Klayman v. Judicial Watch, Inc.

296 F.Supp.3d 208

Larry KLAYMAN, Plaintiff,

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

Civil Action No. 06–670 (CKK)

United States District Court, District of Columbia.

Signed February 20, 2018

Larry E. Klayman, Klayman Law Firm, Washington, DC, for Plaintiff.

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

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiff seeks reconsideration of this Court's [433] Order and [434] Memorandum Opinion denying leave to amend his Second Amended Complaint ("SAC"). ECF No. 440. Upon consideration of the briefing,¹ the relevant legal authorities, and the record as a whole, the Court DENIES Plaintiff's [440] Motion for Reconsideration of the Court's Substantive Order of January 19, 2018 ("Motion for Reconsideration"), for the reasons set forth below and in the Court's Memorandum Opinion of January 19, 2018, ECF No. 434 ("Jan. 19, 2018 Mem. Op."), which is expressly incorporated herein.

I. BACKGROUND

At the risk of repetition, some of the Court's prior decision warrants repetition to emphasize certain exigencies of this case. As the Court discussed in its January 19, 2018, opinion, this case was docketed nearly twelve years ago, and trial on the parties' remaining claims is scheduled for February 26, 2018. See Jan. 19, 2018 Mem. Op. at 1. That opinion also recites, in part, the string of this Court's prior rulings that have found, in summary, that Plaintiff's only remaining claims in this case are certain of his allegations of breach of contract asserted in Counts Seven and Eight of his SAC. Id. at 2 (citing Mem. Op. and Order, ECF No. 401 ("June 15, 2017 Mem. Op. and Order"), at 3 (citing Klayman v. Judicial Watch, Inc. , 628 F.Supp.2d 112, 118 (D.D.C. 2009) (Kollar–Kotelly, J.) ) ). Those remaining allegations are as follows:

(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.

Id. at 2, 7. The Court also previously determined that Plaintiff is foreclosed from pursuing damages for the tort of intentional infliction of emotional distress ("IIED") under the above-described allegations that remain. Id. at 2 (citing June 15, 2017 Mem. Op. and Order at 5, 19). The Court rejected Plaintiff's argument that the tort of IIED "merged" with his existing breach of contract claims, such that he could recover damages for emotional distress under the latter claims. June 15, 2017 Mem. Op. and Order at 15–19. Plaintiff's remaining allegations did not meet the threshold requirement for such a merger under District of Columbia case law, namely that they be tortious independent of the existence of the contract. Id. at 16–19 (citing Choharis v. State Farm Fire & Cas. Co. , 961 A.2d 1080 (D.C. 2008) ) (finding that Defendants would have no independent duty apart from any they may have under the Severance Agreement in this case as to allegations (1)–(5) above). "Accordingly, as all of the remaining claims sound in breach of contract, and do not constitute independent torts, recovery of emotional distress damages is foreclosed by Choharis , the controlling authority for this purpose." Id. at 19.

After the Court ruled on June 15, 2017, that Plaintiff could not recover for the tort of IIED under the operative SAC, Plaintiff sought the Court's permission to amend the SAC to add a claim for the tort of IIED. Order, ECF No. 402, at 3. Despite the Court's indication on several occasions that such a request "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," the Court granted Plaintiff's request. Id. (quoting June 15, 2017 Mem. Op. and Order at 15) (internal quotation marks omitted). After an extension, Plaintiff filed his [407] Motion for Leave to Amend the Second Amended Complaint ("Motion to Amend") on July 18, 2017. The Court denied Plaintiff's [407] Motion in its [433] Order and [434] Memorandum Opinion of January 19, 2018, and Plaintiff filed the present [440] Motion for Reconsideration on January 30, 2018. Plaintiff's [440] Motion for Reconsideration was opposed and fully briefed by February 12, 2018.

II. LEGAL STANDARD

A. Motion to Amend

For ease of reference, the Court recalls the standard that it applied when ruling on Plaintiff's [407] Motion to Amend. 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) (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"), cert den. , 520 U.S. 1197, 117 S.Ct. 1553, 137 L.Ed.2d 701 (1997) ; 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).

B. Motion for Reconsideration²

Under Federal Rule of Civil Procedure Rule 54(b), "any order ... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). As it has before, the Court again shares the view in this district that a Rule 54(b) motion may be granted "as justice requires." E.g., Coulibaly v. Tillerson , Civil Action No. 14-189, 2017 WL 4466580, at *5 (D.D.C. Oct. 5, 2017) (Contreras, J.); United States v. Dynamic Visions, Inc. , 321 F.R.D. 14, 17 (D.D.C. 2017) (Kollar–Kotelly, J.); Singh v. George Washington Univ. , 383 F.Supp.2d 99, 101 (D.D.C. 2005) (Lamberth, J.) (quoting Cobell v. Norton , 224 F.R.D. 266, 272 (D.D.C. 2004) (Lamberth, J.) ). The proponent carries the burden of proving "that some harm, legal or at least tangible, would flow from a denial of reconsideration," and accordingly persuading the Court that in order to vindicate justice it must reconsider its decision. Dynamic Visions, Inc. , 321 F.R.D. at 17 (quoting Cobell v. Norton , 355 F.Supp.2d 531, 540 (D.D.C. 2005) ) (internal quotation marks omitted).

"In general, a court will grant a motion for reconsideration of an interlocutory order only when the movant demonstrates: ‘(1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order." Zeigler v. Potter , 555 F.Supp.2d 126, 129 (D.D.C. 2008) (quoting Keystone Tobacco Co., Inc. v. U.S. Tobacco Co. , 217 F.R.D. 235, 237 (D.D.C. 2003) ), aff'd No. 09-5349, 2010 WL 1632965 (D.C. Cir. Apr. 1, 2010).

However, "motions for reconsideration ... cannot be used as an opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle for presenting theories or arguments that could have been advanced earlier." Estate of Gaither ex rel. Gaither v. District of Columbia , 771 F.Supp.2d 5, 10 & n.4 (D.D.C. 2011) ) (quoting Secs. & Exch. Comm'n v. Bilzerian , 729 F.Supp.2d 9, 14 (D.D.C. 2010) ) (internal quotation marks omitted).

C. Interlocutory Appeal

A district judge may certify a non-final order for appeal if it "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b) (2016) ; see also Z St. v. Koskinen , 791 F.3d 24, 28 (D.C. Cir. 2015). The decision whether to certify a case for interlocutory appeal is within the discretion of the district court. In re Kellogg Brown & Root,...