Klayman v. Judicial Watch, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
LARRY KLAYMAN )
individually, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-cv-2604 (TSC)
)
)
JUDICIAL WATCH, INC. )
A District of Columbia Corporation, et al. )
)
)
Defendants. )
)

MEMORANDUM OPINION

For the reasons set forth below, the court will dismiss this action sua sponte.

A. BACKGROUND

Plaintiff Larry Klayman brings this action against Judicial Watch, Incorporated, its

Directors, Thomas J. Fitton, Paul Orfanedes, Christopher Farrell, and United States District

Court Judge Colleen Kollar-Kotelly. These Defendants are the same persons Klayman sued in

Klayman v. Judicial Watch, Inc., 6-cv-670-CKK (D.D.C) (hereinafter “Judicial Watch I”),

except for Judge Kollar-Kotelly, who presided over the earlier case. 1

An attorney proceeding pro se, Klayman is the “founder and former Chairman, General

Counsel and Treasurer of Judicial Watch.” Klayman v. Judicial Watch, Inc., 247 F.R.D. 10, 11

(D.D.C. 2007). He left Judicial Watch in 2003, at which time he executed a severance

agreement with the JW Defendants specifying that his departure would be “treated for all

1
The court will refer to Judicial Watch, Fitton, Orfanedes, and Farrell collectively as the “JW
Defendants,” unless otherwise necessary for the sake of clarity.
1
purposes as a voluntary resignation.” Id. at 11–12, 14 (internal quotations omitted). The

agreement and subsequent conflicts between Klayman and the JW Defendants formed the basis

of Judicial Watch I, which involved a variety of claims, including breach of contract, Lanham

Act violations, and defamation. Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 112, 117

(D.D.C. 2009).

During Judicial Watch I, Klayman filed at least five motions for recusal/disqualification

of both Judge Kollar-Kotelly and Magistrate Judge Alan Kay, who was also assigned to the case.

See Judicial Watch I, 6-cv-670-CKK, ECF Nos. 298, 304, 414, 587, 606. Those motions were

denied. Id., ECF Nos. 314, 316, 425, 603, 607. Klayman also pursued one interlocutory appeal,

id., ECF No. 320, but the Court of Appeals dismissed the matter for failure to prosecute.

Klayman v. Judicial Watch, 9-7068 (D.C. Cir. Dec. 1, 2009). He also filed three unsuccessful

mandamus petitions, two of which sought to remove Judge Kollar-Kotelly. See In re Klayman,

8-5218; 13-5258; 18-7024 (D.C. Cir.). The Court of Appeals denied the petitions and Klayman

unsuccessfully sought certiorari in one instance. See In re Klayman, 13-5258 (D.C. Cir.).

After resolution of some claims on summary judgment, Judicial Watch I ended with a

verdict in favor of the defendants, who had countersued Klayman. Judicial Watch I, 6-cv-670-

CKK, 2019 WL 1244079, *at 31 (D.D.C. Mar. 18, 2019). Klayman responded by filing several

unsuccessful Rule 50 and Rule 59 motions to alter the judgment or grant a new trial. See

Judicial Watch, Inc., 6-cv-670-CKK, ECF Nos. 571, 587.

Undeterred, Klayman filed a motion pursuant to Rule 60 seeking relief from the Judicial

Watch I final judgment. Id., ECF No. 587. He raised numerous challenges, including the

amount of the damage award, the judge’s rejection of certain jury instructions and defenses. He

2
also continued asking Judge Kollar-Kotelly to disqualify herself due to alleged personal animus,

judicial bias, and prejudice against him. Id. at 15.

Judge Kollar-Kotelly denied the motion, Judicial Watch, Inc., 6-cv-670-CKK, ECF Nos.

603, 604, and Klayman sought reconsideration, raising many of the same arguments he had

raised in the initial motion, including the allegations of judicial bias. Id., ECF No. 606. He also

challenged the Judge’s decision to allow his former wife to testify about his alleged spousal

abuse. Id. at 9–12. He further claimed to have recently discovered evidence that “Defendants”

falsely testified during Judicial Watch I. Id. at 9–12, 22. Pointing to Fitton’s deposition

testimony during a Florida lawsuit, Klayman claimed he had evidence that the “Defendants”

committed fraud during Judicial Watch I, when they testified about Klayman’s reasons for

leaving Judicial Watch. Id. at 9–12, 22–24. Klayman claimed Judge Kollar-Kotelly’s alleged

bias against him was the reason she allowed the testimony of his former wife and the JW

Defendants’ “fraudulent” testimony, which he contends was prejudicial, negatively impacted the

jury decision, and justified setting aside the jury verdict due to “fraud on the court.” Id. at 7, 9–

12, 23.

Judge Kollar-Kotelly denied the motion to reconsider, finding, among other things, that

there was no evidence of fraud. Judicial Watch, Inc., 6-cv-670-CKK, ECF No. 607; ECF No.

608, Mem. Op. at 2–4. She also found that Klayman had failed to meet the high standard to

establish fraud on the court. Id., ECF No. 608. At 7:10 p.m. on August 28, 2019, Klayman

moved the court to stay enforcement of the judgment pending appeal, arguing that the verdict

and judgment would likely be reversed because the court purportedly permitted the Defendants

to give false and prejudicial testimony. Id., ECF No. 609, at 2–3.

3
 Less than thirty minutes later, Klayman filed this case (hereinafter “Judicial Watch II”)

seeking Rule 60 relief from the judgment in Judicial Watch I. He named the same JW

Defendants from Judicial Watch I, and alleged fraud, misrepresentation, misconduct, fraud on

the court, perjury, and subornation of perjury. (ECF No. 1, Compl.) Klayman continued to

assert that Judge Kollar-Kotelly’s rulings against him were evidence of bias. (Compl. ¶¶ 44–47.)

Despite the clear connection to Judicial Watch I, on the Judicial Watch II case coversheet

Klayman checked “No” in response to the query “Related Case(s) If Any.” (See ECF No. 1-7;

ECF No. 2.) This representation violated Local Rule 40.5(b)(2), which provides that “parties

shall notify the Clerk of the existence of related cases . . . . [a]t the time of filing any civil,

including miscellaneous, action” and “indicate, on a form to be provided by the Clerk, the name,

docket number and relationship of any related case pending in this Court or in any other United

States Court.” 2

Before Judge Kollar-Kotelly could rule on his motion to stay, Klayman filed a Notice of

Appeal in Judicial Watch I, challenging Judge Kollar-Kotelly’s trial decisions, as well as her

denial of his post-trial motions. Judicial Watch I, 6-cv-670-CKK, ECF No. 613. He raised

many of the same arguments he had previously raised and asked the Court of Appeals to assign a

new trial judge to the case. Klayman v. Judicial Watch, Inc., 19-7105 (D.C. Cir.), ECF. No.

1863536.

2
This representation likely violated the Rules of Professional Conduct governing members of
the D.C. bar. See D.C. R. of Prof’l Conduct R. 3.3(a)(1) (“A lawyer shall not knowingly . . .
[m]ake a false statement of fact or law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer, unless correction would require
disclosure of information that is prohibited by Rule 1.6.”); id. 3.4(c) (“A lawyer shall not . . .
[k]nowingly disobey an obligation under the rules of a tribunal except for an open refusal based
on an assertion that no valid obligation exists.”).
4
 Several days later, on September 10, 2019, Judicial Watch II was randomly assigned to

the undersigned. Upon review of the Complaint, which specifically noted that Klayman was

proceeding pro se, and was challenging the judgment in Judicial Watch I, this court transferred

the case to the court’s calendar committee consistent with Local Civil Rule 40.5 as an earlier

related case. 3 The following day, the calendar committee reassigned Judicial Watch II to Judge

Kollar-Kotelly. (ECF No. 4.) A little over four hours later, Klayman filed an Amended

Complaint, (ECF No. 5, Am. Compl.), adding Judge Kollar-Kotelly as a defendant in Judicial

Watch II, and the calendar committee transferred the case back to the undersigned. See LCvR

Rule 40.5(c)(2) (“[If] good cause for the transfer [to the Judge with the earlier related case] does

not exist, [the committee] may return the case to the transferring judge.”)

Klayman brings claims for relief from judgment pursuant to Federal Rule of Civil

Procedure 60. He asks this court to vacate the judgment in Judicial Watch I or alternatively asks

this court to order Judge Kollar-Kotelly to vacate the judgment. He further seeks damages from

the JW Defendants for the alleged fraud and misrepresentations they committed during the

Judicial Watch I trial but does not seek damages from Judge Kollar-Kotelly.

3
“Civil, including miscellaneous, cases are deemed related when the earliest is still pending on
the merits in the District Court and they (i) relate to common property, or (ii) involve common
issues of fact, or (iii) grow out of the same event or transaction or (iv) involve the validity or
infringement of the same patent. Notwithstanding the foregoing, a case filed by a pro se litigant
with a prior case pending shall be deemed related and assigned to the judge having the earliest
case.” LCvR 40.5(a)(3). “Where the existence of related cases in this Court is revealed after the
cases are assigned, the judge having the later-numbered case may transfer that case to the
Calendar and Case Management Committee for reassignment to the judge having the earlier case.”
LCvR 40.5(c)(2).
5
B. STANDARDS OF REVIEW

1. Pro Se Litigants

Normally, courts in this Circuit “afford a liberal reading to a complaint filed by a pro se

plaintiff.” Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014) (citations omitted).

The D.C. Circuit “has not yet decided, however, whether that rule applies when the pro se

plaintiff is a practicing lawyer like Klayman.” Id. (citations omitted). Nonetheless, several

courts in this district have found that pro se attorney litigants are “not automatically subject to

the very liberal standards afforded to a non-attorney pro se plaintiff because an attorney is

presumed to have a knowledge of the legal system and need less protections from the court.”

Richards v. Duke Univ., 480 F. Supp. 2d 222, 234 (D.D.C. 2007); see also Curran v. Holder, 626

F. Supp. 2d 30, 33 (D.D.C. 2009); Penkoski v. Bowser, No. 20-CV-01519 (TNM), 2020 WL

4923620, at *14 (D.D.C. Aug. 21, 2020).

Regardless of whether the court applies the less stringent pleading standard, a complaint

“must plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of

misconduct.’” Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, at 678–79). “Factual allegations must be enough to

raise a right to relief above the speculative level” and move the plaintiff’s claims “across the line

from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555, 570 (2007).

Given Klayman’s thirty-five years of practice in this court 4 and his extensive experience

with federal litigation, 5 the court holds his complaint to a more stringent pleading standard than

4
The court takes judicial notice of the fact that the United States District Court for the District
of Columbia’s records indicate Klayman was admitted to practice in this court in 1985.
5
A February 8, 2021 PACER search reveals that Klayman has represented himself or Judicial
Watch in at least 59 federal court matters.
6
that of the typical non-attorney pro se litigant. But even if this court were to apply the more

lenient standard, it would still dismiss this action.

2. Sua Sponte Dismissal

Pursuant to 28 U.S.C. § 1915, courts are authorized to dismiss an action “at any time if

the court determines” the action is “frivolous,” “malicious,” or “fails to state a claim on which

relief may be granted.” 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). “Dismissal remains appropriate

where the plaintiff’s complaint provides no factual or legal basis for the requested relief.”

Thomas v. Wilkins, 61 F. Supp. 3d 13, 17 (D.D.C. 2014), aff’d, No. 14-5197, 2015 WL 1606933

(D.C. Cir. Feb. 23, 2015) (citation and internal quotation marks omitted).

C. ANALYSIS
This case is based on Klayman’s allegation that one or more of the JW Defendants

committed fraud by making false statements while testifying in Judicial Watch I, and that Judge

Kollar-Kotelly purportedly “has a conflict of interest” and “furthered the fraud and other

misconduct.” (Am. Compl. ¶ 7.) Klayman contends the fraud in Judicial Watch entitles him to

relief from the judgment pursuant to Rules 60(b)(3), 60(b)(6) and 60(d)(3). (Am. Compl. ¶¶ 43,

79–96.)

1. Klayman has not pled facts supporting his fraud allegations.

A fraud claim requires a “false representation.” Hall v. Nielsen, No. 18-cv-461 (JEB),

2018 WL 5840663, at *8 (D.D.C. Nov. 8, 2018) (citations omitted). The purported “fraud”

Klayman claims to have recently discovered rests on his mischaracterization of the testimony in

both Judicial Watch I and the Florida lawsuit. Klayman alleges that despite the fact that he

voluntarily resigned from Judicial Watch, the JW Defendants “falsely and fraudulently testified .

7
. . during the trial” that he left because of sexual harassment allegations. (Am. Compl. ¶¶ 30–33,

41–44, 54.) He further asserts that Fitton’s subsequent testimony in a Florida lawsuit provides

evidence of the alleged fraud. (Am. Compl. ¶¶ 68–69.) The record does not support either

assertion.

During Orfanedes’ trial testimony in Judicial Watch I, he was asked “What was it about

the circumstances that caused your concern?” He responded that he had two concerns. 6

(Compl., Ex. 1.) First, he was concerned about “allegations” that Klayman gave “this

individual” Judicial Watch funds to further Klayman’s romantic interests. (Id.) Second, he “was

obviously concerned that [Judicial Watch] could be subject to some sort of sexual harassment

allegations or lawsuit. . . .” (Id.) 7 Orfanedes did not testify that Klayman left Judicial Watch

because of sexual harassment allegations, but that Orfanedes was concerned about allegations

circulating that Klayman had sexually harassed someone—allegations that might result in a

lawsuit. Thus, Klayman has not presented evidence supporting his contention that one of the JW

6
Klayman provided only one page of the transcript, omitting the preceding testimony that
would have provided broader context to this line of questioning.
7
Orfanedes testified:

I was obviously concerned that we could be subject to some sort of sexual
harassment allegations or lawsuit. I wasn’t sure if these were welcomed advances
by Mr. Klayman. Obviously, that’s an issue when you have someone – he was, at
the time, a treasurer and on the board of directors. He used the title chairman.
Obviously, there’s a power relationship there. That’s the kind of situation that is
always, you know, of great concern when there’s, perhaps, a romantic relationship
or – there is a question about whether these are unreciprocated. So I was very
concerned about potential sexual harassment allegations.

(Compl., Ex. 1., at 2.)

8
Defendants provided “false testimony . . . to the jury concerning the reasons why [Klayman] left

Judicial Watch.” (Am. Compl. ¶ 54; see id. ¶¶ 66, 75, 84.)

Also unavailing is Klayman’s reliance on evidence in the Florida litigation that allegedly

establishes fraud in Judicial Watch I. Klayman sued Fitton in Florida for defamation, claiming

that Fitton told Roger Stone that Judicial Watch ousted Klayman because of sexual harassment.

Klayman v. Fitton, 19-cv-20544-JEM (S.D. Fla.), Compl. ¶¶ 16–20. During his deposition in the

Florida case, Fitton was asked if he had told anyone that Klayman had been ousted for sexual

harassment and he responded that he had not done so because Klayman had not been ousted for

sexual harassment. 8 (Id.) Fitton’s testimony does not imply that Orfanedes testified falsely.

8
Fitton testified:

KLAYMAN: Are you saying that you never told anyone that I was -- regardless -- let’s
take attorneys out of it. Have you ever -- you have told other people in
addition to -- strike that. You have told other people excluding attorneys
that I was ousted from Judicial Watch because of a sexual harassment
complaint?

A: You have to ask the question again.

KLAYMAN: Read it back, please.

A: Please.

KLAYMAN: Let me rephrase it. I’m taking attorneys out of this question. I’m saying
you have told others who aren't attorneys over the course of the last 16
years since I left Judicial Watch that I was ousted because of a sexual
harassment complaint?

A: No, because that’s not true. You weren't ousted as a result of a sexual
harassment complaint.

(Compl., Ex. 2, Fitton Dep. at 44–45.)

9
Moreover, Klayman’s view that Fitton “was forced to admit that Plaintiff was in fact not ousted

because of a sexual harassment,” (Am. Compl. ¶ 68), is irrelevant because Klayman has not

proffered any evidence indicating that Fitton previously stated otherwise. Thus, Klayman’s

fraud claim will be dismissed.

2. Klayman has not pled facts establishing he is entitled to relief pursuant to Rule 60.

Even if Klayman had pled facts supporting his fraud allegations, Rule 60 does not

provide an avenue for relief from Judicial Watch I in this court.

a. Motions pursuant to Fed. R. Civ. P. 60(b)

Rule 60(b) provides that “[o]n motion and just terms, the court may relieve a party. . .

from a final judgement, order or proceeding” on six bases. Klayman relies on two of those

bases: the fraud provision found in Rule 60(b)(3), and the “catchall provision” in Rule 60(b)(6),

see Gen. Med., P.C. v. Horizon/CMS Health Care Corp., 475 F. App’x 65, 75 (6th Cir. 2012),

which allows relief for “any other reason that justifies relief.” Because the catchall provision

“grants federal courts broad authority to relieve a party from a final judgment . . . provided that

the motion is . . . not premised on one of the grounds for relief enumerated in clauses (b)(1)

through (b)(5),” the Supreme Court requires a showing of “extraordinary circumstances” to

prevail. Salazar ex rel. Salazar v. D.C., 633 F.3d 1110, 1116 (D.C. Cir. 2011) (citing Gonzalez

v. Crosby, 545 U.S. 524, 534 (2005)) (internal quotation marks omitted).

Klayman cannot obtain relief from the judgment under these provisions because they do

not empower this court to provide the relief he seeks. He properly moved for relief under Rule

60(b)(3) and (b)(6) before Judge Kollar-Kotelly in Judicial Watch I, and she denied the motions.

10
6-cv-670-CKK, ECF No. 606 at 23; ECF No. 607. 9 He cannot now obtain review or reversal of

her rulings by this court pursuant to subsection (b), because “[f]ederal district courts lack the

power to void other federal courts’ orders through a collateral attack.” McNeil v. Harvey, No.

CV 17-1720 (RC), 2018 WL 4623571, at *5 (D.D.C. Sept. 26, 2018), motion for relief from

judgment denied, No. CV 17-1720 (RC), 2019 WL 1003582 (D.D.C. Feb. 28, 2019) (citing

Celotex Corp. v. Edwards, 514 U.S. 300, 313 (1995)); see Lewis v. Green, 629 F. Supp. 546, 553

(D.D.C. 1986) (“In essence, the plaintiff seeks a writ of mandamus to require Judge Green to

vacate her earlier orders. This Court, however, lacks authority to issue such orders, if such an

order were appropriate. A writ of mandamus may be issued only by a superior court, the court of

appeals in this case.”); Jones v. U.S. Supreme Court, 10-cv-910 (JDB), 2010 WL 2363678, at *1

(D.D.C. June 9, 2010), aff’d Jones v. Supreme Court of U.S., 405 F. App’x 508 (D.C. Cir. 2010),

aff’d, 563 U.S. 914 (2011) (“To the extent plaintiff seeks injunctive relief stemming from rulings

[by another judge], he is in the wrong court. This court is not a reviewing court and cannot

compel . . . other Article III judges . . . to act.”).

Klayman is well aware of this principle. In Klayman v. Kollar-Kotelly, 892 F. Supp. 2d

261, 262 (D.D.C. 2012), he sued Judge Kollar-Kotelly, challenging her decisions in Judicial

Watch I. The district court dismissed the lawsuit, Klayman appealed, and the Court of Appeals

affirmed the dismissal, explaining that “one district court does not have jurisdiction to review the

decisions of another district court or federal appellate court.” Klayman v. Kollar-Kotelly, No.

12-5340, 2013 WL 2395909, at *1 (D.C. Cir. May 20, 2013) (citations omitted).

9
Klayman also sought relief under subsection (b)(2) which applies to “newly discovered
evidence.” Judicial Watch I, 6-cv-670-CKK, ECF No. 606 at 22. Further, as discussed below,
he alleged fraud on the court. See id. at 23.
11
 Accordingly, Klayman’s attempt to use Rule 60 subsection (b) to once again collaterally

attack Judge Kollar-Kotelly’s rulings and the judgment in Judicial Watch I fails. To the extent

he is entitled to relief, he must find refuge in subsection (d), discussed below, which allows an

independent action to challenge an order or final judgment. 10

b. Independent Actions Pursuant to Rule 60 subsection (d)

Fed. R. Civ. P. 60(d) provides that Rule 60 “does not limit a court’s power to . . .

entertain an independent action to relieve a party from a judgment, order, or proceeding” or “to

set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(1), (d)(3). 11 A party “cannot

use an independent action as a vehicle for the relitigation of issues,” however. In re Salas, No.

18-00260, 2020 WL 6054783, at *22 (Bankr. D.D.C. Oct. 13, 2020) (internal quotation marks

omitted) (citing Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir. 1985)). Rather,

“an independent action must meet a stringent and demanding standard,” In re Salas, 2020 WL

6054783, at *22, because it “is a proceeding that sounds in equity and ‘is available only to

prevent a grave miscarriage of justice.’” Sieverding v. Am. Bar Ass’n, 439 F. Supp. 2d 111, 114

n.1 (D.D.C. 2006) (citing United States v. Beggerly, 524 U.S. 38, 45, 47 (1998)).

10
“If an independent action for relief from a judgment is brought in the court that gave
judgment, there is ancillary jurisdiction over the action despite the absence of a federal question
or of diversity of citizenship or of the requisite amount in controversy.” 11 Fed. Prac. & Proc.
Civ. § 2868 (3d ed).
11
In prior versions of the Federal Rules of Civil Procedure, Rule 60 did not contain a subsection
(d); instead subsection (b) contained the independent action language. The 2007 Amendment
restyled Rule 60 and added subsection (d) but did not change the meaning. See Fed. R. Civ. P.
60(b) advisory committee’s note to 2007 amendment; Hunt v. Nationstar Mortg., LLC, 779 F.
App’x 669, 671 (11th Cir. 2019) (observing that subsection (d) was formerly a part of subsection
(b)). Accordingly, some older cases cite to subsection (b) when discussing the independent
action provision, now found in subsection (d).
12
 Klayman has not met this standard because the issues he raises here are the same ones he

raised before Judge Kollar-Kotelly in Judicial Watch I. See Judicial Watch I, 6-cv-670-CKK,

ECF No. 606 at 22–23; ECF No. 587 at 5. Moreover, Klayman raised many of these same issues

on appeal to the D.C. Circuit. See Klayman v. Judicial Watch, Inc., 19-7105 (D.C. Cir.), ECF

No. 1844088 at 8. Because he had adequate remedies at law, and indeed took advantage of

them, Klayman is “procedurally barred” from bringing an independent action seeking relief from

the judgment or orders in Judicial Watch I. See Duse v. IBM Corp., 212 F.R.D. 58, 62 (D. Conn.

2002), aff’d sub nom. Duse v. Int’l Bus. Machs. Corp., 75 F. App’x 44 (2d Cir. 2003) (denying

relief where plaintiff raised the issue of fraud in the original action); Sieverding, 439 F. Supp. 2d

at 114 n.1 (D.D.C. 2006) (noting that an independent action may be brought only in the “the

absence of any adequate remedy at law”) (citing Bankers Mortg. Co. v. United States, 423 F.2d

73, 79 (5th Cir. 1970), cert. denied, 399 U.S. 927 (1970)); Mitchell v. Rees, 651 F.3d 593, 598

(6th Cir. 2011) (rejecting independent action where plaintiff failed to take advantage of “several

opportunities . . . to remedy the error” on appeal).

“Equitable relief from a judgment will be granted to a party thereto only where adequate

relief cannot be obtained by other proceedings.” Neisloss v. Bush, 293 F.2d 873, 880 n.16 (D.C.

Cir. 1961) (citation omitted). Typically, “the proper procedure when a judgment has been

improperly obtained is to take further steps in the court rendering the judgment or to use some

form of appellate procedure,” both of which Klayman has done. Id. at 880 n.16. These

procedures apply even where “the misconduct alleged is dishonesty by a member of a court.” Id.

at 880 (citing Root Ref. Co. v. Universal Oil Prods. Co., 169 F.2d 514 (3d Cir. 1948)).

Where such procedures are not available, a party may bring an independent action, as was

the case in Turner v. Pleasant, 663 F.3d 770, 773 (5th Cir. 2011). In Turner, a personal injury

13
case tried without a jury, plaintiffs claimed the trial judge was biased against them because of his

relationship with defense counsel. Id. The Fifth Circuit initially upheld the lower court’s denial

of plaintiffs’ Rule 60 motion due to a lack of factual support. Id. at 773–74. Years later,

Congress impeached the trial judge after a Department of Justice investigation revealed that he

was friends with the defense expert and was friends with the defense attorney who represented a

company that had been secretly providing the judge with all expense-paid hunting trips, and had

shared a hotel room with the judge while the personal injury case was on appeal. Id. at 774–76.

Relying on the congressional impeachment report which included details from the Department of

Justice investigation, as well as details about plaintiffs’ personal injury case, plaintiffs filed an

independent action seeking relief from the judgment. Id. at 774. The Court of Appeals

permitted the action, reasoning that the complaint contained sufficient factual allegations that the

defense attorney, witness and the judge had conspired to prevent the proper administration of

justice. Id. at 777. Here, unlike the Turner plaintiffs, Klayman had an adequate remedy at law

to prosecute his claims of fraud on the court.

Even in the absence of such a remedy, Klayman’s fraud on the court claims would fail.

“‘Fraud upon the court’ is a distinct subclass of the broader category of ‘fraud.’” Synanon

Church v. United States, 579 F. Supp. 967, 974 (D.D.C. 1984), aff’d, 820 F.2d 421 (D.C. Cir.

1987). Fraud upon the court is “directed to the judicial machinery itself and is not fraud between

the parties or fraudulent documents, false statements or perjury.” Baltia Air Lines, Inc. v.

Transaction Mgmt., Inc., 98 F.3d 640, 642 (D.C. Cir. 1996) (citations omitted). “Neither perjury

nor fabricated evidence constitutes fraud upon the court for purposes of [subsection (d)], as both

can and should be exposed at trial.” Hunt v. Nationstar Mortg., LLC, 779 F. App’x 669, 671

(11th Cir. 2019) (citations omitted). “Examples include the bribery of a judge or the knowing

14
participation of an attorney in the presentation of perjured testimony.” Baltia Air Lines, Inc., 98

F.3d at 643 (citation omitted). A party alleging fraud upon the court must present “clear and

convincing evidence.” Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1477 (D.C. Cir. 1995)

(citations omitted).

Klayman has not met this standard. As noted above, the record does not support his

allegations of fraudulent testimony during Judicial Watch I. Similarly, his claims that Judge

Kollar-Kotelly engaged in purported fraud and/or judicial misconduct are wholly devoid of any

factual basis, and consist of unsupported allegations that she:

• “sanctioned and willfully furthered the fraud,” (Am. Compl. ¶ 8);

• made “prejudicial remarks and [exhibited] biases” against Klayman, (Am. Comp.
¶ 48);

• exhibited “extrajudicial bias and prejudice,” (Am. Compl. ¶ 61);

• sanctioned Klayman by refusing to allow him to use some exhibits, call witnesses
or obtain certain discovery, (Am. Compl. ¶ 45);

• made “intentional legal errors,” (Am. Comp. ¶ 48); and

• “has a conflict of interest since her actions and inactions resulted in the necessity
of bringing this Complaint, and through these actions and inactions she has
ratified, adopted and turned a blind eye toward and acquiesced in and furthered
the fraud and other misconduct which give rise to the serious allegations set
forth. . . .” (Am. Compl. ¶¶ 7, 83.)

These allegations against a sitting judge of this court do not meet the Rule 8 pleading

requirements. While Klayman need not proffer “detailed” allegations, the Federal Rules of Civil

Procedure “demand more than ‘an unadorned, the-defendant-unlawfully-harmed-me accusation’”

with no factual support. See McNair v. D.C., 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (citing

Twombly, 550 U.S. at 570). Likewise, Klayman’s unsupported allegations do not present “clear

and convincing evidence” of fraud upon the court. See Bowie v. Maddox, 677 F. Supp. 2d 276,

15
282 (D.D.C. 2010) (finding plaintiff failed to present clear and convincing evidence of fraud

where he alleged the judgement and verdict were procured through a forged affidavit, but

proffered only “bare allegations and hypotheses”); Ramirez v. Dep’t of Justice, 680 F. Supp. 2d

208, 210 (D.D.C. 2010) (rejecting Rule 60 claims where plaintiff relied “only on conjecture and

unsupported assertions” to support his allegations that the judge was biased and had colluded

with defendants to present perjurious affidavits to the court); see Jordan v. U.S. Dep’t of Labor,

331 F.R.D. 444, 451 (D.D.C. 2019), aff’d sub nom. Jordan v. U.S. Dep’t of Labor, No. 19-5201,

2020 WL 283003 (D.C. Cir. Jan. 16, 2020), cert. denied sub nom., Jordan v. Dep’t of Labor, No.

20-241, 2020 WL 6121685 (U.S. Oct. 19, 2020) (rejecting fraud on the court claims where

plaintiff’s allegations of judicial impropriety and opposing counsel misconduct were “based on

words taken out of context from” defendant’s “briefs, declarations, and th[e] Court’s prior

opinions,” but were not backed by factual allegations of fraud). Klayman cannot bring an

independent action based on “fraud on the court simply because he disagrees with” Judge Kollar-

Kotelly’s rulings. See Jordan, 331 F.R.D. at 452.

3. Klayman improperly named Judge Kollar-Kotelly as a Defendant
Even if Klayman was entitled to bring an independent action pursuant to Rule 60(d), he

still could not bring such an action against Judge Kollar-Kotelly. While he seeks monetary relief

from the JW Defendants, Klayman makes clear he does not seek such relief from Judge Kollar-

Kotelly. Instead, he asks this court to set aside or “order” Judge Kollar-Kotelly to set aside the

judgment in Judicial Watch I. (Am. Compl. ¶¶ 88, 98, 110.). As previously discussed, Klayman

is or ought to be aware this court has no power to “order” Judge Kollar-Kotelly to do any such

thing.

More importantly, Judge Kollar-Kotelly is “immune from liability for her role” as the

presiding judge in Judicial Watch I. See Lewis v. Green, 629 F. Supp. 546, 552–53 (D.D.C.

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1986) (discussing judicial immunity where plaintiffs filed suit in federal district court against a

federal judge and sought reversal of her prior decisions). The fact that Klayman does not seek

damages from Judge Kollar-Kotelly does not alter this analysis. “It is well established that

judges are immune from damages for actions undertaken within their jurisdiction. The policies

underlying judicial immunity from damages dictate that immunity be conferred in suits, such as

this,” where a party essentially “seeks an injunction compelling a judge to alter an earlier

decision.” Id.; see Jenkins v. Kerry, 928 F. Supp. 2d 122, 134–35 (D.D.C. 2013) (rejecting

argument that, in the absence of a damages claim, plaintiff could proceed with lawsuit against

judges over their judicial rulings).

Moreover, “[u]nder the doctrine of judicial immunity, a judge will not be deprived of

immunity because the action [s]he took was in error, was done maliciously, or was in excess of

h[er] authority.” Thomas v. Wilkins, 61 F. Supp. 3d 13, 18–19 (D.D.C. 2014), aff’d, No. 14-

5197, 2015 WL 1606933 (D.C. Cir. Feb. 23, 2015) (internal quotation marks and alterations

omitted) (citing Stump v. Sparkman, 435 U.S. 349, 356 (1978)) (dismissing claims against

federal district court judge who allegedly “sabotaged the entire case by falsifying documents,

destroying documents, and infiltrating the administrative office of the clerk to perpetuate his

malicious endeavors”) (internal quotation marks omitted). Litigants who allege judicial

impropriety have other options for obtaining relief, and the legal system does not put judges in a

position where they “have to fear that unsatisfied litigants may hound [them] with litigation

charging malice or corruption.” Lewis, 629 F. Supp. at 553 (citing Pierson v. Ray, 386 U.S. 547,

554 (1967)).

Finally, Klayman’s assertion that Judge Kollar-Kotelly is a necessary party to this

litigation pursuant to Federal Rule of Civil Procedure 19, (Am. Compl. ¶ 8) “does not pass the

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straight-face test.” Kisela v. Hughes, 138 S. Ct. 1148, 1154 (2018) (internal quotation marks

and citations omitted). Rule 19(a)(1)(A) provides that a person “must be joined as a party if . . .

in that person’s absence, the court cannot accord complete relief among existing parties.” Even

if she were not immune to suit, Judge Kollar-Kotelly’s presence as a defendant would not be

necessary for this court to fashion equitable relief. Indeed, before he added Judge Kollar-

Kotelly as a defendant, Klayman simply asked this court to set aside or vacate her rulings. (See

Compl. ¶¶ 87, 97, 109.) After adding Judge Kollar-Kotelly as a defendant, he included an

alternative demand for this court to “order” her to set aside the judgment in Judicial Watch I,

(Am. Compl. ¶¶ 88, 98, 110), despite being well aware that this court is not empowered to do

so.

The fact that Klayman named Judge Kollar-Kotelly as a defendant in this action

immediately after this case was reassigned to her raises the specter of judge shopping by

attempting to circumvent this court’s local case assignment rules. Indeed, Klayman asserts that

“this Amended Complaint should not be and cannot be assigned as related to this District Court

Judge, Defendant Kotelly, who presided over the underlying judgment,” ostensibly because of

her alleged bias. (Am. Compl. ¶ 7.) This blatant attempt to manipulate the court’s local rules

arguably constitutes a violation the D.C. Bar’s Rules of Professional Conduct. See D.C. R. Prof.

Conduct 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue

therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a

good-faith argument for an extension, modification, or reversal of existing law.”). Manipulation

of the court’s rules, involving unsupported accusations against a respected judge of this court,

cannot be sanctioned.

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D. CONCLUSION

For the reasons set forth above, by separate order, this court will dismiss this action.

Date: February 16, 2021

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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