Cherdak v. O'Grady

• Decision Date: 23 February 2022
• Docket Number: 21-cv-0141-PWG
• Parties: ERIK B. CHERDAK, Plaintiff, v. JUDGE LIAM O'GRADY et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

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ERIK B. CHERDAK, Plaintiff, v. JUDGE LIAM O'GRADY et al., Defendants.

No. 21-cv-0141-PWG

United States District Court, E.D. Virginia, Alexandria Division

February 23, 2022

MEMORANDUM OPINION

Paul W. Grimm, United States District Judge

Plaintiff Erik B. Cherdak, an attorney acting pro se, filed this lawsuit in February 2021 against the Honorable Liam O'Grady (“Judge O'Grady”) seeking various relief including an injunction that would disqualify Judge O'Grady from presiding over any proceedings involving Mr Cherdak as well as a claim for damages. Compl., ECF No. 1. Mr. Cherdak's allegations against Judge O'Grady relate to the case Fitistics, LLC v. Cherdak, No 1:16cv112-LO-JFA (E.D. Va) (the “112 Case”), over which Judge O'Grady currently presides and in which Mr Cherdak is a defendant. In his amended complaint, filed in June 2021, Mr. Cherdak added Judge O'Grady's personal Judicial Assistant, Diane Wood, as a defendant, as well as Bernard S. Grimm, ^[1] who represented Mr. Cherdak for a few months in 2017 in the 112 Case. Am Compl., ECF No. 41. On August 25, 2021, the Acting United States Attorney for the Eastern District of Virginia, filed a certification, ^[2] pursuant to 28 U.S.C. § 2679, that Judge O'Grady and Ms. Wood were acting within the scope of their employment with the federal government, and substituted the United States as Defendant with respect to the tort causes of action.^[3] See Notice of Substitution, ECF No. 64, and accompanying Certification, ECF No. 64-1. Currently pending are Mr. Cherdak's motion to set aside the Westfall Act Certification, and the Federal Defendants' motion to dismiss on the basis of judicial immunity. Pl.'s Mot., ECF No. 77; Defs.' Mot, ECF No. 79. The motions are fully briefed, ^[4] and I find a hearing unnecessary. See Loc. Civ. R. 7 (J) (E.D. Va. 2020); Fed.R.Civ.P. 78. For the following reasons, Mr. Cherdak's motion to set aside the Westfall Act Certification is DENIED; and the Federal Defendants' motion to dismiss on the basis of judicial immunity is GRANTED.

BACKGROUND

I. Procedural Background

In the 112 Case, Fitistics, LLC (“Fitistics”) filed suit against Mr. Cherdak in February 2016. See Case No. 1:16-cv-112-LO-JFA.^[5] After a reassignment and a recusal, the case was assigned to Judge O'Grady in January 2018. See Id. at ECF No. 272. After a bench trial and post-trial briefing, Judge O'Grady found in favor of Fitistics and against Mr. Cherdak on all the claims and counterclaims in the 112 Case. See Id. at ECF No. 350. Mr. Cherdak proceeded to file multiple motions to vacate the judgment as well as a motion for Judge O'Grady's recusal, all of which were denied. See Id. at ECF No. 425. In November 2019, the United States Court of Appeals for the Fourth Circuit affirmed the district court's judgment as well as several orders disposing of the parties' post-judgment motions. See Id. at ECF Nos. 470-71. Mr. Cherdak then filed multiple additional motions to vacate judgment based on alleged judicial bias and for Judge O'Grady's recusal, which were denied. See, e.g., id. at ECF No. 476 (moving to vacate judgment under Rule 60(b)(6) based on judicial bias); ECF No. 490 (emergency motion to suspend enforcement based on judicial bias); ECF No. 507 (emergency motion for Judge O'Grady to recuse/disqualify himself based on improper communications); ECF No. 536 (moving to set aside the Court's Judgment under Rule 60(d)(3)); ECF No. 544 (denying multiple motions). Mr. Cherdak filed multiple appeals related to the denials of his motions to vacate and recuse, but the appeals were dismissed for failure to prosecute. See Fitistics, LLC, et al. v. Cherdak, No. 20-2070 (4th Cir.) (dismissed in February 2021 and again in April 2021); No. 21-1537 (4th Cir.) (dismissed in July 2021).

Mr. Cherdak commenced this lawsuit against Judge O'Grady on February 8, 2021. Compl., ECF No. 1. Judges in the Eastern District of Virginia recused themselves from presiding over the case due to conflicts of interest, and Chief Judge Gregory of the Fourth Circuit designated me to sit with the United States District Court for the Eastern District of Virginia in connection with this case, pursuant to 28 U.S.C. § 292(b). See ECF No. 5. Mr. Cherdak initially sought an emergency injunction that would require Judge O'Grady to recuse himself in the 112 Case. See ECF Nos. 18, 20. After a hearing by video conference, I denied Mr. Cherdak's request for preliminary and temporary injunctive relief in April 2021, noting that a writ of mandamus to the Fourth Circuit was an avenue of relief available to him. Mem. & Order, ECF No. 26. Mr. Cherdak filed a petition for a writ of mandamus, which was dismissed by the Fourth Circuit for failure to prosecute. In re: Cherdak, No. 21-1487 (4th Cir.) (dismissed June 2021).

Meanwhile, this case has proceeded with Mr. Cherdak filing his First Amended Complaint on June 7, 2021, ECF No. 41, the notice of substitution of the United States as Defendant for Judge O'Grady and Ms. Wood, ECF No. 64, and the subsequent briefing of Mr. Cherdak's pending motion to set aside the Westfall Act Certification, ECF No. 77, and the Federal Defendants' pending motion to dismiss, ECF No. 79.

II. First Amended Complaint Allegations

Generally, Mr. Cherdak alleges that in the context of the 112 Case, Judge O'Grady and Ms. Wood, as a member of the Judge's staff, intentionally and maliciously engaged in improper ex parte communications with Mr. Grimm, which caused Mr. Cherdak significant harm and disgraced the judiciary. Am. Compl. ¶¶ 7-9, 12. Mr. Cherdak alleges that Judge O'Grady issued orders against him denying him due process, and Ms. Wood assisted Mr. Grimm, as a third-party, with substantive filings in the 112 Case. Id. As a result of the alleged wrongful actions, Mr. Cherdak alleges that his reputation has been harmed as well as his ability to generate revenue under his law license. Id. at ¶ 11. And more specifically, Mr. Cherdak alleges that while Judge O'Grady was presiding over the 112 Case, he and Ms. Wood created false evidence to assist Mr. Grimm in pursuing criminal proceedings against Mr. Cherdak in other jurisdictions, and they reviewed and edited substantive motions before Mr. Grimm filed them in the 112 Case. Id. at ¶¶ 14-20, 22.

From May 2017 to August 2017, before Judge O'Grady presided over the 112 Case, Mr. Grimm represented Mr. Cherdak as an attorney in the 112 Case. See Id. at ¶¶ 23, 93; 112 Case ECF Nos. 169, 180. While making efforts to collect past due legal fees, Mr. Grimm returned papers and files to Mr. Cherdak, which allegedly included a draft unsigned affidavit that Mr. Grimm had apparently prepared for Judge O'Grady to sign for the purpose of endorsing a criminal investigation against Mr. Cherdak. Am. Compl. ¶ 23. Mr. Grimm allegedly told Mr. Cherdak that there was also a signed version of the affidavit from Judge O'Grady. Id. Mr. Cherdak alleges that once he learned about the improper communications, the Defendants then acted in concert to “cover-up” the earlier wrongful conduct, including filing documents in the 112 Case. Id. at ¶¶ 25-30. Further, Mr. Cherdak complains about Judge O'Grady's continued refusal to recuse himself from the 112 Case. Id. at ¶ 105.

To support his allegations, Mr. Cherdak attached the following exhibits:

• Ex. 1 - January 5, 2021 email from Mr. Grimm with an attachment entitled “Motion to Intervene, ” and a January 7, 2021 email that included a January 2, 2021 email from Mr. Grimm to Ms. Wood.

• Ex. 2 - an Order entered in the 112 Case (ECF No. 544) that discusses Mr. Cherdak's allegations of improper communications, including the Ex. 1 email, and denies Mr Cherdak's motion for recusal.

• Ex. 3 - an Order entered in the 112 Case (ECF No. 511) that discusses Mr. Cherdak's allegations of improper communications, including the Ex. 1 email, and denies Mr. Cherdak's motion for recusal.

• Ex. 4 - the January 7, 2021 email from Ex. 1 that included a January 2, 2021 email from Mr. Grimm to Ms. Wood.

• Ex. 5 - a January 5, 2021 email from Mr. Grimm to Mr. Cherdak and Mr. McKirdy (Fitistics) with a PDF attachment, stating: “Attached is my Motion to Intervene. The previous motion had factual erors[sic] and sytax [sic] issues.”

• Ex. 6 - duplicate of Ex. 2 (Order, ECF No. 544 in the 112 Case).

• Ex. 7 - a December 17, 2019 email from Mr. Grimm to Mr. Cherdak relating to unpaid legal fees and referencing “an affidavit not only O Grady, but past lawyers you have failed to pay [sic].” (as filed in the 112 Case (ECF No. 490-1)).

• Ex. 8 - a document identified as Exhibit 1, purporting to be text messages from Mr. Grimm to Mr. Cherdak. The August 28, 2020 at 2:11 a.m. message includes this statement: “It was difficult but Judge O Grady is willing to write a letter and cooperate with the criminal investigation.” The November 19, 2019 at 1:54 p.m. message includes this statement: “I also obtained Judge Liam I [sic] Grady's comments about your credibility.” The exhibit also contains what appears to be a text message from Mr. Cherdak to Mr. Grimm on November 2, 2020 at 11:26 a.m., with a file attachment named “Letter to Bernie Settlement Demand 11012020 EBC PDF” stating: “I must hear from you immediately regarding the affidavit you obtained from Judge O'Grady.” This was followed by a text message on November 20, 2020 at 11:15 a.m. with a file attachment referred to as a copy of “my informal opening brief” in which Mr. Cherdak states: “You may want to respond to me to provide me a copy of the affidavit you received from Judge O'Grady.”

• Ex. 9 - a November 8, 2017 email from Mr. Grimm to Mr. Cherdak, containing threatening language about collecting the money owed. There is no reference to Judge O'Grady or Ms. Wood.

• Ex. 10 - a document entitled “Draft

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