Klayman v. Judicial Watch, Inc.

• Decision Date: 23 May 2014
• Docket Number: Case No. 13–20610–CIV.
• Citation: 22 F.Supp.3d 1240
• Parties: Larry KLAYMAN, Plaintiff, v. JUDICIAL WATCH, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

22 F.Supp.3d 1240

Larry KLAYMAN, Plaintiff
v.
JUDICIAL WATCH, INC., Defendant.

Case No. 13–20610–CIV.

United States District Court, S.D. Florida, Miami Division.

Signed May 23, 2014.

22 F.Supp.3d 1243

Larry Elliot Klayman, Klayman Law Firm, Miami, FL, for Plaintiff.

Douglas A. Kahle, Schwed McGinley & Kahle LLC, Douglas James Kress, Schwed Kahle & Jenks, P.A., Palm Beach Gardens, FL, for Defendant.

ORDER

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court upon Defendant, Judicial Watch, Inc.'s (“Judicial Watch['s]”) Motion for Summary Judgment ... (“Motion”) [ECF No. 83], filed with a Statement of Material Facts ... (“Defendant's SF”) [ECF No. 81] on February 28, 2014. Plaintiff, Larry Klayman (“Klayman”), filed his Opposition to Defendant's Motion for Summary Judgment

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(“Response”) [ECF No. 89], and a Response to Defendant's Statement of Material Facts (“Plaintiff's SF”) [ECF No. 88] on March 17, 2014, as well as a supplement to the record on March 27, 2014 (see [ECF No. 97] ). On March 28, 2014, Judicial Watch filed an Amended Reply ... (“Reply”) [ECF No. 102]. The Court has carefully considered the parties' written submissions, the record, and applicable law.

I. BACKGROUND

This case arises out of a claim for defamation, as well as three related claims, brought by Klayman, an attorney licensed in Florida, against Judicial Watch, the only Defendant remaining in the action. (See Amended Complaint ¶¶ 12–20 [ECF No. 5]; September 5, 2013 Order 21 [ECF No. 36] ). Klayman alleges the defamatory statement at issue inaccurately characterized legal proceedings regarding Klayman's failure to pay child support. (See generally Am. Compl.).

On January 24, 2012, Klayman was indicted in Ohio county court on two counts of criminal nonsupport for failure to pay child support from September 25, 2009 to September 24, 2011. (See Def.'s SF, Ex. 6, 1–3 [ECF No. 81–7] ). Klayman had previously been found in contempt of court on multiple occasions for failing to pay child support and alimony. (See Def.'s SF, Ex. 7 [ECF No. 81–8]; Def.'s SF, Ex. 8 [ECF No. 81–9]; Videotaped Deposition of Larry Elliot Klayman, Esquire (“Klayman Deposition”) 46:7–11 [ECF No. 79–1] ). As a result, capias arrest warrants were issued in March 2010 and October 2011. (See Klayman Dep. 45:10–24). Klayman made the strategic decision to be held in contempt to permit him to raise issues on appeal. (See Def.'s SF ¶ 25; Pl.'s SF ¶ 25; Klayman Dep. 43:5–10). On April 20, 2012, the Ohio county court entered an agreed judgment establishing Klayman had satisfied all monthly child support payments owed through April 30, 2012, withdrawing the capias arrest warrant issued against Klayman on October 13, 2011, and dismissing the indictment. (See Def.'s SF, Ex. 1–A, Attach. B [ECF No. 81–1]; Def.'s SF ¶ 26; Pl.'s SF ¶ 26). Klayman was not convicted of nonpayment of child support. (See Def.'s SF ¶ 14; Pl.'s SF ¶ 14).

Earlier, in 1994, Klayman founded the public interest group Judicial Watch, to serve as a government corruption watchdog. (See Affidavit of Larry Klayman (“Klayman Affidavit”) ¶ 4 [ECF No. 89–3] ). Klayman left Judicial Watch in 2003 to run for a U.S. Senate seat in Florida. (See id. ). Klayman has been involved in high-profile litigation, including lawsuits brought against the Clinton, Bush, and Obama administrations (see id. ¶¶ 6, 9–10; Def.'s SF ¶ 3; Pl.'s SF ¶ 3), advocating for the Cuban community in Miami and representing the family of “Elian Gonzales [sic]” (Klayman Aff. ¶ 7), as well as representing families of U.S. forces that fought in Afghanistan (see id. ¶ 8).

In 2013, ABC News published an online profile of Klayman, highlighting his accomplishments and discussing his case against the NSA and Obama administration. (See id. ¶¶ 9–10; Def.'s SF, Ex. 1–A, Attach. A [ECF No. 81–1] ). Klayman believes “a semi-fictitious character” on the TV series “West Wing”—“Harry Klaypool of Freedom Watch”—was created after him. (Def.'s SF ¶ 4; see also Pl.'s SF ¶ 4). Klayman is also the founder of Freedom Watch, another public interest group that fights government corruption, and he serves as the organization's chairman and general counsel. (See Klayman Aff. ¶ 5).

On February 22, 2012, Judicial Watch Office Administrator Constance Ruffley (“Ruffley”) attended a California Coalition for Immigration Reform (“CCIR”) meeting

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at which Orly Taitz (“Taitz”), a California candidate for U.S. Senate, spoke. (See Declaration ... of Constance S. Ruffley (“Ruffley Declaration”) ¶¶ 4, 7 [ECF No. 81–4]; Def.'s SF ¶ 10; Pl.'s SF ¶ 10). After the meeting, Taitz approached Ruffley at Judicial Watch's information table, and the two discussed a number of issues, including Klayman. (See Ruffley Decl. ¶ 7; Def.'s SF ¶ 11; Pl.'s SF ¶ 11).

Ruffley admits that during her conversation with Taitz she conveyed information about Klayman she had researched and learned from the public record, “including information related to court proceedings for failure to pay child support.” (Ruffley Decl. ¶¶ 7, 9; see also Deposition of Constance S. Ruffley (“Ruffley Deposition”) 32:15–16 [ECF No. 80–1] ). According to Taitz, Ruffley stated, “Larry Klayman is not licensed in California, ... that he no longer works with [ ] Judicial Watch[,] and that donors should know about litigation in Ohio, where [Klayman] was convicted just recentl[y] of not paying large amount[s] in child support.” (Affidavit of Orly Taitz (“Taitz Affidavit”) ¶ 3 [ECF No. 97–1] (alterations added)).

Ruffley insists she does not recall whether she said Klayman was indicted or convicted of failing to pay child support (see Ruffley Decl. ¶ 7; Ruffley Dep. 25:24–26:13), and she did not tell Taitz the information regarding Klayman's failure to pay child support in Ohio should be provided to donors (see Ruffley Dep. 26:14–27:2). Ruffley maintains she believed her conversation with Taitz was private, she had no expectation her comments would be published, and she did not give Taitz permission to publish them. (See Ruffley Decl. ¶ 8; Ruffley Dep. 32:18–21). Ruffley also states Judicial Watch employees did not advise or instruct her to convey any information about Klayman to Taitz. (See Ruffley Decl. ¶ 9).

Nevertheless, based on the conversation with Ruffley, Taitz published comments about Klayman on her website on February 23, 2012. (See Resp. Ex. 1—“Feb. 23, 2012 Posting” 1–2 [ECF No. 89–1] ). The posting accuses Klayman of being convicted of failing to pay child support, stating: “donors should know about litigation in Ohio, where he was convicted just recentlty [sic] of not paying large amount [sic] in child support.” (Id. 2). Taitz also notes she “will publish only, [sic] what is a public record. I am not publishing anything, [sic] that is not in [sic] public record.” (Id. ). The posting then provides more detailed information regarding Klayman's legal proceeding, noting Klayman had been indicted:

Larry Klayman, 60, of Los Angeles, California, was indicted on two (2) counts of criminal non-support. He owes $78,861.76 for his two children ages 11 and 14. Two hearings were held in Domestic Relations Court between 2009 and 2010. The last voluntary payment was made on August 30, 2011, in the amount of $1,014.26. Arraignment is scheduled for February 7, 2012.

(Id. ). The posting also includes a link for additional information. (see id. ).

On February 26, 2012, Taitz published a correction to the earlier post:

I read the first post I made in regards to Mr. Klayman and I saw that indeed there was an error. I wrote, [sic] that Ms. Ruffley stated that Mr. Klayman was just recently convicted of non payment of child support. The link and the article right under it stated, that he was indicted in [sic] 2 counts of criminal non-support, that he owes $78,861.76 and arrignment [sic] was scheduled for February 7, 2012. So, there was an error. Mr. Klayman was indicted in the state of Ohio on two counts of criminal non-support, but he was not convicted yet. I

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am making this correction. Ms. Ruffley made an error. It was also self evident in the February 23, 2012 article, as I posted the link right underneath and the link stated, [sic] that he was indicted and arrignement [sic] scheduled. The article was published just a couple of days ago, on February 23, 2012 and I corrected it today, February 26, 2012.

(Resp. Ex. 2.—“Feb. 26, 2012 Posting” 3–4 [ECF No. 89–2] (emphasis in original)).

Klayman's Amended Complaint brings four claims against Judicial Watch: defamation (Count I); defamation by implication (Count II); tortious interference with a contract (Count III); and intentional infliction of emotional distress (Count IV). (See Am. Compl. 6–10). Judicial Watch moves for final summary judgment on all counts. (See generally Mot.).

II. LEGAL STANDARD

Summary judgment may only be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is...