The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID H. LEMPERT,
Plaintiff,
v.
Civil Action No. 12-1518 (CKK)
SAMANTHA POWER, U.S. Ambassador to
the United Nations, UNITED NATIONS,
UNITED NATIONS DEVELOPMENT
PROGRAMME,
Defendants.
MEMORANDUM OPINION
(May 22, 2014)
Presently before the Court is Plaintiff’s [32] Motion to Re-Open Judgment. Upon
consideration of the pleadings 1, the relevant legal authorities, and the record as a whole, the
Court DENIES Plaintiff’s motion. Accordingly, this action remains DISMISSED in its entirety.
I. BACKGROUND
David H. Lempert (“Plaintiff”), an attorney proceeding pro se 2, filed suit against
Samantha Power, the U.S. Ambassador to the United Nations, Susan Rice, the former U.S.
1
While the Court renders its decision today on the record as a whole, its consideration
has focused on the following documents, listed in chronological order of their filing: Compl.,
ECF No. [1]; Pl.’s Mot. to Re-Open Judgment, ECF No. [32] (“Pl.’s Mot.”); Pl.’s Mem.
Amending Proof of Service on Def. Rice, ECF No. [32-1] (“Pl.’s Service Mem.”); Pl.’s Proposed
Am. Compl., ECF No. [32-2] (“Proposed Am. Compl.”); United States’ Opp’n to Pl.’s Mot to
Re-Open Judgment, ECF No. [37] (“Def.’s Opp’n”); Pl.’s Reply Mem. in Supp. of Mot. to Re-
Open Judgment, ECF No. [38] (“Pl.’s Reply”). In an exercise of its discretion, the Court finds
that holding oral argument on the instant motions would not be of assistance in rendering a
decision.
2
Although Plaintiff is proceeding in this action pro se, he is an attorney, see Compl. ¶ 4,
and is therefore presumed to have knowledge of the legal system. Curran v. Holder, 626 F.
Supp. 2d 30, 33 (D.D.C. 2009). As a result, he is not entitled to the same level of solicitude often
Ambassador to the United Nations, the United Nations, and the United Nations Development
Programme (“UNDP”), alleging breach of contract and various tort claims arising out of
Plaintiff’s attempt to obtain employment with the UNDP in Laos. See generally Compl. On July
19, 2013, the Court dismissed the Complaint in its entirety, finding that the United Nations and
UNDP were immune to legal process, and that Plaintiff failed to state a claim against then-
Ambassador to the United Nations, Susan Rice, either in her official or personal capacity. See
Order, ECF No. [27]; Mem. Op., ECF No. [28]
Subsequently, on August 8, 2013, Plaintiff filed a Motion to Amend the Complaint with
Leave of the Court. By its August 27, 2013 [30] Order, the Court denied Plaintiff leave to file
this motion as “[o]rdinarily postjudgment amendment of a complaint under Rule 15(a) requires
reopening of the judgment pursuant to Rule 59(e) or 60(b).” Bldg Indus. Ass’n of Superior Cal.
v. Norton, 247 F.3d 1241, 1245 (D.C. Cir. 2001). See also Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996) (per curiam) (noting that amendment of complaint may only occur after
final judgment “once the court has vacated the judgment,” and “to vacate the judgment,
Appellants must first satisfy Rule 59(e)’s more stringent standard.”). The Court further
instructed Plaintiff to file any post-judgment motion by no later than September 26, 2013.
Within this time frame, Plaintiff filed the present [32] Motion to Re-Open Judgment seeking
relief under Rule 60(b) and Rule 59(e). The United States (“Defendant”) subsequently filed an
Opposition on behalf of all Defendants and Plaintiff has filed a Reply. Accordingly, Plaintiff’s
Motion is ripe for review.
afforded non-attorney litigants proceeding without legal representation. Richards v. Duke
University, 480 F.Supp.2d 222, 234 (D.D.C. 2007).
2
II. LEGAL STANDARDS
A. Rule 59(e)
Federal Rule of Civil Procedure 59(e) permits a party to file “[a] motion to alter or amend
a judgment” within “28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). Motions
under Rule 59(e) are “disfavored” and the moving party bears the burden of establishing
“extraordinary circumstances” warranting relief from a final judgment. Niedermeier v. Office of
Baucus, 153 F.Supp.2d 23, 28 (D.D.C. 2001). Rule 59(e) motions are “discretionary and need
not be granted unless the district court finds that there is an intervening change of controlling
law, the availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.” Firestone, 76 F.3d at 1208 (internal quotation marks omitted). Rule 59(e) does not
provide a vehicle “to relitigate old matters, or to raise arguments or present evidence that could
have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471,
485 n. 5 (2008) (quoting C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 2810.1
(2d ed. 1995)).
B. Rule 60(b)
Rule 60(b) sets out the grounds on which the Court “may relieve a party . . . from a final
judgment, order, or proceeding.” Fed. R. Civ. P. 60(b). In his motion, Plaintiff argues that relief
is warranted because of (a) “mistake, inadvertence, surprise, or excusable neglect”, Fed. R. Civ.
P. 60(b)(1); (b) fraud, misrepresentation, or misconduct by an opposing party, Fed. R. Civ. P.
60(b)(3); and/or (c) any other reason that justifies relief, Fed. R. Civ. P. 60(b)(6). The party
seeking relief under Rule 60(b) bears the burden of showing that he or she is entitled to the relief.
Norris v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011). In addition, in exercising its discretion
under Rule 60(b), the Court “must balance the interest in justice with the interest in protecting
the finality of judgments.” Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C. Cir. 2004).
3
Rule 60(b)(3) permits a court to relieve a party from a final judgment because of “fraud,”
“misrepresentation,” or “other misconduct” of an adverse party. Fed. R. Civ. P. 60(b)(3).
“[O]ther misconduct” includes an adverse party’s failure to disclose or produce materials
requested during discovery. Summers, 374 F.3d at 1193. It is “well-settled” that a party seeking
relief under Rule 60(b)(3) must prove any purported fraud or misconduct by “clear and
convincing evidence.” Shepherd v. Am. Broad. Co., 62 F.3d 1469, 1477 (D.C. Cir. 1995); accord
Martin v. Howard Univ., 275 Fed. App’x. 2, 8 (D.C. Cir. 2008).
Rule 60(b)(6) permits a court to grant relief from a final judgment for “any other reason
justifying relief.” Fed. R. Civ. P. 60(b)(6). Motions under this subsection should not be granted
unless the movant can show “‘extraordinary circumstances’ justifying the reopening of a final
judgment.” Salazar ex rel. Salazar v. Dist. of Columbia, 633 F.3d 1110, 1116 (D.C. Cir. 2011)
(quoting Gonzalez v. Crosby, 545 U.S. 524, 534 (2005)). The D.C. Circuit has “similarly
observed that Rule 60(b)(6) ‘should be only sparingly used’ and may not ‘be employed simply to
rescue a litigant from strategic choices that later turn out to be improvident.’” Kramer v. Gates,
481 F.3d 788, 792 (D.C. Cir. 2007) (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d
572, 577 (D.C. Cir. 1980)). Further, claims under Rule 60(b)(6) must not be “premised on one
of the grounds for relief enumerated in clauses (b)(1) through (b)(5).” Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 863 (1988). “Rule 60(b)(6) does not provide an opportunity to
relitigate a motion brought unsuccessfully under one of the other provisions of Rule 60(b).”
Green v. American Federation of Labor, and Congress of Industrial Organizations, 287 F.R.D.
107, 109 (D.D.C. 2012) (citing Kramer, 481 F.3d at 792).
4
III. DISCUSSION
A. Timeliness of Plaintiff’s Rule 59(e) Motion
As an initial matter, Defendant argues that Plaintiff’s motion pursuant to Rule 59(e) is
untimely, as it was filed more than 28 days after the entry of judgment in this case. Def.’s Opp’n
at 2-3. Defendant points to language from the D.C. Circuit requiring “strict compliance” with
Rule 59(e)’s time limit and stating that “[d]istrict courts do not have even the customary
discretion given by Fed. R. Civ. P. 6(b) to enlarge the Rule 59(e) period.” Derrington-Bey v.
Dist. of Columbia Dep’t of Corrections, 39 F.3d 1224, 1225 (D.C. Cir. 1994). Plaintiff argues
that his motion is timely because he filed a Motion to Amend the Complaint with Leave of the
Court within 28 days of the entry of judgment. Pl.’s Reply at 8-9. After the Court informed him
that a Rule 15 motion was inappropriate after entry of final judgment and set a schedule for the
filing of a motion pursuant to Rules 59(e) and 60(b), Plaintiff filed the present motion invoking
Rule 59(e) within the deadline set by the Court.
The Court need not resolve this dispute in order to decide the present motion. First,
Plaintiff has also brought his motion pursuant to Rule 60(b), and an untimely motion to
reconsider a final order may be re-characterized as a Rule 60(b) motion. See Roane v. Gonzalez,
832 F.Supp.2d 61, 64 (D.D.C. 2011) (“A motion to reconsider a final order is generally treated as
a Rule 59(e) motion if it is filed within [28 days after the entry of judgment] and as a Rule 60(b)
motion if it is filed thereafter.”) (citing Lightfoot v. Dist. of Columbia, 355 F.Supp.2d 414, 420-
21 (D.D.C. 2005)). Second, for the reasons discussed below, Plaintiff’s motion is denied under
both Rule 59(e) and Rule 60(b), rendering any untimeliness in the motion irrelevant.
B. Plaintiff’s Claims against the UN Defendants
In its Memorandum Opinion dismissing Plaintiff’s Complaint, the Court dismissed
5
Plaintiff’s claims against the UN and the UNDP on the basis that these Defendants were immune
to legal process. See Mem. Op., ECF No. [28] at 7-10. In his present motion, Plaintiff points to
purportedly newly discovered evidence that the UN Defendants are not immune from suit. Pl.’s
Mot. at 12-15. On this point, Plaintiff cites several newspaper articles stating that the United
States government has conducted surveillance of the UN and its staff. Id. Based on these
articles, Plaintiff contends that “the U.S. government has acted to limit the immunity and to
consider it conditional on U.S. interests.” Id. at 12. Plaintiff argues that it is “very likely” that
the United States has made arguments to the Foreign Intelligence Surveillance Act Court that the
immunity of the UN is not absolute. Id. at 13. Plaintiff also argues that Defendant’s
representations that the UN is absolutely immune from suit constitute fraud, misrepresentation,
or misconduct sufficient to justify relief under Rule 60(b)(3). Id. at 10.
The Court rejects Plaintiff’s argument as speculation. Plaintiff points to no evidence or
case law suggesting that the UN and its subsidiaries enjoy anything but absolute immunity from
suit in federal court, particularly litigation brought by a private citizen. The mere allegation that
the United States has engaged in intelligence gathering operations against the UN and its staff
does not overcome the body of case law cited in the Court’s previous Memorandum Opinion. As
discussed more fully in that opinion, the cases cited by Defendant clearly establish the UN’s
absolute immunity from suit absent express waiver of this immunity by the UN. Moreover, as
Defendant points out, the argument Plaintiff presses in his current motion was available to
Plaintiff far earlier in these proceedings and does not constitute the sort of newly discovered
evidence justifying relief under Rule 59(e) or Rule 60(b). Def.’s Opp’n. at 6 & n. 4. Indeed, the
article provided by Plaintiff refers to allegations in the press of United States surveillance of the
UN as early as 2010. Pl.’s Mot. at 24. Accordingly, the Court rejects Plaintiff’s efforts to re-
6
open the judgment against the UN Defendants.
C. Plaintiff’s Claims against Rice in her Personal Capacity
Plaintiff’s initial Complaint failed to clearly set out whether he was suing Defendant Rice
in her official capacity as U.S. Ambassador to the United Nations or was bringing a Bivens claim
against her in her individual capacity. Therefore, out of an abundance of caution, the Court
addressed both theories in its previous Memorandum Opinion. See Mem. Op., ECF No. [32] at
10-20. With respect to Plaintiff’s Bivens theory, the Court concluded that Plaintiff’s claim failed
because, inter alia, he had failed to effectuate service upon Rice in her individual capacity in
accordance with Federal Rule of Civil Procedure 4(i)(3), as is required for Bivens suits against
federal officials. See id. at 18 (citing Toms v. Hantman, 530 F.Supp.2d 188, 190-91 (D.D.C.
2008)).
In his present motion, Plaintiff provides no evidence that he has served Defendant Rice in
her individual capacity. Rather, he argues that he has been unable to effectuate such service
because Rice and the State Department have actively stymied his efforts. As support for this
proposition, Plaintiff provides e-mails between himself and two process servers discussing how
to serve Defendant Rice in her individual capacity. Pl.’s Service Mem. Yet these e-mails plainly
do not support Plaintiff’s position. In both, Plaintiff describes his desire to serve Defendant Rice
in her individual capacity. Id. at 2-3. One process server states that “[t]he State Department will
only receive if Ms. Rice is receiving in her official capacity, not individually.” Id. at 2. The
other process server writes, “The name of the office at State Department who receives all legal
documents is the LEX office. They typically only receive in the ‘official capacity’ of the person
being served.” Id. at 3. Plaintiff appears to argue that the State Department should have
accepted service for Defendant Rice in her individual capacity, Pl.’s Mot. at 17, but as Defendant
7
notes, Def.’s Opp’n at 4, Plaintiff points to no rule requiring federal agencies to facilitate service
against officials in their individual capacity. Plaintiff also contends that personal service on
Defendant Rice in her individual capacity would be extremely difficult because “[f]or process
servers to try to serve her directly in person or at her home would subject them to laws of
trespass or stalking and would undermine the protections of federal officials.” Pl.’s Reply at 21.
But nowhere in the e-mails provided do the process servers describe such difficulties. Rather,
these difficulties appear to simply represent Plaintiff’s speculation. Accordingly, because
Plaintiff has failed to serve Defendant Rice in her individual capacity and has failed to show
willful evasion of such service, the Court will not disturb the judgment against Defendant Rice in
her individual capacity.
D. Plaintiff’s Claims against Power in her Official Capacity
In its previous Memorandum Opinion, the Court considered Plaintiff’s claims against
Defendant Rice, then the U.S. Ambassador to the United Nations, in her official capacity. See
Mem. Op., ECF No. [32] at 10-17. Because Defendant Power has succeeded Defendant Rice in
this position, she is automatically substituted for Defendant Rice with respect to these claims
pursuant to Federal Rule of Civil Procedure 25(d). As discussed at length in the Court’s prior
opinion, because the Department of Justice issued a Westfall Act certification with respect to
Defendant, the Court considered these claims under the Federal Tort Claims Act. The Court
dismissed Plaintiff’s claims of breach of contract, fraud, and harassment against Defendant
Power for failure to state a claim. As set out in that opinion, Plaintiff’s Complaint failed to
include even the most basic allegations to support these claims.
Plaintiff’s present motion attaches a proposed Amended Complaint which includes
various additional factual allegations and theories that Plaintiff argues rescue these claims from
8
dismissal. See Proposed Am. Compl. Plaintiff expresses “surprise[]” that the Court and
Defendant required basic factual allegations in support of these claims, apparently seeking relief
under Rule 60(b)(1). Pl.’s Mot. at 20. This is plainly not the sort of surprise contemplated by
this provision. If it were, any Plaintiff “surprised” by the dismissal of his or her complaint would
have a viable Rule 60(b) motion. Plaintiff is an attorney, and accordingly should have realized
that the bare allegations in his Complaint against Defendant Power, which failed to support any
of the elements of his claims, were plainly insufficient to survive a motion to dismiss. Moreover,
a motion pursuant to Rule 59(e) and Rule 60(b) is an inappropriate vehicle to raise these
additional allegations, all of which were available to Plaintiff at the time he drafted his original
Complaint. As noted, Rule 59(e) “may not be used . . . to raise arguments or present evidence
that could have been raised prior to the entry of judgment.” Exxon Shipping Co., 554 U.S. at 485
n. 5 (quoting C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 2810.1 (2d ed.
1995)). Indeed, Rule 59(e) is not satisfied where “a party could have easily avoided the
outcome, but instead elected not to act until after a final order had been entered.” Mohammadi v.
Islamic Republic of Iran, 947 F.Supp.2d 48, 78 (D.D.C. 2013) (quoting Ciralsky v. CIA, 355
F.3d 661, 665 (D.C. Cir. 2004)). This principle extends to Rule 60(b), as “it is well-established
that ‘motions for reconsideration,’ whatever their procedural basis, cannot be used as ‘an
opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle
for presenting theories or arguments that could have been advanced earlier.’” Estate of Gaither
ex rel. Gaither v. Dist. of Columbia, 771 F.Supp.2d 5, 10 (D.D.C. 2011) (emphasis added)
(quoting Secs. & Exch. Comm’n v. Bilzerian, 729 F.Supp.2d 9, 14 (D.D.C. 2010)). See also
Greer v. Paulson, 505 F.3d 1305, 1317 (D.C. Cir. 2007) (Rule 60(b) does not afford a party “an
opportunity to retry [its] case.”).
9
Furthermore, even if Plaintiff’s additional allegations were proper and the requirements
of Rule 59(e) or Rule 60(b) were met here, the Court would still deny Plaintiff leave to amend
his Complaint based on futility. See In re Interbank Funding Corp. Securities Litig., 629 F.3d
213, 218 (D.C. Cir. 2010) (noting that a court “may properly deny a motion to amend if the
amended pleading would not survive a motion to dismiss.”); Norman v. United States, 467 F.3d
773, 775 (D.C. Cir. 2006) (noting that to justify relief from a final judgment, “the movant must
give the district court reason to believe that vacating the judgment will not be an empty exercise
or futile gesture.”) (internal citation omitted). Despite the conclusions of this Court’s prior
opinion, Plaintiff’s proposed Amended Complaint has still failed to present authority supporting
a common law cause of action for “harassment” based on the actions of Defendant Power.
Similarly, Plaintiff has failed to show any false representations by Defendant of the sort required
to support a claim of fraud. Furthermore, Plaintiff provides no allegation of a contract between
himself and Defendant Power. Rather, Plaintiff simply states that “[a]s a party to the United
Nations and a signatory to the United Nations Charter . . . the Office of Ambassador [Power]
assumes the obligations of the United Nations to Dr. Lempert for all of Plaintiff’s claims against
the U.N., for breach of contract, fraud, and harassment.” Proposed Am. Compl. ¶ 168. He also
states vaguely that “[u]nder a common law theory, the Office of Ambassador [Power] on behalf
of the U.S. Government is recognized as a party to the contractual and legal obligations to Dr.
Lempert, not limited by statute.” Id. ¶ 172. Yet Plaintiff nowhere provides legal support for this
sweeping proposition, which would hold the United States government liable in any suit against
the UN or any of its subsidiaries, and the Court is aware of none. 3 Accordingly, even if the other
3
To the extent Plaintiff seeks to assert a constitutional claim against Defendant Power in her
official capacity on this same basis, id. ¶ 174, his claim also fails. Plaintiff fails to provide any
10
requirements of Rule 59(e) and Rule 60(b) were met here, Plaintiff’s motion would still be
denied on grounds of futility.
IV. CONCLUSION
Accordingly, for the reasons stated herein, Plaintiff’s [32] Motion to Re-Open Judgment
is DENIED. Accordingly, this action remains DISMISSED in its entirety. An appropriate Order
accompanies this Memorandum Opinion.
_____/s/______________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
authority that Defendant Power would be liable in her official capacity under the Constitution for
inaction in an employment dispute between the UN and a private citizen plaintiff.
11