Petition for Writ of Certiorari — Larry Klayman, Petitioner v. Judicial Watch, Inc., et al.
Supreme Court briefJan 7, 2022
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No. 21-
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Supreme Court of tfje QHntteiJ States
LARRY KLAYMAN,
Petitioner.;
v.
JUDICIAL WATCH, INC., THOMAS J. FITTON,
PAUL ORFANEDES, AND CHRISTOPHER FARRELL,
Respondents.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
APPENDIX TO PETITION
FOR WRIT OF CERTIORARI
Larry Klayman, Esq.
7050 W. Palmetto Park Rd.
Boca Raton, FL 33433
Tel: 561-558-5336
Email: leklayman@gmail.com
Petitioner Pro Se
1
APPENDIX
TABLE OF CONTENTS
Page
United States Court of Appeals for the District
of Columbia Circuit, Order, September 15,
2021................................................................... App. 1
United States Court of Appeals for the District
of Columbia Circuit, Judgment, July 30,
2021................................................................... App. 3
United States Court of Appeals for the District
of Columbia Circuit, Opinion, July 30,2021 ....App. 5
United States District Court for the District of
Columbia, Jury Verdict Form, March 14,
2018
App. 39
United States District Court for the District of
Columbia, Judgment on the Verdict for
Counterplaintiff Judicial Watch, Inc., March
15,2018
App. 47
United States District Court for the District of
Columbia, Judgment on the Verdict for
Counterplaintiff Thomas J. Fitton, March 15,
2018
App. 49
Petition for Rehearing En Banc, United States
Court of Appeals for the District of Columbia
Circuit, August 30, 2021
App. 51
United States District Court for the District of
Columbia, Memorandum Opinion, March 18,
2019
App. 110
App. 1
United States Court of Appeals
For The District of Columbia Circuit
No. 19-7105
September Term, 2021
l:06-cv-00670-CKK
Filed On: September 15, 2021
Larry Elliott Klayman,
Appellant
v.
Judicial Watch, Inc., et al.,
Appellees
BEFORE:
Srinivasan, Chief Judge; Henderson,
Rogers, Tatel, Millett, Pillard, Wilkins,
Katsas, Rao, Walker, and Jackson, Circuit
Judges; and Silberman, Senior Circuit
Judge
ORDER
Upon consideration of appellant’s motion for en
banc panel to consider 25-page petition for rehearing
and motion for reconsideration by the full court, and
the lodged 25-page petition for rehearing en banc; and
appellant’s 15-page petition for rehearing en banc and
supplement thereto, and the absence of a request by
any member of the court for a vote, it is
ORDERED that the motion for en banc panel to
consider 25-page petition for rehearing and motion for
reconsideration by the full court be denied. The Clerk
is directed to note the docket accordingly. It is
11
APPENDIX
TABLE OF CONTENTS—Continued
Page
Plaintiff-Appellant Larry Klayman’s Final Brief,
United States Court of Appeals for the District
of Columbia Circuit, September 26, 2020.... App. 191
Transcript Excerpts..........................
App. 301
Confidential Severance Agreement,
App. 310
United States District Court for the Southern
District of Florida, Final Judgment, June 11,
2014
App. 340
United States District Court for the Southern
District of Florida, Verdict Form
App. 342
App. 2
FURTHER ORDERED that the 15-page petition
for rehearing en banc be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Is/
Anya Karaman
Deputy Clerk
App. 3
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 19-7105
September Term, 2020
Filed On: July 30,2021
Larry Elliott Klayman,
Appellant
v.
Judicial Watch, Inc., et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. l:06-cv-00670)
Before: Wilkins and Rao, Circuit Judges,
and SiLBERMAN, Senior Circuit Judge
JUDGMENT
This cause came on to be heard on the record on
appeal from the United States District Court for the
District of Columbia and was argued by counsel. On
consideration thereof, it is
ORDERED and ADJUDGED that the judg
ments and orders of the District Court appealed from
in this cause be affirmed in full, in accordance with the
opinion of the court filed herein this date.
App. 4
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
/s/
Daniel J. Reidy
Deputy Clerk
Date: July 30, 2021
Opinion for the court filed by Circuit Judge Rao.
App. 5
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2020
Decided July 30, 2021
No. 19-7105
Larry Klayman,
Appellant
v.
Judicial Watch, Inc., et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. l:06-cv-00670)
John P. Szymkowicz argued the cause for appel
lant. With him on the briefs was John T. Szymkowicz.
Larry E. Klayman entered an appearance.
Richard W. Driscoll argued the cause and filed the
brief for appellee.
Before: Wilkins and Rao, Circuit Judges, and SilBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Rao.
RAO, Circuit Judge: Larry Klayman founded and
ran Judicial Watch, a conservative watchdog group
with the motto “Because No One is Above the Law.”
App. 6
This appeal concerns his departure from Judicial
Watch in 2003 and the resulting hostility between
Klayman and the Judicial Watch officers currently at
its helm. Klayman filed a complaint against Judicial
Watch and those officers asserting an array of claims,
and Judicial Watch fired back with a series of counter
claims. During the fifteen years of ensuing litigation,
Klayman lost several claims at summary judgment
and then lost the remaining claims after a jury trial.
The jury ultimately awarded Judicial Watch $2.3 mil
lion. On appeal, Klayman raises numerous issues
spanning every stage of litigation, including discovery,
pretrial, trial, and post-trial. Despite the volume of his
challenges, none is meritorious. We affirm the district
court.
I.
Larry Klayman founded Judicial Watch in 1994
and served as its Chairman and General Counsel until
his departure in 2003. Klayman and Judicial Watch
have divergent accounts of why he left the organiza
tion. According to Klayman, he left voluntarily to run
for the U.S. Senate. According to Judicial Watch, it
forced Klayman to resign due to his misconduct. We re
count the facts as proven at trial and then recount the
lengthy procedural history of this case.
A.
Klayman’s time at Judicial Watch came to a close
after a meeting in May 2003 with two Judicial Watch
App. 7
officers, President Thomas Fitton and Secretary Paul
Orfanedes. Klayman told them that his then-wife,
Stephanie DeLuca, had filed a complaint for divorce al
leging infidelity and physical abuse, and he showed
them a copy of the divorce complaint. Klayman admit
ted he was pursuing a romantic relationship with a Ju
dicial Watch employee. Klayman also told Fitton and
Orfanedes about a violent altercation he had with
DeLuca. As DeLuca later testified, Klayman “put his
hands around [her] neck, and he started to shake [her]
and bang pier] head against the car window.” J.A. 2999.
Klayman then “punched his hand into the radio,” re
sulting in a broken hand. J.A. 3000. After hearing this
information, Fitton told Klayman to resign. Negotia
tions over Klayman’s departure ensued over the next
several months.
Meanwhile, in September 2003, Judicial Watch began preparing its October newsletter, which was
mailed to donors along with a cover letter signed by
Klayman as Judicial Watch’s “Chairman and General
Counsel.” After Klayman reviewed the newsletter, Ju
dicial Watch sent it to the printer.
While the newsletter was at the printer, Klayman
and Judicial Watch executed a severance agreement in
which Klayman agreed to resign effective September
19, 2003. The severance agreement contains detailed
provisions restricting the parties’ conduct. For exam
ple, it prohibits the parties from disparaging each
other, but places no limits on their ability to provide
fair comment. The agreement also prohibits Klayman
from having access to Judicial Watch donor lists and
App. 8
requires him to pay personal expenses he owed to the
organization. Judicial Watch paid Klayman $600,000
under the severance agreement.
After Klayman left Judicial Watch, he ran to rep
resent Florida in the U.S. Senate. His campaign used
American Target Advertising (“ATA”), the third-party
vendor that Judicial Watch used for its mailings to do
nors. Through ATA, Klayman’s campaign obtained the
names of Judicial Watch’s donors to use for campaign
solicitations. Klayman lost the primary election for the
Senate race.
Klayman then launched an effort he dubbed “Sav
ing Judicial Watch.” It included a web site, savingjudicialwatch.org, and a fundraising effort directed at
Judicial Watch donors using the names obtained from
ATA for his Senate run. In promotional materials,
Klayman asserted that he left Judicial Watch to run
for Senate. See, e.g., J.A. 2606 (“In 2003,1 left Judicial
Watch to run for the U.S. Senate in Florida.”); J.A. 2613
(Judicial Watch “created the false impression I left for
some reason other than to run for the U.S. Senate.”).
Klayman contended that Fitton and the Judicial Watch
leadership team had mismanaged and corrupted the
organization and that Klayman should be reinstated
to lead Judicial Watch. After the Saving Judicial Watch
campaign began, Judicial Watch received several let
ters from past donors who stated they would not do
nate to Judicial Watch until Klayman was reinstated.
The hostility between Klayman and Judicial Watch
continued over the next several years.
App. 9
B.
Klayman filed a complaint against Judicial Watch
and several of its officers in 2006, asserting a panoply
of claims. As relevant here, Klayman alleged that Ju
dicial Watch violated the Lanham Act, 15 U.S.C.
§ 1125(a)(1), by publishing a false endorsement or ad
vertisement when it sent the newsletter identifying
him as “Chairman and General Counsel” after he had
left Judicial Watch. Klayman also alleged that Judicial
Watch breached the severance agreement’s non-dis
paragement clause by preventing him from making
fair comment about Judicial Watch. Klayman finally
alleged that Judicial Watch defamed him by telling re
porters that he filed this lawsuit as a tactic to avoid
paying the quarter-million dollars he owed Judicial
Watch. In addition to damages, Klayman sought to re
scind the severance agreement.
Judicial Watch and its officers asserted counter
claims against Klayman. Judicial Watch alleged that
Klayman breached the severance agreement by gain
ing access to Judicial Watch donor lists and by failing
to repay the personal expenses he had agreed to pay.
Judicial Watch also alleged that Klayman infringed on
its trademarks, “Judicial Watch” and “Because No One
is Above the Law,” by using them in his Saving Judicial
Watch campaign. Judicial Watch later added a claim of
unfair competition in violation of the Lanham Act, al
leging that Klayman made false statements when he
represented that he left Judicial Watch to run for Sen
ate.
App. 10
During discovery, Klayman failed to produce doc
uments that were responsive to a set of supplemental
requests from Judicial Watch. The magistrate judge or
dered him to produce them. After Klayman still failed
to produce those documents, the district court sanc
tioned Klayman by precluding him from presenting
any documents, or testifying to them, in support of his
claims and defenses.
The parties filed numerous summary judgment
motions. The district court granted partial summary
judgment in favor of Judicial Watch on several of Klayman’s claims and Judicial Watch’s counterclaim for the
repayment of Klayman’s personal expenses. This par
tial summary judgment left only a few claims for trial,
including Klayman’s breach of contract claim and Ju
dicial Watch’s counterclaims of breach of contract and
Lanham Act violations.
As the trial approached, the district court ordered
the parties to prepare a joint pretrial statement, in
cluding a list of witnesses and exhibits. Klayman sub
mitted a deficient pretrial statement by listing the
testimony to be elicited from most witnesses as “all is
sues” and his exhibits as “all documents” on a particu
lar topic. J.A. 1896,1902. After several failed attempts
at obtaining Klayman’s compliance, the district court
sanctioned Klayman by striking the defective portions
of the pretrial statement. Because the parties could in
troduce only witnesses or exhibits listed in the pretrial
statement, this sanction barred Klayman from affirm
atively presenting witnesses or exhibits in support of
his claims and defenses at trial.
App. 11
A thirteen-day jury trial took place in 2018. The
primary factual issue was the reason for Klayman’s de
parture. Because of the sanctions, Klayman could pre
sent no evidence at trial other than his testimony,1 in
which he asserted that he left Judicial Watch to run for
the Senate. To support its position that Klayman was
forced to resign, Judicial Watch elicited testimony from
Judicial Watch officers Fitton and Orfanedes about the
meeting in which Klayman told them of his miscon
duct. Klayman objected that this testimony was irrele
vant, but the district court overruled the objection.
Judicial Watch also introduced the deposition of
DeLuca, Klayman’s ex-wife, in which she testified that
Klayman physically assaulted her and called her vul
gar names. Klayman objected to the name-calling as
irrelevant, but the court admitted this testimony. The
district court instructed the jury, refusing to give sev
eral instructions requested by Klayman. The jury re
turned a verdict for Judicial Watch, awarding a total of
$2.3 million.
The district court initially entered a judgment on
the verdict against Klayman on March 15, 2018, a day
after the jury announced its verdict. The court later va
cated that judgment, however, so that Klayman could
have more time to file post-trial motions. Klayman
then moved under Federal Rules of Civil Procedure 50
1 Despite its earlier sanctions precluding Klayman from pre
senting testimony or evidence, the court later clarified that Klay
man could testify at trial. Because the sanctions only precluded
Klayman from affirmatively introducing evidence, they did not
preclude him from using documents that Judicial Watch intro
duced or cross-examining its witnesses.
App. 12
and 59 for a judgment as a matter of law, a new trial,
or remittitur of the damages. The court denied his mo
tion and entered a final judgment against Klayman on
March 18, 2019. Klayman moved under Federal Rule
of Civil Procedure 60 for reconsideration of that denial
and also sought the district court’s recusal. The district
court denied that motion on August 7, 2019. Klayman
filed his notice of appeal on September 6, 2019.
After concluding that Klayman’s appeal was
timely, we proceed to address the merits. We have also
considered and reject without written opinion Klay
man’s “peripheral arguments.” Aircraft Serv. Int’l, Inc.
v. FERC, 985 F.3d 1013,1020 n.4 (D.C. Cir. 2021).
II.
Judicial Watch challenges the timeliness of Klay
man’s appeal and so we first address this threshold is
sue. To appeal a judgment, a party must file his notice
of appeal within thirty days of entry of the judgment.
Fed. R. App. P. 4(a)(1)(A). The time to appeal is ex
tended, however, upon the timely filing of certain mo
tions under the Federal Rules of Civil Procedure. Those
motions include one “for judgment under Rule 50(b),”
“for a new trial under Rule 59,” and “for relief under
Rule 60 if the motion is filed no later than 28 days after
the judgment is entered.” Fed. R. App. P. 4(a)(4)(A). If
one of those motions is filed, the time to appeal is ex
tended until “the entry of the order disposing of the
last such remaining motion,” and the appellant then
has thirty days from that date to appeal. See Fed. R.
App. 13
App. P. 4(a)(4)(A). Although some refer to this exten
sion as “tolling” the time for appeal, that description is
inaccurate. Unlike tolling, which merely pauses the
clock until a specified event occurs, Rule 4(a)(4)(A) ef
fectively “re-starts the appeal time period.” See 16A
Charles Alan Wright, Arthur R. Miller & Cathe
rine T. Struve, Fed. Prac. & Proc. § 3950.4 (5th ed.
Apr. 2021 update).
The district court first entered a judgment on the
verdict against Klayman on March 15, 2018. The court
then vacated that judgment to allow Klayman to file
post-trial motions. Klayman filed a motion under Fed
eral Rules of Civil Procedure 50 and 59, seeking a judg
ment as a matter of law, a new trial, or remittitur of
the jury verdict. The district court denied that motion
and entered a second judgment—a “final judgment”—
against Klayman on March 18, 2019.
:
At the outset, the parties both measure the time
liness of Klayman’s appeal from the “final judgment”
entered by the district court on March 18, 2019—not
the now-vacated judgment on the verdict. See Judicial
Watch Br. 22-23; Klayman Reply Br. 15-16. Because
Federal Rule of Appellate Procedure 4(a)(4)(A) is. a
claims-processing rule instead of a jurisdictional rule,
we hold the parties to that agreement.2 See Obaydullah v. Obama, 688 F.3d 784, 790-91 (D.C. Cir. 2012).
2 Given the parties’ agreement and the district court’s find
ing that the March 15, 2018, judgment was not a final judgment
because it did not include the calculation of prejudgment interest,
the district court’s vacatur of its judgment on the verdict to
App. 14
After the final judgment, Klayman filed a motion
for reconsideration under Federal Rule of Civil Proce
dure 60. A motion under Rule 60 extends the time for
appeal if it is “filed no later than 28 days after the judg
ment is entered.” Fed. R. App. P. 4(a)(4)(A)(vi) (empha
sis added). Klayman filed his Rule 60 motion twentyfive days after the court entered its final judgment, so
the motion restarted his time to appeal. Klayman then
appealed within thirty days from the district court’s
denial of the second motion. Klayman’s appeal was
thus timely.
Under the current Rule 4(a)(4)(A), Klayman’s mo
tion to reconsider brought under Federal Rule of Civil
Procedure 60 qualifies as a motion that can, and did,
restart his time to appeal. In 1993, Federal Rule of Ap
pellate Procedure 4(a)(4)(A) was amended to add mo
tions under Rule 60. Judicial Watch attempts to rely on
American Security Bank u. John Y. Harrison Realty for
the proposition that “a motion to reconsider the denial
provide Klayman with more time to file post-trial motions does
not impact our analysis of the timeliness of this appeal. We note,
however, that a district court may not vacate a final judgment to
provide a party more time to file a motion for judgment as a mat
ter of law pursuant to Federal Rule of Civil Procedure 50(b) or a
motion for a new trial or amended judgment pursuant to Federal
Rule of Civil Procedure 59(b), (d), or (e). See Fed. R. Civ. P. 6(b)(2)
(prohibiting district courts from extending certain deadlines);
Wilburn v. Robinson, 480 F.3d 1140, 1144 (D.C. Cir. 2007);
Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 582 (D.C. Cir.
2002); see also 4B Charles Alan Wright, Arthur R. Miller &
Adam N. Steinman, Fed. Prac. & Proc. § 1167 (4th ed. Apr. 2021
update) (explaining Rule 6(b)(2)’s prohibition on district courts
extending the time to appeal).
App. 15
of a motion for a new trial does not operate to toll the
running of the appeal period.” 670 F.2d 317, 320 (D.C.
Cir. 1982). Yet when that case was decided, Federal
Rule of Appellate Procedure 4(a)(4)(A)’s list of motions
that restarted the time to appeal did not include mo
tions under Federal Rule of Civil Procedure 60. See
Fed. R. App. P. 4(a)(4)(A) (1981). Our interpretation in
American Security Bank of the now-outdated rule is of
no consequence to this case.
Judicial Watch also argues, as a policy matter, that
an appellant should benefit from restarting his time to
appeal only once, preventing the proverbial second bite
at the apple. Because KLayman restarted his time to
appeal with his first motion for a new trial under Rule
59, Judicial Watch maintains that his second motion
asking for reconsideration under Rule 60 was imper
missibly successive. We need not decide whether an ap
pellant may restart his time to appeal more than once
because Klayman’s motions were not successive for the
purpose of his time to appeal. The parties agree that
we measure the time to appeal from the final judg
ment. After the final judgment, Klayman filed only one
motion that restarted his time to appeal—the motion
under Rule 60. His earlier Rule 59 motion, which re
sulted in the vacatur of the judgment on the verdict,
preceded the final judgment and is therefore irrelevant
for the timeliness of the appeal. Although Klayman
filed multiple post-trial motions, only his second mo
tion restarted his time to appeal, so we need not deter
mine whether an appellant may benefit from Federal
Rule of Appellate Procedure 4(a)(4)(A)’s restarting
App. 16
more than once. We hold that Klayman’s appeal was
timely and proceed to the merits.
III.
We begin with the district court’s rulings before
trial. Klayman challenges the district court’s two sanc
tions against him for his pretrial conduct. We review
the imposition of sanctions for abuse of discretion. See
Dellums v. Powell, 566 F.2d 231, 235 (D.C. Cir. 1977).
Neither of Klayman’s sanctions was an abuse of discre
tion.
A.
First, the district court did not abuse its discretion
when it sanctioned Klayman for his failure to provide
any documents in response to Judicial Watch’s supple
mental discovery requests. After Klayman failed to
provide any documents and instead objected to each
request, Judicial Watch moved to compel his response.
The magistrate judge granted the motion, ordering
Klayman to provide documents in response to all but
one request within ten days. Several months later, the
magistrate judge learned that Klayman had not pro
duced any documents in response and warned him that
further noncompliance would risk sanctions. More
than five months after the magistrate judge’s original
order, Klayman had not produced any documents, so
Judicial Watch moved for sanctions. Klayman provided
no response to that motion.
App. 17
The magistrate judge found Klayman had con
ceded the motion, though the judge also found the
sanction warranted on the merits and recommended
that the district court sanction Klayman by precluding
him from testifying or presenting documents to sup
port his claims and defenses. Klayman objected to the
recommendation, but the district court explained that
he had conceded the motion by failing to respond to it
before the magistrate judge. Nonetheless, the court
considered Klayman’s objections on the merits, but
overruled them and entered the sanction.
We need not delve into the merits of this sanction
because Klayman waived his challenge to it by failing
to oppose Judicial Watch’s motion before the magis
trate judge. See D.D.C. Local R. 7(b); D.D.C. Local R.
72.2(b). Although Klayman objected to the magistrate
judge’s recommendation, “[ijssues raised for the first
time in objections to the magistrate judge’s recommen
dation are deemed waived.” Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996) (collecting cases). Because
Klayman conceded the sanction below, he cannot raise
it for our consideration on appeal.
Even if we were to review the merits, we find no
abuse of discretion in the admittedly severe sanction.
A district court may sanction a party who “fails to
obey an order to provide or permit discovery.” Fed. R.
Civ. P. 37(b)(2)(A). Those sanctions may include “pro
hibiting the disobedient party from supporting or
opposing designated claims or defenses, or from in
troducing designated matters in evidence.” Fed. R.
Civ. P. 37(b)(2)(A)(ii). Choosing a sanction “should be
App. 18
guided by the concept of proportionality between of
fense and sanction.” Bonds v. District of Columbia, 93
F.3d 801, 808 (D.C. Cir. 1996) (cleaned up). To assess
whether a severe sanction, like the preclusion of evi
dence, is warranted, “the district court may consider
the resulting prejudice to the other party, any preju
dice to the judicial system, and the need to deter simi
lar misconduct in the future.” Id.
The district court reasonably determined that
these factors favored sanctioning Klayman. First,
Klayman’s refusal to provide documents resulted in
prejudice to Judicial Watch, because it had to file its
summary judgment motions without an opportunity to
review the documents that supported Klayman’s
claims and defenses. Klayman cannot avoid a finding
of prejudice by pointing to the fact that he provided
some discovery, including 1,047 pages of documents
and interrogatory responses. The district court sanc
tioned Klayman for not providing discovery in re
sponse to particular requests, and Klayman has not
contended that any of the 1,047 pages he produced
were responsive to those requests. That he produced
some discovery does not excuse his failure to produce
all properly requested discovery. Second, Klayman’s re
peated refusal to comply with a court order prejudiced
the judicial system. His stonewalling required multiple
rounds of judicial involvement from both the magis
trate judge and district court, “squandering [the]
scarce judicial resources (and the resources of other
litigants).” Founding Church of Scientology of Wash.,
D.C., Inc. v. Webster, 802 F.2d 1448, 1458 (D.C. Cir.
App. 19
1986). Third, the sanction was reasonably designed to
deter future misconduct. By failing to engage in the
discovery process, Klayman disrespected the court and
the judicial process. See Weisberg v. Webster, 749 F.2d
864, 872 (D.C. Cir. 1984) (explaining that a court may
impose a broad sanction to remove “an incentive to test
the court” because a limited sanction “may present [a
recalcitrant party] with nothing to lose and something
to gain”).
The court’s sanction was proportional to Klayman’s flagrant refusal to comply with the court’s dis
covery order. The district court acted within its
discretion by precluding Klayman from presenting
documents in support of his claims and defenses.
B.
Second, the district court did not abuse its discre
tion when it sanctioned Klayman for his inadequate
pretrial statement. A pretrial statement serves to
“narrow the issues” for trial and put “the Court and
the parties on notice of which issues of fact and law
are in dispute.” Winmar, Inc. v. Al Jazeera Inti, 741
F. Supp. 2d 165, 185 (D.D.C. 2010). The pretrial state
ment avoids trial by ambush. Consistent with ordinary
practice, the district court ordered the pretrial state
ment to include a list of witnesses and exhibits to be
used at trial. Klayman argues that the district court
sanctioned him merely for not providing sufficiently
detailed descriptions of his witnesses and exhibits.
App. 20
That contention severely distorts the misconduct for
which the court struck Klayman’s pretrial statement.
When the district court ordered the parties to pre
pare a joint pretrial statement, it warned that the fail
ure to conform with the order’s directives could result
in sanctions. Klayman rebuffed Judicial Watch’s efforts
to confer on the statement as ordered. He then re
quested an extension on the eve of the deadline for
the statement, which the district court reluctantly
granted.
In the pretrial statement eventually submitted,
Klayman’s entries flouted the court’s order. First, the
order required each party to submit a witness list iden
tifying the witnesses to be called and briefly describing
the testimony to be elicited. For sixteen of twenty-three
witnesses, Klayman described their testimony as cov
ering “all issues.” J.A. 1896. And his twenty-fourth wit
ness listed “[a] 11 Judicial Watch employees in the last
six years since Klayman left,” again covering “all is
sues.” J.A. 1898. Second, the order required each party
to submit a list identifying the exhibits intended to be
used. Instead of listing specific exhibits as required,
Klayman listed eight general categories of documents,
including one category for “[a] 11 correspondence to and
from Klayman and Judicial Watch concerning [a cli
ent].” J.A. 1902.
After finding the pretrial statement deficient, the
district court ordered the parties to work together to
revise it. Klayman failed to propose any revisions and
sought another extension, again on the eve of the
App. 21
deadline. Although the district court granted the ex
tension, it warned Klayman that no further extensions
would be granted and failure to comply would result in
striking his portions of the statement. Klayman failed
to meet the deadline due to a car accident, so the
court granted a third extension coupled with the
same warning of sanctions. Klayman failed to meet
the thrice-extended deadline. Accordingly, the district
court sanctioned him by striking his parts of the pre
trial statement, which precluded Klayman from af
firmatively presenting any evidence in support of his
claims and defenses at trial. As the facts make plain,
the district court did not sanction Klayman merely for
a lack of detail; it sanctioned him for his “utter[]
fail[ure] to discharge his obligations in the course of
pretrial proceedings.” J.A. 2017. That sanction was rea
sonable.
Under Federal Rule of Civil Procedure 16, a dis
trict court may sanction a party who “fails to obey a
scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)
(incorporating the sanctions of Federal Rule of Civil
Procedure 37(b)(2)(A)(ii)-(vii)). The district court rea
sonably exercised its discretion by imposing the sanc
tion on Klayman. First, Klayman’s deficient pretrial
statement prejudiced Judicial Watch. Because his in
adequate pretrial statement failed to narrow the is
sues for trial, Klayman deprived Judicial Watch of the
notice of the disputes for trial that a pretrial statement
is meant to afford. Second, as the district court ex
plained, Klayman burdened the judicial system by fail
ing to conduct “what should have been a relatively
App. 22
straightforward administrative task.” J.A. 2020. Be
cause of Klayman’s refusal to prepare an adequate pre
trial statement, the court “spent countless hours
attempting to secure Klayman’s basic compliance”
with the court’s order—to no avail. J.A. 2020. Third, the
sanction was necessary to deter similar misconduct.
The process of preparing a pretrial statement should
not be onerous, and Klayman’s sanction deters others
from attempting to make it as onerous as he did.
Klayman contends that he should have received a
lesser sanction, but the sanction of striking the de
fective parts of his pretrial statement was propor
tional to his misconduct. To be sure, as the district
court acknowledged, this sanction was severe, as it pro
hibited Klayman from presenting any evidence at
trial. Klayman, however, ignored the district court’s re
peated warnings and the multiple opportunities to
comply with a simple directive to present an adequate
pretrial statement. The court attempted a variety of
measures to obtain Klayman’s compliance, but none al
leviated his ongoing misconduct. Accordingly, the court
did not abuse its discretion by striking Klayman’s pre
trial statement.
IV.
We next consider the district court’s grant of par
tial summary judgment to Judicial Watch, which we
review de novo. See Jeffries v. Barr, 965 F.3d 843, 859
(D.C. Cir. 2020). To obtain summary judgment, the mo
vant must “shown that there is no genuine dispute as
App. 23
to any material fact and the movant is entitled to judg
ment as a matter of law.” Fed. R. Civ. P. 56(a). “[A] dis
pute about a material fact is ‘genuine’ if the evidence
is such that a reasonable jury could return a verdict for
the nonmoving party ” Jeffries, 965 F.3d at 859 (cleaned
up).
Klayman challenges the district court’s decision to
grant summary judgment to Judicial Watch on four of
his claims and one of Judicial Watch’s counterclaims.
We discuss each in turn, though no challenge is meri
torious.
A.
We begin with the grant of summary judgment to
Judicial Watch on Klayman’s claims under the Lanham Act. Among other things, the Lanham Act pro
vides a cause of action to combat consumer confusion
about a person’s affiliation, such as a false endorse
ment or false advertising. See 15 U.S.C. § 1125(a)(1).
Klayman alleged that Judicial Watch violated the Lan
ham Act by sending a newsletter to its donors that
identified him as “Chairman and General Counsel” af
ter he had left Judicial Watch. According to Klayman,
Judicial Watch’s use of his name in the newsletter
amounted to a false endorsement and false advertise
ment.
This circuit has yet to address whether a celebrity,
which Klayman asserts he is, may bring a Lanham Act
claim based on misleading or deceptive use of his name
or likeness, though several of our sister circuits have
App. 24
approved of such claims. See Parks v. LaFace Records,
329 F.3d 437,445-46 (6th Cir. 2003); Wendt v. Host Inti,
Inc., 125 F.3d 806, 812 (9th Cir. 1997). We need not de
cide that question today. Even assuming such a claim
is viable, the district court appropriately granted sum
mary judgment against Klayman in this case.
There was no genuine dispute of material fact that
Klayman authorized the use of his name in the news
letter, so it was neither a false endorsement nor a false
advertisement. Klayman testified in his deposition
that he routinely reviewed the monthly newsletter be
fore Judicial Watch sent it out, and he affirmed that he
signed the newsletter’s cover letter as Chairman and
General Counsel. As proven by his handwritten edits
on a draft, Klayman edited the newsletter at issue,
which Judicial Watch approved for printing while
Klayman still worked there. When Klayman later re
signed, the newsletter had already been delivered for
mailing.
Klayman argues that he did not authorize the use
of his name in the newsletter after he left Judicial
Watch. But this argument ignores that the Lanham
Act focuses on “false or misleading statements of fact
at the time they were made” Newcal Indus., Inc. v. Ikon
Off Sol, 513 F.3d 1038, 1053 (9th Cir. 2008) (cleaned
up) (emphasis added). When Judicial Watch wrote the
newsletter identifying Klayman as “Chairman and
General Counsel,” Klayman was the Chairman and
General Counsel. His subsequent resignation does not
render the newsletter a false endorsement or adver
tisement.
App. 25
B.
We next consider the district court’s grant of sum
mary judgment to Judicial Watch on Klayman’s breach
of contract claim. Klayman asserted that Judicial
Watch breached the severance agreement by prevent
ing him from making fair comment in interviews. The
severance agreement prohibited both parties from dis
paraging each other and then stated that “[n]othing in
this paragraph is intended to, nor shall be deemed to,
limit either party from making fair commentary on the
positions or activities of the other following the Sepa
ration Date.” J.A. 2586.
Klayman proffered two documents to support this
claim. First, he pointed to an email from Leslie Bur
dick, a C-SPAN employee, stating that Fitton “asked
that we don’t schedule Larry [Klayman] on anything
related to the case.” J.A. 1278. Second, Klayman
pointed to a memorandum from his campaign manager
stating that “Fitton of Judicial Watch had requested
that CNN not book Mr. Klayman to discuss any aspect
of the case.” J.A. 1247-48.
Both documents, however, are hearsay. Hearsay is
a statement that “the declarant does not make while
testifying at the current trial or hearing” and is offered
“to prove the truth of the matter asserted in the
statement.” Fed. R. Evtd. 801(c). At summary judg
ment, a party need not present evidence in a form that
is currently admissible. See Fed. R. Civ. P. 56(c). But
“[t] o survive summary judgment,” he “must produce
evidence capable of being converted into admissible
App. 26
evidence.” Greer v. Paulson, 505 F.3d 1306, 1315 (D.C.
Cir. 2007) (cleaned up). As we have explained, when
proffered evidence is “sheer hearsay, it counts for noth
ing on summary judgment.” Id. (cleaned up).
Although Klayman suggests he could have sub
poenaed the “witnesses at CNN and Cspan [sic],” he
fails to explain how those unidentified witnesses’ tes
timony would be admissible. Klayman Br. 41. For ex
ample, Burdick’s email stated that Fitton “asked that
we don’t schedule Larry on anything related to the
case.” J.A. 1278. It is not clear to whom Fitton made
this request—perhaps he asked Burdick directly or
perhaps he asked someone else at C-SPAN who re
layed the request to Burdick. If it is the latter, Bur
dick’s statement of what Fitton told someone else
would create an additional layer of hearsay. The cam
paign manager’s memorandum contains a similar
problem; it states that Fitton requested that “CNN”
not book Klayman. Yet Klayman has provided no ex
planation of how he would cut through these layers of
hearsay to have the statements admitted, and his gen
eral reference to calling witnesses from C-SPAN and
CNN is not enough to carry his burden. Summary
judgment was appropriate for Klayman’s breach of
contract claim because he failed to establish how this
hearsay was “capable of being converted into admissi
ble evidence.” Greer, 505 F.3d at 1315 (cleaned up).
App. 27
C.
We turn to the district court’s grant of summary
judgment to Judicial Watch on Klayman’s defamation
claim. Klayman alleged that Judicial Watch defamed
him by telling reporters that he filed this lawsuit as a
“tactical maneuver designed to distract attention away
from the fact that Klayman owes more than a quarter
of a million dollars to Judicial Watch.” J.A. 31 (empha
sis omitted).
To prove defamation, a public figure3 must estab
lish, among other things, that the defamatory state
ment was made with “actual malice” Jankovic v. Int’l
Crisis Grp., 822 F.3d 576, 589 (D.C. Cir. 2016) (quoting
New York Times Co. v. Sullivan, 376 U.S. 254, 280
(1964)). Actual malice means the defendant made the
statement “with knowledge that it was false or with
reckless disregard of whether it was false or not.” Id.
(quoting Sullivan, 376 U.S. at 280). Actual malice en
compasses when “the defendant in fact entertained se
rious doubts as to the truth of his publication.” Id.
(citation and quotation marks omitted).
Klayman presented no evidence that Judicial
Watch made its statement with actual malice Because
Judicial Watch knew that Klayman disputed the debt,
he contends that Judicial Watch had a serious doubt
about the truth of its statement. Judicial Watch, how
ever, had conducted two audits on which it based its
understanding that Klayman owed the debt. Although
Klayman disputed the audits’ findings, he offered no
3 Klayman has not disputed that he is a public figure.
App. 28
evidence that Judicial Watch harbored doubt about
him owing the debt. Klayman also argues that Judicial
Watch harbored a serious doubt about the truth of his
owing a $250,000 debt because that amount includes
debt owed by his law firm, so Klayman was not person
ally liable for all of it. Yet the severance agreement re
quires Klayman’s law firm to pay Judicial Watch a debt
of about $80,000, and Klayman indemnified his firm.
Judicial Watch could have reasonably believed that
Klayman was on the hook for his law firm’s debt.
Because Klayman failed to establish a dispute of
material fact that Judicial Watch made its statement
with actual malice, his defamation claim could not sur
vive summary judgment.
D.
We finally consider the district court’s grant of
summary judgment to Judicial Watch on its breach of
contract counterclaim. Judicial Watch asserted that
Klayman breached his commitment in the severance
agreement “to reimburse Judicial Watch for personal
costs or expenses incurred by him during his employ
ment.” J.A. 2592. Klayman agreed to pay those reim
bursements within seven days of receiving notification
of the reimbursement amounts.
Undisputed evidence established that Klayman
failed to reimburse Judicial Watch for his personal
expenses as required by the severance agreement.
Judicial Watch presented a declaration from Susan
Prytherch, its Chief of Staff, who had reviewed
App. 29
Klayman’s expenses at Judicial Watch to determine
whether they were personal or business expenses. She
attested that Judicial Watch sent Klayman fifty-one in
voices for his personal expenses that included explana
tions of the charges and supporting documentation,
but he had not paid any. Judicial Watch also submitted
copies of those invoices.
Klayman renews his argument that the invoices
were fraudulent documents manufactured after the
fact. Yet Klayman has failed to support that assertion
with anything other than his say-so, nor has he pro
vided any evidence that he did not owe the expenses
listed on the invoices. Klayman has thus failed to cre
ate a genuine dispute of material fact, and the district
court correctly granted summary judgment to Judicial
Watch on its counterclaim.
In sum, we affirm the district court’s grant of par
tial summary judgment to Judicial Watch.
V.
After the partial summary judgment, only a few
claims remained for trial. We turn to Klayman’s chal
lenges to two lines of evidence admitted at trial. This
court reviews the admission of evidence for abuse of
discretion. See Henderson v. George Wash. Univ.y 449
F.3d 127, 132-133 (D.C. Cir. 2006). To preserve a chal
lenge to the admission of evidence for appeal, however,
a party must object and “stated the specific ground,
unless it was apparent from the context.” Fed. R. Evid.
103(a)(1). When a party raises a new ground for his
App. 30
objection on appeal, we review only for plain error. See
United States u. David, 96 F.3d 1477, 1481 (D.C. Cir.
1996); accord 1 McCormick ON EviD. § 52 (8th ed. Jan.
2020 update).
A.
Klayman first contends that the evidence of his
forced resignation and name-calling of his ex-wife was
irrelevant, but even if it was relevant, this evidence
was too prejudicial to admit. Because he appears to
have objected on this ground below, we review for
abuse of discretion. See Henderson, 449 F.3d at 132-33.
Under Federal Rule of Evidence 402, evidence must be
relevant to be admissible. “Evidence is relevant if. ..
it has any tendency to make a fact more or less proba
ble than it would be without the evidence” and “the fact
is of consequence in determining the action.” Fed. R.
Evid. 401.
The evidence regarding Klayman’s forced resigna
tion and name-calling of his ex-wife was relevant. Ju
dicial Watch asserted that Klayman engaged in unfair
competition in violation of the Lanham Act by falsely
representing in his Saving Judicial Watch campaign
that he left Judicial Watch to run for U.S. Senate. To
prove those statements were false, Judicial Watch in
troduced the evidence that Klayman had been forced
to resign due to his misconduct. This evidence of mis
conduct included his ex-wife’s testimony about the
vulgar names that Klayman had called her, and she
included these allegations of verbal abuse in her
App. 31
divorce complaint, a copy of which Klayman had shown
to Fitton and Orfanedes. Accordingly, evidence that
Klayman was forced to resign due to misconduct
tended to make the fact that he left to run for Senate
less probable than it would have been without that ev
idence. See Fed. R. Evid. 401(a). And the fact of Klayman’s departure was of consequence for Judicial
Watch’s Lanham Act claim because it had to prove that
Klayman made a false representation. See Fed. R.
Evid. 401(b); see also 15 U.S.C. § 1125(a)(1). This evi
dence was therefore relevant.
Even if a piece of evidence is relevant, it may be
inadmissible if it is unfairly prejudicial. Fed. R. Evid.
403. ‘TJnfair prejudice” means “an undue tendency to
suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.” Fed. R.
Evid. 403 advisory committee’s note to 1972 amend
ment. This rule “tilts, as do the rules as whole, toward
the admission of evidence in close cases.” Henderson,
449 F.3d at 133 (cleaned up).
Klayman argues that the evidence of his forced
resignation was substantially more prejudicial than
probative. He contends that the jury hearing about his
pursuit of a relationship with a Judicial Watch em
ployee and his name-calling of his ex-wife prejudiced
him by inciting the jury to decide based on emotion. We
disagree. Klayman’s pursuit of a relationship with an
employee and alleged verbal abuse of his ex-wife had
significant probative value because a central issue in
the case was whether Klayman left Judicial Watch to
run for Senate or whether he was forced to resign due
App. 32
to his misconduct. To be sure, evidence of his miscon
duct carried some risk of prejudice for Klayman. The
district court acted within its discretion, however, to
find that the risk did not substantially outweigh the
evidence’s probative value, particularly because “a dis
trict court virtually always is in the better position to
assess the admissibility of the evidence in the context
of the particular case before it.” Sprint/United Mgmt.
Co. v. Mendelsohn, 552 U.S. 379, 387 (2008).
B.
Klayman also argues that the evidence of his in
appropriate relationship with a Judicial Watch em
ployee constituted impermissible character evidence.
In particular, he asserts that this evidence constituted
“bad acts” admitted in violation of Federal Rule of Ev
idence 404(b). Klayman Br. 61. Although that rule pro
hibits the admission of evidence “to prove a person’s
character in order to show that on a particular occasion
the person acted in accordance with the character,” it
does not bar admission if the evidence is used for an
other permissible purpose. See Fed. R. Evid. 404(b).
Judicial Watch offered the evidence of Klayman’s inap
propriate relationship to prove that he was forced to
resign due to his misconduct, thereby establishing that
it was false for Klayman to advertise that he left Judi
cial Watch to run for Senate. Because the evidence was
not admitted to show that Klayman acted in conform
ance with his character on a particular occasion, Rule
404(b) did not prohibit its admission.
App. 33
VI.
We next address Klayman’s challenges to the jury
instructions, or more specifically, the lack of certain in
structions. We review de novo the refusal to provide a
requested instruction. Czekalski u. LaHood, 589 F.3d
449, 453 (D.C. Cir. 2009). Klayman challenges the dis
trict court’s failure to give two instructions.
Klayman first contends the district court should
have instructed the jury on the sanctions it issued
against him—what he describes as an instruction on
“why the case was tried in a ‘bizarre’ fashion.” Klay
man Br. 63 (capitalization omitted). His proposed in
struction reads in full:
The Court has imposed sanctions on Larry
Klayman, which limits his ability to testify
and present evidence to prove the counts of
his second amended complaint against Judi
cial Watch and evidence of damages as well as
in his defense. Larry Klayman contends that
these sanctions were the result of personal
animus towards him and my political preju
dice against him, since I was appointed by
President Bill Clinton and my husband actu
ally defended Secret Service agents in the
Monica Lewinsky scandal of the late 1990’s.
Larry Klayman has sued both Bill and Hillary
Clinton many times, both as the founder, for
mer chairman and general counsel of Judicial
Watch, and thereafter.
In addition, Larry Klayman contends that I
have acted unethically and has filed two eth
ics complaints before the Judicial Council of
App. 34
this Court and has at least one pending now.
Larry Klayman has previously moved to dis
qualify me under 28 U.S.C. § 144, and he con
tends that I necessarily should have recused
myself under that statute or at least had an
other judge or judges rule on his motion. I re
fused to do either.
J.A. 2051.
This outlandish instruction is improper. Jury in
structions are meant to “fairly present the applicable
legal principles and standards.” Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549,556 (D.C. Cir. 1993) (cleaned
up). Klayman’s instruction states no law; it describes
the fact of Klayman’s sanctions tacked onto his conten
tions about the court’s purported bias. A jury instruc
tion is no place for a litigant’s diatribe. The district
court correctly refused to give Klayman’s instruction.
Klayman also argues that the district court failed
to properly instruct the jury on an element of trade
mark infringement. Judicial Watch asserted that Klay
man infringed on its trademarks “Judicial Watch” and
“Because No One is Above the Law.” To establish trade
mark infringement, Judicial Watch needed to prove,
among other elements, that Klayman’s use of its
trademarks created a “likelihood of confusion” among
consumers. See Am. Soc’y for Testing & Materials v.
Public.Resource.Org, Inc., 896 F.3d 437, 456 (D.C. Cir.
2018). Klayman argues that the court erred by failing
to instruct the jury that likelihood of confusion re
quires confusion by an “appreciable number” of con
sumers. But his only support for this proposition comes
App. 35
from two unpublished decisions of our district court,
which are of course not precedential. See In re Exec. Off
of President, 215 F.3d 20, 24 (D.C. Cir. 2000).
Here the district court instructed the jury on the
likelihood of confusion element by setting out factors
to consider. The district court’s instruction, “when
viewed as a whole,... fairly presented] the applicable
legal principles and standards.” Czekalski, 589 F.3d at
453 (cleaned up). This circuit “has yet to opine on the
precise factors courts should consider when assessing
likelihood of confusion,” but we have referred approv
ingly to the “multi-factor tests” of our sister circuits.
Am. Soc ‘y for Testing, 896 F.3d at 456 (citing AMF, Inc.
v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.
1979), abrogated on other grounds by Mattel, Inc. v.
Walking Mountain Prods., 353 F.3d 792 (9th Cir. 2003);
Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492,
495 (2d Cir. 1961)). The district court’s instruction was
also based on a model instruction. See 3A Kevin F.
O’Malley, et al., Fed. Jury Prac. & Instr. § 159:25
(6th ed. 2012); J.A. 2333. Neither our sister circuits nor
the model instruction mention the number of consum
ers likely to be confused. No instruction on the number
of consumers was required for the district court to
fairly present the applicable legal principles on the
confusion element.
To warrant provision to the jury, an instruction
must fairly state the law as it is, not how a party
wishes it to be. See Joy, 999 F.2d at 556. The district
court did not err by refusing to add a component to its
App. 36
instruction on likelihood of confusion that has no basis
in our precedent.
VII.
We finally consider the jury verdict against Klayman on Judicial Watch's breach of contract counter
claim. We review a district court’s entry ofjudgment on
a jury’s verdict under a deferential standard. To over
turn a jury verdict, a party must show that “the evi
dence and all reasonable inferences that can be drawn
therefrom are so one-sided that reasonable men and
women could not disagree.” Scott v. District of Colum
bia, 101 F.3d 748, 753 (D.C. Cir. 1996). Klayman falls
well short of satisfying this standard.
Judicial Watch asserted that Klayman breached
the severance agreement by using its donor lists for his
Senate campaign and Saving Judicial Watch. In the
severance agreement, Klayman agreed that “following
the Separation Date, he shall not retain or have access
to any Judicial Watch donor or client lists or donor or
client data.” J.A. 2574. The jury found that Klayman
breached the severance agreement by using Judicial
Watch’s donor list and awarded Judicial Watch $75,000
in damages for that claim.
Sufficient evidence supported the jury’s verdict
that Klayman accessed Judicial Watch’s donor lists in
violation of the severance agreement. For his Senate
campaign’s direct mailing efforts, Klayman contracted
with ATA, Judicial Watch’s vendor. The contract de
fined Klayman’s “House File,” which compiles the
App. 37
donors to be targeted by a campaign, as Judicial Watch
donors who had given more than $5 in the last eight
een months. See J.A. 2746. Mark Fitzgibbons, an ATA
employee, testified that Klayman’s campaign specifi
cally targeted Judicial Watch’s donors. Indeed, Klayman admitted that, when he lost the Senate campaign,
he started Saving Judicial Watch by using the names
his Senate campaign had obtained from ATA. This ev
idence supports the jury’s verdict that Klayman vio
lated his agreement not to “have access to any Judicial
Watch donor or client lists or donor or client data.” J.A.
2574. And it certainly refutes Klayman’s contention
that the evidence was so skewed as to prevent a rea
sonable jury from concluding he violated the severance
agreement.
Klayman maintains that ATA owned the donor
names, which his campaign then rented, so “there was
no illegal taking” of the Judicial Watch donor lists.
Klayman Br. 80. Klayman’s assertion is factually dubi
ous,4 but in any event legally irrelevant. The severance
agreement does not turn on ownership of the donor
names. Rather Klayman agreed to “not retain or have
access to any Judicial Watch donor or client lists or do
nor or client data.” J.A. 2574. Klayman has thus failed
to establish that the district court entered judgment on
4 The contract between ATA and Judicial Watch indicated
that Judicial Watch owned the donor names. It stated that lain
names, addresses and related information of contributors . .. de
veloped under this Agreement.. . shall belong exclusively to the
Client,” meaning Judicial Watch. J.A. 2734; J.A. 2736 (“All do
nors, non-donors and related information . .. shall be the sole and
exclusive property of Client.”).
App. 38
a jury verdict that was “so one-sided that reasonable
men and women could not disagree.” Scott, 101 F.3d at
753.
Klayman’s multitude of asserted errors fail. Judge
Kollar-Kotelly presided over this litigation commendably, without any error that Klayman has identified.
For the foregoing reasons, we affirm the district court
in full. The district court did not err when it sanctioned
Klayman, granted partial summary judgment, admit
ted evidence, instructed the jury, or entered judgment
on the jury’s verdict.
So ordered.
App. 39
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN,
Plaintiff/Counterdefendant,
v.
JUDICIAL WATCH, INC., et al,
Civil Action No.
06-00670
Judge Colleen
Kollar-Kotelly
Defendants/Counterplaintiffs.
JURY VERDICT FORM
(Filed Mar. 14, 2018)
WE, THE JURY, UNANIMOUSLY FIND AS
FOLLOWS:
Larrv Klavman v. Judicial Watch
Plaintiff Larrv Klavman:
1. Has Plaintiff Larry Klayman proved by a prepon
derance of the evidence his claim that Defendant Judi
cial Watch, Inc. breached the Confidential Severance
Agreement by failing to make a good faith effort to re
move him as the guarantor of a lease for Judicial
Watch, Inc.’s headquarters? (See Claim No. 1 on page
27 of the Jury Instructions.)
YES
a.
X
NO
If yes, designate the type of breach:
Material
Simple
App. 40
a. If yes, what, if any, nominal damages do you award
to Plaintiff Larry Klayman?
Answer:______________
2. Has Plaintiff Larry Klayman proved by a prepon
derance of the evidence his claim that Defendant Judi
cial Watch, Inc. breached the Confidential Severance
Agreement by failing to pay health insurance for his
children? (See Claim No. 2 on page 27.)
YES
X
NO
a. If yes, what, if any, nominal damages do you award
to Plaintiff Larry Klayman?
Answer:______________
3. Has Plaintiff Larry Klayman proved by a prepon
derance of the evidence his claim that Judicial Watch,
Inc. breached the Confidential Severance Agreement
by filing a motion to strike Plaintiff’s appearance in a
Florida litigation involving Sandra Cobas after Plain
tiff left Judicial Watch, Inc.?(See Claim No. 3 on page
27.)
YES
a.
X
NO
If yes, designate the type of breach:
Material
Simple
b. If yes, what, if any, nominal damages do you award
to Plaintiff Larry Klayman?
Answer:______________
App. 41
4. Has Plaintiff Larry Klayman proved by a prepon
derance of the evidence his claim that Judicial Watch,
Inc. breached the Confidential Severance Agreement
by failing to provide Plaintiff with access to documents
regarding a client Peter Paul? (See Claim No. 4 on page
27.)
YES
a.
X
NO
If yes, designate the type of breach:
Material
Simple
b. If yes, what, if any, nominal damages do you award
to Plaintiff Larry Klayman?
Answer:______________
5. Has Plaintiff Larry Klayman proved by a prepon
derance of the evidence his claim that Judicial Watch
breached the Confidential Severance Agreement by
disparaging him and misrepresenting the reasons for
his departure from Judicial Watch, Inc.? (See Claim
No. 5 on page 27.)
YES
a.
X
NO
If yes, designate the type of breach:
Material
Simple
b. If yes, what, if any, nominal damages do you award
to Plaintiff Larry Klayman?
Answer:______________
App. 42
Judicial Watch and Thomas Fitton v. Larrv Klavman
Counterplaintiff Judicial Watch. Inc.:
1. Has Counterplaintiff Judicial Watch proved by a
preponderance of the evidence its claim that Coun
terdefendant Larry Klayman breached the Confiden
tial Severance Agreement by failing to repay a debt
owed by Klayman & Associates? (See Counterclaim No.
1 on page 28.)
X
a.
YES
NO
If yes, designate the type of breach:
___Material
X Simple
b. If yes, what, if any, damages do you award to Coun
terplaintiff Judicial Watch, Inc.?
Answer: $200.000.00
2. Has Counterplaintiff Judicial Watch, Inc. proved
by a preponderance of the evidence its claim that
Counterdefendant Larry Klayman breached his obli
gation in the Confidential Severance Agreement to pay
costs and expense arising from his failure to make
prompt payment to Judicial Watch in accordance with
paragraphs 10 and 11 of the Confidential Severance
Agreement? (See Counterclaim No. 2 on page 28.)
X YES
a.
NO
If yes, designate the type of breach:
___Material
X Simple
App. 43
b. If yes, what, if any, damages do you award to Coun
terplaintiff Judicial Watch, Inc.?
Answer: $25.000.00
c. If you awarded damages, do you find that Counterplaintiff Judicial Watch, Inc. is entitled to prejudgment
interest of 6%?
YES
X
NO
3. Has Counterplaintiff Judicial Watch, Inc. proved
by a preponderance of the evidence its claim that
Counterdefendant Larry Klayman infringed Judicial
Watch, Inc.’s registered trademarks: (1) JUDICIAL
WATCH and/or (2)"BECAUSE NO ONE IS ABOVE
THE LAW” in violation of the Lanham Act? (See Coun
terclaim No. 3 on page 28.)
X
YES
NO
a. If yes, please designate which trademarks (one or
both) were infringed.
Both
b. What, if any, compensatory damages do you award
to Counterplaintiff Judicial Watch, Inc.?
Answer: $750.000.00
4. Has Counterplaintiff Judicial Watch, Inc. proved
by a preponderance of the evidence its claim that
Counterdefendant Larry Klayman engaged in unfair
competition by direct mail, email and advertisements
including the website supporting the Saving Judicial
Watch effort in violation of the Lanham Act by a false
App. 44
and/or misleading affiliation, connection or association
between Saving Judicial Watch and Judicial Watch?
(See Counterclaim No. 4 on page 29.)
X
YES
NO
5. Has Counterplaintiff Judicial Watch, Inc. proved
by a preponderance of the evidence its claim that
Counterdefendant Larry Klayman engaged in unfair
competition by direct mail, email and advertisements
including the website supporting the Saving Judicial
Watch effort in violation of the Lanham Act by using
false and/or misleading statements? (See Counter
claim No. 5 on page 29.)
X
YES
NO
а. If yes to either or both of questions no. 4 and 5,
what, if any, compensatory damages do you award to
Counterplaintiff Judicial Watch, Inc.?
Answer: $1.000.000.00
б. Has Counterplaintiff Judicial Watch, Inc. proved
by a preponderance of the evidence its claim that
Counterdefendant Larry Klayman breached the Confi
dential Severance Agreement by publishing state
ments that were disparaging to Judicial Watch, Inc.?
(See Counterclaim No. 6 on page 29.)
X
a.
YES
NO
If yes, designate the type of breach:
___Material
X Simple
App. 45
b. If yes, what, if any, compensatory damages do you
award to Counterplaintiff Judicial Watch, Inc.?
Answer: $250.000.00
7. Has Counterplaintiff Judicial Watch, Inc. proved
by a preponderance of the evidence its claim that
Counterdefendant Larry Klayman breached the Confi
dential Severance Agreement by using information re
garding Judicial Watch, Inc.’s donor or client lists or
donor or client data? (See Counterclaim No. 8 on page ,
29.)
X YES
a.
NO
If yes, designate the type of breach:
___ Material
X Simple
b. If yes, what, if any, compensatory damages do you
award to Counterplaintiff Judicial Watch, Inc.? An
swer:
Answer: $75.000.00
Counterplaintiff Thomas Fitton:
8. Has Counterplaintiff Thomas Fitton proved by a
preponderance of the evidence his claim that Counter
plaintiff Larry Klayman breached the Confidential
Severance Agreement by publishing statements that
were disparaging to Mr. Fitton? (See Counterclaim No.
7 on page 29.)
X
YES
NO
App. 46
a.
If yes, designate the type of breach:
___Material
X Simple
b. If yes, what, if any, compensatory damages do you
award to Counterplaintiff Thomas Fitton?
Answer: $500.000.00
3/14/18
DATE
JUROR FOREPERSON
App. 47
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN,
Counterdefendant,
Civil Action No.
06-670 (CKK)
v.
JUDICIAL, WATCH, INC., et al,
Counterplaintiffs.
JUDGMENT ON THE VERDICT FOR
COUNTERPLAINTIFF JUDICIAL WATCH, INC.
(March 15, 2018)
This cause having been tried by the Court and a
Jury, before the Honorable Colleen Kollar-Kotelly,
Judge presiding, and the issues having been duly tried
and the Jury having rendered its verdict; now there
fore, pursuant to the verdict,
IT IS ORDERED, ADJUDGED AND DECREED
that Counterplaintiff Judicial Watch, Inc. recover as a
judgment $2,300,000,00 from Counterdefendant Larry
Klayman and that Counterplaintiff Judicial Watch,
Inc. have and recover costs from Counterdefendant
Larry Klayman.
SO ORDERED.
App. 48
Dated: March 15, 2018
/s/ Colleen Kollar-Kotelly________
COLLEEN KOLLAR-KOTELLY
United States District Judge
App. 49
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN,
Counterdefendant,
Civil Action No.
06-670 (CKK)
v.
JUDICIAL, WATCH, INC., et al,
Counterplaintiffs.
JUDGMENT ON THE VERDICT FOR
COUNTERPLAINTIFF THOMAS J. FITTON
(March 15, 2018)
This cause having been tried by the Court and a
Jury, before the Honorable Colleen Kollar-Kotelly,
Judge presiding, and the issues having been duly tried
and the Jury having rendered its verdict; now there
fore, pursuant to the verdict,
IT IS ORDERED, ADJUDGED AND DECREED
that Counterplaintiff Thomas J. Fitton recover as a
judgment $500,000.00 from Counterdefendant Larry
Klayman and that Counterplaintiff Thomas J. Fitton
have and recover costs from Counterdefendant Larry
Klayman.
SO ORDERED.
4
App. 50
Dated: March 15, 2018
/s/ Colleen Kollar-Kotelly________
COLLEEN KOLLAR-KOTELLY
United States District Judge
-•
f.
W- ••
App. 51
CASE NO. 19-7105
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
LARRY KLAYMAN
Plaintiffs-Appellants,
v.
. v4
JUDICIAL WATCH, INC., THOMAS J. FITTON,
PAUL ORFANEDES, AND
CHRISTOPHER FARRELL
Defendants-Appellees.
APPEAL FROM AN ORDER OF THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case Number l:06-cv-00670-CKK
PLAINTIFF-APPELLANT’S 15-PAGE
PETITION FOR REHEARING EN BANC
(Filed Aug. 30, 2021)
Larry Klayman
7050 W. Palmetto Park Rd
Boca Raton, FL, 33433
Tel: 561-558-5336
Email: leklayman@gmail.com
PlaintiffAppellant Pro Se
- •«
App. 52
FED. R. APP. P.35 STATEMENT
Under Federal Rule of Appellate Procedure 35(a),
there are two primary bases for en banc rehearing:
(1) en banc consideration is necessary to secure or
maintain uniformity of the court’s decisions, or (2)
the proceeding involves a question of exceptional im
portance. Both of these bases are strongly at issue
here.
First, the three-judge panel (the “Panel”) concedes
a split of opinion amongst the lower courts in this Cir
cuit, which must be resolved. Panel Op. at 26.
Second, this proceeding involves questions of ex
ceptional importance, as it involves a jury verdict in
the sum of $2.8 million dollars that will surely bank
rupt me. The path to this jury verdict has been strewn
with numerous highly prejudicial errors, which were
not given any weight by the Panel, and which not only
sidestepped many of my legal arguments, but then also
concurred with others before straining to hold that my
legal reasoning was inapplicable to the facts at bar.
The Panel’s Opinion, if left uncorrected, will create
bad precedent that will negatively affect future liti
gants in this Circuit. For instance, the Panel’s Opinion
upholds the District Court’s complete disregard of the
parol evidence rule, which is well-settled law. The
Panel’s Opinion also upholds the District Court’s fail
ure to conduct the balancing test as required under
Federal Rule of Evidence 403. This precent cannot be
allowed to stand. The result is a highly flawed Opin
ion that must be corrected not just because it is
App. 53
fundamentally flawed and harmful precedent but also
in the interests of fundamental fairness and justice.
Lastly, I respectfully incorporate my prior initial
brief and reply brief by reference, given the page limi
tations for this type of Petition. I respectfully request
that these briefs be thoroughly reviewed, given the vo
luminous record in this now 16-year-old case, and the
space limitations herein.
TABLE OF CONTENTS
INTRODUCTION AND BACKGROUND
1
ARGUMENT
6
The District Court Erred by Letting In Before
The Jury Highly Inflammatory And Com
pletely Irrelevant Testimony, Which The Panel
Did Not Fully Consider........................................
6
The Panel Made Numerous Errors With Re
gard To The Trademark Claims At Issue......... 13
The Panel Erred by Failing To Reverse The
Jury Verdict With Regard To Likelihood of
Confusion, Which Is Necessary For Trade
mark Infringement........................................... 16
The District Court Allowed Unauthenti
cated Hearsay Into Evidence To Prove
Likelihood Of Confusion............................... 16
There Was No Actual Confusion.................
16
App. 54
The District Court Committed Other Clear Er
rors, Which The Panel Failed To Correct......... 28
CONCLUSION...........................................................
35
TABLE OF AUTHORITIES
STATUTES
Fed. R. Evid. 401...
5
Fed. R. Evid. 402...
5
Fed. R. Evid. 403...
.... 6
Fed. R. Civ. P. 50(c)
8
28 U.S.C. § 453.....
15
CASES
American Society for Testing & Materials v. Public.Resource.Org, Inc., 896 F.3d 437 (D.C. Cir.
2018)......................................................................
13
Am. Ass’n for the Advancement of Sci. v. Hearst
Corp., 498 F. Supp. 244 (D.D.C.1980)............... 9,11
Atec, Inc. v. Societe Nationale Industrielle Aero
spatiale, 798 F. Supp. 411 (S.D. Tex. 1992)......
12
Duluth News-Tribune v. Mesabi PubVg Co., 84
F.3d 1093 (8th Cir. 1996)..................................... 9, 10
Hansen Bev. Co. v. Nafl Bev. Corp., 493 F.3d
1074 (9th Cir. 2007).............................................
11
Murray v. Lichtman, 339 F.2d 749(D.C. Cir.
1964)......................................................................
4
Old Chief v. United States, 519 U.S. 172 (1997)..
7
App. 55
Pillsbury Co. v. Milky Way Prods., 1981 U.S. Dist.
LEXIS 17722 (N.D. Ga. Dec. 24, 1981).............
12
State v. Miranda, 407 P.3d 1033 (Ut. Ct. App.
2017)......................................................................
7
State v. Zamudio, 645 P.2d 593 (Or. Ct. App.
1982)......................................................................
6
United States v. Blackwell, 694 F.2d 1325 (D.C.
Cir. 1982)...............................................................
10
United States v. Hands, 184 F.3d 1322 (11th Cir.
1999)......................................................................
6
United States v. Ring, 706 F.3d 460 (D.C. Cir.
2013)......................................................................
6
Vander Zee v. Karabatsos, 589 F.2d 723 D.C. Cir.
1978)
8, 9, 12
SECONDARY SOURCES
Restatement [Third] of Unfair Competition
(1995).......................................................................
11
Richard L. Kirkpatrick, Likelihood of Confusion
in Trademark Law (2nd).......................................
10
[1] INTRODUCTION AND BACKGROUND
We are a nation of laws and not men, and
we are going to exercise our right to fol
low duly enacted federal and state law
and carry out our solemn duty to pro
tect our citizens whether you (we) like
it or not. Facts are stubborn things,
and whatever may he our wishes, and
App. 56
inclinations, or the dictates of our pas
sion, they cannot alter the state of the
A government of
facts and evidence,
laws and not men. - John Adams
Justice is the fundamental law of society.
- Thomas Jefferson
I have decided to pen this Petition for Rehearing
En Banc in the first person, which I believe our Found
ing Fathers John Adams and Thomas Jefferson would
have done under similar circumstances. While I dare
not equate myself to Mr. Adams and Mr. Jefferson,
these great Founding Fathers have been throughout
my career, my loadstars.
In this vein, I founded Judicial Watch because I
believed in our legal system and wanted it to be beyond
reproach. [Trial Transcript 349:6-7;0001-0002]. I be
lieved and continue to believe that federal judges can
be our most important public servants. They were in
cluded in our Constitution at Article III to be the citi
zenry’s protectors against tyranny. The Framers
intended federal judges to carry out their oath of office
as a nation of laws and not men, putting aside their
likes and dislikes of those who appear before them, as
well as other personal prejudices, which Jefferson rec
ognized is the norm of mankind. It is in furtherance of
this noble principle, and with the hope that any nega
tive feelings about me can be put [2] aside in the inter
ests of not just the law but justice, that I submit this
Petition, with the hope that the Members of this Hon
orable Court can rule upon the facts and the law,
App. 57
without regard to my having been very critical of one
of your own, a jurist who did not, in my sincere estima
tion, preside “over this litigation commendably, with
out any error Klayman has identified.” [Panel Op. at
29].
I wish the Honorable Colleen Kollar-Kotelly
(“Judge Kotelly”) no ill will. But the fact that this case
is now over 16 years old, in and of itself underscores
that this gratuitous characterization is not germane to
the serious and important issues now before all mem
bers of this Honorable Court. [2460]. Personalities and
strong controversial stands must and should be put
aside in the interest of justice, as again we were
founded to be a nation of laws and not men. At stake is
a $2,800,000 judgment, [2336-2243] which, if it stands,
most assuredly will financially ruin my family and me.
But the primary issue before you is not the amount of
the judgment, but rather that it was the result of al
lowing extreme prejudice to be injected before the jury
that I had sexually harassed a married with children
office manager and beat my ex-wife, calling her foul
names in the process [2937,2850,2849,2880] - which I
vehemently denied not just at trial but during a di
vorce/custody case over my former spouse and our chil
dren. Importantly, even my ex-wife had retracted her
allegations. [2112-2124]. This prejudice would have re
sulted whether or not Judge Kotelly reasonably exer
cised discretion to bar me from presenting any [3]
witnesses or any evidence on my own.1 Thus, I will not
1 [0698-0721], [0854-0865], [0862-0893], [0894-0895], [09040913], [0914-0921], [0922-0926], [0961-0972], [1713-1721], [1722],
App. 58
dwell on this issue in this Petition, although it was in
my view overly broad, since it is irrelevant in this im
portant and case-determinative context.
The Panel Opinion sidesteps incontrovertible facts
and well-established black letter law which would re
quire, at a minimum, a new trial. That this case is now
16 years old, and that a retrial might be costly and
time consuming, should not factor into the Court doing
the right thing in the interests ofjustice. In life and of
course in the law, as we all know, things are not always
easy.
ARGUMENT
A review of the Panel’s Opinion would suggest that
a thorough review of the facts and law was not under
taken, but that there was regrettably an outcome de
terminative mindset had crept into their analysis as
they perceived that I had attacked their fellow jurist
by moving to disqualify her on a few occasions and had
been critical with regard to other cases for which I had
appeared in her courtroom.2
[1723], [1724-1745], [1996-1997], [1998-2025], [2026-2047], [20482050], [2142-2152], [2318-2319], [2361-2366].
2 Freedom, Watch v. Bureau of Land Management et al, 16cv-2320 (D.D.C.). Minute Order of June 13, 2017.
App. 59
I.
THE DISTRICT COURT ERRED BY LETTING
IN BEORE THE JURY HIGHLY INFLAMMA
TORY AND COMPLETELY IRRELEVANT TES
TIMONY, WHICH THE PANEL DID NOT
FULLY CONSIDER.
[4] First, the Severance Agreement (“SA”), signed
and agreed to by both Judicial Watch president
Thomas J. Fitton and a principal director and corpo
rate secretary Paul J. Orfanedes, on behalf of Judicial
Watch admits that I left Judicial Watch to pursue other
endeavors voluntarily, simply put, my departure was
not a forced resignation. [2587]. This is indisputa
ble, as it was written into a binding contract signed by
all parties. There is no possible dispute that I left Ju
dicial Watch to run for the U.S. Senate in Florida,
which comports with my pursuing other endeavors.
[2594]. That I did not choose to make specific reference
to my running for the U.S. Senate in the SA is simply
because I had come distrust Fitton as an unprincipled
aspiring competitor, and thus did not want to reveal
my specific plans. [2587-2599]. Here is what the Sever
ance Agreement clearly and unequivocally provides:
Klayman’s employment shall terminate
effective September 19, 2003 (the “Sepa
ration Date”), and it shall be treated for
all purposes as a voluntary resignation.”
[2587].
The “parol evidence rule requires that when two
parties have made a contract and have expressed it
in writing to which they have both assented as the
complete and accurate integration of that contract,
App. 60
evidence, whether parol or otherwise, of antecedent
understandings and negotiations will not be admitted
for the purpose of varying or contradicting the writ
ing.” Murray v. Lichtman, 339 F.2d 749, 751 (D.C. Cir.
1964). Here, all parties involved entered into a binding
contract [5] which states that I voluntarily left Judicial
Watch. [2595]. There can be no extrinsic evidence al
lowed otherwise. Thus, under Fed. R. Evid. 401 and
402, any additional “evidence” in this regard is barred
and inadmissible. However, these rules were ignored
and the jury heard highly inflammatory, albeit false,
testimony that contradicted the binding SA. This was
a clear error, as the Panel simply sidestepped this. Fur
thermore, consistent with this voluntary resignation,
the SA praises me:
“Larry conceived, founded and helped
build Judicial Watch into the organiza
tion it is today, as we will miss his day to
day involvement. Judicial Watch now
has a very strong presence and has be
come the leading non-partisan, public in
terest watchdog seeking to promote and
ensure ethics in government, and Larry
leaves us well positioned to continue our
important work.” Para. 18, p. 9 [2595].
Importantly, if I had (1) sexually harassed the
office manager who was neither deposed nor called
as witness by Judicial Watch during this 16 year
saga, and (2) been a wife beater, would Fitton and
Orfanedes, who manufactured testimony at the trial,
[2937,2850,2849,2880], have agreed in my SA to is
sue this glowing statement? These two dishonest
App. 61
purveyors of false facts would not even admit that I
had founded Judicial Watch, which I founded to be an
ethics organization. [Trial Transcript 1023:23-24]. In
fact, Fitton was forced to admit under oath at deposi
tion in a related case that I was not ousted at Judicial
Watch over sexual harassment, showing the falsity of
this prejudicial testimony. [2451-2452]. Exhibit 1.
[6] Thus, one can only possibly conclude, notwith
standing my voluntary departure from Judicial Watch
and the praise which Appellees Fitton and Orfanedes
heaped upon me upon leaving, the parol evidence rule
should have barred the highly inflammatory and prej
udicial testimony from being put before the jury. This
was one of the clearest errors by the District Court and
the Panel.
Even more, assuming arguendo, there was no
binding SA that unequivocally stated that I had left
Judicial Watch voluntarily, the highly inflammatory
and false testimony allowed by the District Court still
had no place in front of the jury, as it fell far short un
der the balancing test of Fed. R. Evid. 403. Evidence
that may even be deemed relevant could still be inad
missible if “its probative value is substantially out
weighed by a danger of... unfair prejudice. . . .’’Id. See
also United States v. Ring, 706 F.3d 460, 472 (D.C. Cir.).
Here, the District Court allowed in highly inflamma
tory false testimony that I had beaten my ex-wife and
had engaged in sexual harassment:
Moreover, we believe the public stigma
attached to a husband who beats his wife
App. 62
is significant. The inflammatory nature
of such a characterization is arguably
more substantial than the purchase of
marijuana discussed in State v. Hockings9 supra. It is probable that portrayal
of defendant as a “wife-beater” so black
ened his character in the mind of the
jury, that it was natural to infer that he
was readily capable of rape, sodomy and
sexual abuse. In short, we find that the
slight probative value of the evidence
was outweighed by its inflammatory and
prejudicial impact. State v. Zamudio, 57 Or.
App. 545, 551, 645 P.2d 593, 596 (1982).
Some types of extrinsic acts are particu
larly “likely to incite a jury to [7] an irra
tional decision,” few would doubt that
violent spousal abuse falls into this cate
gory. United States v. Hands, 184 F.3d 1322,
1328 (11th Cir. 1999); see also State v. Mi
randa, 407 P.3d 1033, 1042-43.
These cases all stand for the same undeniable, irrefu
table, rockbed legal principle—testimony that an indi
vidual engaged in domestic violence, that is beat his
wife, is highly prejudicial and inflammatory, and its ad
mission—even in criminal cases where violence is at
issue—is still in error. Here, this type of testimony was
allowed in a civil case, and where it was entirely irrel
evant.
In Old Chief v. United States, 519 U.S. 172, 174
(1997) the Supreme Court held that a District Court
abuses its discretion when “it spurns such an offer [to
App. 63
concede the fact of a prior conviction] and admits the
full record of a prior judgment. . . The facts here are
even more egregious. Here, the false “evidence” was not
even necessary for Judicial Watch to prove its claims.
[2937,2850,2849,2880]. Instead, they were not only
false, but entirely irrelevant. Thus, where Old Chief
was an abuse of discretion, the facts here are even
much more compelling in my favor.
Lastly, it is telling that in responding initially to
the complaint in this case, Appellees did not even raise
sexual harassment and wife beating. [0112,0140]. In
deed, it was only after they lost on several issues over
their motion to dismiss, that as a “Hail Mary” they
falsely injected this highly prejudicial red herring. [8]
Accordingly, based on the foregoing, the only remedy
for this error is for the District Court hold a new trial.
II.
THE PANEL MADE NUMEROUS ERRORS
WITH REGARD TO THE TRADEMARK
CLAIMS AT ISSUE.
While there are many other errors in the Opinion,
including the false suggestion that I admitted to an
“inappropriate relationship,” [Panel Op. at 3], the sec
ond most clear error concerns trademark law. Under
Fed. R. Civ. P 50(c), there is authority for a judgment
to be entered regardless of any jury verdict in situa
tions where the facts are clear cut. A judgment not
withstanding the verdict is required there is but one
reasonable conclusion as to the verdict. Vander Zee v.
Karabatsos, 589 F.2d 723, 728 (D.C. Cir. 1978).
App. 64
A. THE PANEL ERRED BY FAILING TO
REVERSE THE JURY VERDICT WITH
REGARD TO LIKELIHOOD OF CON
FUSION WHICH IS NECESSARY FOR
TRADEMARK INFRINGEMENT.
Of crucial importance is the fact that the Panel
concedes that there is, at a minimum, a split regarding
likelihood of confusion and trademark infringement:
Klayman also argues that the district
court failed to properly instruct the
jury on an element of trademark in
fringement. Judicial Watch asserted that
Klayman infringed on its trademarks
“Judicial Watch” and “Because No One is
Above the Law.” To establish trademark
infringement, Judicial Watch needed to
prove, among other elements, that Klayman’s use of its trademarks created a
“likelihood of confusion” among consum
ers. See Am. Soc’y for Testing and Materi
als v. Public.Resource.Org, Inc., 896 F. 3d
437, 456 (D.C. 2018). Klayman argues
that the court erred by failing to instruct
the jury that likelihood of confusion re
quires confusion by an “appreciable
number” of consumers. But his only sup
port for this proposition comes from two
[91 unpublished decisions of our district
court, which are of course not preceden
tial. See In re Exec. Office of President,
215 F.3rd 20, 24 (D.C. Cir. 2000).
This circuit “has yet to opine on the pre
cise factors courts should consider when
App. 65
assessing likelihood of confusion....
[Panel Op. at 26].
The Panel thus admits (1) this Circuit “has yet to opine
on the precise factors ... when assessing likelihood of
confusion, and (2) there are courts in this Circuit who
have held that likelihood of confusion requires an “ap
preciable number of consumers. Furthermore, author
ity from other circuits also requires an “appreciable
number of consumers” to show likelihood of confusion,
and thus trademark infringement. Am. Ass’n for the
Advancement of Sci. v. Hearst Corp., 498 F. Supp. 244
(D.D.C.1980). The Panel committed a clear error by
failing to overturn the jury verdict pursuant to Vander
Zee 589 F.2d at 728 and Hearst, as well as a long line
of other cases since “there can be but one reasonable
conclusion as to the verdict.” Reversal here would alle
viate most if not all of the damages against me.
1. The District Court Allowed Unau
thenticated Hearsay into Evidence to
Prove Likelihood of Confusion.
First, however, perhaps the most prominent clear
error was the fact that the District Court allowed into
evidence letters allegedly written by donors proffered
by Judicial Watch to show alleged confusion without
proper authentication. [2701-2724]. Courts have rou
tinely held that this type of hearsay “evidence” is inad
missible to show likelihood of confusion. In Duluth
News-Tribune v. Mesabi [10] PubVg Co., 84 F.3d 1093
(8th Cir. 1996), the Eighth Circuit excluded alleged ev
idence of actual confusion in the form of misdirected
App. 66
phone calls and mall as “hearsay of a particularly un
reliable nature given the lack of an opportunity for
cross-examination of the caller or sender regarding the
reason for the ‘confusion.” Id. at 1098. The facts here
are even more egregious, as Judicial Watch had over a
decade to authenticate the letters, which they strate
gically chose not to do. Judicial Watch chose also to
not present testimony from these alleged “donors,” so
therefore I had no opportunity to cross-examine or in
quire as to the reason for the alleged “confusion,” iden
tical to Duluth.
This is a common issue in the trademark context:
Evidence of actual confusion is entitled
to weight only if properly proved.... The
most common evidentiary problem with
anecdotal confusion evidence involves
testimony or documentary evidence pre
sented in court by a witness about the
confusion of a third party who is absent
from court. Richard L. Kirkpatrick, Likeli
hood of Confusion in Trademark Law
§7:6(2nd).
This is why authentication is so important, and no
mere formality. “Authentication and identification are
specialized aspects of relevancy that are necessary
conditions precedent to admissibility.” United States v.
Blackwell, 694 F.2d 1325,1330 (D.C. Cir. 1982). It was
a clear error by the District Court to allow this unau
thenticated hearsay into evidence and put forth be
fore the jury. Likely recognizing this deficiency, the
Court strained to disingenuously give a confusing and
App. 67
improper instruction that the letters could not be used
to show the truth of the [11] matter asserted, but only
to show potential or actual damage to Judicial Watch.
[2888]. This was done over my objection. [2877]. The
Panel errs by failing to address and rectify this.
2. There Was No Actual Confusion
Even if the letters proffered by Judicial Watch
were properly authenticated, they were patently insuf
ficient to show actual confusion. The record of this case
shows that there were millions of letters sent by both
Appellees and myself, and among these millions, there
were only a few unauthenticated letters proffered by
Judicial Watch to show actual confusion. [Trial Tran
script 1861:13-14].
It is well-settled that isolated or occasional in
stances of actual confusion are discounted as being “in
sufficient to support an inference that a significant
number of prospective purchasers are likely to be con
fused.” See Restatement [Third] of Unfair Competition
§ 23 cmt. c at 250 (1995); Likelihood of Confusion in
Trademark Law §1:8.2 (2nd). (“The likelihood of confu
sion must affect relevant persons in numbers which
are ‘appreciable’ under the circumstances.”) Many
courts in this Circuit have followed this standard, as
recognized by the Panel. “While AAAS must show that
an “appreciable” number of reasonable buyers is likely
to be confused, this does not necessarily mean a major
ity.” Hearst Corp., 498 F. Supp. at 258. Courts all over
the country have followed this standard as well. See
App. 68
Hansen Bev. Co. v. Nat’l Bev. Corp., 493 F.3d 1074,1080
(9th Cir. [12] 2007); Pillsbury Co. v. Milky Way Prods.,
1981 U.S. Dist. LEXIS 17722, at *36-37 (N.D. Ga. Dec.
24, 1981); Atec, Inc. v. Societe Nationale Industrielle
Aerospatiale, 798 F. Supp. 411 (S.D. Tex. 1992). Thus,
even if these few letters proffered by Judicial Watch
were properly authenticated, they would still be pa
tently insufficient to show actual confusion, as they
were just a “drop in the bucket” of the millions of let
ters sent. [Trial Transcript 1861:13-14].
It was therefore a clear error for the District Court
to disregard the “appreciable number” standard and
fail to give a jury instruction in this regard, and for the
Panel to affirm this, especially where the Panel admits
that this Circuit “has yet to opine on the precise factors
. . . when assessing likelihood of confusion.” The pre
dictable result of the District Court’s failure to give the
proper jury instruction caused reversible error. In ad
dition, regardless of the error to provide a proper in
struction, the jury reached the clearly incorrect verdict
as a matter of law. Pursuant to Vander Zee, this must
be reversed, since “there can be but one reasonable con
clusion as to the verdict”—that there was no trade
mark infringement because there was no “appreciable
number” of consumers confused.
Even more, none of these unauthenticated, “drop
in the bucket” letters even show confusion by Judicial
Watch’s donors. Indeed, the opposite is true, as they
clearly understood that I was no longer affiliated with
Judicial Watch:
App. 69
Mr. Thomas Fitton, I wish to be removed
from your office. I now support Larry
Klayman. You are a liar + a cheat. [2702].
[13] Take my name off your mailing list
until Larry Klayman is brought back as
president and founder. [2703].
Indeed, of the 15 unauthenticated hearsay communi
cations put forth by Appellees in an attempt to show
“actual confusion," [2701-2724], only one, [2709], can be
argued to show possible confusion, and even so, that
exhibit is double hearsay, as it is an email from Judicial
Watch’s own Steven Anderson describing a phone call
with Betty Munson. The only reason that Ms. Munson
was allegedly “confused” was because she was legally
blind and therefore “could not read [my] .. . letter,”
which made her think that I was still at Judicial
Watch. [2709]. This is not indicative of actual confu
sion. The remainder of the communications simply ex
pressed discontent how Fitton was running Judicial
Watch, and have no bearing on the issue of “actual con
fusion.” This strongly evidences the prejudicial effect of
the inflammatory “evidence” that the District Court in
jected into the trial, as any jury acting solely on the
evidence could not possibly have found anv of actual
confusion and thus trademark infringement. This
caused the jury to simply get it wrong.
My conduct also fell under the doctrine of “nomi
native fair use” which applies when “the defendant
uses the plaintiff’s trademark to identify the plain
tiff’s own goods and makes it clear to consumers that
the plaintiff, not the defendant, is the source of the
App. 70
trademarked product or service.” American Society for
Testing & Materials v. Public.Resource.Org, Inc., 896
F.3d 437, 456 (D.C. Cir. 2018). Here, [14] I was simplymaking commentary on the state of affairs at Judicial
Watch, using the phrase “Saving Judicial Watch” and
therefore never using Judicial Watch’s trademark.
[2606-2717]. As one example, one of my letters said,
“Because Tom Fitton feared my eventual return to Ju
dicial Watch. . . .” [2618]. How could I return to some
thing that I was still affiliated with? This clearly shows
that I never stated that I was still affiliated with Judi
cial Watch. The publications made it clear that I was
no longer with Judicial Watch. [2606-2717].
III. THE DISTRICT COURT COMMITTED
OTHER CLEAR ERRORS, WHICH THE
PANEL FAILED TO CORRECT.
Given the space limit and the refusal of the Panel
to grant my reasonable request for ten additional
pages, I will simply list other errors that the Panel
failed to correct, along with where in my initial brief a
full discussion is presented:
1. The Panel failed to reverse the District
Court’s grant of partial summary judgment as
to my Lanham Act Claims over misuse of my
likeness and being by Judicial Watch, which
damages against Appellees would have far ex
ceeded any damage awarded against me. Ini
tial Brief (“Br.”) at 34.
2. The Panel failed to reverse the District
Court’s refusal to give a jury instruction on
App. 71
fair comment, which was expressly provided
for in the Severance Agreement. Br. at 39.
3. The Panel failed to reverse the District
Court’s grants of summary judgment regard
ing alleged expenses owed to Judicial Watch.
Br. at. 46.
4. The Panel failed to set aside the jury ver
dict and judgment regard alleged access to Ju
dicial Watch’s donor list, which as shown
through the testimony of Mark Fitzgibbons,
said list belonged to American Target Adver
tising, not Judicial Watch. Br. at 78.
5. The Panel failed to reverse the District
Court regarding my claim for rescission of the
Severance Agreement, which I had an inde
pendent basis for due to a judgment against
Judicial Watch for having defamed me. Klayman v. Judicial Watch, 13-CV-20610 (S.D. FI.).
Br. at 41.
[15] 6. The Panel failed to reverse the Dis
trict Court’s refusal to give any jury instruc
tion informing the jury that I had been
sanctioned to show why I could not present ev
idence or witnesses, leading the jury to reach
the highly prejudicial and false conclusion
that I simply had no evidence or witnesses. Br.
at 63.
CONCLUSION
In short, the Panel’s Opinion was regrettably not
a thorough and accurate review of the facts and the
law, and the full Court, as a matter of fundamental
App. 72
fairness and due process, must respectfully review this
case En Banc to prevent a manifest injustice. As a re
sult, prior precedent in this Circuit and other circuits
was cast aside and a flawed Panel Opinion resulted,
which creates bad precedent that will negatively also
affect future litigants. And, again, in the words of John
Adams, we are a nation of laws and not men, whatever
my admirers and detractors on the federal bench may
think. In this regard, the oath of office for federal
judges provides:
I do solemnly swear that I will administer jus
tice without regard to persons.... 28
U.S.C. § 453. (emphasis added).
I therefore respectfully request En Banc review along
with oral argument.
Dated: August 30, 2021 Respectfully submitted,
Is! Larry Klayman
Larry Klayman, Esq.
7050 W. Palmetto Park Rd
Boca Raton, FL, 33433
Tel: 561-558-5336
Email: leklayman@gmail.com
[16] Plaintiff-Appellant
Pro Se
App. 73
CERTIFICATE OF COMPLIANCE
1. This document complies with the type-volume
limit of Circuit Rule 35 because this document con
tains 3,899 words and 15 pages
2. This document complies with typeface require
ments because this document has been prepared in a
proportionally spaced typeface using Microsoft Word
14.7.7 in 14-point Times New Roman.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy
of the foregoing was filed electronically and served
through the Court’s ECF system to all counsel of rec
ord or parties listed below on August 30, 2021.
Is/ Larrv Klavman
Larry Klayman
App. 74
EXHIBIT 1
Transcript of Thomas J. Fitton
Date: June 6, 2019
Case: Klayman -v- Fitton
*
*
*
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
LARRY KLAYMAN,
Plaintiff,
*
*
*
*
vs.
THOMAS FITTON,
Defendant.
Civil Action
* No. l:19-cv-20544
*
*
Videotaped Deposition of THOMAS J. FITTON
Washington, D.C.
Thursday, June 6, 2019
3:06 p.m.
Job No.: 247643
Pages 1-92
Reported by: Vicki L. Forman
[2] Videotaped Deposition of THOMAS J. FITTON,
held at the offices of:
Planet Depos
Suite 950
1100 Connecticut Avenue, Northwest
Washington, D.C. 20036
(888) 433-3767
App. 75
Pursuant to agreement, before Vicki L. Forman,
Court Reporter and Notary Public in and for the Dis
trict of Columbia.
[3] APPEARANCES
ON BEHALF OF THE PLAINTIFF PRO SE:
LARRY KLAYMAN, ESQUIRE
Klayman Law Group, P.A.
Suite 345
2020 Pennsylvania Avenue, Northwest
Washington, D.C. 20006
(310) 595-8088
ON BEHALF OF THE DEFENDANT:
RICHARD W. DRISCOLL, ESQUIRE
Driscoll & Seltzer
Suite 610
300 North Washington Street
Alexandria, Virginia 22314
(703) 822-5001
[4] ON BEHALF OF THE DEFENDANT:
KATIE M. MERWIN, ESQUIRE
Cole, Scott & Kissane, P.A.
Suite 120
222 Lakeview Avenue
West Palm Beach, Florida 33401
(561) 383-9206
(Present via Telephone.)
ALSO PRESENT:
Joannis Arsenis, Videographer
*
*
*
App. 76
[41] MR. KLAYMAN: Certify it.
Q So as President of Judicial Watch you would
have known for sure that this Complaint had been
filed, correct?
MR. DRISCOLL:
Objection to form.
A Well, the press release indicates it was
filed and! recall we sued about the raid, yes.
Q And you gave interviews about suing in the
raid, correct, in the media?
A I don’t remember.
Q Turn to the last page, page five. The Complaint
is signed by James F Peterson, correct?
A His name is on the last page of the Com
plaint as a signatory.
Q He is an attorney at Judicial Watch, correct?
A Yes.
Q Now, Mr. Peterson had contact with Roger
Stone over the issue of the raid on his house, did he
not?
A Not that I’m aware of.
MR. DRISCOLL:
Objection to form.
Q You’re saying you don’t know one way or the
other?
App. 77
[42] A I don’t believe he has. I said I would
know if he had.
Q How would you know if you couldn’t even iden
tify the Complaint?
A Another abusive harassing question.
MR. DRISCOLL: It’s a foundation question.
You can go ahead and answer it.
How would you know if he had contacted Roger
Stone?
MR. KLAYMAN:
tacted him.
Or if Roger Stone con
A Is it privileged?
MR. DRISCOLL: That’s an interesting ques
tion. The fact of the communication would not be. The
contents of it would be.
A How I would know is my question of
whether it’s privileged or not.
MR. DRISCOLL:
to answer that one.
No, I’m going to allow you
A How I would know about what my attor
neys are doing or Judicial Watch’s attorneys are
doing?
MR. DRISCOLL: Yeah, and you’re not dis
closing a communication. You’re just describing a pro
cess.
App. 78
A Typically that type of communication
would [43] have been disclosed to me.
Q But you don’t know for sure that Mr. Peterson
didn’t have contact with Roger Stone?
MR. DRISCOLL:
Objection to form.
A I’m confident there was no such contact.
Q You have told Mr. Peterson in the past, have
you not, that I was ousted from Judicial Watch because
of a sexual harassment complaint?
MR. DRISCOLL: Objection to form. Mr. Pe
terson is an in-house counsel and I’m going to direct
the witness not to answer. That’s an attorney-client
privilege.
MR. KLAYMAN:
Certify it.
Q So you don’t know whether or not Mr. Peterson
repeating what you had told him then republished that
to Roger Stone?
MR. DRISCOLL: The communications be
tween an in-house counsel and the President of the
corporation relating to legal advice and assistance are
privileged. He can’t answer the question about the con
tents of the communication or derivative questions
that would disclose the content of the communication.
MR. KLAYMAN: That’s the crux of the law
suit. That does not apply in this context.
App. 79
[44] MR. DRISCOLL:
the privilege.
That doesn’t waive
Q Are you saying that you never told anyone at
Judicial Watch that I was ousted because of a sexual
harassment complaint?
MR. DRISCOLL: Anyone other than the at
torneys?
MR. KLAYMAN: Anyone.
MR. DRISCOLL:
answer that question.
No, I can’t allow him to)
Q Are you saying that you never told anyone a
that I was - regardless - let’s take attorneys out of it.
Have you ever - you have told other people in ad
dition to - strike that.
You have told other people excluding attorneys
that I was ousted from Judicial Watch because of a sex
ual harassment complaint?
A You have to ask the question again.
MR. KLAYMAN:
Read it back, please.
A Please.
MR. KLAYMAN:
Let me rephrase it.
Q I’m taking attorneys out of this question. Pm
saying you have told others who aren’t attorneys over
the course of the last 16 years [45] since I left Judicial
App. 80
Watch that I was ousted because of a sexual harass
ment complaint?
A No, because that’s not true. You weren’t
ousted as a result of a sexual harassment com
plaint.
Q After I sued you in this particular case has an
yone - have you or anyone at Judicial Watch or your
counsel tried to contact Roger Stone?
MR. DRISCOLL: Objection to form. The
question invades the attorney-client privilege and the
attorney work product. I direct the witness not to an
swer.
MR. KLAYMAN:
Certify it.
Madam court reporter, have a page in the front
where you have all the certified questions and where
you can find them to make it easy for the Magistrate
Judge. Thank you.
Q Now, I turn your attention back to your affida
vit which is A Exhibit 3.
Q Exhibit 3. Turn your attention to paragraph
sewn where it says “I have no recollection of ever hav
ing any communication with Roger Stone,” do you see
that?
A Uh-huh.
App. 81
[46] Q Now, it doesn’t say you didn’t have a com
munication with Roger Stone. It just says that you
have no recollection of having one, correct?
A That’s correct.
Q Do you remember during the Clinton years
that witnesses would always come in and say we have
no specific recollection and we would contest that?
MR. DRISCOLL:
Just ask your question,)
Larry.
Q So you can’t say categorically that you haven’t
had communications with Roger Stone? You’re just
saying you don’t have a recollection of ever having it,
correct?
A I think the statement speaks for itself.
Q You could have said I have never communi
cated with Roger Stone, correct, if that’s what you were
trying to say, that you never had any contact?
A The statement speaks for itself.
Q Then you state in the next sentence “I have
never published, uttered or implied to Roger Stone
that Klayman was the subject of a sexual harassment
complaint during his employment by Judicial Watch or
that his resignation from [47] Judicial Watch was mo
tivated by an employee’s sexual harassment com
plaint,” do you see that?
A Yeah.
App. 82
Q Again, that statement does not say that you
never spoke with Roger Stone, just that you’ve never
published that particular issue, correct?
A It says what it says.
Q And then it states “Any statement by Roger
Stone regarding Klayman was made without my
knowledge or information and therefore I did not in
tend and could not intend to harm Klayman or his rep
utation,” do you see that?
A Yes.
Q Now, you’re not saying in that statement that
you didn’t communicate with Roger Stone. You’re say
ing that you didn’t know that he was going to republish
anything about me, correct?
MR. DRISCOLL:
ument speaks for itself.
Objection to form. The doc
A The document speaks for itself.
Q If you don’t want to explain it that’s fine.
A You’re mischaracterizing it.
Q I do agree. It speaks for itself and there’s a lot
of loopholes in it.
[48] MR. DRISCOLL: Why don’t you just
ask him the question. Did he ever MR. KLAYMAN:
that I want to ask, Mr. -
I will ask the questions
App. 83
MR. DRISCOLL: All right.
Q I want to turn to paragraph eight.
Do you see the statements in the last sentence of
paragraph eight where it says “To support his claim
Judicial Watch submitted evidence demonstrating that
Klayman was forced to resign due to inappropriate
conduct” and you list three examples of your alleged
inappropriate conduct, do you see that?
A Yeah.
Q Now, you have in the last 16 years told many
people, and Pm excluding any attorneys, exactly what
is written in this affidavit and which you swore to un
der oath?
MR. DRISCOLL: I’m going to object to the
question and direct the witness not to answer that
question to the extent it’s related to the other lawsuit
that is currently pending in the U.S. District Court for
the District of Columbia, Case Number 06-cv-670.
MR. KLAYMAN:
That’s not a basis to tell
App. 85
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App. 91
SliliSlilSSi8§
■DearTora:
1 agree with you: the new Democratic Congress presents Judicial Watch
with a whole new set of challenges!
We must be ready to closely monitor how Nancy Pelosi and the liberal
Democratic majority deal with the ethics breakdown in the House. And I agree
that the new leader of the Senate, Harry Reid, needs to be held accountable for his
ethical misdeeds! We need to be ready to educate and mobilize our fellow citizens
to demand that both the House and the Senate get serious about enforcing its ethics
rules against all members who violate them!
To help Judicial Watch prepare for next year, and to help us with all
"durlRigobig mve^dgauomi tUid lawsuits, IEHV effcfosiilg aspecittllaxidcductitile con
tribution to. Judicial Watch today, in the Amount of
/^/ok
□ $35.00
j GW
□ $50.00
□ $70.00
It'Jb* LCery
□ Other $____
•5
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DEFENDANTS’
EXHIBIT
|
36
i
Casa No. 1ttS<v-670CKK
B
App. 92
DEFENDANTS’ EXHIBIT 37
Paul Orfanedes
From:
Steve Andersen [sandersen@judicialwatch.org]
Sent:
Monday, July 10, 2006 2:06 PM
To:
Alberta Hayes’
Cc:
tfitton@judicialwatch.org; ‘Paul Orfanedes’
Subject: RE: Ms. Betty Munson
I spoke w/ Mrs. Munson - she did receive Larry’s letter
and wanted to make a donation to support Judicial
Watch as she could not read his long letter being that
she is legally blind. She was thinking that Larry was
still here and thought his letter solicited funds for JW
- so she called here to make her donation rather than
write a check which is difficult for her due to her blind
ness.
She just didn’t understand that Larry is not here any
more - even though I tried to tell her he wasn’t - but I
did not pursue it as she was under the impression he
still was and his letter was asking for money for JW she was just happy to help JW. So I guess we can score
one for us.
Mrs. Munson is 83 years old and told me she has in
cluded JW in her trust “so we won't have to wait much
longer,” she said kindly.
She is an ATA donor - and has donated over $19,000
to us since 1998.
Thanks Alberta for doing a great job with her every
month when she calls in to contribute.
App. 93
---- Original Message---From: Alberta Hayes [mailto:ahayes@
judicialwatch.org]
Sent: Monday, July 03, 2006 2:40 PM
To: ‘Steve Andersen’
Cc: tfitton@judicialwatch.org
Subject: Ms. Betty Munson
7/6/06
Steve:
I received another call this afternoon from Ms.
Munson; she just wanted to understand why she
is receiving a letter from Larry Klayman, I told
Ms. Munson, that someone will call and speak to
her re: the letter from Mr. Klayman, she seemed
satisfied, she gave us a donation for $100.00, nor
mally she gives us $50.00 per month on her credit
card. Ms. Munson phone# 715.356.7511.
Thanks,
Alberta
Alberta Hayes
Judicial Watch
ahayes@judicialwatch.org
202.646.5172
DEFENDANTS’ EXHIBIT 38
Paul Orfanedes
From:
Steve Andersen [sandersen@judicialwatch.org]
Sent:
Monday, July 10, 2006 9:56 AM
To:
‘Paul Orfanedes’; ‘Tom Fitton’
Subject: FW: LEK contacts another donor
App. 94
AmmarellF7-06.xls (81 KE
Another report from Angel.
---- Original Message---From: Angel Azar [mailto:aazaratjudicialwatch.org]
Sent: Saturday, July 08, 2006 9:01 AM
To: Steve Andersen
Cc: Christine Streich
Subject: LEK contacts another donor
Steve,
Please find attached a call report I am sending sepa
rately as we have another donor that Larry has con
tacted and affected.
After my standard introduction, she said “I’m not too
happy with what Tom Fitton is doing”, when I asked
her to clarify she just responded “well, I’m not sure
what’s going on, but I know it’s not right,... so I’m not
interested” and hung up. 00062926G Florence Ammarell, $9,095.00 total $ gifts, Lgst gift $500, last gift
11/16/05.
I look forward to discussing this and the reports that
are following.
Respectfully,
Angel S. Azar
202-489-5494
App. 95
DEFENDANTS’ EXHIBIT 39
Call Report
[LOGO]
JW Staff: Angel S. Azar
Action Date: 07/05/06
Report Date: 07/06/06
Contact Type: [Phone
JW Record # 00062926G
Donor Name: Florence Ammarell
Address: 2943 S.W. Brighton Way
City: Palm City
State: FI
Zip: 34990
Phone: 772-220-7812
Fax:
E-mail:
Prospect Rating:
Financial
Interest / Involvement |?
Capability $
Would they like the Verdict? [Already Re
Goals / Objectives of visit: If ask, how much
$
TKU gift, introduce,
asked?
update and identify donor / JW issues, schedule mtg.,
intro. CLP, planned giving.
Results / Observations:
If ask, how much
$
This donor has been
committed?
contacted by Larry Klayman and responded to my call
/ introduction by saying “I’m not too happry with what
Tom Fitton is doing”, when asked to clarify, after neu
tralizing my position (especially not having worked
with Larry), she responded “well,..I’m not sure what’s
going on, but I know it’s not right, sorry I’m not inter
ested” and hung up.
App. 96
Follow-up Actions & Dates for Follow-up:
Advise SA / senior management.
DEFENDANTS’ EXHIBIT 40
iMr. Ronald C. Tanoiar
gPP' 17$11 Hllfoafe Dr
g§j§,
Maoomb Ml 46044-2094
M
XT
om its/i {57/177 just mi
I/V THE mu IS m/i/5 0/7
mn explaw. uiup7 bimh
MAW1T YOU- WHY!
urn rvc 5Aim sim bill
iLV/Tf]// idem ofmt, i/m w
7W BILL C//V YOU 7/?US7
jv/y/iorkt.
’
V
/Ycsl. B//L/>
rtf'. /
For reservations or information visit Marrfott.com or call (800) 331 3131
App. 97
Larry Klayman
February 7, 2007
Mr Ron Tanciar
17611 Hilldale Dr
Macomb, MI 48044-2094
Dear Ron:
As you know, with your help I sued Tom Fitton, the
current president of Judicial Watch, for unethical prac
tices that threaten the existence of this once great or
ganization, and have harmed me and my family.
I took this course of action only after trying for two
years to resolve matters with Mr. Fitton.
But he refused and has hijacked Judicial Watch.
Ron, it really grieves me he’s turning Judicial
Watch into a hapless, toothless tiger off on joy rides
having little to nothing to do with the reasons I
founded it - to clear up corruption in the governmental
and legal systems.
And he’s also misused donor monies and squan
dered Judicial Watch’s considerable resources to the
point that if we do not step in now, the organization
will likely cease to exist in a few years.
Just a few days ago, the court ruled against Tom
Fitton in our favor.
You see, Fitton and his band of ethically compro
mised directors tried to have our case dismissed.
App. 98
But the court said no and ordered the suit go for
ward full steam ahead.
Most importantly, the court ruled that if we win and you, Ron, know that this is only a matter of hard
work and time - I will be able to reassume control of
Judicial Watch as its Chairman and General Counsel.
Quite frankly, the court’s 48 page opinion favored
us and shot down every one of Tom Fitton’s protests allowing the case to go forward! You can see it at
www. SavingJudicialWatch, org.
I’m so grateful you’ve given me your support in the
past. Please continue to stand with me now so Judicial
Watch can once again be on your side.
Your support will be crucial to restoring Judicial
Watch as the premier ethics watchdog in the nation.
During my tenure as founder and Chairman and
General Counsel of Judicial Watch I was the only at
torney able to get the courts to find Bill Clinton liable
for a crime; the crime he committed against one of the
many women he harassed - Kathleen Willey - by ille
gally releasing her government files to smear her.
Now, as Hillary Clinton has decided to run for
President, and as her “lovely” husband Bill seeks to be
come the “First Man”, a forceful Judicial Watch, run by
adults with law degrees, is necessary to take the Clin
tons and other corrupt politicians, lawyers and judges
on again.
App. 99
As you know, one of the allegations of our com
plaint hinges on the hard fact that Tom Fitton is not a
lawyer and thus should not be running Judicial Watch.
In fact, shortly before I left Judicial Watch to run
for the U.S. Senate in Florida, I learned that Fitton,
contrary to the false representations he made to me
when I hired him, had not even graduated from college.
But this is not my only complaint. . .
. . . Under Fitton Judicial Watch has been run into
the ground through his unethical fundraising practices
and his lack of desire to file hard-hitting cases against
corrupt politicians, judges and lawyers.
How sad it is that three years after I left Judicial
Watch it’s become little more than a website which
boasts frequently of the many appeals it has to file
thanks to having lost the cases which I left for it to
pursue.
More than lying to donors and misusing their do
nations,
Fitton did everything he could to harm both my
U.S. Senate campaign and the wellbeing of my family
and me.
Fitton sent out direct mail to supporters with my
name on
(go on to next page, please . ..)
it to solicit monies after I had left. It gave the false im
pression I was still chairman and general counsel.
App. 100
This obviously not only confused supporters like
you, but hurt my U.S. Senate campaign.
Then, Fitton gave the false impression that unless
Judicial Watch raised a lot of money real fast, it’d have
to lay off many people all the while sitting on $16 mil
lion dollars in assets, with millions more in the pipe
line.
In particular, Fitton and company did not buy the
building for which I raised $1.2 million, instead keep
ing the money for some other purpose.
However, throughout this period Fitton gave sup
porters and donors the impression in monthly newslet
ters that a building had been purchased, publishing a
photo of a plaque listing the contributors to the build
ing fund.
What’s more, Fitton disparaged me and hurt my
reputation. When supporters called Judicial Watch and
asked how to reach me, they were told no one knew
where I was.
When people asked why I had left, frequently they
were told the reasons were confidential. That created
the false impression I left for some reason other than
to run for the U.S. Senate, thus casting a negative light
on me.
In addition, Fitton told the networks not to have
me on TV shows to discuss anything Judicial Watch
was doing. He even had his lawyer threaten me, with
out any legal basis, not to say I was its founder, falsely
App. 101
claiming this would infringe the Judicial Watch trade
mark.
And if you look back at the publicity which Fitton
has generated since I left, he removed-nearly all refer
ences to me and gave me no credit for founding and
successfully running the organization for about 10
years. It became so ludicrous that many supporters
would call me and complain.
In short, victory is going to be on our side. The
courts are giving me every indication of this.
With the return of the Clintons in particular, the
nation and the world need a Judicial Watch run by me,
who knows how to sink its teeth into the Clintons or
any other corrupt
(over once more . ..)
government official.
Major corruption has returned to Washington in
the years since I left to run for the U.S. Senate
It’s time for Judicial Watch to be restored to great
ness. But frankly, I need your continued support.
I really hate to have to ask you for help again, Ron,
but I see no choice.
The judge gave us a green light to proceed, and
now I need your help for us to move forward to restor
ing Judicial Watch to its greatness.
App. 102
We need it in place sinking its teeth into the Clin
tons once again. Won’t you help, Ron?
Now that the court has shot down Fitton’s attempt
to have our case thrown out, we have him and his part
ners on the run.
Let’s make sure we win and win big by having the
financial resources to now go for the “knock out punch.”
Thank you once again, Ron, for your previous sup
port. know I can count on you and others like you, to
help with this final surge. With our victory, I will en
sure that Judicial Watch will once again work for you.
I need your urgent help now as we want to proceed
with discovery in a big way and push for a quick deci
sion, before the Clintons are able to regain power.
Thank you and God Bless,
/s/ Larry Klayman
Larry Klayman
Founder of Judicial Watch
and Former Chairman and
General Council
RS. If there is any way you can send $50, or perhaps
even $100, it’d put us in a great position. God bless you,
Ron.
Saving Judicial Watch
P.O. Box 131567, Houston, TX 77219-1567
www. SavingJudicialWatch. org
App. 103
DEFENDANTS’ EXHIBIT 41
From: “Steve Andersen” <sandersen@judiciaIwatch.org>
To:
«<
CC:
“Susan Prytherch” <sprytherch@judlcialwatch.
org>
Tom Fitton’” <tfitton@judicialwatch.org>,
“Paul Orfanedes” <porfanedes@judicialwatch.org>,
“Chris Farrell” <cfarrell@judicialwatch.org>
Subject: Another Amicus cancel due to Klayman letter
Date:
Tue, 8 Aug 2006 17:13:36 -0400
Below profile of a very kind 82 year old lady in CO ATA list person - called today to cancel her $10/mo.
Amicus donation. I called her back to ask why and she
said she got a letter from L. Klayman and was con
cerned. I spoke with her a long time - she likes what
we do and is open to donate again in the future.
StrategicOne
Account Brief
StrategicOne
Account Brief
Criteria: Account=00437970A,
Sort History By=Gift Date (newest to oldest)
Contact Information
Account Number
Name
Address
City, State Zip
Company
00437970A
Eleanor Riter
1272 County Rd. 65 Apt. 318
Evergreen, CO 80439
App. 104
Phones
Title
Mail Restriction
Phone Restriction
EMail Restriction
Inception
(303)679-9229 (h)
(no-email)
Miss
00
99
99
07/22/1997
Profile Information
Profile Code
ATA TYPE
CHILDREN
MISC
WORTH
General Purpose
Type of ATA Account
Children in Home
Miscellaneous Type
Net Worth
Specific Purpose
Existed on ATA List Only
No
Merged Account
Seventh 6.6% Net worth
on file
Last Add or Change
on 06/08/2001
CONV on 11/27/2002
on 05/24/2002
CONV on 11/27/2002
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3 00*81-$ 8003
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9 00*09$ 9003
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App. 106
Steven C. Andersen
Director of Development Judicial Watch
501 School Street, SW. Suite 500
Washington, D.C. 20024
(202) 646-5172
fax: (202) 646-0190
www.iudicialwatch.org
“Because no one is above the law.”
STATEMENT OF CONFIDENTIALITY: The information
contained in this electronic message and any attach
ments to this message are intended for the exclusive
use of the addressee(s) and may contain confidential or
privileged information. If you are not the intended re
cipient, please notify Judicial Watch, Inc. immediately
at either 202-646-5172 or at info@judicialwatch.org.
and destroy all copies of the message and any attach
ments.
App. 107
*
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App. 110
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN,
Plaintiff,
v.
Civil Action No. 06-670
JUDICIAL WATCH, INC., (CKK)
et al.t
Defendants.
MEMORANDUM OPINION1
(March 18,2019)
After a thirteen-day trial, a jury returned a verdict
in favor of Defendant Judicial Watch, Inc. (“Judicial
Watch”) on each of Plaintiff Larry Klayman’s remain
ing claims. Moreover, the jury found liability and
awarded a total of $2.8 million in damages to CounterPlaintiffs Judicial Watch and Thomas J. Fitton on
their extant counterclaims against Counter-Defendant
Klayman.
Klayman now renews his motion for judgment as
a matter of law, moves for a new trial, and moves in the
alternative for remittitur of the jury’s verdict. ECF No.
1 Although the case caption suggests that this case involves
multiple defendants, only one, Judicial Watch, Inc., remained in
this action by the time of trial. In addition, the case caption does
not reflect Judicial Watch, Inc.’s and Thomas J. Fitton’s counter- .
claims. However, because the Court has used this caption for most
of the proceedings in this long case, the Court shall not do other
wise at this late hour.
App. Ill
571 (“Post-Trial Motions”). Also pending are Klayman’s motion for sanctions and entry of judgment, as
well as his post-trial “renewal” of that motion and Ju
dicial Watch’s and Fitton’s motion to strike the re
newed version. ECF Nos. 489, 572, 573.
Klayman asks the Court’s indulgence of one or
more excess pages in both the opening and reply briefs
of his Post-Trial Motions. ECF No. 571, at ii; ECF No.
577. In each instance he attempted to confer with Ju
dicial Watch’s and Fitton’s counsel, who either opposed
a penultimate version of his request or did not respond
in time. Because the corresponding briefs were timely
filed, and they assist in the Court’s review of Klayman’s Post-Trial Motions, the Court shall GRANT
both requests and consider the briefs in their entirety.
Upon consideration of the briefing,2 the relevant
legal authorities, and the record as a whole, the Court
2 The Court’s consideration has focused on the following
pleadings:
PL’s Mot. for J. as a Matter of Law, for a New Trial, or
in the Alternative, for Remittitur of the Jury Verdict
and Leave to Exceed Page Limit by One Page, ECF No.
571 (“Klayman’s Post-Trial Mots.”); Defs.’ Opp’n to Pl.’s
Mot. for J. as a Matter of Law, for a New TVial, or in
the Alternative, for Remittitur of the Jury Verdict
[ECF 571], ECF No. 576 (“JW’s Post-Trial Opp’n”); Pl.’s
Reply to Defs.’ Opp’n to Pl.’s Mot. for J. as a Matter of
Law, for a New Trial, or in the Alternative, for Remit- .
titur of the Jury Verdict, ECF No. 578 (“Klayman’s
Post-Trial Reply”); Pl.’s Mot. for Leave to File Reply in
Excess of Two (2) Pages and Three (3) Lines, ECF No.
577;
App. 112
DENIES Klayman’s Post-Trial Motions, DENIES
Klayman’s Motion for Sanctions and Entry of Judg
ment, DENIES Klayman’s Renewed Motion for Sanc
tions and Entry of Judgment, and DENIES Judicial
Watch’s and Fitton’s Motion to Strike Plaintiff’s Re
newed Motion for Sanctions and Entry of Judgment.
I. BACKGROUND
The Court need not revisit the factual background
summarized in earlier opinions in this nearly thirteenyear litigation. See, e.g., Mem. Op. (June 25, 2009),
Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 112,
118-19 (D.D.C. 2009) (“Klayman F), ECF No. 319, at
•
Pl.’s Mot. for Sanctions and Entry of J., ECF No. 489
(“Klayman’s 1st Sanctions Mot.”); Defs.’ Opp’n to Pl.’s
Mot. for Sanctions and Entry of J. [ECF 489] and Re
quest for Award of Sanctions, ECF No. 506 (“JWs 1st
Sanctions Opp’n”); Pl.’s Reply to Opp’n to Mot. for En
try of J., ECF No. 527 (“Klayman’s 1st Sanctions Reply”);
•
Pl./Counter-Def.’s Renewed Mot. for Sanctions and En
try of J., ECF No. 572 (“Klayman’s 2nd Sanctions
Mot.”); Defs.’ Mot. to Strike Pl.’s Renewed Mot. for
Sanctions and Entry of J., ECF No. 573 (“JWs Mot. to
Strike 2nd Sanctions Mot.”); Pl.’s Opp’n to Defs.’ Mot.
to Strike Pl.’s Renewed Mot. for Sanctions and Entry of
J., ECF No. 574 (“Klayman’s Opp’n to Mot. to Strike”);
and Defs.’ Reply in Supp. of Mot. to Strike Pl.’s Re
newed Mot. for Sanctions and Entry of J., ECF No. 575
(“JWs Reply in Supp. of Mot. to Strike”).
For purposes of the foregoing abbreviations, the Court refers to
briefing by Judicial Watch and Fitton as being submitted collec
tively by “JW.” In an exercise of its discretion, the Court finds that
holding oral argument in this action would not be of assistance in
rendering a decision. See LCvR 7(f).
App. 113
3-4.3 Similarly, the many twists and turns in this case
are amply recounted elsewhere. See, e.g., Klayman I,
628 F. Supp. 2d at 119-23.4 The Court shall focus on
3 Although, for convenience in this Memorandum Opinion,
the Court shall denominate certain prior opinions in this case,
those are by no means the Court’s only prior opinions. See infra
note 3.
4 Substantive Memorandum Opinions, Orders, and combina
tions thereof that were issued by this Court or by Magistrate
Judge Alan Kay in this case consist of the following: Order (Apr.
12, 2018), ECF No. 565; Order (Mar. 13, 2018), ECF No. 544; Or
der (Mar. 13, 2018), ECF No. 543; Order (Mar. 13, 2018), ECF No.
542; Order (Mar. 12, 2018), ECF No. 541; Order (Mar. 12, 2018),
ECF No. 540; Order (Mar. 11, 2018), ECF No. 535; Order (Mar. 9,
2018), ECF No. 528; Mem. Op. and Order (Mar. 9, 2018), ECF No.
526; Mem. Op. and Order (Mar. 9, 2018), ECF No. 525; Mem. Op.
and Order (Mar. 8, 2018), ECF No. 516; Mem. Op. and Order
(Mar. 7, 2018), ECF No. 513; Mem. Op. and Order (Mar. 6, 2018),
ECF No. 511; Order (Mar. 5, 2018), ECF No. 509; Mem. Op. and
Order (Mar. 5, 2018); ECF No. 508; Order (Mar. 2,2018), ECF No.
500; Order (Mar. 2, 2018), ECF No. 499; Order (Feb. 28, 2018),
ECF No. 496; Order (Feb. 28, 2018), ECF No. 495; Order (Feb. 24,
2018), ECF No. 488; Order (Feb. 23, 2018), ECF No. 487; Order
(Feb. 23, 2018), ECF No. 486; Order (Feb. 23, 2018), ECF No. 485;
Order (Feb. 22, 2018), ECF No. 484; Order (Feb. 20, 2018), ECF
No. 465; Mem. Op. (Feb. 20, 2018), ECF No. 464; Order (Feb. 15,
2018), ECF No. 455; Order (Feb. 2, 2018), ECF No. 442; Order
(Jan. 23, 2018), ECF No. 436; Mem. Op. (Jan. 19, 2018), ECF No.
434; Order (Oct. 6,2017), ECF No. 426; Mem. Op. and Order (Oct.
5, 2017), ECF No. 425; Order (June 19, 2017), ECF No. 402; Mem.
Op. and Order (June 14, 2017), ECF No. 401; Mem. Op. (Aug. 10,
2011), ECF No. 362; Mem. Op. (Oct. 13, 2010), ECF No. 356; Or
der (June 16, 2010), ECF No. 338; Order (Apr. 30, 2010), ECF No.
334; Mem. Op. (Oct. 14,2009), ECF No. 327; Order (Oct. 13,2009),
ECF No. 325; Mem. Op. (June 25, 2009), ECF No. 319; Mem. Op.
(June 25, 2009), ECF No. 317; Mem. Op. (June 25, 2009), ECF No.
315; Mem. Op. (Mar. 24, 2009), ECF No. 301; Order (Dec. 30,
2008), ECF No. 293; Order (Dec. 1, 2008), ECF No. 274; Order
(Nov. 6, 2008), ECF No. 262; Order (Nov. 6, 2008), ECF No. 261;
App. 114
those proceedings specifically pertinent to the pending
motions.
Relatively early in this litigation, the Court
granted summary judgment for Judicial Watch as to
the breach of contract claim in Count I of its Amended
Counterclaim, awarded damages of $69,358.48, and re
served Judicial Watch’s request for prejudgment inter
est “until after liability has been resolved as to all
remaining claims and counterclaims.” Mem. Op. (Oct.
14,2009), Klayman v. Judicial Watch, Inc., 661F. Supp.
2d 2, 4-6 (D.D.C. 2009) (“Klayman IF), ECF No. 327;
see also Klayman 1, 628 F. Supp. 2d at 157-60. The
Court’s treatment of claims and other counterclaims in
Order (Sept. 30,2008), ECF No. 252; Mem. Order (Sept. 23, 2008),
ECF No. 250; Mem. Order (Sept. 23, 2008), ECF No. 249; Mem.
Order (Aug. 26, 2008), ECF No. 233; Order (Aug. 26, 2008), ECF
No. 231; Order (Aug. 25, 2008), ECF No. 227; Mem. Order (July
18, 2008), ECF No. 206; Order (July 9, 2008), ECF No. 200; Mem.
Order (July 1, 2008), ECF No. 199; Order (June 24, 2008), ECF
No. 196; Order (June 10, 2008), ECF No. 189; Order (May 28,
2008), ECF No. 185; Order (May 28, 2008), ECF No. 184; Order
(May 28,2008), ECF No. 183; Order (May 19, 2008), ECF No. 178;
Order (May 12, 2008), ECF No. 167; Order (May 12, 2008), ECF
No. 166; Mem. Order (May 9, 2008), ECF No. 165; Mem. Order
(May 5, 2008), ECF No. 153; Order (Apr. 21, 2008), ECF No. 138;
Order (Apr. 21, 2008), ECF No. 137; Order (Apr. 2, 2008), ECF
No. 134; Mem. Order (Mar. 12, 2008), ECF No. 117; Mem. Order
(Jan. 16, 2008), ECF No. 98; Mem. Order (Jan. 8, 2008), ECF No.
97; Mem. Op. (Dec. 3,2007), ECF No. 84; Mem. Op. (Dec. 3, 2007),
ECF No. 82; Mem. Op. (Apr. 3, 2007), ECF No. 52; Mem. Op. (Apr.
3, 2007), ECF No. 50; Order (Feb. 2, 2007), ECF No. 39; Mem. Op.
(Jan. 17, 2007), ECF No. 36. In the interest of avoiding duplica
tion, the foregoing list excludes Orders issued to implement ac
companying Memorandum Opinions.
App. 115
prior proceedings is beyond the scope of this Memoran
dum Opinion.
A few days before trial in February 2018, the Court
issued an Order laying out the claims and counter
claims that had survived to that point. See Order (Feb.
23, 2018), ECF No. 487, at 8-10.5 Klayman’s remaining
claims consisted of five allegations of breach of contract
asserted in Counts Seven and Eight of his Second
Amended Complaint. Id. at 8. Because those allega
tions are somewhat specific and are not directly at is
sue in the pending motions, the Court shall not repeat
them here. Ten of Judicial Watch’s and Fitton’s coun
terclaims in their Amended Counterclaim remained vi
able: Counts I, II, and III for breaches of contract
associated with unpaid expenses; Count IV for trade
mark infringement under the Lanham Act, 15 U.S.C.
§ 1114(l)(a); Counts V and VI for unfair competition
under the Lanham Act, 15 U.S.C. § 1125(a)(1); Counts
VIII and IX for breaches of contract regarding dispar
agement of Judicial Watch and Fitton, respectively;
Count X for breach of contract regarding certain Judi
cial Watch information; and Count XI for breach of con
tract regarding a non-competition period. Id. at 9-10;
see also Am. Countercl., ECF No. 86 (clarifying that
Count IX was asserted only by Fitton). The only fur
ther pre-trial update to the claims or counterclaims
5 Judicial Watch and Fitton had shortly beforehand with
drawn Count VII of their Amended Counterclaim for cybersquat
ting under the Lanham Act. ECF No. 467.
App. 116
was Judicial Watch’s withdrawal of Count XI of its
Amended Counterclaim. ECF No. 492.
On the day before trial, Klayman filed his Motion
for Sanctions and Entry of Judgment, which dealt with
the parties’ differing characterizations of Klayman’s
discovery responses earlier in the case. The parties
briefed the motion during trial, and the Court reserved
a decision until the present Memorandum Opinion.
On February 26, 2018, the trial commenced and
continued through March 14, 2018, when the jury re
turned its verdict. Klayman introduced evidence as to
his claims against Judicial Watch. Again, the Court
need not address proceedings as to Klayman’s claims.
After Judicial Watch and Fitton presented and rested
their case as to their counterclaims, Klayman moved
for judgment as a matter of law as to those counter
claims. See Trial Tr. 3191:6-7, 10-11; 3196:7-11.6 Ra
ther than rule on the motion, the Court took the issues
raised by Klayman under advisement. Id. 3191-3198.
The Court instructed the jury orally and provided the
jury with a copy of the prepared instructions.
On March 14, 2018, the jury delivered its verdict
against Klayman on each of his extant claims and in
favor of Judicial Watch and Fitton on each of their
6 Although Klayman used the prior terminology of directed
verdict, that is not held against him. Cf. Order (Apr. 12, 2018),
ECF No. 565, at 1-2 & n.l (noting that Klayman’s invocation of
the term, “judgment notwithstanding the verdict,” later in the
proceedings is likewise treated as equivalent to a renewed motion
for judgment as a matter of law).
App. 117
extant counterclaims. Jury Verdict, ECF No. 560. Al
though damages were allocated by counterclaim, the
total awards were $2,300,000 for Judicial Watch and
$500,000 for Fitton. See id. at 4-8. The Court allowed
the parties to wait until after the court reporter’s com
pletion of the full trial transcript to brief Klayman’s
renewed motion for judgment as a matter of law and
any other post-trial motions. See, e.g., Order (Apr. 12,
2018), ECF No. 565, at 3; Min. Order of Mar. 14, 2018.
On March 15, 2018, the Court entered judgments
on the jury verdict for Judicial Watch and Fitton. J. on
the Verdict for Counterpl. Judicial Watch, Inc., ECF
No. 548; J. on the Verdict for Counterpl. Thomas J. Fitton, ECF No. 549. At Klayman’s request, the Court
later vacated its issuance of these judgments in order
to avoid potential issues with a time bar under the Fed
eral Rules. See Order (Apr. 12, 2018), ECF No. 565; see
also 11 Charles Alan Wright et al., Federal Practice
and Procedure Civil § 2812 (3d ed.) (“The time for seek
ing a new trial runs from the entry of the judgment,
not from the reception of the verdict nor from the date
the moving party receives notice of the entry of judg
ment.” (footnotes omitted)).
On July 10, 2018, the court-established deadline
for his post-trial motions, Klayman filed a renewed mo
tion for judgment as a matter of law, a motion for new
trial, and, in the alternative, a motion for remittitur of
the jury’s verdict. He followed on July 13, 2018, with a
renewed motion for sanctions and entry of judgment,
which Judicial Watch and Fitton moved to strike.
App. 118
Now that briefing of all pending motions has con
cluded, these motions are ripe for resolution.
II. LEGAL STANDARD
A.
Renewed Motion for Judgment as a Mat
ter of Law
Federal Rule of Civil Procedure 50(b) provides
that, once a jury has rendered its verdict, the verdict
loser “may file a renewed motion for judgment as a
matter of law.” Fed. R. Civ. P. 50(b). Relief under Rule
50(b) is “ ‘highly disfavored’ because it ‘intrudes upon
the rightful province of the jury.’ ” Breeden v. Novartis
Pharm. Corp., 646 F.3d 43, 53 (D.C. Cir. 2011) (quoting
Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994)).
Nevertheless, “if the court finds that the evidence was
legally insufficient to sustain the verdict,” Ortiz v. Jor
dan, 562 U.S. 180, 189 (2011), then the court may “di
rect the entry of judgment as a matter of law” in favor
of the verdict loser or “order a new trial,” Fed. R. Civ. P.
50(b)(2), (b)(3). If, however, the district court finds that
the evidence was legally sufficient to sustain the jury’s
verdict, then it must “allow judgment on the verdict.”
Fed. R. Civ. P. 50(b)(1).
In this context, the central question “is whether
there was sufficient evidence upon which the jury
could base a verdict in [the prevailing party’s] favor.”
Scott v. District of Columbia, 101 F.3d 748, 752 (D.C.
Cir. 1996). The evidence in support of the verdict
must “be more than merely colorable; it must [be]
significantly probative.” Richardson by Richardson v.
App. 119
Richardson-Merrell, Inc., 857 F.2d 823, 828-29 (D.C.
Cir. 1988). However, because the fundamental role of
the jury is “to select, from among conflicting inferences
and conclusions, that which it finds most reasonable,”
Primas v. District of Columbia, 719 F.3d 693, 698
(D.C. Cir. 2013) (quoting Metrocare v. Wash. Metro.
Area Transit Auth., 679 F.2d 922, 925 (D.C. Cir. 1982))
(internal quotation marks omitted), “the court cannot
substitute its view for that of the jury, and can assess
neither the credibility nor weight of the evidence,”
Scott, 101 F.3d at 753. The jury’s verdict must stand
unless “the evidence and all reasonable inferences that
can be drawn therefrom are so one-sided that reason
able men and women could not have reached a verdict
in plaintiff[’s] favor.” United States ex rel. Miller v. Bill
Harbert Inti Constr., Inc., 608 F.3d 871, 899 (D.C. Cir.
2010) (per curiam) (quoting McGill v. Munoz, 203 F.3d
843, 845 (D.C. Cir. 2000)) (internal quotation marks
omitted).
However, a post-trial motion for judgment as a
matter of law may be granted only upon grounds ad
vanced in a pre-verdict motion; a movant who omits
a theory from a pre-verdict Rule 50 motion waives
the theory as a basis of its post-verdict renewal. See
Whelan v. Abell, 48 F.3d 1247, 1251 (D.C. Cir. 1995);
U.S. Indus., Inc. v. Blake Constr. Co., Inc., 671 F.2d 539,
548 (D.C. Cir. 1982).
App. 120
B.
Motion for a New Trial
Rule 50(b) expressly permits a party that renews
its motion for judgment as a matter of law to “include
an alternative or joint request for a new trial under
Rule 59.” Fed. R. Civ. R 50(b). Rule 59(a) provides that
“[t]he court may, on motion, grant a new trial on all or
some of the issues . . . after a jury trial, for any rea
son for which a new trial has heretofore been granted
in an action at law in federal court.” Fed. R. Civ. P.
59(a)(1)(A).
“A trial judge should grant a new trial if the ver
dict is against the weight of the evidence, damages are
excessive, for other reasons the trial was not fair, or
substantial errors occurred in the admission or rejec
tion of evidence or the giving or refusal of instructions.”
Nyman v. FDIC, 967 F. Supp. 1562,1569 (D.D.C. 1997)
(citing 11 Charles Alan Wright et al., Federal Practice
and Procedure § 2805 (1973)).
But “[t]he decision whether to grant a new trial
falls within the discretion of the trial court.” Rice v.
District of Columbia, 818 F. Supp. 2d 47, 60 (D.D.C.
2011) (citing McNeal v. Hi-Lo Powered Scaffolding,
Inc., 836 F.2d 637, 646 (D.C. Cir. 1988)). When as
sessing a motion for a new trial, “the court should be
mindful of the jury’s special function in our legal sys
tem and hesitate to disturb its finding.” Nyman, 967
F. Supp. at 1569 (quoting Lewis v. Elliott, 628 F. Supp.
512, 516 (D.D.C. 1986)) (internal quotation marks
omitted). Accordingly, a district court should exercise
its discretion “sparingly and cautiously,” Miller v. Pa.
App. 121
R.R. Co., 161 F. Supp. 633, 641 (D.D.C. 1958), and it
should grant a new trial “only where the court is con
vinced the jury verdict was a ‘seriously erroneous re
sult’ and where denial of the motion will result in a
‘clear miscarriage of justice,’ ” Nyman, 967 F. Supp. at
1569 (quoting Sedgwick v. Giant Food, Inc., 110 F.R.D.
175, 176 (D.D.C. 1986)) (emphasis added) (internal
quotation marks omitted).
“The jury verdict stands ‘unless the evidence and
all reasonable inferences that can be drawn therefrom
are so one-sided that reasonable men and women could
not disagree on the verdict.’ ” Czekalski v. LaHood, 589
F.3d 449,456 (D.C. Cir. 2009) (quoting Curry v. District
of Columbia, 195 F3d 654, 658-59 (D.C. Cir. 1999)
(opinion of Henderson, J.)).
C.
Motion for Remittitur of the Jury Verdict
The judiciary has developed certain principles to
guide a court’s evaluation of a jury’s damages ver
dict. “In reviewing the amount of the jury’s award,
[the court] . . . need not—and indeed cannot—recon
struct the precise mathematical formula that the jury
adopted. Nor need [the court] explore every possible
quantitative analysis or compute the basis of each
penny and dollar in the award. [The court’s] inquiry
ends once [it is] satisfied that the award is within a
reasonable range and that the jury did not engage in
speculation or other improper activity.” Nyman, 967
F. Supp. at 1571 (quoting Carter v. Duncan-Huggins,
App. 122
Ltd., 727 F.2d 1225, 1238-39 (D.C. Cir. 1984)) (altera
tions in original) (internal quotation marks omitted).
“A court must be especially hesitant to disturb a
jury’s determination of damages in cases involving in
tangible and non-economic injuries.” Langevine v. Dis
trict of Columbia, 106 F.3d 1018, 1024 (D.C. Cir. 1997)
(citing Ruiz v. Gonzalez Caraballo, 929 F.2d 31, 34 (1st
Cir. 1991) (“Translating legal damage into money dam
ages—especially in cases which involve few significant
items of measurable economic loss—is a matter pecu
liarly within a jury’s ken.” (internal quotation marks
omitted)).
This deference to the jury, based on the fact that
“the Seventh Amendment right to a jury trial pervades
the realm of jury verdict decisions,” id., may only be
disturbed if “(1) the verdict is beyond all reason, so as
to shock the conscience, or (2) the verdict is so inordi
nately large as to obviously exceed the maximum limit
of a reasonable range within which the jury may
properly operate.” Peyton v. DiMario, 287 F3d 1121,
1126-27 (D.C. Cir. 2002) (citing, e.g., Jeffries v. Potomac
Dev. Corp., 822 F.2d 87, 96 (D.C. Cir. 1987)).
“Courts may not set aside a jury verdict merely
deemed generous; rather, the verdict must be so unrea
sonably high as to result in a miscarriage of justice.”
Langevine, 106 F3d at 1024 (citing Barry v. Edmunds,
116 U.S. 550, 565 (1886)). In this Circuit, a court may
remit a jury verdict “only if the reduction ‘permit [s]
recovery of the highest amount the jury tolerably
could have awarded.’ ” Id. (quoting Carter v. District of
App. 123
Columbia, 795 F.2d 116,135 n.13 (D.C. Cir. 1986)). The
moving party has the burden to prove that the jury
award is so excessive as to warrant a remittitur. Carter
v. Duncan-Huggins, Ltd., 727 F.2d at 1239. “The grant
ing of a motion for remittitur is ‘particularly within the
discretion of the trial court.’” Jeffries, 822 F.2d at 96
(quoting Doe v. Binker, 492 A.2d 857, 863 (D.C. 1985)).
III. DISCUSSION
There is no dispute that the Court has diversity
jurisdiction over the remaining breach of contract
claims and counterclaims, and federal-question juris
diction over the remaining federal statutory counter
claims. See 28 U.S.C. § 1331; id. § 1332(a)(1), (c)(1);
2d Am. Compl., ECF No. 12, n 18, 20, 24 (alleging
diversity of citizenship and sufficient amount in con
troversy); Am. Countercl., ECF No. 86, n 1-3, 5, 6
(alleging diversity of citizenship, sufficient amount in
controversy, and federal question). The Court need
not consider other grounds for jurisdiction. As to the
breach of contract claims, the parties’ Confidential
Severance Agreement expressly dictates its interpre
tation using District of Columbia law, “without regard
to its choice of law principles.” Confidential Severance
Agreement, Klayman’s Ex. 1 (“CSA”), f 23.
A.
Klayman’s Post-Trial Motions
It is not clear that Klayman raised each aspect of
the arguments in his Post-Trial Motions in either his
Rule 50(a) motion for judgment as a matter of law, or
App. 124
otherwise at trial. For example, he now objects to a
deposition designation to which he largely did not
object either before or during trial. See infra Part
III.A.5.iv.b. (discussing Dep. of Stephanie De Luca [sic]
33:22-36:9 (“DeLuca Dep.”)). “Rule 50(b) permits only
the ‘renewing5 of arguments made in prior Rule 50(a)
motions.” Campbell v. District of Columbia, 894 F.3d
281, 286 (D.C. Cir. 2018) (citing Fed. R. Civ. P. 50(b);
Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5
(2008); Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,
546 U.S. 394 (2006)). Nor can “a Rule 59 motion [be
used] to raise new issues that could have been raised
previously.” Kattan by Thomas v. District of Columbia,
995 F.2d 274, 276 (D.C. Cir. 1993).
Although such a deficiency could be dispositive of
at least parts of the Post-Trial Motions, Judicial Watch
and Fitton do not make this argument. Nor is it neces
sarily easy to parse what Klayman did and did not
raise previously for Rule 50 and Rule 59 purposes. Ac
cordingly, in the interest of reaching any necessary is
sues and conclusively resolving this case, the Court
shall assume, arguendo, that Klayman either raised
each of the issues sufficiently in his Rule 50(a) motion,
and/or that he raised issues at an appropriate time so
as to support a Rule 59(a) motion now.
Before reaching the merits of the Post-Trial Mo
tions, the Court shall dispose of several extraneous
issues that Klayman briefly raises. Submitting an affi
davit from Mike Pendleton, he suggests this is addi
tional evidence supporting his claim that Judicial
Watch disparaged him. See Klayman’s Post-Trial Mots.
App. 125
at 3 n.2 & Ex. 1. But this notion is problematic for sev
eral reasons. First, Klayman misleadingly implies that
this is a new affidavit. See id. (“Upon review of the
Court record, Mike Pendleton filed an affidavit that not
only confirms that Fitton testified falsely and indeed
disparaged Plaintiff/Counter-Defendant. ..(empha
sis added)). But the affidavit is not new; it bears a Jan
uary 2009 date, and the header shows that it was
docketed previously in this case. Second, Klayman was
precluded from introducing documentary evidence at
trial, pursuant to the Discovery Sanction that the
Court shall review below. Third, in any case, Klayman
does not pursue the argument that the jury erred as to
his own claims. Rather, he attacks the jury’s verdict as
to Judicial Watch’s and Fitton’s counterclaims. The
sanctions also dispose of Klayman’s other attempted
use of this affidavit, namely to claim now that certain
testimony was false. See id. He cannot use documen
tary evidence to do now what he would have been pre
cluded at trial from doing. No further attention to the
affidavit is necessary.
Klayman also briefly mentions the issue of his be
ing the founder of Judicial Watch, but only as an aside
attempting to suggest that Judicial Watch witnesses
lied. See Klayman’s Post-Trial Mots, at 2-3 & n.2. The
jury heard testimony from both sides on this issue, and
it was the jury’s role to weigh credibility and decide
whom to believe. The Court need not revisit this issue.
The Post-Trial Motions begin with a series of is
sues that Klayman evidently proposes to deal with
through judgment as a matter of law and/or a new
App. 126
trial. The Court shall walk through those arguments
before turning to his separate treatment of the puta
tive grounds for remittitur.
1. Counterclaim for Trademark Infringement
The Post-Trial Motions raise a number of issues
with the jury’s ruling as to Count IV of Judicial Watch’s
Amended Counterclaim, which alleges trademark in
fringement.
i. Alleged Misattribution of Trademark In
fringement
Klayman argues that the jury confused the actions
of Friends of Larry Klayman (“FOLK”) and Freedom
Watch for actions of Klayman himself. Klayman’s PostTrial Mots, at 9-10. His reasons for thinking that the
jury misattributed damages are 1) the size of a verdict
for allegedly “minimal, if any, conduct personally con
ducted” by him, and 2) the fact that the verdict form
did not distinguish any damages attributable to FOLK
and Freedom Watch. Id. at 10.
But this rationale is a non-sequitur. Judicial
Watch introduced evidence to show that Klayman him
self, acting through Saving Judicial Watch, mailed so
licitations and issued advertisements that infringed on
Judicial Watch’s trademarks. JW’s Post-Trial Opp’n at
7-8. While evidence about FOLK demonstrated how
Klayman obtained Judicial Watch donor information,
that is irrelevant to whether he made use of Judicial
App. 127
Watch trademarks in Saving Judicial Watch solicita
tions and advertisements. Id. Judicial Watch does not
discuss specific activities of Freedom Watch, but nei
ther does Klayman. And neither party addresses the
status of Saving Judicial Watch, which, in any case,
Klayman has not shown is a legal entity distinct from
himself.
Most importantly, Klayman fails to identify any
evidence of alleged trademark infringement by FOLK
or Freedom Watch that the jury might have mistakenly
attributed to him. Instead, the jury heard sufficient
evidence to attribute the alleged infringement to
Klayman himself. Accordingly, it was unnecessary to
specifically instruct the jury to distinguish between
FOLK’S and Freedom Watch’s activities and Klayman’s
own. Neither judgment as a matter of law nor a new
trial is warranted on this basis.
ii. Likelihood of Confusion
Relatedly, Klayman tries to show that the jury
did not hear sufficient evidence of alleged trademark
infringement by Klayman himself to satisfy the likeli
hood of confusion element of that counterclaim. Klay
man’s Post-Trial Mots, at 10-11. He urges that his
Saving Judicial Watch campaign adequately distin
guished his efforts as separate from Judicial Watch, de
spite the one reply envelope mailed by Saving Judicial
Watch that bore a “Judicial Watch” return address. Id.
The Court issued jury instructions as to the likeli
hood of confusion element. The Court cannot recall
App. 128
seeing any model instructions about this element that
are specific to this Circuit. Rather, Judicial Watch had
proposed the instructions, which it “derived from” gen
eral model instructions, including some specific to the
Ninth Circuit. Order (Feb. 23, 2018), ECF No. 485 (cit
ing 3A Kevin F. O’Malley, Jay E. Grenig & William C.
Lee, Federal Jury Practice and Instructions § 159:25
(6th ed. 2012)). Although the Court made some edits to
Judicial Watch’s proposed instructions during discus
sions with the parties, the instructions as delivered
closely resembled the model instructions. See id.; Trial
Tr. 3770:24-3772:21.
Klayman does not expressly argue that those in
structions were incorrect. Rather, he attacks a strawman by arguing that the evidence was insufficient to
meet a standard that he proposed for those instruc
tions, but which the Court rejected. If the Court had
adopted Klayman’s standard, the jury would have
needed to find that a “substantial” number of people
were likely to be confused. Klayman’s Post-Trial Mots,
at 10-11 (quoting Johnson PubVg Co., Inc. v. Etched-inEbony, Inc., Civil Action No. 80-2933, 1981 WL 48204,
at *4 (D.D.C. July 15, 1981), aff’d, 675 F.2d 1340 (D.C.
Cir. 1982) (Table)) (internal quotation marks omitted).
Now Klayman also urges an “‘appreciable’ number”
standard. Id. at 10 (quoting Culliford v. CBS, Inc., Civil
Action No. 83-1775,1984 WL 787, at *3 (D.D.C. Jan. 20,
1984)).
While the number of people likely to be confused
may be a consideration, it is not the only one. Without
adopting a definitive test for likelihood of confusion,
App. 129
the United States Court of Appeals for the District of
Columbia Circuit (“D.C. Circuit”) recently referred ap
provingly to other circuits’ multi-factor tests, which
evaluate such factors as “the strength of the mark, the
similarity of the marks, the proximity of the goods, the
similarity of the parties’ marketing channels, evidence
of actual confusion, the defendant’s intent in adopting
the mark, the quality of the defendant’s product, and
the sophistication of the buyers.” Am. Soc’y for Testing
& Materials v. Public.Resource.Org. Inc., 896 F.3d 437,
456 (D.C. Cir. 2018) (citing 4 J. Thomas McCarthy, McCar
thy on Trademarks and Unfair Competition §§ 24:3124:43 (5th ed. 2018)); see also Appleseed Found. Inc. v.
Appleseed Inst., Inc., 981 F. Supp. 672, 675 (D.D.C.
1997) (reciting some of these factors).7 That list does
not expressly include the number of people likely to be
confused. Whether or not the jury found that an appre
ciable or substantial number of people could be led
astray, there was sufficient evidence for the jury to find
that other factors were satisfied. For example, the jury
could have found that the Saving Judicial Watch
campaign involved similar marks deployed through
similar marketing channels, coupled with evidence of
actual confusion. Accordingly, Klayman has not met
the high threshold to disturb the jury finding that
his use of the trademarks was likely to confuse, and
7 Klayman’s cases, Johnson and Culliford, rely to some ex
tent on a similar list of factors, though Klayman does not
acknowledge this aspect of those opinions. See Culliford, Civil Ac
tion No. 83-1775, 1984 WL 787, at *3; Johnson Puhl’g Co., Inc.,
Civil Action No. 80-2933, 1981 WL 48204, at *4.
App. 130
consequently this is no basis for granting judgment as
a matter of law or a new trial.
Hi. Nominative Fair Use
Klayman next invokes the nominative fair use de
fense to a trademark infringement claim, arguing that
he qualifies because he was “making commentary on
the state of affairs at Judicial Watch, and that he never
even remotely claimed to be affiliated with Judicial
Watch in any way once the Severance Agreement was
executed.” Klayman’s Post-Trial Mots, at 12.
Again, the Court issued instructions on the nomi
native fair use defense. Trial Tr. 3777:2-3778:22. The
prepared instructions provided in hard-copy to the jury
closely track the D.C. Circuit’s recently articulated
standard:
In order for a use [of a trademark] to qualify
as nominative fair use, courts require that “[1]
the product or service in question must be one
not readily identifiable without use of the
trademark; [2] only so much of the mark or
marks may be used as is reasonably necessary
to identify the product or service; and [3] the
user must do nothing that would, in conjunc
tion with the mark, suggest sponsorship or en
dorsement by the trademark holder.”
Am. Soc’y for Testing & Materials, 896 F.3d at 456
(quoting New Kids on the Block v. News Am. PubVg,,
Inc., 971 F.2d 302, 308 (9th Cir. 1992)) (all but first al
teration in original). Klayman does not raise any issue
App. 131
with the instructions. The jury heard evidence that
could support a finding that Klayman’s use of the
trademarks exceeded nominative fair use under the
applicable standard. The Court shall not second-guess
the jury’s determination, and accordingly, neither judg
ment as a matter of law nor a new trial is justified for
this reason.
iv. Jury Consideration of “Improper, Out
side Actions’’
Klayman recycles arguments that evidence about
FOLK and Freedom Watch contributed to
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