Carrington v. Graden

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ROVIER CARRINGTON,

Plaintiff,

-v.-

18 Civ. 4609 (KPF)

BRIAN GRADEN; BRIAN GRADEN MEDIA, LLC;

VIACOM, INC.; VIACOM INTERNATIONAL, ORDER

INC.; PARAMOUNT PICTURES CORPORATION;

BRAD GREY; BRAD GREY ESTATE; and BRAD

ALAN GREY TRUST,

Defendants.

KATHERINE POLK FAILLA, District Judge:

Plaintiff Rovier Carrington filed an action in state court that was removed

to this Court in May 2018. After 17 months of protracted litigation, the Court

dismissed the action with prejudice after determining that Carrington had

fabricated, or caused to be fabricated, several key emails, and then lied about

their provenance. Undeterred, Carrington then sought to pursue an order of

protection in state court on related claims, again with fabricated documents,

and again without success. Carrington’s efforts have resulted in Defendants

incurring nearly $1 million in legal fees to prove Carrington’s perfidy, to say

nothing of the reputational damage caused by his allegations.

The Court understands that Carrington wishes to restart the cycle of

litigation with new counsel, and to bring another lawsuit alleging substantially

overlapping claims in another jurisdiction. Defendants have moved for

injunctive relief on an expedited basis, and the Court held a hearing on their

motion on September 10, 2020. As set forth in the remainder of this Order, the

Court retains the authority to enjoin Carrington from engaging in further

vexatious litigation, and it does so here by enjoining him from commencing,

without express prior leave of this Court, any new action in federal or state

court arising from or relating to the same subject matter that was addressed in

the instant action.

BACKGROUND

A. The Instant Case and Its Resolution

1. The Concerns Regarding Fabricated Emails

Carrington filed his initial Complaint in New York County Supreme Court

on May 1, 2018, and it was removed to this Court on May 24, 2018. (Dkt. #1).

Carrington then filed an Amended Complaint on June 20, 2018. (Dkt. #40).

The Amended Complaint included, among others, claims of antitrust violations,

fraud, breach of contract, unfair competition, theft of trade secrets, and

tortious interference. Such anodyne descriptions, however, fail to capture the

heart of Carrington’s claims, which was that he was passed around among

powerful figures in Hollywood and coerced into sexual relationships, only to see

his career prospects stalled and his intellectual property stolen when he

refused.

Carrington’s allegations were noteworthy for their salaciousness. Very

shortly after being served, however, Defendants announced that certain key

emails appended by Carrington to his Complaint were fabricated. Between the

filing of the original and the amended complaints, Defendants presented

evidence of fabrication to Carrington and the Court. (See, e.g., Dkt. #34; see

also Dkt. #170 at 34-35 (referencing efforts by counsel for the Graden

Defendants on May 3, 2018, to explain falsity of allegations to Carrington’s

counsel)). Carrington nonetheless continued to include those emails in his

Amended Complaint.

From there, the parties and the Court embarked upon a 15-month saga

investigating the provenance of the challenged emails. Defendants presented

evidence in support of a request for targeted discovery on this topic (Dkt. #56),

and after listening to both sides at a pretrial conference held on July 17, 2018

(Minute Entry for July 17, 2018), the Court signed an Order for Limited

Discovery Concerning the Authenticity of Communications (Dkt. #64). Over

the period from August 2018 until October 2019, Carrington’s counsel

withdrew; Carrington attempted to transfer venue; Carrington attempted to

withdraw his lawsuit without prejudice; the parties presented evidence and

competing expert testimony on the issue of the emails’ provenance; and the

Court scheduled, and repeatedly rescheduled, a hearing at which the issue of

sanctions could be discussed. (See, e.g., Dkt. #70, 71, 73-145). On August 27,

2019, after learning from Carrington that (i) he was no longer experiencing the

issues that rendered him unable to travel to this Court, and (ii) counsel would

soon be entering an appearance on his behalf, the Court scheduled a hearing

on Defendants’ sanctions application for October 11, 2019, and made clear

that Carrington would be required to attend even if his counsel had failed to

appear by that time. (Dkt. #144).

2. The October 11, 2019 Sanctions Hearing

Carrington’s counsel did not enter a notice of appearance, and the

hearing went on without Carrington or his counsel on October 11, 2019. (Dkt.

#170 (transcript)). At its conclusion, the Court dismissed Carrington’s case

with prejudice after making the following findings about the resources

Defendants, and the Court, were forced to expend because of Carrington’s

fraud:

[T]here was an effort made to undertake — to figure out

how these emails came to be. There was a subpoena

return from Google, which confirmed that the

Trendsetter account was, in fact, deactivated on June

19th of 2018, one day after the amended complaint was

filed and after the first preservation order was sent.

We also found out, during the course of the hearing in

February of 2019, that the plaintiff turned in his iPhone

7, which he represented to me to be the vehicle used to

transmit all of the communications after the initial

preservation order.

After that, I received several declarations from

nonparties, along with the forensic expert declaration,

suggesting that these emails did not, in fact, exist in Mr.

Graden’s, Mr. Logan’s, or Darren Stein’s accounts. I

asked for — I ordered limited discovery and the

preservation of any communications concerning any

portion of the at-issue communications. I then selected

FTI as a neutral examiner.

FTI’s investigation found — of the Gmail account and

the Carrington Diaries account, found none of the

native versions besides the one whose validity was not

contested. And plaintiff informed the Court that the

Trendsetter account had been deactivated for years,

which is why no effort was undertaken to review it.

The investigation by FTI did find the forwards that

Carrington sent to the Landau firm, his prior counsel,

but none of the underlying emails. Plaintiff provided an

affidavit from his own expert, stating that he had

transferred the contents of the Trendsetter account to

the Carrington Diaries account in 2017, but no natives

of the emails purportedly sent from the Trendsetter

account were found in the Carrington Diaries account,

and the defendants assert that the absence of these

native emails, coupled with the existence of the

forwarded emails, just could not be explained.

Plaintiff responded that he had been the victim of a

hack. The defendants observed that a hack could not

explain why the one valid email still existed and why the

forwarded emails from Mr. Carrington to the Landau

group remained.

***

In February of 2019, I issued an order that subpoenas

be issued to GoDaddy, Microsoft, and Google, the

Internet service providers for plaintiff’s three email

accounts, to obtain subscriber information,

nonsubscriber information, and that FTI conduct an

analysis of the iPhone 10, plaintiff’s phone, and emails

produced to or by the ISPs. The subpoena to Google

revealed that the Trendsetter account had only been

deactivated the day after the amended complaint was

filed and not years earlier, as had been repeatedly

represented.

The GoDaddy returns, which it should be noted are

not — I’ll be brief about this, because they’re not in the

public filings, but there was an indication that the

Carrington Diaries account had been closed and deleted

by plaintiff on or about September 8th of 2018, one

month after the Court’s order to preserve evidence.

The GoDaddy production also revealed that plaintiff

reached out to GoDaddy to confirm that a subpoena

would not return information about emails within a

deleted account. The returns also show repeated

password changes throughout 2018, undercutting a

previous claim that had been made that one of the

defendants might have known of Mr. Carrington’s

password and hacked into his account.

The returns for the Gmail account produced no

instances of the at-issue communications. FTI

[reviewed] the plaintiff’s most recent and current

iPhone, and it concluded that Mr. Carrington’s data had

migrated from the previous iPhone, but, again, found no

evidence of the at-issue communications in any of those

accounts.

(Dkt. #170 at 35-39).

In explaining its decision to dismiss the Amended Complaint with

prejudice, the Court emphasized Carrington’s evolving, but consistently false,

explanations for the emails:

Mr. Carrington has never provided an explanation for

how the forwards exist in the accounts for emails that

were sent — let me say that more precisely. The

explanation he has not provided is an explanation of

how the forwards exist in the Carrington Diaries

account for emails that were sent by the Trendsetter

account when there is no evidence of the emails being

sent from the Trendsetter account to the Carrington

Diaries account. It makes no sense to me.

I also do not understand what possessed Mr. Carrington

to turn over his iPhone in the middle of this litigation,

in the middle of this dispute about the authenticity of

these emails. All that I can conclude is that in every

instance where the plaintiff appears, again, to use the

vernacular, to be caught, he attempts to argue

something new, that these issues are the result of

someone else’s doing, that they are the result of the

hacking by one of the defendants or by defense counsel,

and it’s all just one large conspiracy. I have difficulty,

and indeed I cannot, credit that. I have enough sworn

statements and enough exploration of what I do have to

suggest that this is not the case.

And as I’ve mentioned, the purported hack does not

explain why Mr. Graden has similar-looking emails that

match in part, but not in whole, the at-issue

communications.

Instead, there is an explanation from plaintiff, but I just

don’t credit it. It’s another coverup involving Mr.

Graden and Mr. Stein. Every time the defense has

produced compelling evidence of spoliation, of

fabrication, of obstruction of the litigation in this case,

the plaintiff has provided an explanation. And I believe

that going forward, every time it happens, he will

provide yet another explanation. They are of

increasingly tenuous credibility, and they can’t explain

what I have in the record.

For these reasons, I can find, even under a clear and

convincing evidence standard, that Mr. Carrington has

sentiently set in motion some unconscionable scheme,

calculated to interfere with the judicial system’s ability

impartially to adjudicate the action, referring to the

Scholastic decision I cited earlier to the parties.

(Dkt. #170 at 48-49).

3. The Explanations for Carrington’s Non-Appearance

As noted, Carrington did not appear for the October 11 hearing, though

an individual purporting to be his attorney requested an adjournment two days

prior to the hearing, which request was denied. Two months later, in January

2020, Carrington emailed the Court to advise that he had in fact failed to

appear because he had been threatened by Defendant Graden with murder,

and that he had instead spent the day obtaining an ex parte restraining order

in Los Angeles.1 The news struck the Court as implausible, given the

procedural history that had immediately preceded the hearing; it advised

Carrington that it could not accept his ex parte submission, but that he could

1 The Court repeats this information in this Order because the underlying allegations of

threats by Graden are now known to all Defendants.

file it under seal, where it would be viewable to the Court and parties only.

(Dkt. #172). Carrington elected not to file anything under seal.

B. The Proceedings in Los Angeles Superior Court

At a telephonic hearing held on September 10, 2020, on Defendants’

motion for injunctive relief, to which Carrington and his current counsel (the

Court understands that he prefers the term “future,” in part to explain why

counsel declined to appear at the hearing) were invited, the Court learned more

about Carrington’s order of protection, and his modus operandi was brought

into sharper relief. A transcript of the September 10 telephonic hearing has

not yet been prepared, and so the Court presents this information from its own

notes:

Counsel for Graden represented — as an officer of the Court and without

dispute from anyone else at the hearing — that Carrington obtained a

temporary order of protection on or about October 11, 2019. Graden filed his

opposition on or about November 1, 2019. The opposition included, among

other things, evidence that Graden had had no contact with Carrington during

the relevant time period; that Graden’s phone records evidenced no contact;

and that Graden had work-related meetings with others at times he was

supposed to be communicating with Carrington. At a hearing on the order of

protection held on or about November 5, 2019, the presiding judge observed

the disconnect in the parties’ phone records and asked counsel to exchange the

records. Thereafter, an expert witness in cellular telephones explained to

Graden’s counsel how Carrington had “spoofed,” or caused to be “spoofed,”

Graden’s telephone number(s) to make it appear that Graden had contacted

Carrington, when in fact the calls had been placed through a web application.

For this reason, Carrington (the putative recipient) showed Graden’s phone

numbers in his records, while Graden (the putative caller) showed nothing in

his. After counsel for Graden provided this information to prior counsel for

Carrington, the latter “stopped responding.”

At the next hearing on the order of protection, held in February 2020,

neither Carrington nor his counsel appeared. The court advised counsel for

Graden that counsel for Carrington had contacted the court to advise it of

Carrington’s intention to withdraw his application without prejudice to its

refiling. After hearing from counsel for Graden, the court dismissed the matter

with prejudice, and scheduled briefing on Graden’s application for sanctions.

Whether to justify his failure to appear in this Court or to start over in a

different court, Carrington resorted, again, to a trifecta of obstructive conduct:

fabrication of evidence, efforts to withdraw his litigation without prejudice

when the fraud was uncovered, and, ultimately, non-appearance in court.

Though the conduct was limited to only one of the Defendants in this case, the

litigation and reputational costs remained significant.

C. The Threatened Litigation

By letters dated September 4 and 8, 2020 (Dkt. #174, 178), Defendants

advised the Court that Carrington intends to sue them again. The Court has

reviewed the demand letters from Carrington’s current counsel. In large

measure, the contemplated causes of action, and the factual support therefor,

replicate those in the Amended Complaint; however, Carrington’s additional

claims are no less troubling. Carrington accuses counsel for Graden of acting

in a manner that, if true, would assuredly subject him to not just professional

discipline, but also disbarment and perhaps even criminal prosecution. Worse

yet, Carrington puts a false gloss on the sanction proceedings in this Court,

suggesting among other things that the Court either colluded with, or was

bribed by, one or more Defendants. At the September 10 hearing, Defendants

explained at length the toll — financial and emotional — that Carrington’s

conduct had exacted from their clients, and sought redress.

DISCUSSION

The Court Grants Defendants’ Request for Injunctive Relief

It “is beyond peradventure” that this Court possesses the authority to

enjoin Carrington from further vexatious litigation. Safir v. U.S. Lines, Inc., 792

F.2d 19, 23 (2d Cir. 1986). “In determining whether to restrict a litigant’s

future ability to sue, a court must consider ‘whether a litigant who has a

history of vexatious litigation is likely to continue to abuse the judicial process

and harass other parties.’” Eliahu v. Jewish Agency for Israel, 919 F.3d 709,

713-14 (2d Cir. 2019) (quoting Safir, 792 F.2d at 24). Specifically, the Second

Circuit has required district courts to consider the following factors:

[i] the litigant’s history of litigation and in particular

whether it entailed vexatious, harassing[,] or duplicative

lawsuits; [ii] the litigant’s motive in pursuing the

litigation, e.g., does the litigant have an objective good

faith expectation of prevailing?; [iii] whether the litigant

is represented by counsel; [iv] whether the litigant has

caused needless expense to other parties or has posed

an unnecessary burden on the courts and their

personnel; and [v] whether other sanctions would be

adequate to protect the courts and other parties.

Id. at 714 (quoting Iwachiw v. N.Y. State Dep’t of Motor Vehicles, 396 F.3d 525,

528 (2d Cir. 2005) (per curiam)).

Upon consideration of the above factors, the Court finds that an

injunction enjoining Carrington from filing further lawsuits is both warranted

and necessary. First, the Court finds that Carrington’s past and present

behavior evinces a clear intent to further abuse the judicial process. Although

the Court acknowledges that Carrington has, as of yet, only filed two lawsuits

against Defendants, the Second Circuit has been clear that “[t]here is no[] …

strict numerosity requirement that must be met … to enjoin a litigant from

filing future actions. Rather, the court must consider the record as a whole

and the likelihood that the litigant will continue to abuse the judicial process.”

Eliahu, 919 F.3d at 714 (citing Safir, 792 F.2d at 24). Carrington has now

twice engaged in a pattern of filing outrageous claims, fabricating evidence,

attempting to escape the consequences of such fabrication, and then refusing

to appear in court, and all evidence indicates that he is preparing for a third

attempt. The first factor therefore weighs in favor of granting the injunction.

Second, there is no reason to afford Carrington any special solicitude, as

the Court would were he a pro se litigant. See Eliahu, 919 F.3d at 715 (noting

that, “[i]n considering a litigant’s status, we have recognized that pro se

litigants, in many cases, are entitled to special solicitude”). Although

Carrington has at times been unrepresented, his vexatious conduct cannot be

attributed to lack of counsel. Indeed, Carrington had the assistance of counsel

when he fabricated evidence in the instant action and when he filed the

protective action in California, and he seemingly is represented by counsel

now. The third factor therefore similarly weighs in favor of injunctive relief.

Third, it is beyond dispute that Carrington’s actions have caused

needless expense to Defendants and placed an unnecessary burden on this

Court. As represented by Defendants’ counsel in their pending applications for

attorneys’ fees, Carrington’s actions in just the instant case have resulted in

almost $1 million in legal fees. (See Dkt. #151-58). Moreover, both this Court

and the California state court have been burdened with adjudicating

Carrington’s increasingly salacious claims, and then managing the fallout from

his perfidy. The fourth factor, too, favors precluding Carrington from further

burdening Defendants and the judicial system.

Fourth, and finally, the Court is persuaded that other sanctions are

inadequate. The Court has already deployed one of the most severe sanctions

in its arsenal — the dismissal with prejudice of the instant action (see Dkt.

#147) — and has pending before it applications for attorneys’ fees amounting to

almost $1 million. None of this has hindered Carrington from making ever

more outrageous claims, and even going so far as to impugn the integrity of

this Court. Given Carrington’s recent threat to begin anew his deceitful pattern

of behavior, the Court believes that the only path available to it is to preempt

Carrington from carrying out his threat. Therefore, the fifth factor weighs in

favor of granting Defendants’ request for an injunction.

To summarize, four of the five factors outlined by the Second Circuit

counsel in favor of enjoining Carrington from filing future lawsuits arising out

of or relating to the subject matter in the instant action. Moreover, the second

factor — Carrington’s motive in bringing his various lawsuits — is, at best,

neutral. Due to Carrington’s dishonest behavior, the Court never had, and will

never have, the opportunity to learn which, if any, of Carrington’s claims are

meritorious. However, Carrington’s repeated fabrications and obstructive

behavior do lead the Court to view his claims with a skeptical eye. The Court

therefore finds that an injunction enjoining Carrington from filing, without the

express approval of this Court, future claims arising from or relating to the

subject matter of the instant litigation is more than justified.2

CONCLUSION

For the reasons set forth in this Order, the Court GRANTS Defendants’

request for a permanent injunction against Carrington. The Court hereby

ORDERS that Carrington be forbidden from filing any future suits in federal or

state court arising from or relating to the subject matter in the instant action

2 The Court makes this finding with the understanding that such injunctions should be

narrowly tailored to the specific circumstance. See Safir v. U.S. Lines, Inc., 792 F.2d 19,

25 (2d Cir. 1986) (modifying a district court’s injunction due to it being “overly broad”).

The Court believes that it has tailored its injunction to the extent required to prevent

Carrington from doing further harm to Defendants and the judicial system.

without the prior authorization of this Court. The Clerk of Court is directed to

terminate the motion at docket entry 174.

Counsel for Defendants are directed to serve this Order on Carrington

and his current counsel by whatever means they have used to communicate

with each of them in the past.

SO ORDERED.

Dated: September 11, 2020 KY Y, te iy, Kil

New York, New York

KATHERINE POLK FAILLA

United States District Judge

Sent by First Class Mail to:

Rovier Carrington

9901 Encina Road

Suite C-2

Goleta, CA 93117

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