COLLEEN KOLLAR-KOTELLY, District Judge.
Currently pending before the Court is Plaintiff Larry Klayman's ("Klayman") [345] Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This represents Klayman's second attempt to disqualify this Court in this case based on the allegation that certain of the Court's rulings, combined with the fact that the undersigned was appointed by former President William J. Clinton, are evidence that the Court has an extrajudicial bias or prejudice against him. As the Court previously made clear in denying Klayman's initial request for disqualification, such allegations are legally insufficient to support a request for disqualification. Klayman's most recent filings offer no new factual or legal support to the contrary. Accordingly, upon a searching review of Klayman's motion and the parties' respective briefing, the relevant case law and statutory authority, and the entire record herein, the Court shall DENY Klayman's [345] Motion to Disqualify the Court pursuant to 28 U.S.C. § 144. In addition, the Court has conducted its own independent review of the record and is satisfied that no reasonable and informed observer would question this Court's impartiality. Accordingly, for the reasons set forth below, the Court concludes that recusal is neither required nor warranted in this case.
The Court shall assume familiarity with the numerous opinions issued by both this Court and Magistrate Judge Alan Kay, which set forth in detail the factual background and allegations of this case, and shall therefore provide only a brief summary of the instant case as is necessary to provide context for resolution of the motion now before the Court. See Klayman v. Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 140978 (D.D.C. Jan. 17, 2007); Klayman v. Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 1034936 (Apr. 3, 2007); and Klayman v. Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 1034937 (Apr. 3, 2007). Defendant Judicial Watch, Inc. is a 501(c)(3) organization formed under the laws of the District of Columbia and headquartered in the District of Columbia. Klayman v. Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 1034937, at *2 (Apr. 3, 2007). Defendant Fitton is President of Judicial Watch, Defendant Orfanedes is the Secretary and a Director of Judicial Watch, and Defendant Farrell is a Director of Judicial Watch. Id. Plaintiff Larry Klayman is the self-described founder and former Chairman, General Counsel, and Treasurer of
Klayman's Second Amended Complaint and Judicial Watch's Amended Counterclaim in this action include various legal claims stemming from events that occurred after Klayman left Judicial Watch in September 2003. Id. Many of these claims arise out of the Severance Agreement entered into by Klayman and Judicial Watch on September 19, 2003. Id. The Court need not address the specifics of the parties' claims at this time, other than to note that, inter alia, Klayman asserts claims against the Defendants under the Lanham Act for unfair competition in the form of false advertising and false endorsements and for breach of contract relating to the Severance Agreement.2d Am. Compl. ¶¶ 97-106; 115-162. Judicial Watch asserts counterclaims against Klayman under the Lanham Act for trademark infringement, unfair competition in the form of false advertising and false association, and cybersquatting. Am. Count. ¶¶ 84-116.
The instant litigation was initially filed by Klayman on April 12, 2006. See generally Compl. Resolution of this matter has been delayed for several years, largely as a result of Klayman's own repeated failure to comply with the Court's deadlines in this matter. See, e.g., May 12, 2008 Order, Docket No. [166] (describing Klayman's efforts to "stonewall" and "obstruct[ ]" discovery in this matter); Mar. 24, 2009 Order, 256 F.R.D. 258 (D.D.C.2009), Docket No. [301] (describing the "voluminous number of filings in this case resulting from Klayman's obstinance at every stage of this case"); see also Klayman v. Judicial Watch, Inc., 628 F.Supp.2d 98, 106-08 (D.D.C.2009) (describing Klayman's demonstrated failure to comply with Court-ordered deadlines).
The parties finally reached the summary judgment stage in late 2008. However, after the parties' cross-motions for summary judgment were ripe but before the Court had an opportunity to rule on them, Klayman filed his first request for disqualification of this Court. See Pl.'s Mot. for Recusal and/or Disqualification, Docket No. [298]. Klayman moved the Court to recuse itself pursuant to 28 U.S.C. § 455(a), which permits a litigant to seek recusal of a federal judge "in any proceeding in which his impartiality might reasonably be questioned." As set forth in his motion, Klayman alleged that recusal was warranted under section 455(a) for largely the same reasons he now claims require recusal under section 144, namely: (1) various rulings issued by the Court created an appearance of bias against him; and (2) that the undersigned was appointed to the federal bench by former President Clinton, against whose administration Klayman was a self-described "strong and controversial advocate," created an appearance of bias as well. See id. By Order and Memorandum Opinion dated June 25, 2009, the Court denied Klayman's motion for recusal, finding that "Klayman's allegation that recusal is warranted or that an appearance of bias against him has been created because of the Court's rulings in this case, along with the fact that the undersigned was appointed by former President William J. Clinton, completely lack merit." Klayman v. Judicial Watch, Inc., 628 F.Supp.2d 98, 111 (D.D.C.2009). The Court therefore proceeded to rule on the parties' cross-motions for summary judgment.
With the parties' dispositive motions resolved, the instant case proceeded to the pretrial stage of litigation, and the Court held an initial pretrial status conference on
Klayman, however, did not file the required modifications to the Joint Pretrial Statement by July 12, 2010, as ordered, instead filing that same day a Motion to Stay all Proceedings Pending Adjudication of Motion to Disqualify Trial Judge. See Docket No. [341]. Importantly, Klayman did not actually file the proposed motion to disqualify at that time; he instead simply indicated that he intended to file a motion to disqualify pursuant to section 144 by no later than July 16, 2010, and therefore requested a stay of all proceedings.
As set forth in the present Motion to Disqualify, Klayman contends that disqualification of this Court is necessary because: (1) judicial rulings in this case, and in a separate, unrelated civil action in which Klayman serves as counsel of record, are evidence of the Court's extrajudicial bias against him; and (2) the undersigned was appointed to the federal bench by former President Clinton and is alleged to have connections to and associations with the Democratic party, and is therefore biased against Klayman, who states that he filed numerous lawsuits against the Clinton administration and has a self-described reputation of being "anti-Democratic." See generally Pl.'s Mot. to Disqualify. Defendants filed an opposition to the Motion on August 12, 2010, asserting that it is both untimely and legally insufficient to support disqualification in this case and is yet another attempt by Klayman to further delay resolution of this matter. See Defs.' Opp'n, Docket No. [347]. After a delay of three weeks resulting from Klayman's multiple requests for an extension of time, see Docket Nos. [349]; [350]; [351]; [352], Klayman filed a reply in support of his Motion on September 15, 2010. See Pl.'s Reply, Docket No. [354]. Accordingly, the
To recuse a judge under section 144, a litigant must submit, along with its motion, an affidavit stating "the facts and the reasons for [its] belief that bias or prejudice exists." 28 U.S.C. § 144. Upon the filing of a "timely and sufficient affidavit," section 144 mandates that the assigned "judge shall proceed no further, but another judge shall be assigned to hear such proceeding." Id.; see also Bhd. of Locomotive Firemen and Enginemen v. Bangor & Aroostook R.R. Co., 380 F.2d 570, 576 (D.C.Cir.1967) ("The disqualification statute, 28 U.S.C. § 144, is mandatory and automatic, requiring only a timely and sufficient affidavit alleging personal bias or prejudice of the judge."). "Importantly, the mere fact that a party has filed a § 144 motion, accompanied by the requisite affidavit and certificate of counsel, does not automatically result in the challenged judge's disqualification." Robertson v. Cartinhour, 691 F.Supp.2d 65, 77 (D.D.C. 2010); see also United States v. Miller, 355 F.Supp.2d 404, 405 (D.D.C.2005) ("disqualification is not automatic upon submission of affidavit and certificate"). Rather, recusal is required only upon the filing of a "timely and sufficient affidavit." 28 U.S.C. § 144.
The question of whether the motion and supporting affidavit is both timely and legally sufficient is for this Court to determine in the first instance. United States v. Haldeman, 559 F.2d 31, 131 (D.C.Cir. 1976) ("It is well settled that the involved judge has the prerogative, if indeed not the duty, of passing on the legal sufficiency of a Section 144 challenge."); see also United States v. Heldt, 668 F.2d 1238, 1272 n. 69 (D.C.Cir.1981) (noting that "under section 144 ... the transfer to another judge for decision is `at most permissive'") (quoting Haldeman, 559 F.2d at 131). First, with respect to the timeliness of the motion, section 144 is itself silent as to "what the timeliness requirement means where, as in this case, the recusal motion rests on events occurring after proceedings began." S.E.C. v. Loving Spirit Found., Inc., 392 F.3d 486, 492 (D.C.Cir. 2004). In such circumstances, courts "have required the affidavit to be filed `at the earliest moment.'" Id. As the D.C. Circuit has made clear, the timeliness requirement is "[c]rucial to the integrity of the judicial process," as it "ensures that a party may not wait and decide whether to file based on `whether he likes subsequent treatment that he receives.'" Id. (quoting In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st Cir.1960)).
Second, in determining whether the affidavit sets forth a legally sufficient basis for disqualification, the Court "must accept the affidavit's factual allegations as true even if the judge knows them to be false." Loving Spirit Found., 392 F.3d at 496; see also United States v. Hanrahan, 248 F.Supp. 471, 474 (D.D.C.1965) ("when presented with an application and affidavit such as this one, a Court may not pass upon the truth or falsity of the allegations, but must accept them as true for the purpose of determining the legal sufficiency of the affidavit"). However, the affidavit "must state facts as opposed to conclusions, and while the information and belief of the affiant as to the truth of the allegations are sufficient, mere rumors and gossip are not enough." Hanrahan, 248 F.Supp. at 474 (internal citations omitted). "The identifying facts of time, place, persons, occasion and circumstances must be set forth, with at least that degree of particularity one would expect to find in a bill of particulars." Id. (internal citations
Once it is established that the affidavit has been properly certified by counsel of record and that the facts set forth therein have been stated with sufficient particularity, the Court must then
Hanrahan, 248 F.Supp. at 475-76 (internal citations and quotations omitted). "Importantly, to be disqualifying, the alleged bias usually `must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" Robertson, 691 F.Supp.2d at 78 (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)); see also Liteky v. United States, 510 U.S. 540, 554, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (predispositions developed during proceedings are rarely sufficient). For the reasons set forth below, the Court finds that the Motion to Disqualify and supporting Affidavit are both untimely and legally insufficient to support disqualification.
As observed above, the timeliness requirement is "[c]rucial to the integrity of the judicial process" and is intended to ensure that a party is not simply filing the motion on the basis of subsequent unfavorable rulings or treatment by the Court. Loving Spirit Found., 392 F.3d at 492. Even the briefest review of the docket in this case confirms that Klayman's Motion to Disqualify is far from timely. For this reason alone, the motion must fail. See id. (affirming dismissal of untimely motion to disqualify under section 144).
First, to the extent the request for disqualification is based on the undersigned's alleged association with the Democratic Party and appointment to the federal bench by former President Clinton, it is readily apparent that Klayman did not file the instant motion at the "earliest moment." Klayman should have been aware as early as April of 2006, when this case was originally assigned to this Court, that the undersigned had been appointed by former President Clinton. Moreover, the
Second, insofar as Klayman's Motion to Disqualify is premised on the Court's rulings in this case, the Motion is equally untimely. Klayman complains of decisions in this case dating as far back as 2008, with the most recent substantive ruling identified in the Affidavit having been issued in June 2009, more than a year prior to the filing of the instant Motion. See Pl.'s Aff. ¶ 13. In particular, Klayman identifies the following decisions by this Court as demonstrating bias and/or prejudice, listed below in chronological order:
Given that Klayman's allegations of bias focus on rulings that were all issued at least one year, and in some cases more than two years, prior to the filing of his section 144 Motion, it is clear that Klayman's Motion to Disqualify is untimely insofar as it is based on the Court's rulings in this case. See Loving Spirit Found., 392 F.3d at 492-93.
Such a finding is particularly warranted where, as here, Klayman has continued to actively participate in the present litigation, despite the occurrence of the events of which he now complains. In the intervening time period since the Court first issued the rulings identified by Klayman in his Affidavit, the parties have completed summary judgment briefing, the Court has ruled on the merits of those motions, and the parties have begun preparing for trial in this matter. Klayman's participation in each of these substantive stages of litigation further counsels against disqualification. Id. at 493 ("courts have observed that filing motions between the events complained of and submission of the affidavit weighs heavily against a finding of timeliness"). Indeed, Klayman himself alleges that this Court has acted with bias and/or prejudice towards him "over the years." Pl.'s Aff. ¶ 4. Yet, despite this claim, Klayman waited until shortly before the final pretrial status conference in this case to file the instant Motion to Disqualify. The timing of the motion strongly suggests that this is yet another attempt by Klayman to delay final resolution of the pending litigation and to avoid rulings that may be unfavorable to his case. Cf. S.E.C. v. Grossman, 887 F.Supp. 649, 658 (S.D.N.Y.1995) (finding motion to disqualify untimely where party "chose to delay any motion and gamble" on outcome of substantive rulings); E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1296 (9th Cir.1992) (affirming denial of motion to disqualify where "unexplained delay suggest[ed] that the recusal statute [was] being misused for strategic purposes").
Moreover, as to these first two allegations of bias, the Court's finding of untimeliness is further supported by the fact that these same allegations formed the basis of Klayman's first motion to disqualify this Court under 28 U.S.C. § 455(a) filed in February of 2009. See Mot. for Recusal and/or Disqualification, Docket No. [298]. Pursuant to 28 U.S.C. § 455(a), a judge is required to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Given that these alleged sources of bias were known to Klayman at the time of the filing of his first motion to disqualify in February 2009, it is clear that the present Motion to Disqualify—based on those same factual allegations but filed more than a year and a half later—is untimely. At a minimum, Klayman should have moved for recusal under section 144 at the same time that he moved for recusal under section 455(a), to the extent that both motions are premised on the same allegations of bias. Klayman has offered no explanation for such a lengthy delay in filing the present motion.
Accordingly, to the extent Klayman's Motion is based on the Court's alleged political affiliations and its rulings in this case, his unexplained delay in filing the Motion to Disqualify renders the Motion
In addition, although neither party has raised the issue, the Court notes that section 144 requires that a party's affidavit submitted in support of a motion for disqualification under this statutory provision "be accompanied by a certificate of counsel of record stating that it is made in good faith." 28 U.S.C. § 144. The certification requirement is not simply a pro forma procedural obligation but is key to the integrity of the recusal process. Because the Court must accept as true all factual allegations asserted in the affidavit, even if the Court knows such allegations to be untrue, the certification requirement is essential to "guard against the removal of an unbiased judge through the filing of a false affidavit." Loving Spirit Found., 392 F.3d at 496. The certification requirement therefore serves as a "check on abuse of the recusal process," assuring the Court that the statements in the affidavit are made in good faith. Id. Given the importance of the certification, the failure to comply with this requirement is not simply a procedural error. United States v. Miller, 355 F.Supp.2d 404, 405-06 (D.D.C. 2005) ("failure to make this certification is grounds for denying the motion").
Here, there are two problems with the certification submitted by Klayman in support of this Motion to Disqualify. First, although Klayman is himself a licensed attorney admitted to practice before this Court, he is acting as a pro se Plaintiff in the instant action and not as counsel of record. Whether a pro se litigant is in fact able to file a motion for disqualification under section 144, notwithstanding the statutory requirement that the accompanying affidavit be certified as made in good faith by the "counsel of record," appears to
Second, although Klayman has purported to file his own certification of good faith under section 144, he has certified therein only that the "motion is being filed in good faith;" he has not similarly certified that the accompanying Affidavit and the substantive factual allegations contained therein have also been filed in good faith. See Pl.'s Mot. to Disqualify at 1-2. Nor does his Affidavit itself contain any language certifying that the factual allegations set forth therein have been submitted in good faith. See generally Pl.'s Aff. Accordingly, even assuming that Klayman's own certification of good faith as a pro se litigant is sufficient under section 144, Klayman has not presented a signed "certificate stating that both the motion and declaration are made in good faith." Loving Spirit Found., 392 F.3d at 496 (emphasis added). Again, however, because the Court finds that the substantive factual allegations set forth in the Affidavit, even if considered on the merits, are not legally sufficient to warrant disqualification, the Court shall proceed to consider the merits of the present Motion to Disqualify, notwithstanding Klayman's failure to submit a certification of good faith, either by himself as a pro se litigant or by counsel of record, as to both the motion and affidavit.
Ultimately, Klayman's Motion to Disqualify must be denied because the facts set forth in the supporting Affidavit, even if accepted as true, are legally insufficient to demonstrate actual bias warranting disqualification under section 144. Moreover, the Court has also conducted its own independent review of the record in this case, including Klayman's present Motion and Affidavit, and is satisfied that no reasonable and informed observer would question this Court's impartiality. Indeed, the Court has already ruled that allegations of bias based on the Court's appointment by former President Clinton and the Court's judicial rulings are legally insufficient to warrant or justify disqualification. See Klayman v. Judicial Watch, Inc., 628 F.Supp.2d 98 (D.D.C.2009).
First, as the Court has previously made clear, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555, 114 S.Ct. 1147. Such rulings by themselves "cannot possibly show reliance upon an extrajudicial source" and "can only in the rarest circumstances evidence the degree of favoritism or antagonism required ... when no extrajudicial source is involved." Id. Here, although Klayman complains that the Court has ruled unfavorably against him, he has failed to identify with the required degree of particularity any extrajudicial source of bias related to the Court's rulings. See generally Pl.'s Aff. As the Court's discussion above makes clear, "to be disqualifying, the alleged bias usually `must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" Robertson, 691 F.Supp.2d at 78 (quoting Grinnell Corp., 384 U.S. at 583, 86 S.Ct. 1698); see also Liteky, 510 U.S. at
The Court has previously addressed in great detail many of Klayman's complaints regarding the Court's rulings in the instant case, and therefore need not do so again here, as it is clear that such rulings do not constitute a valid basis for recusal. See Klayman v. Judicial Watch, Inc., 628 F.Supp.2d 98, 101-10 (D.D.C.2009). Moreover, to the extent Klayman complains of the Court's decisions in the Sataki matter, the Court notes that the plaintiff in that action has voluntarily dismissed nearly all of the substantive claims in that case, see Civ. Action No. 10-534, Docket No. [67] (Notice of Voluntary Dismissal), and has failed to appeal the Court's ruling denying her request for a preliminary injunction. The D.C. Circuit has cautioned that under such circumstances, "even if a particular ruling or a series of rulings revealed bias, we doubt very much that a recusal motion would be proper where, as here, the movant could have appealed the challenged decisions but failed to do so." Loving Spirit Found., 392 F.3d at 494.
Thus, while it is clear that Klayman is displeased with the Court's rulings in the instant action and in the Sataki matter, his disagreement with the Court's decisions does not provide a proper ground for recusal. Liteky, 510 U.S. at 555, 114 S.Ct. 1147. As the D.C. Circuit has aptly observed, "if disqualification were required `merely as a result of counsel's disagreement with judicial conclusions reached in the course of litigation, the judicial system would grind to a halt.'" Loving Spirit Found., 392 F.3d at 494 (quoting Barnett v. City of Chicago, 952 F.Supp. 1265, 1269 (N.D.Ill.1997)). Klayman's allegations of bias premised on the Court's judicial rulings
Second, as the Court has previously made clear, the fact that the undersigned was appointed to the federal bench by former President Clinton, of whom Klayman has allegedly been critical in the past, does not warrant or justify disqualification. See Klayman v. Judicial Watch, Inc., 628 F.Supp.2d 98, 110-11 (D.D.C. 2009) ("[I]t is clear that the mere fact that the undersigned was appointed by the former Clinton administration—where former President Clinton is neither a party to or otherwise involved with this lawsuit—does not warrant or require recusal in the instant case."). Nor does the claim that the Court is allegedly connected to and associated with the Democratic party, even if assumed true, support recusal of this Court. The case law is clear that recusal is not warranted in this circumstance. See Karim-Panahi, 105 Fed.Appx. at 274-75 (affirming lower court's denial of motion for recusal based on allegations that the judge was "biased because of her `political-religious connections' and her alleged loyalty to those who selected, confirmed and appointed her"); see also MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir.1998), cert. denied, 525 U.S. 874, 119 S.Ct. 175, 142 L.Ed.2d 143 (1998) (plaintiff's
MacDraw, 138 F.3d at 38. Indeed, courts have held that recusal is not warranted even when the President responsible for nominating the judge is actually a party to the litigation. See, e.g., In re Executive Office of President, 215 F.3d 25, 25 (D.C.Cir.2000) ("Hearing a case involving the conduct of the President who appointed me will not create in reasonable minds, with knowledge of all relevant circumstances that a reasonable inquiry would disclose, a perception that [my] ability to carry out judicial responsibilities with integrity, impartiality, and competence
In conclusion, the Court finds that Klayman has failed to submit a "timely and sufficient affidavit" as is required to support disqualification under 28 U.S.C. § 144. First, the Motion to Disqualify and supporting Affidavit were not timely filed at the "earliest moment," and the Motion must be denied for this reason alone. Second, Klayman has failed to comply with the certification requirement set forth in 28 U.S.C. § 144. Third and finally, the factual allegations set forth in the Affidavit are, even if true, legally insufficient to support a finding that the Court has an actual extrajudicial bias or prejudice. The Affidavit largely consists of conclusory assertions and opinions, which lack the necessary degree of particularity required in a section 144 affidavit. Moreover, neither of the grounds asserted in Klayman's Affidavit warrant or require disqualification under section 144. It is well settled that complaints regarding the Court's judicial rulings in this case as well as in the separate, unrelated Sataki matter do not provide a proper ground for recusal. Although it is clear that Klayman is displeased with the substance of certain of those decisions, disqualification is not required merely because he disagrees with the Court's judicial rulings, and Klayman has failed to identify with particularity any alleged extrajudicial source of bias. It is also equally established that disqualification is not warranted or required merely because the undersigned was appointed to the federal bench by former President Clinton and is alleged to have connections to and associations with the Democratic party.
Accordingly, consistent with its obligation to determine in the first instance whether the Motion and supporting Affidavit are timely filed and legally sufficient to require disqualification, the Court finds that the instant Motion to Disqualify is both untimely and legally insufficient. Disqualification under 28 U.S.C. § 144 is therefore neither required nor warranted.