Klayman v. Judicial Watch, Inc.

• Decision Date: 19 January 2018
• Docket Number: Civil Action No. 06–670 (CKK)
• Citation: 288 F.Supp.3d 314
• Parties: Larry KLAYMAN, Plaintiff, v. JUDICIAL WATCH, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

288 F.Supp.3d 314

Larry KLAYMAN, Plaintiff,

v.JUDICIAL WATCH, INC., et al., Defendants.

Civil Action No. 06–670 (CKK)

United States District Court, District of Columbia.

Signed January 19, 2018

Larry E. Klayman, Klayman Law Firm, Washington, DC, pro se.

Richard Wayne Driscoll, Driscoll & Seltzer, PLLC, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Pending before the Court is Plaintiff's Motion for Leave to Amend the Second Amended Complaint ("Motion to Amend"). ECF No. 407. The Court permitted Plaintiff to seek leave to add an intentional infliction of emotional distress ("IIED") claim but cautioned that the proposed amendment "would be met with extreme skepticism by this Court, given the stage of proceedings in this matter, and the likely futility of such a claim." Order, ECF No. 402, at 3 (citing Mem. Op. and Order, ECF No. 401, at 15) (internal quotation marks omitted). Upon consideration of the briefing,¹ the relevant legal authorities, and the record as a whole, the Court DENIES Plaintiff's Motion to Amend.

I. BACKGROUND

This case is indeed long past its prime. It was filed nearly 12 years ago in 2006, and the first two amendments to the complaint were made shortly afterwards that year. See First Am. Compl., ECF No. 6; Second Am. Compl., ECF No. 12. Trial is presently scheduled for February 26, 2018. See Order, ECF No. 426. At least some of the events that give rise to Plaintiff's newly proposed amendment even predated the filing of this long-running case, and all of the relevant events were long ago. See Opp'n Mem. at 3 ("Klayman was fully aware of a potential IIED claim no later than March 19, 2004, at least 13 years ago. The stated grounds in support of his attempt to add an IIED claim consist of correspondence and documents generated between 2003 and 2005." (citation omitted)); Mot. to Amend (generally omitting dates of occurrences and specifically citing the year only for events in 2003, 2004, 2006, and 2014, the last of which refers to a letter discussing past events).

Over the course of this case, Plaintiff's claims have been narrowed exclusively to concern breach of contract. "All five of [the] claims [remaining in this case] are styled as breach of contract claims for alleged violations of the Severance Agreement." Mem. Op. and Order, ECF No. 401, at 3. To be specific,

The Court previously concluded that, as to Plaintiff's "Second Amended Complaint, the following allegations of breach of contract asserted in Counts Seven and Eight remain viable": (1) Defendants' alleged failure to make a good faith effort to remove Plaintiff as guarantor of a lease for Judicial Watch's headquarters; (2) Defendants' failure to pay health insurance for Plaintiff's children; (3) Defendants' filing a motion to strike Plaintiff's appearance in a Florida litigation; (4) Defendants' failure to provide Plaintiff with access to documents regarding a client; and (5) Defendants' alleged disparagement of Plaintiff and misrepresentations of the reasons for his departure from the organization. Klayman v. Judicial Watch, Inc. , 628 F.Supp.2d 112, 118 (D.D.C. 2009) (Kollar–Kotelly, J.).

Mem. Op. and Order, ECF No. 401, at 3. The Court has made clear that, absent amendment, there is no room for pursuing emotional distress damages under the remaining claims. "[C]laims (1) through (5) [described above] are ordinary breach of contract claims that seek either economic damages or other contract remedies, namely, specific performance. With respect to these claims, no reference is found in the complaint to punitive or emotional distress damages, or any other type of consequential damages." Id. at 5; see also id. at 19 (rejecting Plaintiff's argument that emotional distress damages may be recovered on the breach of contract claims that remain).

With the Court's permission, Plaintiff filed a motion to add an IIED claim ("Tenth Cause of Action" or "Count 10") based on the following allegations:

At all material times, Judicial Watch has engaged in a pattern and practice of extreme and outrageous conduct, including but not limited to: (1) failing to maintain health insurance for Klayman and his young children, thereby putting their health and lives at risk; (2) threatening Klayman without cause with public litigation to smear and harm Klayman's Senate campaign; (3) intentionally misrepresenting the reason for Klayman's departure from Judicial Watch to third parties and the media; (4) fabricating false expenses and refusing to account for or return Klayman's personal items, including but not limited to those of Klayman's children; (5) and smearing Klayman's reputation by falsely asserting "trademark and copyright infringement" claims that Klayman could not refer to himself as the founder of Judicial Watch and intentionally interfering with Klayman's attempts to appear on news outlets both during and after Klayman's Senate campaign.

[Proposed] Third Am. Compl., ECF No. 407–1, at 31–33. Defendants' re-telling adds clarity, though not without their own editorial gloss:

The outrageous behavior that Klayman relies on consists of the following allegations:

• Termination of health insurance for Klayman and his family;

• A threatened lawsuit regarding Klayman's efforts to speak to the press on behalf of Judicial Watch after the date of this separation;

• A motion to strike Klayman's appearance in a Florida lawsuit, as agreed to in the Severance Agreement;

• The issuance of invoices to Klayman for reimbursement of personal expenses paid for by Judicial Watch, as agreed to in the Severance Agreement;

• Communications to media outlets clarifying that Klayman is no longer affiliated with Judicial Watch and does not speak on its behalf;

• Obtaining court filings in Klayman's divorce from Stephanie Luck, which was approved by Court Order; and

• Judicial Watch's use of Klayman's filings in the divorce proceeding to correct the record regarding his separation.

Opp'n Mem. at 2. Defendants summarize these as "four alleged breaches of [the Severance] Agreement, a threat of litigation concerning a fifth issue and previously unalleged issues regarding the records of Klayman's divorce." Id. at 8.

II. LEGAL STANDARD

In cases where plaintiffs have already amended their complaint, Federal Rule of Civil Procedure 15(a)(2) provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave [and] [t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2) ; see Willoughby v. Potomac Elec. Power Co. , 100 F.3d 999, 1003 (D.C. Cir. 1996), cert den. , 520 U.S. 1197, 117 S.Ct. 1553, 137 L.Ed.2d 701 (1997) (finding that leave to amend a complaint is within the court's discretion and "should be freely given unless there is a good reason ... to the contrary"); Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996) (noting that "it is an abuse of discretion to deny leave to amend unless there is sufficient reason").

"When evaluating whether to grant leave to amend, the Court must consider (1) undue delay; (2) prejudice to the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff has previously amended the complaint." Howell v. Gray , 843 F.Supp.2d 49, 54 (D.D.C. 2012) (citing Atchinson v. District of Columbia , 73 F.3d 418 (D.C. Cir. 1996) (quoting Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ). "Courts that have found an undue delay in filing [a proposed amended complaint] have generally confronted cases in which the movants failed to promptly allege a claim for which they already possessed evidence." United States ex rel. Westrick v. Second Chance Body Armor, Inc. , 301 F.R.D. 5, 9 (D.D.C. 2013). An amendment would be prejudicial if it "substantially changes the theory on which the case has been proceeding and is proposed late enough so that the opponent would be required to engage in significant new preparation"; it would "put [the opponent] to added expense and the burden of a more complicated and lengthy trial"; or it raises "issues ... [that] are remote from the other issues in the case." Djourabchi v. Self , 240 F.R.D. 5, 13 (D.D.C. 2006) (internal quotation marks omitted). With respect to the futility of an amendment, a district court may properly deny a motion to amend if "the amended pleading would not survive a motion to dismiss." In re Interbank Funding Corp. Sec. Litig. , 629 F.3d 213, 218 (D.C. Cir. 2010) (citing, e.g., Foman , 371 U.S. at 182, 83 S.Ct. 227 ).

"Because amendments are to be liberally granted, the non-movant bears the burden of showing why an amendment should not be allowed." Abdullah v. Washington , 530 F.Supp.2d 112, 115 (D.D.C. 2008).

III. DISCUSSION

In opposition to Plaintiff's motion, Defendants squarely address three of the factors that the Court must consider in deciding whether to grant the Motion to Amend, namely undue delay, prejudice to the opposing party, and futility of the amendment. The Court also considers previous amendments to the complaint, and need not reach the bad faith factor.

To begin with undue delay, Plaintiff offers little explanation as to why he did not seek leave previously to add the IIED claim. In prior briefing, Plaintiff admitted that "Plaintiff has not sought to amend his Second Amended Complaint," but maintained that "Plaintiff's position, as it has always been, is that he can seek emotional distress damages ... stemming from the causes of action originally set forth in the Complaints that have been filed." Mem. Op. and Order, ECF No. 401, at 15 n.3 (quoting Pl.'s Reply to Defs.' Opp'n to Pl.'s Resp. [ECF No. 399], ECF No. 400, at 4). The Court has since concluded that Plaintiff cannot seek emotional distress damages under the Second Amended Complaint. Mem. Op. and Order, ECF No. 401, at 19. And as discussed above, the events giving rise to the proposed amendment occurred long ago. The D.C. Circuit has observed that case law from the...