
to such a discussion, as the issues that need to be addressed require the participation
of all counsel and parties. Further, the Court notes that it set the September 16, 2008
status date at the June 19, 2008 Status Conference in this matter (i.e., approximately
18
three months ago). Plaintiff waited until one business day before the scheduled
conference to move for leave to appear telephonically and, other than noting that his
assistant had been absent for the preceding week, has provided no justification for
allowing the relief he seeks.
9/15/08 Min. Order. Accordingly, upon review of the record, it is readily apparent that there is
no support for Klayman’s bald assertion that the Court denied his request as a “punishment.”
Klayman’s unfounded allegation is therefore wholly insufficient. See In re Kaminski, 960 F.2d at
1065, n. 3 (“unsupported or tenuous allegations” do not warrant recusal). Moreover, the Court
finds that no reasonable and informed observer would question the judge’s impartiality simply on
the basis of this ruling. As described in the above-quoted language, the Court’s decision was
based on solely administrative concerns as well as Plaintiff’s failure to timely file his request. In
light of these considerations, the Court concludes that recusal based upon this ruling is not
warranted.
4. Klayman’s Allegation that the Court has “Written Derisively” of Him
Finds No Support in the Record and is Wholly Unwarranted
Finally, although Klayman has not cited to any specific ruling (or portion thereof), he also
complains that the Court has “written, derisively, that Plaintiff is trying to delay this case.” Pl.’s
Mot. at 4. At the risk of sounding overly repetitive, the Court notes that Klayman has not
provided any factual support or citations to the record to sustain this claim. See id. Rather, once
again, Klayman’s “statements are, at best, general and conclusory,” and contain only “bald
allegations,” which are insufficient to warrant recusal. Ivey, 2008 WL 4091676, *2; cf. In re
Kaminski, 960 F.2d at 1065, n. 3.
Moreover, upon the Court’s own independent review of its many orders and
accompanying memorandum opinion issued in this case, the Court is satisfied that Klayman’s
19
unsupported allegations are entirely without merit. Although the Court has, on occasion,
expressed its disapproval of Klayman’s well-documented and repeated failures to comply with
court-ordered deadlines, the Court has done so using neutral, respectful language that no
reasonable observer would characterize as “derisive” of Klayman. Such comments do not
warrant recusal. As explained above, “judicial remarks . . . that are critical or disapproving of . . .
counsel, the parties, or their cases, ordinarily do not support a bias or partiality charge” unless
they “derive[] from an extrajudicial source” or “reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555. The Court’s rulings
in this case have been based solely on the record before it and contain no language that would
lead a reasonable and informed observer to conclude that fair judgment is impossible.
Accordingly, the Court concludes that recusal based on its rulings is both unwarranted and
unnecessary.
B. Recusal Based on the Undersigned’ s Appointment by Former President Clinton
is Not Warranted
Finally, Klayman argues that recusal is necessary because the undersigned was appointed
by former President Clinton, against whom “Plaintiff was a strong and controversial advocate.”
Pl.’s Mot. at 4-5. As Klayman cites no facts or evidence beyond the simple statement that the
undersigned was appointed by the Clinton administration, it is clear that his argument is
predicated solely on the theory that appointment by a particular president, without more, is
sufficient to create an appearance of impartiality. This argument is nonsensical. The instant
lawsuit has absolutely nothing to do with former President Clinton or with his administration.
According to this theory, all judges who were appointed during former President Clinton’s eight
20
years in office would be required to disqualify themselves from any lawsuit—regardless of the
subject matter or parties involved—that may be brought by Klayman anywhere in the United
States, or indeed, by any party who claims to have been a vocal critic of the Clinton
administration.
Klayman himself provides no legal authority for support of this position, and for good
reason—the case law is clear that recusal is not warranted in this circumstance. See Karim-
Panahi, 2004 WL 1588167, * 4 (affirming lower court’s denial of motion for recusal based on
allegations that the judge was “biased because of her ‘political-religious connections’ and her
alleged loyalty to those who selected, confirmed and appointed her”); see also MacDraw, Inc. v.
CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998), cert. denied, 525 U.S. 874 (1998)
(Plaintiff’s6 allegation that “a judge is not impartial solely because an attorney is embroiled in a
controversy with the administration that appointed the judge” is insufficient grounds for recusal).
As the Second Circuit has persuasively stated,
Judges generally have political backgrounds to one degree or another but must be
presumed, absent more, to be impartial. At least in the federal system, judges
separate themselves from politics when going on the bench, and their life tenure
reduces any felt reliance on political patrons. Indeed, a suggestion of partiality based
on the appointing administration may often be a double-edged sword. If a
Democratic appointee’s impartiality toward lawyers publicly identified as active
Republicans may be questioned, a Republican appointee’s impartiality toward
lawyers’ adversaries might similarly be questioned on the ground that a Republican
judge might favor the Republican lawyers.
MacDraw, 138 F.3d at 38. Indeed, courts have held that recusal is not warranted even when the
President responsible for nominating the judge is actually a party to the litigation. See, e.g., In re
6
The Court notes that Klayman was counsel of record for Plaintiff in this case. See
MacDraw, 138 F.3d at 35.
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Executive Office of President, 215 F.3d 25, 25 (D.C. Cir. 2000) (“Hearing a case involving the
conduct of the President who appointed me will not create in reasonable minds, with knowledge
of all relevant circumstances that a reasonable inquiry would disclose, a perception that [my]
ability to carry out judicial responsibilities with integrity, impartiality, and competence [would
be] impaired.”) (internal citation and quotation marks omitted). Cf. Reddy v. O’Connor, 520 F.
Supp. 2d 124, 128 (D.D.C. 2007) (JDB) (in case involving Chief Justice John Roberts,
concluding that “no reasonable and informed observer would question the impartiality of the
undersigned based on the Chief Justice’s appointment of the undersigned [Judge John D. Bates]
to the [Foreign Intelligence Surveillance Court].”). Accordingly, it is clear that the mere fact that
the undersigned was appointed by the former Clinton administration—where former President
Clinton is neither a party to or otherwise involved with this lawsuit—does not warrant or require
recusal in the instant case.7
The Court therefore concludes that recusal is neither warranted nor required, whether his
claims of bias are examined singly or as a whole. Accordingly, Klayman’s allegation that recusal
7
The Court notes that Klayman also alleges that recusal is warranted because the
undersigned’s spouse, also a lawyer, defended a secret service agent who was allegedly
“enmeshed in the Monica Lewinsky/Clinton scandals during the 1990s.” Pl.’s Mot. at 4-5.
Klayman—once again—provides absolutely no citation to any legal support for his claim that
recusal is warranted and necessary where, a decade or more ago, the presiding judge’s spouse
represented an individual, who is not a party to the instant litigation, in a matter wholly unrelated
to the current lawsuit. Moreover, Klayman alleges no financial or personal concerns implicated
by the representation nor provides any facts or evidence that would cause a reasonable and
informed observer to question this Court’s impartiality. Cf. Microsoft Corp. v. United States,
530 U.S. 1301, 1301 (2000) (order by Chief Justice William H. Rehnquist denying motion to
recuse where his son’s law firm represented a party but his personal and financial concerns were
unaffected). As the D.C. Circuit has counseled, “[a] judge should not recuse himself based upon
[such] conclusory, unsupported [and] tenuous allegations.” See In re Kaminski, 960 F.2d at
1065, n. 3.
22
is warranted or that an appearance of bias against him has been created because of the Court’s
rulings in this case, along with the fact that the undersigned was appointed by former President
William J. Clinton, completely lack merit. Moreover, the Court is satisfied, upon its own
independent review of the record, that no reasonable and informed observer would question this
Court’s impartiality. Klayman’s motion seeking to have this Court recuse itself pursuant to 28
U.S.C. § 455(a) is therefore denied.
IV. CONCLUSION
For the reasons set forth above, the Court shall DENY Plaintiff’s [298] Motion for
Recusal and/or Disqualification. An appropriate Order accompanies this Memorandum Opinion.
Date: June 25, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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