Sam A. Lindsay, United States District Judge.
Before the court are: the Individual Federal Defendants' Motion to Dismiss (Doc. 21), filed September 19, 2016; The United States of America's Motion to Dismiss (Doc. 23), filed September 19, 2016; Motion to Dismiss by Deray McKesson (Doc. 32), filed September 28, 2016; Defendant Reverend Al Sharpton and National Action Network's Alternative Motion to Dismiss Plaintiffs' Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1)(2)(6) and 12(h)(3) (Doc. 40), filed September 30, 2016; the Honorable Minister Farrakhan's Motion to Dismiss the Purported Amended Complaint Pursuant to Federal Rule[s] of Civil Procedure 12(b)(1)(2)(3)(4)(5)(6) and 12(h)(3) (Doc. 41), filed September 30, 2016; Motion for Sanctions Against Plaintiffs and Plaintiffs' Counsel by Defendant Deray McKesson (Doc. 74), filed November 25, 2016; Plaintiffs' Cross-Motion for Sanctions (Doc. 87), filed December 16, 2016; Motion to Dismiss of Defendant George Soros (Doc. 80), filed December 5, 2016; Motion to Dismiss of Defendant Malik Zulu Shabazz, Esq. (Doc. 90), filed December 19, 2016; Motion to Dismiss of Defendant Rashad Turner (Doc. 103), filed January 23, 2017; Defendants Opal Tometi and Patrisse Cullors' Motion to Dismiss (Doc. 112), filed February 7, 2017; and Defendant Hillary Rodham Clinton's Motion to Dismiss the Amended Complaint (Doc. 141), filed May 8, 2017. Having considered the motions, responses, replies, pleadings, record, and applicable law, the court
On July 9, 2016, Larry Klayman ("Klayman") brought this purported class
Klayman is a former federal prosecutor and the "high profile" founder of Freedom Watch and Judicial Watch. Pls.' Am. Compl. ¶ 16. The mission of these entities is to "enforce the rule of law and fight against racism, public corruption, and to further civil rights and equality for all persons under the U.S. Constitution." Id. Plaintiffs assert that "Klayman has been highly visible and active in defending police, other law enforcement officials, Jews, Christians and Israel and opposing Defendants' efforts to stir up racial, ethnic and religious conflict to suit their agendas in every area of American life in court and in public." Id.
In the Amended Complaint, Plaintiffs purport to bring this lawsuit on behalf of themselves, and a proposed class that they define as including: "all police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians who have been threatened and targeted and harmed by the Defendants' ignited race war, and who reside within this district and the domestic United States." Id. ¶ 5.
The gravamen of Plaintiffs' claims is that Defendants have made public statements that have incited criminal activity by others across the country, including riots, murders, and threats of death and bodily injury, as well as the Dallas Police Shooting in July 2016. Plaintiffs allege that Defendants participated in a conspiracy to incite "their supporters and others to engage in threats of [sic] and attacks to cause serious bodily injury or death upon police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians." Id. ¶ 1. Plaintiffs allege that Defendants undertook these actions with the aim of "incit[ing] a racial war in America." Id. ¶ 54. Among other things, Plaintiffs allege that Defendants, acting in concert, have: fomented a race war (¶ 16); encouraged disaffected minority groups to ignore, disrespect, and assault law enforcement officials (¶ 27); incited violence by publicly stating that law enforcement are disproportionately arresting and prosecuting minority groups (¶ 30); caused an increase in crime rates by preventing law enforcement officials from doing their duties (¶ 31); sent a "clear signal that it is acceptable and required to kill white people, especially white police officers and other law enforcement[ ]" (¶ 42); and accused the legal system of a conspiracy to kill black men (¶ 44). Plaintiffs allege that:
Id. ¶ 17.
With respect to President Obama, Plaintiffs allege that he "used his position of great authority to ratify, endorse, embrace, and condone the violence against police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians perpetrated by his co-Defendants[.]" Id. ¶ 169. Plaintiffs allege that:
Id. Plaintiffs further allege that "[r]evealing the knowing, willful, and intentional purpose of the Defendants' concerted actions, on October 30, 2008, then[-]candidate Defendant Obama roared to an excited crowd of his supporters: `We are five days away from fundamentally transforming America.'" Id. ¶ 170. Plaintiffs allege that by definition, "to fundamentally transform an entire society, requires replacing the old society with a new version of society." Id. ¶ 171. Plaintiffs allege that to effect this, President Obama used a "divide and conquer" strategy, by furthering, in concert with the other Defendants, "a race war pitting blacks against whites, furthering the mission and credo of Muslims and Black Muslims such as Defendant Farrakhan and others against police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians." Id. Plaintiffs allege that President Obama "fueled [and] incited discord by stating in his frequent and persistent theme `that there's a long history in the country of African Americans and Latinos being stopped by law enforcement disproportionately.'" Id. ¶ 174. Plaintiffs allege that President Obama used "anti-police rhetoric" following various high profile shootings of African Americans and did not try to stop riots related to the shootings, stirring up racial tensions and hatred for police officers. Id. ¶¶ 175-77.
According to Plaintiffs, President Obama has "conspired with all Defendants and others to incite violence, looting, arson, assault against law enforcement and helpless communities with the purpose of making a new `fundamentally transformed America' appear preferable to the crime waves and chaos they themselves are creating." Id. ¶ 178. Plaintiffs also allege that President Obama "has conspired with, encouraged, engaged in joint planning with, and developed strategies, plans, and courses of action with parties responsible for carrying out acts of deadly violence against police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians[,]" and has done so acting in concert with the other Defendants. Id. ¶ 179.
As one example of the alleged conspiracy with co-Defendants, Plaintiffs allege that Reverend Sharpton "has visited with
As another example of the alleged conspiracy, Plaintiffs allege that President Obama has ties to the black nationalist movement in Chicago and that, for many years, he and Minister Farrakhan, who has endorsed him and called him the new "messiah," have been connected either directly or through intermediaries. Id. ¶¶ 181-82.
Plaintiffs also contend that President Obama conspired with Black Lives Matter, as evidenced by a White House meeting with Black Lives Matter after the Dallas Police Shooting, at which he stated, "[w]e're not at a point yet where communities of color feel confident that their police departments are serving them with dignity and respect and equality." Id. ¶ 185. Plaintiffs allege President Obama made this statement "to implicitly blame law enforcement officers for the Dallas Police Shooting, instead of holding the true culprits — his co-Defendants — responsible." Id.
Plaintiffs allege that President Obama's acts of inviting his co-Defendants to the White House "serve to legitimize, ratify and further the hateful and violent doctrines that these parties advocate and is a direct indication of [President] Obama's attempts to help perpetrate, incite, condone, ratify and further propagate the racist actions" of his co-Defendants, "resulting in threats and severe bodily injury or death to law enforcement and others[.]" Id. ¶ 186.
With respect to General Holder, Plaintiffs allege that he "used his position of authority and influence to help perpetrate, incite, condone, ratify and further propagate the hateful and violent message and actions perpetrated by co-Defendants [Nation of Islam, New Black Panther Party, and Black Lives Matter] by improperly targeting law enforcement officers for investigation." Id. ¶ 210. Plaintiffs allege that throughout "his time as Attorney General, Defendant Holder's Department of Justice ("DOJ") publicly targeted and blamed America of `biased policing' and `implicit bias' in law enforcement[,]" and that he "incited a civil war against police and law enforcement agents during his time as Attorney General." Id. ¶¶ 211-12. Plaintiffs allege that General Holder and the DOJ spread "false propaganda" to "inaccurately convince blacks that they are being targeted by police and other law enforcement persons," and that without these lies "the violent uprising and civil war against police would not have occurred." Id. ¶ 216. Finally, Plaintiffs allege that:
Id. ¶ 220.
Sergeant Pennie and Klayman do not allege they were the targets of any of the alleged violence against law enforcement before filing this lawsuit, but they contend that they have received threats as a result of filing this lawsuit. Id. ¶¶ 15-16. Plaintiffs allege that Sergeant Pennie has "been threatened with death and/or serious bodily harm by Defendants, acting alone and/or in concert." Id. ¶ 15. Plaintiffs allege that Klayman "received a call from Defendant New Black Panther Party and Black Lives Matter acting in concert with the other Defendants," and that certain threats of physical harm were made during the call. Id. ¶ 16. Plaintiff Klayman also asserts he was "present in the United States of America before and at the time that innocent police oficers" and others were "subjected to threats and actual violence." Id.
Plaintiffs, acting through Klayman as their counsel, assert the following claims against Defendants: (1) "Deprivation of Civil Rights: Aiding and Abetting Murder" in violation of 42 U.S.C. § 1983 ("Count One"); (2) "Conspiracy to Deprive Plaintiffs of Civil Rights: Right to Life and Liberty" in violation of 42 U.S.C. § 1985 ("Count Two"); (3) "Fifth Amendment Violation: Deprivation of Right to Life" in violation of "Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics" ("Count Three"); (4) assault ("Count Four"); (5) intentional infliction of emotional distress ("Count Five"); and (6) "Terrorist Promotion of Gang Activity under Florida Law" ("Count Six"). Pls.' Am. Compl. ¶¶ 221-61. For relief, Plaintiffs request:
Id. at 65 ("Prayer for Relief").
Of the seventeen Defendants named in this lawsuit, five have not filed motions to dismiss or otherwise appeared, namely, Defendants Garza, Elzie, Nation of Islam, New Black Panther Party, and Black Lives Matter. The court has already dismissed without prejudice all claims against Defendants Garza and Elzie based on Plaintiffs' failure to effect service of process under Federal Rule of Civil Procedure 4(m). See Order (Doc. 127). For the reasons stated below, see infra Sec. III(C), the court similarly dismisses without prejudice all claims against Defendants Nation of Islam, New Black Panther Party, and Black Lives Matter pursuant to Rule 4(m) for failure to effect service of process, properly, notwithstanding numerous extensions of time allowed by the court.
Of the twelve Defendants who have been served, all have filed motions to dismiss Plaintiffs' claims and this action for, among other reasons, lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, improper service of process, and failure to state claims upon which relief can be granted. See Doc. Nos. 21, 23, 32, 40, 41, 80, 90, 103, 112, and 141. Each motion has been fully briefed. Plaintiffs, in
For the reasons that follow, the court
A federal court has subject matter jurisdiction over civil cases "arising under the Constitution, laws, or treaties of the United States," or over civil cases in which the amount in controversy exceeds $75,000, exclusive of interest and costs, and in which diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited jurisdiction and must have statutory or constitutional power to adjudicate a claim. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted); Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by statute or the Constitution, they lack the power to adjudicate claims and must dismiss an action if subject matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). A federal court must presume that an action lies outside its limited jurisdiction, and the burden of establishing that the court has subject matter jurisdiction to entertain an action rests with the party asserting jurisdiction. Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673 (citations omitted). "[S]ubject-matter jurisdiction cannot be created by waiver or consent." Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).
A federal court has an independent duty, at any level of the proceedings, to determine whether it properly has subject matter jurisdiction over a case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ("[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level."); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005) (A "federal court may raise subject matter jurisdiction sua sponte.") (citation omitted).
In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, "a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in
It is undisputed that "[b]efore a... federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987)). Service of process in a federal action is governed generally by Rule 4 of the Federal Rules of Civil Procedure. When service is not made on a defendant within 90 days after filing of the complaint, the court may, after notice to the plaintiff, dismiss the action as to that defendant without prejudice, or, instruct the plaintiff to effect service within a specific time. Fed. R. Civ. P. 4(m).
The intent of the rules for serving process is to give sufficient notice to defendants of any actions filed against them. See 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1061 (4th ed. 2013) ("[Federal Rule 4] was designed to provide maximum freedom and flexibility in the procedures for giving all defendants ... no matter where they might be located, notice of the commencement of the action and to eliminate unnecessary technicality in connection with service of process.").
Plaintiffs assert six claims against the Individual Federal Defendants: (1) "Deprivation of Civil Rights: Aiding and Abetting Murder" in violation of 42 U.S.C. § 1983 (Count One); (2) "Conspiracy to Deprive Plaintiffs of Civil Rights: Right to Life and Liberty" in violation of 42 U.S.C. § 1985 (Count Two); (3) "Fifth Amendment Violation: Deprivation of Right to Life" in violation of "Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics" (Count Three); (4) assault (Count Four); (5) intentional infliction of emotional distress (Count Five); and (6) "Terrorist Promotion of Gang Activity under Florida Law" (Count Six). Pls.' Am. Compl. ¶¶ 221-61.
On September 19, 2016, the Individual Federal Defendants filed a Motion to Dismiss the federal claims asserted in Counts One, Two, and Three.
As previously stated, Plaintiffs, in response to the Individual Federal Defendants' Motion to Dismiss, have agreed to withdraw Counts One and Two. See Pls.' Resp. 25. Accordingly, the court will
The threshold issue of subject matter jurisdiction must be resolved first. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) ("When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.").
The jurisdiction of federal courts is defined and limited by Article III of the United States Constitution. Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Article III, § 2 of the Constitution extends the "judicial Power" of the United States only to "Cases" or "Controversies." U.S. Const. art III, § 2. Under the "case-or-controversy" requirement, each plaintiff must establish he or she has standing to sue. Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997).
The "irreducible constitutional minimum" of standing has three elements: (1) the plaintiff must suffer an "injury in fact," meaning the injury must be "an invasion of a legally protected interest" and must be "concrete and particularized" and "actual or imminent, not conjectural or hypothetical;" (2) causation, meaning the injury must be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court;" and (3) redressability, meaning that it must be likely, not merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). When a case is at the pleading stage, as here, "the plaintiff must `clearly ... allege facts demonstrating' each element." Spokeo v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). "The triad of injury in fact, causation, and redressability constitutes the core of Article III's case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); see also Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 800 (5th Cir. 2012) (same).
The Individual Federal Defendants argue that Plaintiffs have failed to meet any of the three requirements for Article III standing, and that, therefore, the Amended Complaint must be dismissed for lack of jurisdiction. In response, Plaintiffs argue:
Pls.' Resp. 5 (Doc. 56). The court will address each required element of standing in turn.
The Individual Federal Defendants argue that Plaintiffs have failed to articulate an injury in fact. The injury-in-fact test "requires that the party seeking review be himself among the injured." Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130. To have standing, "a plaintiff must have more than a general interest common to all members of the public." Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007).
According to the Amended Complaint, Sergeant Pennie and Klayman were not the target of any of the alleged violence against law enforcement before filing this lawsuit, but they have received threats as a result of filing this lawsuit. Pls.' Am. Compl. ¶¶ 15-16. Plaintiffs allege that Sergeant Pennie has "been threatened with death and/or serious bodily harm by Defendants, acting alone and/or in concert." Id. ¶ 15. Plaintiffs allege that Klayman "received a call from Defendant New Black Panther Party and Black Lives Matter acting in concert with the other Defendants," and that certain threats of physical harm were made during the call. Id. ¶ 16. Klayman also alleges he was "present in the United States of America before and at the time the innocent police officers" and others were "subjected to threats and actual violence." Id.
Sergeant Pennie fails to allege any facts supporting his conclusory allegation that he was threatened, including when he was threatened, how he was threatened, and by whom. Such conclusory allegations are insufficient to confer standing. See Beal v. Midlothian Indep. Sch. Dist. 070908 of Ellis Cty., 2002 WL 1033085, at *3 (N.D. Tex. May 21, 2002) (dismissing for lack of standing because "[o]ther than one boilerplate, conclusory allegation ... Plaintiffs do not set forth any specific factual allegations" that demonstrated an injury in fact); Sartin v. EKF Diagnostics, Inc., 2016 WL 3598297, at *3 (E.D. La. July 5, 2016) ("Absent supporting factual allegations, [plaintiff's] bare assurance that an unspecified injury exists is insufficient to establish Article III standing."). With respect to Klayman, even assuming these threats were made, as the court must in addressing a motion to dismiss, nothing in the Amended Complaint suggests that Plaintiff Klayman was threatened by the Individual Federal Defendants. Further, Klayman's allegation that he has standing because he was an individual present in the United States when violence occurred demonstrates that he has no "concrete and particularized" injury, but instead only has a "general interest common to all members of the public." Lance, 549 U.S. at 439, 127 S.Ct. 1194.
In opposition to the Individual Federal Defendants' argument that the pleadings are insufficient to allege an injury in fact, Plaintiffs contend that they have standing because the injury alleged need not necessarily be one that the Plaintiff has already suffered, and can be satisfied by a future injury that is likely to occur. In support,
The court agrees with the Individual Federal Defendants that these cases are inapposite, as each case addresses standing to challenge, at the pre-enforcement stage, the implementation of a statute, regulation, or agency action. In each of those cases, there was certainty that the circumstances that would cause the alleged future injury, namely, the implementation of the statute, regulation, or agency action, would occur. By contrast, in this case the "future injury" alleged is hypothetical and contingent on the possible actions of some unnamed, independent actor in the future. The court determines that such "mere conjecture" about "possible ... actions" is legally insufficient to confer standing. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1154, 185 L.Ed.2d 264 (2013).
For these reasons, the court
The Individual Federal Defendants further contend that, even assuming, arguendo, Plaintiffs have sufficiently alleged a cognizable injury sufficient to establish an injury in fact, the Amended Complaint should still be dismissed for lack of standing because Plaintiffs fail to meet the causation requirement.
To have Article III standing, Plaintiffs must allege a "causal connection between the [alleged] injury and the conduct complained of — the injury has to be fairly ... traceable to the challenged action of the defendant." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Plaintiffs offer only conclusory allegations that the alleged threats were a result of Defendants "acting in concert." See Pls.' Am. Complaint ¶ 16. Such boilerplate allegations of causation are inadequate to demonstrate causation. See, e.g., Peters v. St. Joseph Servs. Corp., 74 F.Supp.3d 847, 857 (S.D. Tex. 2015) (dismissing claim for lack of standing when "the allegation is conclusory and fails to account for the sufficient break in causation caused by ... third parties."). Further, Plaintiffs fail to allege how the Individual Federal Defendants caused Plaintiffs' injuries by making statements or acts directed toward others. Instead, Plaintiffs allege intervening causes, namely, acts of third parties, separating their alleged injuries from the complained-of conduct by the Individual Federal Defendants. Unforeseen intervening acts generally break the chain of causation. Garza v. United States, 809 F.2d 1170, 1173 (5th Cir. 1987).
For these reasons, the court
The Individual Federal Defendants contend that even if Plaintiffs have sufficiently
First, as the court has concluded that Plaintiffs have failed to adequately allege they suffered an injury in fact, there is no injury to be redressed. See Wyble v. Gulf S. Pipeline Co., L.P., 308 F.Supp.2d 733, 742 (E.D. Tex. 2004) ("It necessarily follows that if a Plaintiff cannot establish that he has been injured ... he cannot seek redress for that violation."). Even if Plaintiffs had suffered an injury of the type they describe in the Amended Complaint, the way to redress that injury is through either monetary or injunctive relief against the parties responsible for the threats. Plaintiffs fail to allege how the Individual Federal Defendants caused Plaintiffs' injury by statements or acts directed towards others. In sum, Plaintiffs have not sufficiently alleged how a claim against the Individual Federal Defendants would enable the court to redress their alleged injuries. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 45, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (Redressability cannot be shown when "speculative inferences are necessary to connect [the] injury to the challenged actions of [defendants].").
For these reasons, the court
In the alternative to dismissal for lack of standing, the Individual Federal Defendants contend that Count III should be dismissed because Plaintiffs have failed to overcome President Obama's absolute and/or qualified immunity and General Holder's qualified immunity to the claims asserted against them in Count Three. To reiterate, Plaintiffs allege in Count Three that the Individual Federal Defendants' incitement of imminent violence through public pronouncements violated Plaintiffs' rights under the Fifth Amendment Due Process Clause, and that they should be allowed a remedy under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, (1971). As the court has ruled that it lacks subject matter jurisdiction to entertain Count Three of Plaintiffs' Amended Complaint, it cannot address the Individual Federal Defendants' absolute and qualified immunity defenses.
As noted at the outset of this decision, Defendants Nation of Islam, Black Lives Matter, and New Back Panther Party are the only Defendants who have not filed a motion to dismiss and have not had an attorney appear on their behalf in this
Pursuant to Federal Rule of Civil Procedure 4(c)(1), "[a] summons shall be served together with a copy of the complaint." Rule 4(h) of the Federal Rules of Civil Procedure governs service of process on a corporation, partnership or other unincorporated association and provides, in relevant part:
Fed. R. Civ. P. 4(h). The permissible methods of service under Federal Rule of Civil Procedure 4(e) for serving an individual are limited to: (1) service according to the law of the state in which the district court is located or where service is made; (2) personal delivery of the summons and complaint upon the individual; (3) "leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein"; or (4) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. See Fed. R. Civ. P. 4(e)(1),(2). When service is not made on a defendant within 90 days after filing of the complaint, the court may, after notice to the plaintiff, dismiss the action as to that defendant without prejudice, or, instruct the plaintiff to effect service within a specific time. Fed. R. Civ. P. 4(m).
On December 16, 2016, the court, noting that the clerk's docket sheet reflected that numerous defendants had not yet been served with process, directed Plaintiffs "to effect service on Defendants Black Lives Matter, Johnetta Elzie, Nation of Islam, Opal Tometi, Patrisse Cullors, Alicia Garza, Hillary Clinton, and the New Black Panther[ ] Party by January 17, 2017, by 5:00 p.m., or show good cause in writing by January 17, 2017, by 5:00 p.m., for the failure or inability to effect service on these Defendants." Order at 5 (Doc. 88) (original emphasis). The court further stated that: "Failure of Plaintiff to effect service or show good cause in accordance with this order will result in dismissal of this action without prejudice, pursuant to Rule 4(m), as to Defendants Black Lives Matter, Johnetta Elzie, Nation of Islam, Opal Tometi, Patrisse Cullors, Alicia Garza, Hillary Clinton, and the New Black Panther[ ] Party." See id. (original emphasis).
On January 17, 2017, Plaintiffs filed their "Response to the Court's Order of
On February 16, 2017, Plaintiffs filed their "Supplemental Response to the Court's Order of December 17, 2016, and Request for Status Conference." (Doc. 118). Plaintiffs asserted that summons has been served on Defendants Secretary Clinton and Nation of Islam, but that they had not been able to serve summons on Defendants Black Lives Matter, Elzie, Garza, and the New Black Panther Party. On February 17, 2017, the court sua sponte allowed Plaintiffs a third, and final, extension of time to effect service on Defendants Black Lives Matter, Elzie, Garza, and the New Black Panther Party; directed Plaintiffs to effect service on these four Defendants by Friday March 10, 2017, by 5:00 p.m.; and directed them to document proof of service on the docket sheet by this time. See Order (Doc. 119). The court stated that, absent proof of service by this time, and recognizing that Plaintiffs have had ample time to effect service (including three extensions of time allowed by the undersigned), the court would "dismiss this action without prejudice, pursuant to Rule 4(m), as to Defendants Black Lives Matter, Johnetta Elzie, Alicia Garza, and the New Black Panther[ ] Party." Id. at 3 (original emphasis).
On April 5, 2017, the court dismissed without prejudice all claims against Defendants Elzie and Garza pursuant to Rule 4(m), as the clerk's docket sheet did not reflect that they had been served, and Plaintiffs did not request an extension of the court's deadline of March 10, 2017, or attempt to show good cause for failure to effect service as ordered by the court. See Order (Doc. 127). Questioning sua sponte the method of purported service on Defendants Secretary Clinton, Nation of Islam, Black Lives Matter, and the New Black Panther Party, the court directed Plaintiffs to file a brief describing how the service purportedly effected on each of these Defendants complied with Rule 4 of the Federal Rules of Civil Procedure. See id.
Plaintiffs responded to the court's directive on April 14, 2017, stating that "Defendants Hillary Clinton, Nation of Islam, New Black Panther Party, and Black Lives Matter were all properly served under either the express provisions of Fed. R. Civ. P. 4, or under state law applicable where the district court is located (Texas) or where services is made (District of Columbia, Illinois, Georgia, [and] California)." Pls.' Resp. 2 (Doc. 134). With respect to Defendant Secretary Clinton, Mr. David E. Kendall, Esq., as her counsel, agreed to accept service on her behalf on April 10, 2017. See Doc. 136. With respect to the Nation of Islam, New Black Panther Party, and Black Lives Matter, however, notwithstanding Plaintiffs' assertion that these three Defendants were properly served, a review of the affidavits filed by the process servers shows that this is not the case. See Affidavit of Process Server (Doc. 134-3) (Nation of Islam); Affidavit of Process Server (Doc. 134-4) (Black Lives
As already noted, in a December 16, 2016 Order, the court allowed Plaintiffs a thirty-day extension of time until January 17, 2017, at 5:00 p.m., to serve the Nation of Islam, stating that failure to effect service or show good cause in accordance with the court's order would result in dismissal of this action without prejudice, pursuant to Rule 4(m). See Order (Doc. 88). On January 17, 2017, Plaintiffs filed their "Response to the Court's Order of December 16, 2016, and Motion for Extension of Time to Serve Remaining Defendants" (Doc. 99), explaining that, although they had requested that Same Day Process Service effect service on October 26, 2016, because of a miscommunication, Plaintiffs discovered on January 17, 2017, that service on the remaining Defendants had not yet been effected. See Affidavit of Oliver Peer (Doc. 99 at Ex. B).
The Affidavit of Process Server filed by Plaintiffs calls into question both their diligence in effecting service and the veracity of their explanation for failing to serve timely the Nation of Islam. The Affidavit of Process Server states that "[l]egal documents [were] received by Same Day Process Service, Inc. on
Alternatively, even if the court considers the Affidavit of the Process Server, the court concludes that service on the Nation of Islam was improper under Rule 4. Specifically, the Affidavit of the Process Server states that on January 18, 2017, at 1:23 p.m., the Nation of Islam was served by "delivering a conformed copy of the [Summons and Amended Complaint] to John Doe as Minister of Nation of Islam at 7351 South Stony Island Ave., Chicago, IL 60649." Id. According to the Affidavit:
Id. Plaintiffs contend that service on John Doe was effective service on Defendant Nation of Islam under Illinois law, specifically section 2-204 of the Illinois Code of Civil Procedure. The court disagrees.
Unlike the receptionist in Megan, nothing in the record leads the court to conclude that John Doe understood what it meant to be an agent of the Nation of Islam for purposes of accepting legal process. Further, John Doe's statement to the process server that he was not the addressee and his act of returning the papers to the process server and not opening them (see Doc. 134-3) can just as easily be understood as evidence that he did not understand their import. Finally, the papers were ultimately left by the process server unopened in the parking lot, rather than in the hands of an agent or officer. Under these circumstances, Plaintiffs have not met their burden of showing "John Doe" was a registered agent, officer, or an agent of the Nation of Islam for purposes of receiving service of process.
Further, Plaintiffs have failed to show that they complied with section 2-202 of the Illinois Code of Civil Procedure, which states, in pertinent part, as follows:
735 Ill. Comp. St. 5/2-202 (Westlaw 2017). In this case, the Affidavit of Process Server shows that service was not made by the sheriff or coroner, but by a private process server working for Same Day Process Service, Inc. (Doc. 134-3). Further, the record does not reflect a motion for appointment of a special process server, and there is nothing before this court to show that any of the other exceptions set forth in section 2-202(b)-(f) of the Illinois Code of Civil Procedure apply such that service was made by an authorized process server in this case. For these reasons, the court
The court provided similar extensions of time for Plaintiffs to effect service on Defendant Black Lives Matter. The Affidavit of Process Server submitted by Plaintiffs shows that on February 22, 2017, Same Day Process Serverice attempted to serve Black Lives Matter by delivering a conformed copy of the Summons and Amended Complaint to "Rasheed Mohammad as Postal Clerk at UPS Store at 19197 Golden Valley Rd., # 313, Canyon County, CA 91387." (Doc. 134-4). Plaintiffs contend that service on Black Lives Matter was effective service under California law since "Defendant BLM used the UPS Store address to register as a 501(c)(3) non-profit organization." Pls.' Resp. 5. Plaintiffs have provided the court with informational documents concerning "Black Lives Matter Foundation," a 501C3 Nonprofit Organization, listing as an address 19197 Golden Valley Rd., # 313, Canyon County, CA 91387. See Aff. of Process Server (Doc. 134-5). Plaintiffs in this action have sued "Black Lives Matter," and not "Black Lives Matter Foundation." Thus, service on Black Lives Matter Foundation, even assuming it complies with California law, does not constitute service on Defendant Black Lives Matter. In addition, Plaintiffs have not provided the court with any allegations or argument to support the proposition that Black Lives Matter is even a jural entity capable of suing and being sued. For these reasons, the court
With respect to Defendant New Black Panther Party, the court extended the deadline for service of process twice, and ultimately stated that absent proof of service by March 10, 2017, the court would dismiss this action as to the New Black Panther Party. Order at 3 (Doc. 119). The Affidavit of Process Server submitted by Plaintiffs shows that Same Day Process Service attempted to effect service on New Black Panther Party on March 15, 2017. See Aff. of Process Server (Doc. 134-6). As Plaintiffs did not even attempt to effect service until five days after the March 10, 2017 deadline, and have failed to provide any explanation for their lack of diligence, the court
Even were the court to allow Plaintiffs to effect service after the March 10, 2017 deadline and consider the Affidavit of the Process Server purporting to serve Defendant New Black Panther Party on March 15, 2017, the court further
The next question is whether to further extend the time to accomplish service on Defendants Nation of Islam, Black Lives Matter, and New Black Panther Party. Rule 4(m) allows the court discretion to extend the time for service of the complaint after the initial 90-day period has expired. See Fed. R. Civ. P. 4(m). In this case, however, the court has already permitted numerous extensions of the deadline for service. Further, Plaintiffs have failed to request an additional extension, choosing instead to argue to the court that service was proper. In light of the foregoing, the court declines to sua sponte further extend the time for service. Accordingly, as service was not proper, the court lacks personal jurisdiction over these Defendants and
The court now turns to the motions to dismiss filed by the remaining Defendants, namely, McKesson, Reverend Sharpton, NAN, Minister Farrakhan, Soros, Shabazz, Turner, Tometi, Cullors, and Secretary Clinton (hereinafter, the "Remaining Defendants"). Each of the Remaining Defendants has moved to dismiss the federal law claims (Counts One through Three) and state law claims (Counts Four through Six) asserted against them in Plaintiffs' Amended Complaint.
In response to the respective motions to dismiss filed by the Remaining Defendants, Plaintiffs have agreed to withdraw the federal claims set forth in Counts One through Three. See Doc. 57 at 4 n.1 (withdrawing federal claims against Defendant
In light of Plaintiffs' decision to withdraw their federal claims against the Remaining Defendants, and as all federal claims against the Individual Federal Defendants have been dismissed, only state law claims remain, namely, Count Four (assault); Count Five (intentional infliction of emotional distress), and Count Six ("Terrorist Promotion of Gang Activity Under Florida Law"). Absent any remaining federal law claims, subject matter jurisdiction under 28 U.S.C. § 1331 is lacking, and the court must consider the basis, if any, for its continued authority to exercise subject matter jurisdiction in this case. See Ruhrgas AG, 526 U.S. at 583, 119 S.Ct. 1563 ("[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level."); McDonal, 408 F.3d at 182 n.5 (A "federal court may raise subject matter jurisdiction sua sponte.") (citation omitted).
In the Amended Complaint, Plaintiffs allege this court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1332(a), and 1605. Pls.' Am. Compl. ¶ 7. Section 1605, which provides certain exceptions to the jurisdictional immunity of foreign states, is plainly not applicable here, as no Defendant is a foreign state. As already stated, given the court's dismissal of Counts One, Two, and Three, the sole federal claims, federal question jurisdiction is lacking under Section 1331. Accordingly, federal subject matter jurisdiction over the remaining state law claims is only proper if there is complete diversity between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs, see 28 U.S.C. § 1332(a), or pursuant to the court's supplemental jurisdiction under 28 U.S.C. § 1367. The court first addresses whether it has subject matter jurisdiction under 28 U.S.C. § 1332(a).
In addition to asserting subject matter jurisdiction under 28 U.S.C. § 1331, Plaintiffs assert that the court has subject matter jurisdiction "over this action based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(2) because there is complete diversity of citizenship between the Plaintiff and the Defendants." Pls.' Am. Compl. ¶ 8.
Diversity of citizenship exists between the parties only if each plaintiff has a different citizenship from each defendant. Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1258 (5th Cir. 1988). Otherwise stated, 28 U.S.C. § 1332 requires complete diversity of citizenship; that is, a district court cannot exercise jurisdiction if any plaintiff shares the same citizenship as any defendant. See Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003) (citation omitted). "[T]he basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference." Getty, 841 F.2d at 1259 (citing Illinois Cent. Gulf
A natural person is considered a citizen of the state where that person is domiciled, that is, where the person has a fixed residence with the intent to remain there indefinitely. See Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 555-56 (5th Cir. 1985). "`Citizenship' and `residence' are not synonymous." Parker v. Overman, 59 U.S. 137, 141, 18 How. 137, 15 S.Ct. 318 (1855). "For diversity purposes, citizenship means domicile; mere residence in [a] [s]tate is not sufficient." Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 793, 799 (5th Cir. 2007) (citation and quotation marks omitted). "Domicile requires residence in [a] state and an intent to remain in the state." Id. at 798 (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)).
A partnership or unincorporated association's citizenship is determined by the citizenship of each of its partners. Carden v. Arkoma Assocs., 494 U.S. 185, 195-96, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990). The citizenship of a limited liability company "is determined by the citizenship of all of its members." Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008) (citations omitted). A corporation is a "citizen of every State ... by which it has been incorporated and of the State ... where it has its principal place of business[.]" 28 U.S.C. § 1332(c)(1).
Plaintiffs allege that Klayman is a citizen of Florida. Pls.' Am. Compl. ¶ 16. Plaintiffs make no allegations regarding the citizenship of Pennie.
With respect to Defendants, Plaintiffs make the following allegations pertaining to citizenship:
Id. ¶ 9 (emphasis added).
First, absent any allegations pertaining to Plaintiff Pennie's citizenship, Plaintiffs have failed to allege complete diversity of citizenship, a requirement for subject matter jurisdiction under 28 U.S.C. § 1332(a). See Corfield, 355 F.3d at 857. Without allegations of Pennie's citizenship, the court cannot determine whether any Plaintiff shares the same citizenship as any Defendant. For this reason alone, the
Second, Plaintiffs' allegations pertaining to the citizenship of each Defendant are all made "[o]n information and belief," which is inadequate "since citizenship must be distinctly and affirmatively alleged." See Getty Oil, 841 F.2d at 1259 (holding that allegation that defendant was not a citizen of particular states did not establish citizenship for diversity purposes, "since citizenship must be distinctly and affirmatively alleged.") (original emphasis) (internal quotation marks and citations omitted); see also Illinois Cent. Gulf R.R. Co., 706 F.2d at 636 & n.2 (holding that the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference); Philadelphia Indem. Ins. Co. v. Episcopal Diocese of Ft. Worth, 2011 WL 3510848, at *2 (N.D. Tex. Aug. 10, 2011) (Fitzwater, C.J.) (citing Getty Oil, 841 F.2d at 1259) ("It is improper to allege diversity of citizenship without distinctly and affirmatively alleging the citizenship of each party.").
Third, with respect to Defendants Reverend Sharpton, Turner, Cullors, Garza, Elzie, McKesson, and Soros, Plaintiffs allege they are citizens of particular cities. As already noted, a natural person is considered a citizen of the state where that person is domiciled, that is, where the person has a fixed residence with the intent to remain there indefinitely. See Freeman, 754 F.2d at 555-56. Whether a person is a citizen of a particular city is quite beside the point and does nothing to establish diversity.
Prior to filing their Amended Complaint, Plaintiffs had the ability to seek an extension of time to obtain necessary information or request jurisdictional discovery such that allegations of citizenship did not need to be made "on information and belief." Indeed, the Original Complaint (Doc. 1), filed July 9, 2016, contains the same inadequate jurisdictional allegations, made "[o]n information and belief," pertaining to each Defendant's citizenship as the Amended Complaint. Compare Compl. ¶ 9 (Doc. 1) with Pls.' Am. Compl. ¶ 9 (Doc. 16). When a plaintiff is represented by counsel, as in this case, the court should not have to educate counsel and underscore the significance of adequately pleading diversity of citizenship. Moreover, Plaintiffs have already had an opportunity to amend the complaint and do not request leave to further amend. As such, the court must assume that Plaintiffs have pleaded their best case and that allowing further amendment would be futile. In any event, allowing amendment would unnecessarily delay resolution of this action, and Plaintiffs have presented no justifiable reason for the court to further delay its rulings in this action.
"Federal courts are courts of limited jurisdiction. [A court] must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery, 243 F.3d at 916. Because the court must presume this suit lies outside its jurisdiction, and Plaintiffs have failed to plead and set forth distinctly and affirmatively the basis for which complete diversity of citizenship exists between the parties, they have not satisfied their burden that the court has subject matter jurisdiction over this matter under 28 U.S.C. § 1332(a). Accordingly, absent federal question or diversity jurisdiction, the court lacks subject matter jurisdiction.
It is undisputed that the remaining claims in this lawsuit are state law claims. Pursuant to 28 U.S.C. § 1367, the
28 U.S.C. § 1367(c). In addition, other factors a court is to consider in determining whether to exercise supplemental jurisdiction over a state law claim include judicial economy, convenience, fairness, and comity. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Enochs v. Lampasas Cty., 641 F.3d 155, 159 (5th Cir. 2011) (citing Carnegie-Mellon and referring to "judicial economy, convenience, fairness, and comity[ ]" as the "common law factors").
The court determines that the statutory factors set forth in 28 U.S.C. § 1367(c), as well as the common law factors, weigh in favor of declining to exercise supplemental jurisdiction over the state law claims. This determination is in accord with "[t]he general rule ... that a court should decline to exercise jurisdiction over remaining state-law claims when all the federal-law claims are eliminated before trial[.]" Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009); see also Parker & Parsley Petrol. Co. v. Dresser, 972 F.2d 580, 585 (5th Cir. 1992) ("Our general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed."). Furthermore, when the federal claims are dropped at an early stage of the litigation, the district court has a "powerful reason to choose not to continue to exercise jurisdiction." Enochs, 641 F.3d at 161 (quoting Carnegie-Mellon, 484 U.S. at 351, 108 S.Ct. 614). It is within the discretion of the district court to decide whether to retain jurisdiction over a case where all the federal claims have been eliminated and only state law claims remain. Id.
The court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(2). While the amount of time expended by the court is not insubstantial, the court has not issued a scheduling order; no discovery has occurred; and the case was filed on July 9, 2016, less than a year ago. Further, the court has made no
The judicial economy inquiry primarily focuses on the amount of judicial resources that have been expended on the case up to the point of dismissal or remand. See Enochs, 641 F.3d at 159-60. The judicial resources expended thus far are those related to Plaintiff Klayman's two unsuccessful requests that the undersigned recuse himself,
For these reasons, the court declines to exercise supplemental jurisdiction over the state law claims. 28 U.S.C. § 1367(c)(3). Accordingly, the court will deny as moot all remaining motions to dismiss. See Doc. 23 (United States' Motion to Dismiss); Doc. 32 (McKesson's Motion to Dismiss); Doc. 40 (Reverend Sharpton and NAN's Motion to Dismiss); Doc. 41 (Minister Farrakhan's Motion to Dismiss); Doc. 80 (Soros's Motion to Dismiss); Doc. 90 (Shabazz's Motion to Dismiss); Doc. 103 (Turner's Motion to Dismiss); Doc. 112 (Tometi and Cullors's Motion to Dismiss); and Doc. 141 (Secretary Clinton's Motion to Dismiss).
On November 25, 2016, Defendant McKesson filed a Motion for Sanctions Against Plaintiffs and Plaintiffs' Counsel (Doc. 74). In response, Plaintiffs filed a
Defendant McKesson moves for sanctions against Plaintiffs and Plaintiffs' counsel pursuant to Rule 11 of the Federal Rules of Civil Procedure. In support of his motion, McKesson argues, inter alia, that Plaintiffs' lawsuit is frivolous, that Klayman, as Plaintiffs' counsel, knew all substantive claims were without merit, knew that the court lacked personal jurisdiction over him, and knew that Plaintiffs lacked standing to bring this lawsuit, but nevertheless filed this lawsuit for the "improper purpose of garnering publicity for their views and harassing those with whom they disagree, instead of to remedy any legally cognizable injury." McKesson Mot. for Sanctions 19. In addition, McKesson argues that Klayman, based on his previous unsuccessful attempts to assert similar claims in other courts, should have known this lawsuit was frivolous. McKesson seeks sanctions against Plaintiffs Pennie and Klayman, individually, as well as against Klayman, as counsel for Plaintiffs, pursuant to Fed. R. Civ. P. 11, including an award of attorney's fees and expenses incurred defending against this lawsuit. Based on the record and evidence submitted, the court finds no basis to award sanctions against Plaintiffs personally, and, accordingly, the court focuses on the actions of Plaintiffs' counsel, Klayman.
Rule 11(b) provides, in pertinent part, that:
Fed. R. Civ. P. 11(b)(1)-(b)(3). Each obligation must be satisfied; a violation of any of the three obligations will provide independent bases for sanctions. See Whitehead v. Food Max of Mississippi, Inc., 332 F.3d 796, 803 (5th Cir. 2003); see also Walker v. City of Bogalusa, 168 F.3d 237, 241 (5th Cir. 1999).
Rule 11(c) provides that, "[i]f, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation." The trial court is given wide discretion in the imposition of sanctions. Mercury Air Group, Inc. v. Mansour, 237 F.3d 542, 548 (5th Cir. 2001). Rule 11(c) requires notice and a reasonable opportunity to respond.
Counsel for McKesson, Jacob Weixler, Esq., has provided the court with an Affidavit of Service stating that on November 3, 2016, he sent Plaintiff's counsel a draft of the Motion for Sanctions and Memorandum in Support "via email and U.S. Mail[.]" Def. McKesson Mot. at 22 and Ex. E thereto, Affidavit of Jacob Weixler ¶ 4 (App. at 42) (Doc. 74-2). Under Fed. R.
Given that Plaintiffs voluntarily dismissed Counts One through Three six days after being served with the draft Motion for Sanctions, the court will not consider Counts One through Three in ruling on McKesson's Motion for Sanctions. With respect to Counts Four through Six, Defendant McKesson has failed to marshal a persuasive argument that Counts Four through Six were not warranted by existing law or a good faith basis to extend, modify, or reverse existing law in violation of Rule 11(b)(2), or were filed in violation of Rules 11(b)(1) and 11(b)(3). The court has reviewed the cases upon which McKesson relies to support his argument that Klayman should have been on notice based on prior adverse judicial rulings that his claims in this lawsuit were frivolous. See Klayman v. Obama et al. (Firearms Executive Action), No. 16-cv-80087, 2016 WL 4431530 (S.D. Fla. June 16, 2016) (dismissed for lack of standing); Klayman v. Obama et al. (Iran Treaty), No. 15-81023, 2015 WL 5269958 (S.D. Fla. Sept. 10, 2015) (dismissed for lack of standing); Klayman v. Obama et al. (Ebola), No. 14-1704 (voluntarily dismissed by Plaintiff); Klayman v. Clinton et al., 668 Fed.Appx. 351, 352 (11th Cir. Aug. 15, 2016) (affirming dismissal for lack of standing). Having carefully reviewed the facts and rulings in these cases, the court rejects McKesson's argument that the prior adverse rulings should have put Klayman on notice that this action was frivolous. These other cases are too factually and legally dissimilar from this case for the court to reach such a conclusion. Accordingly, the court
In response to Defendant McKesson's Motion for Sanctions, Plaintiffs have filed a cross-motion for sanctions pursuant to 28 U.S.C. § 1927 for "having to expend [their] limited time and resources to respond to a meritless and frivolous pleading." Doc. 87 at 3. According to Plaintiffs, McKesson's Motion for Sanctions relies on "completely unrelated and factually distinguishable[ ]" matters, which is "evidence of Defendant McKesson's bad-fath attempt to confuse the Court and exploit what he perceives to be an extrajudicial bias in his favor." Id. at 4.
Pursuant to 28 U.S.C. § 1927:
To impose sanctions under 28 U.S.C. § 1927, the court must find that an attorney multiplied the proceedings "unreasonably" and "vexatiously," which requires "evidence of bad faith, improper motive, or reckless disregard of the duty owed to the court." Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 525 (5th Cir. 2002) (citations omitted). In response to Plaintiffs' Cross-Motion for Sanctions, Defendant McKesson contends that Plaintiffs "simply cannot meet their burden to show
Other than Plaintiffs' nonsensical and speculative statement that McKesson filed a Motion for Sanctions because he believed this court "harbors an extrajudicial bias in favor of Defendants," see Pls.' Resp. to Mot. for Sanctions 3 (Doc. 87), Plaintiffs have provided the court with no evidence from which the court is able to conclude that McKesson filed his Motion for Sanctions in "bad faith," with "improper motive," or in "reckless disregard of the duty owed to the court." Procter & Gamble, 280 F.3d at 525. In addition, McKesson has submitted evidence from which the court can conclude that Plaintiffs' Cross-Motion for Sanctions was itself filed for retaliatory purposes. Specifically, in response to an e-mail sent by McKesson's counsel, Jacob Weixler, to Klayman inquiring whether Plaintiffs opposed McKesson's Motion for Sanctions, Klayman stated:
Ex. A to McKesson Reply, App. at 2 (Doc. 95) (emphasis added). Klayman's e-mail response undermines the legitimacy of his Cross-Motion for Sanctions.
Accordingly, having considered the record and applicable law, the court determines that Plaintiffs have failed to establish that imposition of sanctions under 28 U.S.C. § 1927 is warranted and, accordingly, the court
Plaintiffs filed this case as a class action lawsuit but have yet to move for certification of the putative class pursuant to Rule 23 of the Federal Rules of Civil Procedure and Local Civil Rule 23.2. The court has dismissed all federal claims in this lawsuit, declined to exercise supplemental jurisdiction over the state law claims, and, therefore, denied as moot Defendants' respective motions to dismiss the state law claims. As there are no claims pending as to any Defendant in this action, any request for class certification is
For the reasons herein stated, the court orders as follows:
With respect to Defendants President Obama and General Holder, the court
With respect to Defendants Nation of Islam, Black Lives Matter, and New Black Panther Party, all claims are
With respect to Defendants Minister Farrakhan, Reverend Sharpton, NAN, Tometi, Cullors, Mckesson, Shabazz, Soros, and Secretary Clinton, Counts One, Two, and Three are
The court has dismissed all federal claims, and it lacks diversity jurisdiction. The court also has declined to exercise supplemental jurisdiction over any state law claims. Accordingly, the court
Finally, Defendant Deray Mckesson's Motion for Sanctions Against Plaintiffs and Plaintiffs' Counsel (Doc. 74) is
