MEMORANDUM OPINION
Plaintiff Larry Klayman brought this action against Defendants — Judicial Watch, Inc. (hereinafter “JW” or the “organization”), a non-profit public interest government watchdog organization; Thomas J. Fitton, President of JW; Paul J. Orfanedes, Secretary and a Director of JW; and Christopher J. Farrell, a Director of JW (“Individual Defendants,” together with JW, “Defendants”) — alleging a variety of claims, including,
inter alia,
breach of contract, violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A) and (B), and defamation. Presently before the Court are a number of motions, including: (1) Klayman’s motion for partial summary judgment as to Count Six of his Second
Upon a searching consideration of the filings currently before the Court on these motions, the attached exhibits, and the relevant statutes and case law, with respect to Klayman’s Second Amended Complaint, the Court shall: (1) grant Defendants’ motions for summary judgment as to Count Four; (2) deny Klayman’s partial motion for summary judgment as to Count Six and shall grant Defendants’ cross-motions for partial summary judgment as to Count Six; (3) deny-in-part and grant-in-part JW’s motion for partial summary judgment as to Counts Seven and Eight; and (4) grant Defendants’ motions for partial summary judgment as to Count Nine. With respect to the Amended Counterclaim, the Court shall: (1) grant JW’s motion for partial summary judgment as to Count One as to liability, but hold in abeyance as to damages; and (2) deny JW’s motion for partial summary judgment as to Counts Two, Three and Four.
In light of the Court’s decision herein, the following claims and counterclaims remain at issue. First, as to Klayman’s Second Amended Complaint, the following allegations of breach of contract asserted in Counts Seven and Eight remain viable as to JW: (1) JW’s alleged failure to make a good faith effort to remove Klayman as guarantor of the building’s lease; (2) JW’s failure to pay health insurance for Klayman’s children; (3) JW’s filing a motion to strike Klayman’s appearance in Florida litigation; (4) JW’s failure to provide Klayman with access to documents regarding Mr. Paul; and (5) JW’s alleged disparagement of Klayman and misrepresentations of the reasons for his departure from the organization. Second, with respect to JW and Fitton’s Amended Counterclaim, Count One remains at issue as to damages only and Counts Two through Eleven remain at issue in their entirety.
I: BACKGROUND
A Factual Background
The Court shall assume familiarity with the its January 17, 2007 and April 3, 2007 Memorandum Opinions, which each set forth in detail the factual background of this case.
See Klayman v. Judicial Watch, Inc.,
Civil Action No. 06-670,
As previously established, Defendant Judicial Watch, Inc. (“JW” or the “organization”) is a 501(c)(3) organization formed under the laws of the District of Columbia and headquartered in the District of Columbia. 4/3
/07 Klayman,
2007 WL
B. Procedural Background
On April 12, 2006, Klayman filed the instant lawsuit. Shortly thereafter, Klayman filed his Second Amended Complaint, in which he alleges six causes of action against various combinations of Defendants, relating to his separation from JW.
See
Second Amended Complaint, Docket No. [12], (hereinafter, “SAC”).
2
By a Memorandum Opinion and Order dated January 17, 2007, the Court dismissed Count Nine of the SAC, which alleges a claim of defamation, insofar as it relates to allegedly defamatory statements made in JW’s Form 990 tax returns and allegedly doctored press quotations posted on JW’s website.
See 1/17/07 Klayman,
• Count Four: alleging violations of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A) and (B) against all Defendants, SAC ¶¶ 97-106;
• Count Six: alleging breach of contract (rescission) against JW, excluding claims of fraudulent inducement;
• Count Seven: alleging breach of contract (damages) against JW, excluding allegations that JW failed to pay Klayman for the period between September 15 and 19, 2003;
• Count Eight: alleging breach of contract (specific performance) against JW, excluding allegations that JW failed to pay Klayman for the period between September 15 and 19, 2003;
• Count Nine: alleging defamation as against all Defendants, but only based on claims that Defendants made defamatory statements to JW’s employees and the media.
In addition, Defendants JW and Fitton have filed a Counterclaim against Klayman, which was amended on December 3, 2007. See Am. Counterclaim, Docket No. [86]. In their Amended Counterclaim, Defendants JW and Fitton assert 11 causes of action against Klayman, including for breach of contract, indemnification, trademark infringement, unfair competition, and cybersquatting. See id. ¶¶ 68-138.
C. The Instant Motions for Summary Judgment
Currently pending before the Court are the parties’ various motions for partial summary judgment. First, Klayman filed a motion for partial summary judgment as to Count Six (breach of contract-rescission) of his Second Amended Complaint, which asserts a breach of contract claim based on alleged breaches of the Severance Agreement and seeks an order granting the equitable remedy of rescission.
See
Pl.’s MSJ, Docket No. [275]; PL’s Stmt., Docket No. [276]. Notably, despite the Court’s repeated admonishments that the parties must comply with Local Civil Rule 7(h) and 56.1,
3
Klayman’s statement of material facts filed in support of his motion failed to include references to the parts of the record relied on to support the statement, as required. The Court therefore struck Klayman’s motion for partial summary judgment and the related statement in their entirety, but in its discretion, gave Klayman another opportunity to file a motion for partial summary judgment with a properly prepared statement.
See
12/1/08 Min. Order. Klayman subsequently filed his revised motion and statement on December 3, 2008, with citations to the record as required.
See
PL’s MSJ, Docket No. [275]; PL’s Stmt., Docket No. [276]. Defendants thereafter filed a timely opposition and response statement.
See
Defs.’ Opp’n, Docket No. [289]; Defs.’ Resp. Stmt., Docket No. [290].
4
As such, pursu
Second, Defendants have each filed a motion for partial summary as to Klayman’s Second Amended Complaint, and Defendant JW filed a motion for partial summary judgment as to the Amended Counterclaim. Specifically, the Individual Defendants each move for summary judgment as to Count Four (Lanham Act) and Count Nine (defamation) of the Second Amended Complaint, as asserted against them personally. See Farrell MSJ, Docket No. [266]; Fitton MSJ, Docket No. [267]; Orfanedes MSJ, Docket No. [268]. JW moves for summary judgment as to Counts Four (Lanham Act) and Nine (defamation) in their entirety and as to Counts Six (breach of contract-rescission), Seven (breach of contract-damages) and Eight (breach of contract-specific performance), except for Klayman’s “disparagement” claim arising from the allegation that JW actively misrepresented the reasons for Klayman’s departure. 5 See JW MSJ-SAC, Docket No. [269]. Finally, JW also moves for summary judgment as to Counts One (breach of contract), Two (breach of contract), Three (indemnification), and Ten (breach of contract) of its Amended Counterclaim. See JW MSJ-CC, Docket No. [270]. Defendants filed a joint statement of material facts not in dispute in support of their motions for summary judgment. See Defs.’ Stmt., Docket No. [265],
Klayman, however, failed to timely file an opposition and response statement in violation of this Court’s Scheduling Order.
See
9/16/08 Order, Docket No. [239], as amended by the Court’s 10/22/08 and 11/18/08 Min. Orders. The Court had previously advised Klayman that “he must respond to Defendants’ Motions [for summary judgment] by December 24, 2008,” or “the Court shall consider the Motions for Summary Judgment conceded.” 12/1/08
Nevertheless, the Court emphasizes that it does not treat Defendants’ motions for summary judgment as conceded. Rather, the Court has, as it must, scrutinized the record of the case as a whole as well as the relevant case law to address Defendants’ motions for summary judgment on the merits.
Cf St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc.,
Moreover, the Court has, in the interests of justice, reviewed Klayman’s stricken opposition and response statement, and notes that the arguments and assertions set forth in the untimely filings are largely, if not entirely, duplicative of arguments and assertions set forth in the Second Klayman Affidavit.
Compare
PL’s Stricken Opp’n, Docket No. [291] and PL’s Stricken Resp. Stmt., Docket No. [292],
with
Second Klayman Decl.
7
As explained above, the Second Klayman Declaration, as well as the other exhibits submitted by
Indeed, even if the Court had not stricken Klayman’s opposition and response statement for failure to comply with the Court’s scheduling orders, it is easily apparent upon review of those filings that they would have provided the Court with no additional argument or assistance beyond that provided in the Second Klayman Affidavit. As to Klayman’s stricken opposition, it is almost entirely devoid of any citations to supporting case law or legal authority. Indeed, Klayman’s untimely opposition includes only one single case citation. See Pl.’s Stricken Opp’n at 18. Similarly, Klayman’s response statement, although numbering 198 pages in total, is largely repetitious and consists almost wholly of block quotes taken from the Second Klayman Affidavit. See Pl.’s Stricken Resp. Stmt. For example, Klayman’s responses to paragraphs 12 through 28, which discuss facts surrounding JW’s October 2003 newsletter, are each identical and consist solely of verbatim quotes from the Second Klayman Affidavit. See id. ¶¶ 12-28. In addition to being untimely filed, Klayman’s stricken response statement is also clearly in violation of the local rules, which require “a separate, concise statement of genuine issues setting forth all material facts as to which it is contended that there exists a genuine issue necessary to be litigated [and] which shall include references to parts of the record relied on to support the statement.” LCvR 7(h). Thus, as a practical matter, the Court has reviewed and considered Klayman’s substantive arguments in opposition to Defendants’ motions, despite the Court’s ruling striking his untimely opposition and response statement.
Finally, the Court notes that after the parties had each filed their respective motions for summary judgment, Magistrate Judge Kay issued a[301] Memorandum Opinion and [302] Order granting Defendants’ [218] motion for sanctions and prohibiting Klayman from testifying to or introducing into evidence any documents in support of his damages claims or in support of his defenses to Defendants’ counterclaims. The Court has, by separate order this day, overruled Klayman’s objections to that decision and affirmed Magistrate Judge Kay’s memorandum opinion and order in their entirety. As discussed in those opinions, Klayman has repeatedly failed to timely produce the evidence at issue, with the result that now, nearly a year after the close of discovery, Klayman has not produced any documents in support of his damages claims or in support of his defenses to Defendants’ counterclaims. The Court pauses to raise this issue only to note that, as a practical matter, the discovery sanctions therefore have had no effect on the instant Memorandum Opinion as they merely serve to preclude Klayman from relying on evidence that he has never produced. Accordingly, the Court emphasizes that its decision provided herein is based on all evidence that has actually been produced in this case and is in the record now before the Court.
II: LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter
Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment.
See Anderson v. Liberty Lobby, Inc.,
Ill: DISCUSSION
A. The Parties’ Motions for Summary Judgment as to Klayman’s Breach of Contract Claims in Count Six, Seven and Eight of the Second Amended Complaint
Klayman, in Counts Six through Eight of the Second Amended Complaint, asserts nearly identical breach of contract claims against JW based on a variety of allegations, and seeks the remedies of rescission (Count Six), damages (Count Seven), and specific performance (Count Eight). SAC ¶¶ 115-147. The Court turns first to the parties’ cross-motions for summary judgment filed as to Count Six (rescission) before then turning to Defendants’ motions for summary judgment as to Count Seven (damages) and Count Eight (specific performance).
1. The Parties’ Cross-Motions as to Count Six of the Second Amended Complaint-Breach of Contract (Rescission)
Although Klayman may set forth alternative claims for relief in his Second
dants’ alleged failure to pay the cost of his and his family’s health care insurance; (2) Defendants’ alleged failure to provide him with copies of certain press materials and artist renderings; (3) Defendants’ alleged failure to provide him backup expense documentation; (4) Defendants’ alleged failure to make good faith efforts to remove him as guarantor of JW’s lease; and (5) Defendants’ dissemination of derogatory information about him to various media entities. Id. at 1-4. According to Klayman, these alleged “breaches of the Severance Agreement are material and require ... that the Severance Agreement be ruled null and void and rescinded.” Id. at 4. Defendants oppose Klayman’s motion on the basis that he cannot establish a right to rescission as a matter of law, see generally Defs.’ Opp’n, and have moved for cross-summary judgment as to Count Six of the Second Amended Complaint, see JW’s MSJ at 28; Farrell’s MSJ at 27; Orfanedes MSJ at 25; Fitton’s MSJ at 23. For the reasons set forth below, the Court agrees with Defendants that Klayman, as a matter of law, is not entitled to rescission.
Under District of Columbia law,
8
“[n]ot every breach of an agreement or failure by one party exactly to perform entitles the other to rescind or avoid performance.”
Travis v. Travis,
[T]he act upon which the person bases his right to no longer be bound by the contract must involve an unqualified refusal by the other party to perform, and should, in its legal effect, amount to a determination not to be bound by, or perform, the contract in the future. A mere dispute as to the manner of the performance, a misunderstanding as to the manner in which it shall be performed, not persisted in, does not justify a rescission by the other party.
Travis,
The Court concludes that Klayman is not entitled to rescission as a matter of law. First, the alleged breaches, even if proven, do not justify rescission of the Severance Agreement. As set out above, Klayman contends that he is entitled to rescission based on five alleged breaches of contract by Defendants. However, two of these five alleged breaches are not included in Count Six of the Second Amended Complaint and are therefore not proper grounds for Klayman’s rescission claim. Specifically, the Second Amended Complaint contains no allegation whatsoever that Defendants failed to provide him with copies of press materials and artist renderings pursuant to paragraph 4.E of the Severance Agreement. See generally Second Amended Complaint. Additionally, although the Second Amended Complaint does broadly allege that Defendants failed to provide Klayman with documents — an allegation that may be broadly read to encompass Klayman’s claim that Defendants failed to provide him with back-up expense documentation — that allegation is not included as a basis for Count Six of the Second Amended Complaint. See id. ¶¶ 115-137. Rather, Klayman has asserted this claim only under Count Eight (specific performance). See id. ¶ 146. Klayman himself concedes that these are “new” breaches of the Severance Agreement not previously alleged in Count Six of his Second Amended Complaint. See Pl.’s Reply at 1. He nonetheless contends, without case law or legal support, that these new allegations are somehow “subsumed” into the Second Amended Complaint and that he therefore “moves not just for summary judgment on ‘old’ breaches, but the new ones as well.” Id. Klayman is clearly wrong as a matter of law; he has not sought leave of this Court to amend his Second Amended Complaint to include these allegations in Count Six. See Fed. R. Civ. P. 15(a)(2) (stating a party may amend its pleading “by leave of court”).
Accordingly, the only alleged breaches of contract asserted by Klayman that may be considered by the Court in evaluating his claim for rescission are: (1) Defendants’ alleged failure to pay the cost of his and his family’s health care insurance; (2) Defendants’ alleged failure to make good faith efforts to remove him as guarantor of JW’s lease; and (3) Defendants’ dissemination of derogatory information about him to various media entities.
Id.
at 1^4. These alleged breaches, even if true, are merely a “dispute as to the manner of the performance,” and therefore do “not justify a rescission by the other party.”
Travis,
Second, the Court finds that Klayman has failed to move for rescission within a reasonable time after discovering facts justifying such a claim. As stated above, “one who seeks to rescind a contract must act within a reasonable time after discovery of the facts justifying rescission.”
Mariner Water,
Third and finally, Klayman “has not shown why damages would not provide him with full and complete relief.”
Kakaes,
Indeed, Klayman has failed to provide
any
case law or legal authority in support
Having disposed of Klayman’s motion for partial summary judgment, all that remains are Defendants motions for summary judgment, to which the remainder of this Memorandum Opinion is directed.
2. Defendants’ Motions as to Count Seven of the Second Amended Complaint— Breach of Contract (Damages)
The Court now turns to JW’s motion for summary judgment as to Count Seven of Klayman’s Second Amended Complaint, which seeks monetary damages for various breaches of the Severance Agreement as enumerated above. Specifically, JW has moved for summary judgment as to allegations in Count Seven that JW breached the Severance Agreement by, inter alia: (1) failing to take affirmative steps to purchase the headquarters building and to remove Klayman as guarantor of the building’s lease, SAC ¶¶ 66(F), 127, 145; (2) failing to return Klayman’s personal property and assets as well as property and assets belonging to his law firm, Klayman & Associates, P.C. (“K & A”), id. ¶¶ 66(E), 126, 143; (3) failing to pay Klayman and his family for health care insurance, id. ¶ 66(C); (4) opening mail sent to Klayman at JW and failing to forward mail and telephone messages to Klayman, id. ¶¶ 66(A) & (H); (5) tortiously interfering with Klayman’s new organization, Freedom Watch, Inc. (“Freedom Watch”), id. ¶ 66(A); (6) filing false and frivolous legal pleadings in proceedings in Florida, id. ¶ 66(G); (7) interfering with Klayman’s former clients who had offered to assist with his Senate campaign, id. ¶ 66(J); and (8) instructing media outlets not to speak to Klayman and not to refer to him as Founder and former Chairman of JW, id. ¶¶ 124,125. 9
At the . outset, Defendants note that it is somewhat unclear as against which of the Defendants Klayman intended to assert Count Seven. Although Count Seven explicitly names only JW as a defendant,
see
SAC at p. 25, Klayman’s prayer for relief as to that count asks the Court to award him damages “against the defendants, jointly and severally,”
id.
at pp. 32. In an abundance of caution, the Individual Defendants have therefore
The Severance Agreement is clearly between JW and Klayman. Farrell did not sign the Severance Agreement at all, so it is entirely unclear to the Court on what basis Klayman would allege that Farrell may be held personally liable. See generally Severance Agreement. Moreover, although Fitton and Orfanedes signed the Severance Agreement, they did so in their respective capacities as President and Corporate Secretary of Judicial Watch. See id. at p. 12. Nonetheless, Klayman broadly claims that the Individual Defendants “are liable individually as well as on behalf of JW” and that “[a] review of all of the affidavits and documents in the record show that [Fitton] in particular is liable individually.” Second Klayman Aff. ¶29. Klayman, however, fails to provide any legal or factual support for this claim. Although he alleges that “documents in the record” support his claim, he has not actually included any citations to record evidence or otherwise directed the Court to such alleged evidence. See id. Moreover, the Court, upon its own independent review of the record, finds that the record is devoid of any evidence that Fitton or Orfanedes personally obligated themselves to the terms of the Severance Agreement or otherwise gave their consent to be personally bound. Accordingly, to the extent Klayman sought to allege Count Seven as against the Individual Defendants, the Court GRANTS summary judgment to Farrell, Fitton, and Orfanedes as to Klayman’s breach of contract claim for monetary damages.
The Court therefore moves next to the merits of Klayman’s breach of contract claim for damages against JW. As explained above, JW has moved for summary judgment on eight of the alleged breaches of contract asserted by Klayman in Count Seven of his Second Amended Complaint. The Court shall examine each in turn,
a. JW’s alleged failure to take affirmative steps to purchase the headquarters building and to make a good faith effort to remove Klayman as guarantor of the building’s lease.
JW first moves for summary judgment as to Klayman’s allegations that the organization breached the Severance Agreement by failing to take affirmative steps to purchase the headquarters building and by failing to remove Klayman as guarantor of the building’s lease, SAC ¶¶ 66(F), 127, 145. As to the first part of
With respect to the latter part of Klayman’s allegation — that JW breached the Severance Agreement by failing to remove Klayman as guarantor of the lease — JW admits that it agreed in the contract to make a good faith effort to remove Klayman as guarantor. JW’s SAC-MSJ at 11. Specifically, the Severance Agreement provides in relevant part that:
Judicial Watch agrees to continue to work in good faith to remove Klayman as guarantor of its lease for its Washington, D.C. headquarters____Klayman acknowledges and agrees that he shall not receive any additional compensation from Judicial Watch above and beyond the Severance Pay and other benefits provided in this Agreement for his guarantying the lease.
Severance Agreement ¶ 9.B. JW argues, however, that it has satisfied its contractual obligation to make a good faith effort to remove Klayman as guarantor of the lease. JW’s SAC-MSJ at 10-11. According to JW, shortly after Klayman’s departure on September 19, 2003, Fitton contacted an agent for JW’s landlord to discuss possible ways of removing Klayman as guarantor of the lease. Defs.’ Stmt. ¶ 34. After a series of conversations in September and October 2003, the landlord proposed that Judicial Watch obtain a letter of credit from a bank in an amount equal to three years rent, or approximately $1.8 million, in lieu of Klayman continuing to serve as guarantor. Id. ¶ 35. JW determined that the cost of such an approach was not commercially acceptable and therefore sent a letter to the landlord’s agent asking the landlord to reconsider. Id. ¶ 36. Neither the landlord or his agent responded. Id. ¶ 37. Based on these facts, JW asserts that it is entitled to judgment as a matter of law that it made a good faith effort to remove Klayman as a guarantor, despite the fact that such efforts ultimately proved unsuccessful. JW’s SAC-MSJ at 10-12.
As an initial matter, JW has not addressed what legal standard the Court should apply in determining whether it met its obligation to exert a “good faith” effort. Rather, JW simply asserts that— whatever the standard may be — JW has clearly satisfied it as a matter of law. The Court does not agree. Whether a party to a contract has exerted a good faith effort is generally a question of fact.
Cf.
23 Williston on Contracts § 63:22 (4th ed. 2006) (“Thus, whether particular conduct violates or is consistent with the duty of good faith and fair dealing necessarily de
JW also argues that, even if it breached the Severance Agreement by failing to make a good faith effort to remove Klayman as guarantor, it is nonetheless entitled to summary judgment because Klayman has not suffered damages as a matter of law nor can he articulate any actual damages. JW’s SAC-MSJ at 12. Although it is true that Klayman has failed to produce any documentary evidence of actual damages in this case, and will therefore be unable to prove actual damages at trial, under District of Columbia law, “where a plaintiff proves a breach of a contractual duty ... [but] offers no proof of actual damages or when the proof is vague and speculative, he is entitled to ... nominal damages.”
Cahn v. Antioch Univ.,
b. JW’s alleged failure to forward Klayman’s telephone messages and mail.
JW next moves for summary judgment as to Klayman’s allegation that the organization breached the Severance Agreement by opening mail sent to Klayman at JW and by failing to forward mail and telephone messages to him. SAC ¶¶ 66(A) & (H). JW argues that the Severance Agreement does not contain any language concerning the manner in which Klayman’s telephone messages and mail should be handled, and that Klayman’s breach of contract claim based on such alleged conduct must fail. JW’s SAC-MSJ at 25. Reference to the Severance Agreement confirms that the contract does not contain any agreement as to the handling of Klayman’s telephone messages or mail.
See generally
Severance Agreement. As explained above, it is a basic principle of contract law that there can be no breach of an agreement where there is no agreement.
See New Economy Capital,
JW next moves for summary judgment on Klayman’s allegation that the organization breached the Severance Agreement by “tortiously interfer[ring] with another entity funded by Klayman, Freedom Watch, Inc.” SAC ¶ 66A. Once again, JW points out that the Severance Agreement does not reference Freedom Watch, an organization that did not exist at the time the Agreement was drafted, nor does it impose any obligations on JW with regards to any future entities that may be funded by Klayman. JW’s SAC-MSJ at 25-26. Reference to the Severance Agreement confirms that the contract does not contain any reference to Freedom Watch or any future entities created and/or funded by Klayman.
See generally
Severance Agreement. As explained above, it is a basic principle of contract law that there can be no breach of an agreement where there is no agreement.
See New Economy Capital,
In addition, Klayman has failed to provide any record evidence from which a reasonable jury could conclude that JW in fact “tortiously interfered” with Freedom Watch. Klayman asserts only one example of allegedly tortious behavior by JW: that the organization opened mail from the IRS to Klayman concerning Freedom Watch. Second Klayman Aff. ¶ 23. As discussed above, however, Klayman has not provided any evidence to support this allegation,
see supra
p. 131, and Klayman’s self-serving, unsupported assertion is insufficient as a matter of law to defeat summary judgment.
See Hinson v. Merritt Educational Center,
d. JW’s alleged interference with Klayman’s Senate campaign.
JW next moves for summary judgment as to Klayman’s allegations that the organization breached the Severance Agreement by “interefer[ring] with Klayman’s relationship with Klayman’s former clients who had offered to help Klayman in his Senate campaign.” SAC ¶ 66J. As an initial matter, it is entirely unclear whether Klayman, in referring to his “former clients,” intended to refer to clients he worked with while employed at Judicial Watch or clients that he had previously worked with in a private capacity. The Second Amended Complaint does not specify these individuals by name nor is there any evidence in the record identifying these alleged individuals. JW, in moving for summary judgment, has assumed that Klayman is in fact referring to clients he worked with while employed at Judicial Watch and argues that the Severance Agreement does not contain any terms or provisions purporting to govern or limit JW’s own interaction with its own clients and former clients. JW’s SAC-MSJ at 27-28. Significantly, Klayman does not dispute that his allegations refer to former clients he worked with while at JW nor does he dispute that the Severance Agreement contains no relevant terms or provisions regulating JW’s interaction with its own former and current clients. Indeed, Klayman has entirely failed to address JW’s arguments on this point.
See
Second Klayman Aff.
14
He has therefore conceded that this claim is without merit.
See Franklin v. Potter,
In addition, the Court notes that Klayman has failed to provide any evidence that JW in fact interfered with former clients who offered to help him with his Senate campaign. As stated above, Klayman has not briefed this point in the submissions now before the Court nor has he ever identified any specific individuals who were allegedly precluded from assisting with his Senate campaign. Morever, the Court, upon its own review of the record, finds no evidence to support this allegation. Accordingly, Klayman has not shown that there is any agreement between the parties that was breached or that any offending conduct actually occurred. The Court therefore GRANTS JW’s motion for summary judgment insofar as Klayman alleges that JW breached the Severance Agreement by interfering with his Senate campaign.
e. JW’s alleged failure to return property belonging to Klayman and his law firm, K & A.
JW moves for summary judgment as to Klayman’s allegations that the organization breached the Severance Agreement by failing to return Klayman’s personal property and assets as well as property and assets belonging to his law firm, K & A. SAC ¶¶ 66(E), 126, 143. As JW ac
According to JW, no reasonable jury could find, on the evidence now in the record, that the four pieces of artwork at issue are owned by Klayman, and not JW — that is, that Klayman either purchased the items with his own funds or reimbursed JW for the purchases if made on a corporate credit. JW’s SAC-MSJ at 13-16. The Court agrees. First, as to the three pieces of artwork purchased at the Kennedy Gallery, the undisputed evidence in the record demonstrates that the items were charged by Klayman to JW’s corporate American Express card on September 22, 2002. Defs.’ Stmt. ¶ 54; First Prytherch Decl. ¶ 13 & Ex. C. 15 Shortly thereafter, in October of 2002, the artwork was added to JW’s general ledger as a fixed asset of the organization. Defs.’ Stmt. ¶ 55; First Prytherch Decl. ¶ 13 & Ex. C. According to Ms. Prytherch, the artwork has remained on JW’s general ledger at all times since then, and is also included on JW’s fixed asset inventory. First Prytherch Decl. ¶ 13. Furthermore, when Klayman advised JW that he believed he owned the artwork, Ms. Prytherch “researched the matter and determined that JW has no records indicating that Klayman ever reimbursed the organization for the artwork or that he ever purchased the artwork from JW.” Id. Klayman has not proffered any evidence to the contrary. Indeed, as mentioned above, Klayman appears to have abandoned his claim as to the pieces of artwork purchased from the Kennedy Gallery, as he contests only JW’s failure to return the artwork obtained from the Miami Art Deco Festival without mention of these three pieces at issue. See Second Klayman Aff. ¶ 20. 16
Second, as to the fourth piece of artwork allegedly purchased from, a vendor at the Miami Art Deco Festival, there is no evi
Moreover, the evidence Klayman submits in support of this claim consists solely of conclusory statements that do not defeat JW’s motion for summary judgment. Specifically, Klayman, in his second affidavit, cites to his own statement, and a statement by a third-party, Ms. Cobas, for support for his claim that he purchased the artwork. See Second Klayman Aff., ¶ 20. Neither of those statements, however, provides demonstrable support for Klayman’s claim. Klayman’s own statement simply restates his allegations in his complaint, without any evidentiary support. See PL’s MSJ, Ex. 2 (Affidavit of Larry Klayman) (“First Klayman Aff.”), ¶ 6 (averring without support that “Judicial Watch has [not] returned art work which I bought for Judicial Watch”). Ms. Cobas’ statement is equally conclusory and unsupported. See id., Ex. 3 (Affidavit of Sandra Cobas) (“Cobas Aff.”), ¶ 9 (purporting to have “personal knowledge that Judicial Watch has not returned all of Mr. Klayman’s property, such as artwork in the Miami office which Mr. Klayman paid for personally, as I was with him when he purchased the artwork and paid for it himself at the South Beach art fair”). In addition, although Ms. Cobas purports to have personal knowledge based on her presence at the scene of the purchases, she does not explain how she came to personally know that Klayman paid for the artwork purchased at the Miami Art Deco Festival with his own funds rather than with corporate funds nor does she explain how she has came to have personal knowledge that Klayman’s property has not be returned to him in full. See id. Her affidavit is therefore insufficient to oppose JW’s motion. See Fed. R.Civ.P. 56(e) (an opposing affidavit “must be made on personal knowledge” and must “show that the affiant is competent to testify on the matters stated”). The failure to provide any demonstrable evidence to support these conclusory statements is particularly noteworthy given the relative ease with which Klayman could likely obtain evidence supporting his claim (e.g., a cancelled check or credit card bill). 17
Discovery in this matter is now closed, and, despite 16 months of discovery, Klayman has not produced any evidence in the record to support his claim that he purchased the artwork with his personal funds. Accordingly, the Court finds that Klayman has introduced no evidence from which a reasonable jury could conclude— other than by impermissible speculation— that he used personal funds to purchase artwork currently in JW’s possession. The Court therefore GRANTS JW’s motion for summary judgment insofar as Klayman alleges that JW breached the Severance Agreement by failing to return
f. JW’s alleged failure to pay the health insurance premiums for Klayman and his family
JW next moves for summary judgment on Klayman’s allegation that it breached the Severance Agreement by “failing] to pay Klayman and his family for health care insurance.” SAC ¶ 66(C). As JW acknowledges, the parties agreed pursuant to paragraph 3 of the Severance Agreement that:
In the event Klayman properly and timely elects to continue his family health insurance coverage following the termination of his employment in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), Judicial Watch shall pay the cost of such insurance, to the same extent that it paid Klayman’s family health insurance coverage during his employment, for a period of twelve (12) months following the Separation Date.
Severance Agreement, ¶ 3.
JW avers that it paid for Klayman’s own health insurance during the 12 months following his separation, but admits that it did not pay for health insurance coverage for Klayman’s family during this same time. Defs.’ Stmt. ¶ 59; First Prytherch Deck ¶ 14. Klayman, for his part, does not appear to dispute that JW paid his own health insurance and offers no evidence to the contrary. 18 Accordingly, the Court GRANTS JW’s motion for summary judgment insofar as it relates to Klayman’s assertion that JW breached its obligation to pay his COBRA insurance for 12 months following his separation. It is undisputed, however, that JW did not pay the health insurance coverage for Klayman’s family following his separation from JW. Accordingly, the Court must determine whether JW was obligated to do so under the Severance Agreement.
JW argues that it is nonetheless under no obligation to continue to pay for Klayman’s family health insurance because it did so in the first place only because of an administrative error. According to JW, the Severance Agreement obligates JW to pay for Klayman’s health insurance only to the extent that Klayman was entitled to payment during his' employment and because Klayman was never “entitled” to have JW pay his children’s health insurance policy, he is not entitled to such payments under the Severance Agreement. See JW’s SAC-MSJ at 16-20. The plain language of the Severance Agreement, however, does not support JW’s interpretation. Rather, the Severance Agreement provides that JW agreed to pay Klayman’s insurance “to the same extent that it paid Klayman’s family health insurance coverage during his employment.” Severance Agreement, ¶ 3.A (emphasis added). It does not provide, as JW urges, that the organization is obligated to pay only what Klayman was entitled to under the organization’s general policy. Rather, as demonstrated by the plain language of the parties’ agreement, JW’s obligation to pay Klayman’s health insurance turns on how much it paid him during his employment.
That inquiry, however, is not a straight-forward one, given that the extent to which JW paid the health insurance coverage for Klayman’s family varied throughout his employment. As discussed above, Klayman himself paid the additional cost of his family’s health insurance in the first several years of his employment with JW, while JW paid for the additional cost during the last year of Klayman’s employment. Consequently, the terms of the Severance Agreement, as applied to the facts of this case, are ambiguous, and under the law of the District of Columbia, the meaning of ambiguous contract language “must be evinced from extrinsic evidence on the intent of the parties — a factual determination.”
District of Columbia v. Dis
g. JW’s alleged filing of a false and frivolous legal pleading in Florida litigation.
JW next moves for summary judgment as to Klayman’s allegation that the organization breached the Severance Agreement by filing “false and frivolous legal pleadings to attempt to have Klayman removed as counsel for Sandra Cobas in the Miami Elian Gonzalez litigation ... fraudulently representing to the court that Klayman was legally barred from representing her.” SAC ¶ 66(G). As presented by the parties, this claim refers to a lawsuit initiated by Judicial Watch in the Southern District of Florida captioned Dalrymple v. United States, Case No. I:03cv20588 (S.D.Fla.). Defs.’ Stmt. ¶ 84. JW admits that it filed a motion to strike Klayman’s appearance as counsel for Ms. Cobas in that proceeding. See JW’s MSJ at 26-27. Accordingly, the only question is whether its doing so was in breach of the Severance Agreement.
JW contends it was not a breach. First, JW argues that Klayman was required under paragraph 12 of the Severance Agreement to withdraw as counsel of record “in all legal proceedings in which JW is currently involved as a party or as counsel for any person or entity.” Severance Agreement ¶ 12. According to JW, Klayman himself breached the Severance Agreement by attempting to “inject himself into the Dalyrmple matter by seeking to continue to represent one of the plaintiffs in that lawsuit, Ms. Sandra Cobas.” Defs.’ Stmt. ¶ 85; JW’s SACMSJ at 26-27. JW therefore contends that it filed the motion to strike his appearance in an effort to enforce Klayman’s compliance with the Severance Agreement and that doing so was not in breach of the parties’ contract. JW’s SAC-MSJ at 26-27.
Klayman counters that he was entitled to represent Ms. Cobas pursuant to paragraph 5.B(iii) of the Severance Agreement. Second Klayman Aff. ¶ 24. That provision of the Severance Agreement provides that “Klayman shall not be precluded from providing legal representation to any client, if requested by that client, in his capacity as a lawyer in private practice.” Severance Agreement, ¶ 5.B(iii). JW, however, does not address or acknowledge paragraph 5.B(iii) of the Severance Agreement in its instant motion for summary judgment. See JW’s SAC-MSJ at 26-27. If Klayman was in fact seeking to represent Ms. Cobas in his personal capacity — a fact that is not clear on the record now before the Court — the Court then must determine how paragraphs 5.B.(iii) and 12 of the Severance Agreement should be interpreted when Klayman seeks to represent a client in an action in which JW is involved. However, as JW has not briefed this issue, the question cannot be resolved in the instant Memorandum Opinion.
In the alternative, JW argues that it is entitled to summary judgment because “the motion to strike [filed by JW in the Florida litigation] and the statements made therein are absolutely privileged under the judicial proceedings privilege.” JW’s SAC-MSJ at 27. In support of this assertion, JW cites to two cases,
Messina v. Krakower,
h. JW’s alleged interference with media outlets.
JW moves for summary judgment as to Klayman’s allegation that JW breached the Severance Agreement by instructing media outlets that they could not speak with Klayman about JW’s cases or public events, and that Klayman could not be referred to as the “Founder and former Chairman of Judicial Watch.” SAC ¶¶ 124-25. Although neither party specifies, it appears that Klayman claims that such conduct is in violation of paragraph 17 of the Severance Agreement, which provides that neither party is limited “from making fair commentary on the positions or activities of the others following the Separation Date.” Severance Agreement, ¶ 17. JW argues that it is entitled to summary judgment on these claims because there is no evidence in the record that JW engaged in any such conduct. JW’s SAC-MSJ at 28. The Court agrees.
First, Klayman has made no effort to provide any evidence that JW instructed any news media outlet not to refer to Klayman as “Founder and former Chairman of Judicial Watch.” See generally Second Klayman Aff. Accordingly, the Court easily GRANTS JW’s motion for summary judgment insofar as it relates to Klayman’s allegations that the organization breached the Severance Agreement by engaging in such conduct.
Second, although Klayman has directed the Court to various documents and materials that he claims demonstrate that JW asked certain media outlets not to schedule him as a guest, none of this material contains admissible evidence that affirmatively supports his claim that such conduct ever occurred. Specifically, Klayman directs the Court to the following materials: (1) exhibits 9 and 10 to Fitton’s August 18, 2008 deposition, Second Klayman Aff. ¶ 26; (2) paragraph 7 of the First Klayman Affidavit, id.; (3) the Cobas Affidavit, First Klayman Aff. ¶ 7; (4) the Pendleton Affidavit, id.; and (5) various documents attached to the First Klayman Affidavit, id. None of these is sufficient to create a disputed statement of material fact.
For example, although Klayman directs the Court to exhibits 9 and 10 to Fitton’s August 18, 2008 deposition, he has not provided those exhibits to the Court. Second Klayman Aff. ¶ 26. That is, although Klayman has provided a copy of the deposition, none of the deposition exhibits are attached. See Docket No. [285-2]; Docket No. [286-2]. Having failed to provide such evidence, the Court is obviously unable to consider it.
Klayman also directs the Court to paragraph 7 of the First Klayman Affidavit, filed in support of his motion for partial summary judgment, and the attached ex-
Specifically, Ms. Cobas attests in her affidavit that:
I have personal knowledge that Judicial Watch and Tom Fitton told CNN not to let Mr. Klayman comment on the Cheney Energy Task Force Case, as I was in the Senate campaign office that day when Mr. Klayman was asked by CNN to go on television but later learned through discussions with David Johnson, the campaign’s campaign manager, and an e-mail from CNN itself, that Mr. Klayman would not be invited because Tom Fitton of Judicial Watch had told the network not to put Mr. Klayman on television.
Cobas Aff. ¶ 8. Labeling information as “personal knowledge,” however, does not make it so. Rather, it is clear that the above-quoted statement consists solely of impermissible hearsay, as Ms. Cobas is merely repeating information that she was told by Klayman and Mr. Johnson, who themselves appear to have received that information from other individuals.
Similarly, the documents attached to the First Klayman Affidavit provide no assistance on this issue. Klayman proffers copies of two letters from him to counsel for JW, dated April 26, 2004 and April 29, 2004 respectively, in which he repeats his allegation that Fitton told CNN and C-SPAN not to permit him to appear as a guest.
See
Docket No. [275^4] at 21-27. Klayman’s own letters repeating this allegation are not, however, evidence that such conduct occurred. Klayman also directs the Court to two additional items: (1) a copy of an e-mail dated April 27, 2004, from someone named Leslie Burdick to another individual named David Johnson; and (2) a copy of a paragraph that appears by itself on a blank page of paper without any identifying information.
Id.
at 23-24. As to the April 27, 2004 e-mail, although Klayman makes no effort to clarify who these individuals are, the e-mail appears to identify Mr. Burdick as someone with C-SPAN, and it appears from Ms. Cobas’ affidavit that Mr. Johnson was Klayman’s Senate campaign manager. The e-mail states, in relevant part:
Tom Fitton of Judicial Watch is going to be on CSPAN for 45 minutes talking about the case. He asked that we don’t schedule Larry on anything related to the case. So we won’t need to talk with Larry Klayman on Washington Journal too.
In summary, the Court GRANTS-IN-PART and DENIES-IN-PART JW’s motion for partial summary judgment as to Count Seven of Klayman’s Second Amended Complaint. Specifically, the Court: (a) grants as to Klayman’s allegation that JW breached the Severance Agreement by failing to take affirmative steps to purchase the headquarters building, but denies as to Klayman’s allegation that JW breached the Severance Agreement by failing to make a good faith effort to remove Klayman as guarantor of the building’s lease; (b) grants as to Klayman’s allegation that JW breached the Severance Agreement by failing to forward Klayman’s telephone .messages and mail; (c) grants as to Klayman’s allegation that JW breached the Severance Agreement by tortiously interfering with Freedom Watch; (d) grants as to Klayman’s allegation that JW breached the Severance Agreement by interfering with Klayman’s Senate campaign; (e) grants as to Klayman’s allegation that JW breached the Severance Agreement by failing to return property belonging to Klayman and his law firm, K & A; (f) grants as to Klayman’s allegation that JW breached the Severance Agreement by failing to pay Klayman’s health insurance premiums, but denies as to Klayman’s allegation that JW breached the Severance Agreement by failing to pay health insurance for Klayman’s children; (g) denies as to Klayman’s allegation that JW breached the Severance Agreement by allegedly filing a false and frivolous legal pleading in Florida litigation; (h) grants JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by interfering with media outlets; (i) grants as to Klayman’s allegation that JW breached the Severance Agreement by failing to remove him as guarantor for all corporate credit card accounts; and (j) denies as to Klayman’s allegation that JW breached the Severance Agreement by failing to provide him with access to doeu
3. JW’s Motion as to Count Eight of the Second, Amended Complaint — Breach of Contract (Specific Performance)
The Court now turns to JW’s motion for summary judgment as to Count Eight of Klayman’s Second Amended Complaint, in which he seeks specific performance based upon JW’s alleged breach of the Severance Agreement. In addition to the many breaches of the Severance Agreement that Klayman asserted under Count Seven— which Klayman incorporates by reference into Count Eight — Klayman asserts two additional breaches of the Severance Agreement under Count Eight: (1) that JW breached the Severance Agreement by failing to provide Klayman access to documents, id. ¶ 146; and (2) that JW breached the Severance Agreement by failing to remove Klayman as guarantor for all JW credit card accounts, id. ¶ 144. As to those allegations asserted under Count Eight that are identical to the allegations asserted under Count Seven, the Court finds that JW is entitled to summary judgment on Count Eight to the same extent as it is entitled to summary judgment on Count Seven, for the reasons discussed above. The only remaining allegations at issue, then, are Klayman’s claims that JW breached the Severance Agreement by denying him access to certain documents and by failing to remove him as guarantor of the corporate credit cards, which the Court now turns to.
a. JW’s alleged failure to remove Klayman as guarantor for all corporate credit card accounts.
JW moves for summary judgment as to Klayman’s allegation that the organization breached the Severance Agreement by failing to remove him as guarantor for all credit card accounts. SAC ¶ 144. Pursuant to paragraph 9.A of the Severance Agreement, JW agreed to “remove Klayman as guarantor of all credit cards issued to Judicial Watch, including, without limitation Judicial Watch’s American Express card, within thirty (30) days of the Separation Date.” Severance Agreement, ¶ 9.A. JW argues that it has removed Klayman as guarantor, as required, and that it therefore is not in breach of the Severance Agreement. JW’s SAC-MSJ at 24-25. The Court agrees.
As JW demonstrates, and as Klayman does not dispute, at the time of Klayman’s departure from JW, he was the guarantor of only one corporate credit card — JW’s American Express card. Defs.’ Stmt. ¶¶ 76-77; First Prytherch Decl. ¶ 26. On October 15, 2003 — that is, within 30 days of Klayman’s September 19, 2009 departure date — JW replaced Klayman as guarantor of the organization’s American Express card with JW’s current President, Fitton. Defs.’ Stmt. ¶ 78; First Prytherch Decl. ¶ 26. Shortly thereafter, on October 17, 2003, JW sent a letter and confirming document to this effect to Klayman via his then-counsel. Defs.’ Stmt. ¶ 79; First Prytherch Decl. ¶ 26
&
Ex. G (copy of the October 17, 2003 Letter). Klayman has not proffered any evidence to the contrary. He has not shown that he was (or remains) the guarantor of any JW credit card, besides the American Express, and he has not disputed JW’s evidence demonstrating that it removed him as guarantor from the American Express card. Indeed, Klayman has failed to even address this issue in any of the materials now before the Court.
See generally
Second Klayman Aff.
21
He
b. JW’s alleged failure to provide Klayman access to documents.
JW next moves for summary judgment as to Klayman’s allegation that the organization breached the Severance Agreement by failing to “provide Klayman access to documents as required under the Severance Agreement.” SAC ¶ 146. Paragraph 4.F of the Severance Agreement provides that:
[Sjubject to Judicial Watch’s consent, which consent shall not be unreasonably withheld, Klayman shall be afforded access to such Confidential Information as he may reasonably require in order to defend or respond to any accusation, action or threat of action against him arising out of or relating to his tenure at Judicial Watch. Such access shall include an opportunity on reasonable notice to examine and copy, at his cost, Confidential Information related to such accusation, action or threat, provided that such Confidential Information shall be used or disclosed by him solely in connection with such defense or response and provided, further, that he shall take reasonable steps to protect such Confidential Information from any use or disclosure by others than in connection with such defense or response (e.g. by Protective Order or Confidentiality Agreement).
Severance Agreement, ¶44?. On the record now before the Court, the parties have identified two categories of documents at issue: (1) documents relating to a former JW client, Peter F. Paul; and (2) back-up documentation relating to expenses JW claims Klayman owes the organization.
As to the first category of documents, Klayman, in a January 12, 2006 email to counsel for JW, stated that he had “learned recently that Peter Paul wrote and published [a] false and defamatory article,” and that Klayman was therefore “entitled to receive any and all documents to and from Paul” under the Severance Agreement. Fitton Decl. ¶ 7 & Ex. 3. JW admits that it denied this request, but contends that its consent was “reasonably” withheld and therefore not in violation of the Severance Agreement.
See
JW’s MSJ at 20-24. First, JW argues that, consistent with “the usual and customary interpretation of such provisions,” paragraph 4.F of the Severance agreement should be read to provide only limited access to documents and therefore does not require JW to provide Klayman with documents for “casual or obscure threats or to pursue defamation actions against its former clients.”
Id.
at 22. JW, however, provides no case law or legal authority to support its claim that such provisions are generally interpreted to provide a limited
The Court turns next to Klayman’s allegation that JW denied him access to expense backup documentation in violation of paragraph 4.E of the Severance Agreement.
See
Pl.’s MSJ ¶ 4;
see also
First Klayman Aff. ¶ 4. As JW demonstrates, however, it has in fact provided Klayman with copies of all back-up documentation relevant to the claimed expenses. Defs.’ Stmt. ¶¶ 101, 107. JW provides the Court with copies of the expense invoices sent to Klayman relating to each of the expenses JW claims Klayman owes the organization.
See id.,
Ex. 3 (Second Declaration of Susan Prytherch) (“Second Prythereh Deck”), ¶¶ 28-47 & Ex. 13 (invoices). Attached to these invoices are the relevant supporting expense documentation, which were originally provided to Klayman and which were re-produced to him during the course of this litigation.
See id.
Klayman has not disputed that he received copies of these invoices and backup documentation. Rather, he argues only that these invoices are “fraudulent documents manufactured after the fact.” PL’s Resp. to Request for Admissions, Docket No. [110], Request No. 17;
see also
Second Klayman Aff. ¶ 10.
22
Klayman has provided absolutely no support for his claim that the documents were fraudulently created, and the Court therefore finds it entirely without merit. Accordingly, as Klayman fails to identify any specific expense documentation that he believes he is entitled to, other than that provided already by JW, the Court easily concludes that Klayman has not provided any evidence from which a reasonable jury could conclude that JW failed to provide him with the requested back-up expense documentation in violation of the Severance Agreement.
23
The
In summary, the Court GRANTS-IN-PART and DENIES-IN-PART JW’s motion for partial summary judgment as to Count Eight of Klayman’s Second Amended Complaint. Specifically, as to the eight breach of contract allegations asserted in Count Eight that are identical to those asserted in Count Seven, the Court grants-in-part and denies-in-part JW’s motion for the same reasons as discussed above. In addition, the Court grants JW’s motion as to allegations that JW breached the Severance Agreement by failing to remove Klayman as guarantor of the corporation’s credit cards and by failing to provide Klayman with requested back-up expense documentation, but denies JW’s motion insofar as it relates to allegations that JW breached the Severance Agreement by refusing to provide Klayman with documents relating to Mr. Paul.
Having now resolved the parties’ motions as to Klayman’s breach of contract claims, the Court moves next to consider Defendants’ motions for summary judgment as to the remaining claims asserted in Klayman’s Second Amended Complaint.
B. Defendants’ Motions for Summary Judgment as to Count Four of the Second Amended Complaint (Lanham Act Claims)
Defendants have each moved for summary judgment as to Count Four of Klayman’s Second Amended Complaint, which sets forth a claim for false advertisement and a claim for false endorsement under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A) and (B). Id. ¶¶ 97-106. Specifically, Klayman alleges that, more than a month after he stepped down as Chairman and General Counsel of JW, Fit-ton caused the organization to send a fund-raising letter which falsely represented that Klayman was still Chairman and General Counsel of Judicial Watch and used Klayman’s name and image without permission in violation of the Lanham Act. Id. ¶ 48; Ex. A (10/03 Judicial Watch Verdict mailing). Defendants counter that Klayman’s claims must fail because he was the Chairman and General Counsel for JW at the time the statements were made and he himself authorized and approved the fund-raising letter at issue. See JW’s SAC-MSJ at 5-9. 24 Ultimately, the Court agrees with Defendants, for the reasons set forth below.
1. Factual Background Relevant to Klayman’s Lanham Act Claims
At issue in Count Four of Klayman’s Second Amended Complaint are statements included in JW’s October 2003 newsletter. As Defendants demonstrate, JW has, since at least 2000, mailed its regular supporters, on a monthly basis, a copy of the organization’s monthly newsletter,
The Verdict.
Defs.’ Stmt. ¶ 12; Fit-ton Decl. ¶ 8. The newsletter is accompanied by a cover letter and a reply device for supporters to use if they wish to make a donation to the organization. Defs.’ Stmt. ¶ 12; Fitton Decl. ¶ 13. Drafting JW’s monthly newsletter usually begins at least four to six weeks before the newsletter is to be mailed, while drafting and
As shown by the undisputed evidence in the record, prior to his resignation, Klayman, as Chairman and General Counsel of JW, participated in the development and publication of the organization’s monthly newsletter. Defs.’ Stmt. ¶ 18; Fitton Deck ¶ 8. Klayman confirmed during his deposition that it was his practice during his tenure with JW to review the mailings before they went out and to sign the cover letters for the newsletters:
Q. [W]ith regard to the standard procedure for preparation of the monthly mailings, was it your practice to review the mailings before they were sent out?
A. Yes.
Q. And did you, under the normal course of business, were you the individual who signed the cover letters for the newsletters?
A. Yes, at that time ... when I was actively involved with Judicial Watch.”
Defs.’ Stmt., Ex. 10 (Transcript of 4/8/08 Klayman Dep., Yol. I.) (“Klayman Dep. Tr. I”) at 117:3-13.
Furthermore, as Defendants explain, JW does not print or mail its monthly newsletter and accompanying materials itself, but rather outsources those tasks to an outside vendor, Communications Corporation of America (“CCA”). Defs.’ Stmt. ¶¶ 20-21; Fitton Deck ¶¶ 13-14. In 2003, JW’s mail schedule required the monthly newsletters to be drafted, edited, and approved for printing to ensure delivery to the United States Postal Service (“USPS”) for mailing by the third week of the preceding month (for example, the January 2003 newsletter was scheduled to be delivered to the USPS by no later than December 18, 2002). Defs.’ Stmt. ¶¶ 16-17; Fit-ton Deck ¶ 10.
Pursuant to JW’s general practice, the October 2003 newsletter and accompanying materials were scheduled to be delivered to the USPS for mailing by no later than September 18, 2003. Defs.’ Stmt. ¶ 18; Fitton Deck ¶ 10. As demonstrated by JW’s business records, Klayman, per his usual practice, edited the October 2003 newsletter and accompanying cover letter on or about September 5, 2003. Defs.’ Stmt. ¶ 19; Fitton Deck ¶ 12 & Ex. 4 (draft of October 2003 cover letter and portion of newsletter with Klayman’s handwritten edits and notations). Reference to the draft cover letter and newsletter edited by Klayman makes clear that the materials contained the complained of language identifying Klayman as “Chairman and General Counsel” at the time of Klayman’s review.
See
Fitton Deck, Ex. 4.
25
On that same day, September 5, 2003, JW gave CCA final authorization to print the October 2003 newsletter, and shortly thereafter, on September 12, 2003, provided CCA with final authorization to print
Thereafter, on Friday, September 19, 2003, Klayman and JW executed the Severance Agreement, by which Klayman agreed that he would resign from the organization effective that day. Severance Agreement ¶ 1. On Monday, September 22, 2003, the very next business day after Klayman’s resignation became effective, Fitton contacted JW’s Fund-raising Department, which oversees production of the newsletter mailings, to inquire whether the October 2003 newsletter could be stopped. Defs.’ Stmt. ¶29; Fitton Decl. ¶ 2 1. Fitton avers that he was advised the newsletter “had gone out already and could not be stopped.” Defs.’ Stmt. ¶ 29; Fitton Decl. ¶ 21. Klayman, however, claims that any assertion by JW that the mailing “was in the pipeline to be mailed before [he] left is not truthful,” but fails to proffer any evidence contradicting Defendants’ sworn statements to the contrary. See Second Klayman Aff. ¶ 13. Rather, he offers only his own speculation that “there was plenty of lead time not to include a cover letter allegedly signed by me as Chairman ... or put in the mailing a notice informing the donors and supporters that I had left JW and was no longer its Chairman.” Id. Again, however, this claim is utterly unsupported by any record evidence and is based solely on his own speculation.
Finálly, Defendants note, and Klayman does not dispute, that all other planned mailing bearing Klayman’s signature — totaling 60,000 pieces of mail — were stopped and sent to recycling at a cost to JW of approximately $30,000. Defs.’ Stmt. ¶ 29; Fitton Decl. ¶ 21. Beginning with the November 2003 newsletter, Fitton has signed each monthly cover letter, as well as all other mailings, in his capacity as President of JW. Defs.’ Stmt. ¶ 30; Fitton Decl. ¶ 22. 2. Klayman’s False Endorsement Claim
As explained above, Klayman’s has asserted a claim for false endorsement under Section 43(a) of the Lanham Act. SAC ¶ 98. The “false endorsement” prong of Section 43(a) provides that:
Any person who, in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof ... which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a)(1)(A).
As an initial matter, although Defendants do not raise the issue, the Court
Specifically, in those decisions recognizing a celebrity’s right to bring a claim for false endorsement, the courts have required that the
celebrity must show that use of his or her name is likely to cause confusion among consumers as to the affiliation, connection or association between the celebrity and the defendant’s goods or services or as to the celebrity’s participation in the origin, sponsorship, or approval of the defendant’s goods or services. Consumer confusion occurs when consumers ... believe that the products or services offered by the parties are affiliated in some way, or when consumers make an incorrect mental association between the involved commercial products or their producers.
Parks,
In this case, however, the record evidence demonstrates that Klayman
authorized
and
approved
the use of his name and identity as Chairman and General Counsel of JW in the challenged October 2003 newsletter and associated mailings.
See supra
pp. 145-47. As demonstrated by JW’s business records, Klayman, per his usual practice, edited and approved the October 2003 newsletter and accompanying cover letter on or about September 5, 2003. Defs.’ Stmt. ¶ 19; Fitton Decl. ¶ 12 & Ex. 4 (draft of October 2003 cover letter and portion of newsletter with Klayman’s handwritten edits and notations). Klayman has not offered any evidence to the contrary other than his own self-serving
Given that Klayman specifically approved the use of his name and identity in the materials at issue, the Court agrees with Defendants that Klayman cannot succeed on a claim of false endorsement. Rather, the Court is persuaded that “[t]his false endorsement claim fails ... because the endorsement was not ‘false’ — [the plaintiff] did give its endorsement and approved the ad.”
L.S. Heath & Son, Inc. v. AT & T Information Sys. Inc.,
3. Klayman’s False Advertisement Claim
Klayman has also alleged that Defendants violated the false advertising prong of Section 43(a) of the Lanham Act, which section provides that:
Any person who, in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof ... which—
(B) in commercial advertising or promotion misrepresents the nature, characteristics, qualities, or geographic origin of his or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(B).
As with a claim of false endorsement, a plaintiff must prove that the defendants’ advertisements were false or misleading in order to prevail on a claim of false advertisement.
ALPO Petfoods, Inc. v. Ralston Purina Co.,
Here, as explained above, the challenged statements identifying Klayman as JW’s Chairman and General Counsel were true at the time the statements were made by JW, authorized by Klayman himself, and delivered to the USPS for mailing. See supra 145-47. Klayman does not dispute this, nor could he do so. Rather, Klayman argues — without case law or other legal support — that because the statements were no longer true at the time they were actually received by the recipients, JW is liable for false advertising. See Second Klayman Aff. ¶¶ 13-15. That is, Klayman urges the Court to hold JW liable for making a statement that, although true at the time made, subsequently became inaccurate due to a change of circumstances. Again, however, the statements must be judged at the time made and as the statements at issue were true at the time they were made, Klayman’s claim fails as a matter of law.
However, even accepting Klayman’s argument as correct, his false advertising claim would fail nonetheless. To ultimately prevail on this issue, Klayman must prove that the allegedly false advertisement was “actually or likely injurious to [him].”
ALPO I,
In summary, the Court GRANTS both JW and the Individual Defendant’s motions for summary judgment as to Count Four of the Second Amended Complaint, which alleges violations of the Lanham Act.
C. Defendants’ Motions for Summary Judgment as to Count Nine of the Second Amended Complaint (Defamation)
Finally, Defendants move for summary judgment as to Count Nine of Klayman’s Second Amended Complaint, in which Klayman alleges that “Judicial Watch, through Fitton, Orfanedes, Farrell and other agents and representatives ... have defamed Klayman, by publishing false statements to various persons and entities.” SAC ¶ 149. 30 Specifically, Klayman claims: (1) that Fitton and Judicial Watch knowingly sent a false statement to Judicial Watch employees claiming that Klayman filed this action because he owed Judicial Watch a significant sum of money, id. ¶ 154; and (2) that Fitton and Judicial Watch published knowingly false statements in a number of media outlets, including The Washington Post, The Washington Times, World NetDaily.com, and Slate.com, because Defendants falsely told reporters that “Klayman filed his suit 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.’ ” Id. ¶¶ 156— 157 (emphasis in original). The Court turns first to Defendants’ arguments concerning allegations that defamatory statements were made to JW employees before then turning to Defendants’ arguments relating to allegations that defamatory statements were made to the media. 31
1. Defendants’ Alleged Defamatory Statement to JW Employees
First, Defendants move for summary judgment as to Klayman’s allegation that Fitton and JW knowingly sent a false statement to the organization’s employees claiming that Klayman filed this action because he owes JW a significant sum of money.
Id.
¶ 154. Defendants have denied that such a statement was ever made or published, averring that “[n]o one at Judicial Watch authorized, approved, published or participated in the publication to Judicial Watch employees of an allegedly defamatory statement asserting that Klayman filed suit against the organization ‘because he owed Judicial Watch a significant sum of money.’ ” Defs.’ Stmt. ¶ 94;
see also
Fitton Decl. ¶ 24; Orfanedes Decl. ¶ 4; Farrell Decl. ¶ 4. Klayman, for his part, has failed to produce or direct the Court to any evidence that such a statement was ever made. Rather, Klayman simply alleges — without any evidentiary or documentary support — -that “[cjontrary to Defendants’ false contentions in their MSJ’s, they did publish to JW employees ... that Klayman, personally, owed in excess of a quarter million dollars to JW.”
As Plaintiff, it is Klayman’s burden to prove the publication of the allegedly defamatory statement by Defendants.
See Krakat v. Brooks Range Contract Servs., Inc.,
2. Defendants’Alleged Defamatory Statements to the Media
Second, Defendants move for summary judgment as to Klayman’s allegation that Fitton and JW misrepresented to the media that Klayman owed JW more than a quarter of a million dollars. Klayman has alleged that Fitton and JW published knowingly false statements in a number of media outlets, including The Washington Post, The Washington Times, World Net-Daily, com, and Slate.com, because Defendants falsely told reporters that “Klayman filed his suit 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.’ ” SAC ¶¶ 156-57 (emphasis in original). Defendants have admitted that JW issued a statement to the media that Klayman filed suit against the organization because he owed it in excess of $250,000. JW’s SAC-MSJ at 32. Accordingly, the Court turns to the substance of their arguments regarding Klayman’s defamation claim.
As this Court previously held, the “connotation” that Klayman owed JW money “is sufficiently factual to be susceptible of being proved true or false,”
Milkovich v. Lorain Journal Co.,
Where, however, the plaintiff is a public figure, the First Amendment shields a defendant from liability for defamation claim unless the plaintiff can show by clear and convincing evidence that the defendant has published the defamatory falsehood with “actual malice.”
New York Times Co. v. Sullivan,
Defendants assert, and Klayman does not contest, that the appropriate standard for defamation to apply in this case is that of a public person.
See
Defs.’ Mot. at 30-32;
see also Klayman v. Judicial Watch, Inc.,
Civ. Action No. 06-670,
Defendants argue that Klayman’s defamation claim must fail because the statement at issue is substantially true and Klayman is unable to show actual malice. According to Defendants, the above-quoted statement that Klayman owed JW “more than a quarter of a million dollars” was made based on the September 19, 2003 Severance Agreement and JW’s 2002 and 2003 audited financial statements, the contents of which Defendants were aware of at the time the allegedly defamatory statement was made. Defs.’ Stmt. ¶ 96; see also Fitton Decl. ¶ 26; Orfanedes Decl. ¶ 6; Farrell Decl. ¶ 6. Based on these documents, Defendants concluded that Klayman owed, both individually and on behalf of his law firm, Klayman & Associates, P.C. (“K & A”), owed approximately $383,429.80 to JW at the time the allegedly defamatory statement was made. See Defs.’ Stmt. ¶¶ 108, 129, 130. This total includes three general categories: (1) Klayman’s personal debt; (2) K & A’s debt, for which JW asserts that Klayman agreed to indemnify the organization; and (3) attorney’s fees and expenses. Defendants therefore assert that the statement is not only substantially true, but that Klayman cannot show that the statement was made with actual malice because “Judicial Watch had every reason to believe the statement was true.” JW’s SAC-MSJ at 37 (“The substantial, compelling documentation of the debts at issue, as well as the accounting of the debts in 2002, 2003, and 2004 audited financial statements prepared by Judicial Watch’s outside accountants, demonstrate that, instead of any malice or reckless disregard fort the statement’s falsity, Judicial Watch had substantial justification for believing the statement was true.”).
As an initial matter, the Court notes that the question of whether the statement is true — i.e., whether Klayman in fact owes JW a quarter of a million dollars or more under the Severance Agreement — is at the heart of JW’s Amended Counterclaim, which is discussed in detail below. Ultimately, the Court concludes, for the reasons set forth below, that it is unable to make a determination at this time as to Klayman’s liability for all debts claimed by JW. See infra pp. 157-62. Given that conclusion, the Court is not currently in a position to evaluate the truth of JW’s statement that Klayman owes the organization more than a quarter million dollars.
Nonetheless, the Court agrees with Defendants that they are entitled to summary judgment because Klayman has failed to set forth sufficient evidence from which a reasonable jury could find, by clear and convincing evidence, that Defendants acted with “actual malice.” As explained above, “[t]he standard of actual malice is a daunting one.” Parsi
v. Daioleslam,
Turning first to Klayman’s assertion that JW manufactured false expense invoices, the Court emphasizes that Klayman has provided absolutely no evidence supporting this allegation. Klayman refers the Court to correspondence included in his Exhibit C filed in opposition to Defendants’ motion for summary judgment, 34 see id. at ¶ 27, but a review of Klayman’s Exhibit C shows that it contains only a series of letters between Klayman and/or his counsel and JW that merely summarized Klayman’s belief that he does not owe JW any money. See Docket No. [288— 2] — [288—8]. It is clear, however, that Klayman’s own letters repeating his belief that the claimed expenses are incorrect is not actual evidence that such the claimed invoices are false. 35 The Court, upon its own independent review of the record, finds no other evidence to support this claim.
Klayman’s second argument fares no better. In essence, Klayman argues that JW’s alleged ill will towards him sufficiently demonstrates actual malice. However, even if Klayman’s allegations are true, “[t]he Supreme Court has emphasized that actual malice is not ill will or personal spite; it is the making of a statement with reckless disregard of whether it is true.”
Liberty Lobby,
Indeed, the evidence in the record is to the contrary. “[B]eeause the actual malice inquiry is subjective — that is, concerned with the defendant’s state of mind when he acted — the inference of actual malice must necessarily be drawn solely upon the basis of the information that was available to and considered by the defendant prior to publication.”
McFarlane,
In summary, the Court GRANTS both JW and the Individual Defendant’s motions for summary judgment as to Count Nine of the Second Amended Complaint, which alleges that Defendants defamed Klayman by making allegedly false statements to JW employees and to the media.
D. JW’s Motion for Summary Judgment as to Counts One, Two, Three and Ten of Defendants’ Amended Counterclaim
JW, as Defendant/Counterclaimant, has also moved for summary judgment as to Counts One through Three and Count Ten of Defendants’ Amended Counterclaim.
See
JW’s CC-MSJ. In Count One of the Amended Counterclaim, JW alleges that Klayman breached paragraph 10 of the Severance Agreement by failing to reimburse JW for personal costs and expenses he incurred during his employment. Am. Counterclaim, ¶¶ 68-73. In Count Two, JW alleges that Klayman breached paragraph 11 of the Severance Agreement by failing to reimburse JW for debts owed to the organization by Klayman’s law firm, K & A.
Id.
¶¶ 74-79. In Count Three, JW seeks indemnification from Klayman for
1. Count One of the Amended Counterclaim
First, JW alleges that Klayman breached paragraph 10 of the Severance Agreement by failing to reimburse JW for personal costs and expenses he incurred during his employment. Am. Counterclaim, ¶¶ 68-73. Paragraph 10 provides, in relevant part, that:
Klayman [ ] agrees to reimburse Judicial Watch for personal costs or expenses incurred by him during his employment, if any, that Judicial Watch may determine in good faith were mistakenly charged or allocated as costs of expenses of Judicial watch, as well as any additional expenses that Klayman has billed to Judicial Watch or charged to a Judicial Watch credit card that Judicial Watch determines in good faith are personal expenses of Klayman. Klayman shall reimburse Judicial watch for any such amounts within seven (7) days of being notified by Judicial Watch and being presented with supporting documentation of the amount, date and category of cost or expense items for which reimbursement is sought.
Severance Agreement ¶ 10.
According to JW, pursuant to this language, Susan Prythereh-Chief of Staff for JW and the individual responsible for the organization’s financial and administrative operations, including finance, accounting, human resources, systems, facilities, storage and business and professional insurance — undertook a “comprehensive review of charges made by or for Mr. Klayman to JWs accounts or credit cards during the period from January 2001 through September 19, 2003, the date of Mr. Klayman’s departure.” Second Prytherch Decl. ¶¶2, 4, 29. Ms. Prytherch also reviewed “statements of JW credit cards held by Mr. Klayman, records from Mr. Klayman’s cash advance account, JW vendor or account statements, and staff reports identifying time or money spent by or for Mr. Klayman for personal items or services.” Id. ¶ 29. As Ms. Prytherch explains, “[it] was, and is, JW’s policy that employees are responsible for documenting all charges to JW’s accounts and credit cards by providing a statement or receipt and identifying the business purpose for each charge in a timely manner.” Id. ¶ 28. “[A]ny charge that is not documented or for which a business [purpose] is not provided is considered to be personal and must be reimbursed by the employee.” Id.
Accordingly, Ms. Prytherch avers that she “review[ed] the various source materials, such as credit card statements, to determine if a charge had been documented and if a business purpose had been identified. If a charge had been documented and a business purpose identified, the charge was not billed to Mr. Klayman.”
Id.
¶29. If a charge was identified expressly as personal, then Ms. Prytherch undertook efforts to determine if Klayman had reimbursed JW for the expense. “If not, the charge was considered an unreimbursed personal expense, and [she] prepared an invoice for the charge to send to Mr. Klayman for reimbursement.”
Id.
¶ 30. For those charges that lacked either documentation or identification of a business expense, but appeared to be business-related, Ms. Prytherch states that she “researched the charge to try and find a matching statement or receipt and to establish a business purpose.”
Id.
If she
As a result of this review, Ms. Prytherch sent Klayman 47 invoices in November and December of 2003, and an additional four invoices in August of 2004. Id. In total, Klayman received 51 substantive invoices detailing personal expenses billed to Klayman, which included an explanation of the charge and supporting documentation. Defs.’ Stmt. ¶¶ 102, 107; see also Second Prytherch Decl, Ex. 13 (copies of invoices). In addition, when Klayman failed to timely reimburse JW within seven days of notification, Ms. Prytherch calculated interest on the unreimbursed expenses. Second Prytherch Decl. ¶ 45. According to Ms. Prytherch, as of October 31, 2008, Klayman’s outstanding debt to JW for unreimbursed personal expenses, plus the interest accrued thereon, as reflected in the invoices, totaled $85,242.03. Defs.’ Stmt. ¶ 109; see also Second Prytherch Decl. ¶ 48. This amount reflects a credit for a payment of $4,572.68 made by Klayman to JW on January 15, 2006 for certain personal charges. Defs.’ Stmt. ¶¶47, 109 & Ex. 15.
As discussed above, Klayman has not disputed that he received these invoices.
See supra
p. 144. He contends, however, that such invoices are “fraudulent documents manufactured after the fact.”
See
Pl.’s Resp. to Request for Admissions, Request No. 17;
see also
Second Klayman Aff. ¶¶ 10, 27. As support, Klayman refers the Court to correspondence that he submitted in his Exhibit C, which was filed in opposition to Defendants’ motion for summary judgment.
37
See
Second Klayman Aff. ¶ 27. A review of Klayman’s Exhibit C shows that it contains a series of letters between Klayman and/or his counsel and JW.
See
Docket No. [288-2]-[288-8]. No receipts or other documentation are attached to these letters, and the letters themselves merely consist of Klayman’s representations that the claimed expenses are not accurate for various reasons.
See id.
Again, Klayman’s own letters summarizing his belief that the claimed expenses are incorrect is not evidence that such expenses are in fact incorrect. Klayman also claims that Ms. Prytherch, in her deposition, “effectively admitted to being fired from her previous employment in a financial position because of her unethical or illegal conduct,” the import being, of course, that she is not a credible person who may have engaged in similar conduct in this
case
— i.e., manufactured the invoices.
See
Second Klayman Aff. ¶ 9. As an initial matter, Klayman provides absolutely no support for this allegation — he does not cite to the portion of the deposition that he believes support his claim nor does he even attach a copy of the deposition for the Court’s review.
See id.
The Court therefore easily finds that such claims are unsupported by the record evidence.
38
Regardless, even if true, it is
Ultimately, then, Klayman has failed to provide any evidence whatsoever demonstrating that any of the invoices and relating documentation are “fraudulent” or “manufactured after the fact.” Nor has he produced any evidence demonstrating that any of the claimed expenses were, in fact, business expenses or that he has previously reimbursed JW for any of the expenses. 39 Although Klayman indicated in response to JW’s request in discovery that he would produce documents that support his assertion that he does not owe JW any money for unreimbursed personal expenses, he has to-date failed to so and discovery in this matter is now closed. See Defs.’s Stmt. ¶ 104.
The Court therefore finds that JW has successfully established that it notified Klayman of each of the claimed personal expenses and provided him with supporting documentation of the amount, date and category of cost or expense item, as required under paragraph 10 of the Severance Agreement. As Klayman has failed to provide evidence disputing the validity of any of the claimed expenses or showing that he has, in fact, already reimbursed JW for these expenses, JW is entitled to summary judgment as to Klayman’s liability for the claimed personal expenses.
However, the Court concludes that it is not in a position at this time to determine the appropriate amount of monetary damages to which JW is entitled. A party who proves a breach of a contractual duty is entitled to damages, including actual damages resulting from the breach.
Cahn,
Nonetheless, although JW may not be contractually entitled to such interest, un
The Court therefore shall GRANT JW summary judgment on Count One of its Amended Counterclaim, insofar as it relates to Klayman’s liability for breach of contract based on unpaid expenses, but shall HOLD IN ABEYANCE JW’s motion, insofar as it relates to its request for damages. Accordingly, on or before July 17, 2009, JW shall submit a detailed accounting, with supporting documentation, of the amount of unpaid expenses owed by Klayman — without interest — so that the Court can determine the appropriate amount of actual damages to award. The Court shall defer consideration of JW’s request for prejudgment interest until after all liability issues have been resolved.
2. Count Two of the Amended Counterclaim
In Count Two of JW’s Amended Counterclaim, JW alleges that Klayman breached paragraph 11. of the Severance Agreement by failing to reimburse JW for debt owed to the organization by Klayman’s law firm, K & A. Am. Counterclaim ¶¶ 74-79. Paragraph 11.A of the Severance Agreement provides that:
Klayman, and by its signature below, Klayman & Associates, P.C. (“K & A”), reaffirm and acknowledge the debt of K & A to Judicial Watch, which was in the amount of $78,810 as of December 31, 2002, and agree that K & A shall pay the then full outstanding balance of the debt (including additional amounts allocated to K & A by Judicial Watch’s accountants in accordance with their customary practice regarding this debt), without offset or deduction, together with accrued interest of 8% per annum, on or before May 15, 2004, per the terms of the Minutes of the May 15, 2002 Meeting of the Board of Directors of Judicial Watch. Klayman and K & A expressly acknowledge that Judicial Watch is not indebted to K & A.
Severance Agreement ¶ 11.A.
Pursuant to paragraph 11.A, Klayman and K
&
A “agree[d] that K & A shall pay” its then-outstanding balance of debt to JW by May 15, 2004.
Id.
From this language, JW concludes that “Plaintiff owes Judicial Watch $197,178.84 as of October 31, 2008 for K
&
A’s debt.” JW’s CCMSJ at 17. This argument, however, conflates Klayman and K & A into a single entity. This error is particularly glaring, given the fact that the Individual Defendants in this case, whose briefing was prepared by the same counsel in this matter, have each argued — correctly, as the Court
3. Count Three of the Amended Counterclaim
In Count Three, JW seeks indemnification from Klayman for amounts owed by K & A under paragraph 11.A of the Severance Agreement, discussed above. Id. ¶¶ 80-83. Specifically, JW seeks indemnification pursuant to paragraph 19.B. of the Severance Agreement, which provides:
Klayman agrees to defend, indemnify and hold harmless Judicial Watch and each and all of the Judicial Watch Releasees from any and all claims, liabilities, costs, damages or judgments of any and every kind (including, without limitation, attorneys’ fees and costs) which Judicial Watch or any of the Judicial Watch Releasees may incur or be threatened with that arise out of any intentional wrongdoing by Klayman, or breach of his obligations and responsibilities under this Agreement, or out of K & A’s breach of its obligations under this Agreement. Klayman expressly acknowledges that, pursuant to this paragraph, he shall be obligated to defend, indemnify and hold harmless Judicial Watch from any and all attorneys’ fees, court costs or other expenses Judicial Watch may incur on account of Klayman’s or K & A’s failure to make prompt payment to Judicial Watch in accordance with paragraphs 10 and 11 of this Agreement.
Severance Agreement ¶ 19.B. JW seeks indemnification from Klayman for (a) the amount of debt owed by K & A to JW under paragraph 10 of the Severance Agreement, and (b) costs incurred by JW in their efforts to collect the debts owed from K & A and also, it appears, from Klayman personally. JW’s CC-MSJ at 18-21.
JW’s claim for indemnification, however, is not as straightforward as the organization would make it seem. As explained above, K & A is not a party to this action nor has JW yet established that Klayman may be held personally liable for K & A’s alleged breach of the Severance Agreement. Moreover, it appears that JW has not previously secured a judgment
4. Counterclaim 10 of the Amended Counterclaim
In Count 10 of JW’s Amended Counterclaim, the organization alleges that Klayman used non-public Confidential Information in breach of the Severance Agreement. Am. Counterclaim ¶¶ 125-131. Specifically, JW alleges that Klayman used “information about direct mail solicitation operations, the identity of third-parties who assisted with direct mail solicitation operations and the terms on which such programs and operations were conducted ... without seeking or obtaining written approval of an officer of Judicial Watch.” Id. ¶ 127. Paragraph 4.A of the Severance Agreement provides, in relevant part, that
Klayman agrees that all non-public information and materials, whether or not in writing concerning Judicial Watch, its operations, programs, plans, relationships, donors, prospective donors, ... contracts, ... (collectively, “Confidential Information”) are confidential and shall be the exclusive property of Judicial Watch to which Klayman has no right, title or interest. By way of illustration, but not limitation, Confidential Information includes matters not generally known outside Judicial Watch, such as ... contracts, ... donor lists, donor data, fund-raising strategies and methods, ... client lists, client data, contacts at or knowledge of clients or donors or prospective clients or donors, ... supplier and vendor lists, ... services or products offered, marketed or used by Judicial Watch.... Klayman agrees that after the Separation Date, he shall not ... use Confidential Information for any purpose without written approval by an officer of Judicial Watch, unless and until such Confidential Information hasbecome public knowledge through no fault or conduct by Klayman.
Severance Agreement ¶ 4.A
According to JW, during Klayman’s tenure with the organization, Klayman signed an agreement with a consultant, American Target Advertising (“ATA”), on behalf of JW designating ATA as a nonexclusive consultant for direct marketing and educational efforts to the general public. Defs.’ Stmt. ¶133. Specifically, ATA helped JW find donors and identify people who supported JW’s cause. Id. ¶ 134. Pursuant to the parties’ agreement, ATA would provide the funding upfront for JW’s direct mailings and in exchange would “obtain[ ] ownership independent of Judicial Watch in names which were acquired in the course of the prospecting or donor acquisition.” Id. (quoting Ex. 10 (Klayman Depo. Exc.) at 267:8-269:21). That is, ATA would have a proprietary interest in the names of potential JW donors that ATA acquired through direct mailings on JW’s behalf and would retain those names in its own mailing lists. Id.
JW asserts, and Klayman does not dispute, that after Klayman separated from JW, he used ATA to send out direct mailings on behalf of his Senate campaign and/or Friends of Larry Klayman. Id. ¶¶ 142-143. Furthermore, Klayman admitted in his deposition testimony that he selected ATA to conduct direct mailings for his organization, Friends of Larry Klayman, “because he had used him before while at Judicial Watch.” Id. ¶ 141 (quoting Ex. 10 (Klayman Depo.) at 133:13-20). Moreover, JW demonstrates, and Klayman does not dispute, that Klayman’s agreement with ATA specifically instructed ATA to use the donor names it had obtained from JW for the mailings made on behalf of Friends of Larry Klayman. Id. ¶ 13 9; see also id., Ex. 10 (Klayman Depo.) at 285:20-22; PL’s Mot. to Quash Mem., Docket [76-2] at 2 (containing admission by Klayman that “lists ... rented by Klayman from ... ATA [were] tailored pursuant to Klayman’s direction”). Accordingly, JW concludes that Klayman breached the Severance Agreement by using Confidential Information- — here, the knowledge that ATA had previously worked as a direct mailing consultant for JW and therefore retained JW’s donor information — without authorization or approval by JW. JW’s CC-MSJ at 9-12.
JW, however, has not shown that the information at issue is, in fact, Confidential Information that would fall under the protections of paragraph 4.A of the Severance Agreement. Although the Agreement provides, “[b]y way of illustration,” that “Confidential Information includes matters not generally known outside Judicial Watch, such as ... contracts, ... fundraising strategies and methods, ... vendor lists, and ... services or products ... used by Judicial Watch,” such information is — by the plain language of the agreement — confidential only to the extent it is “not generally known outside Judicial Watch.” Severance Agreement ¶ 4.A. JW has not proffered sufficient evidence demonstrating that either its relationship with ATA or the knowledge that lists of JW’s donors could be accessed through ATA was “not generally known outside of Judicial Watch.” JW has, to its credit, provided evidence that its relationship with ATA was not generally known to its
donors.
Defs.’ Stmt. 135 (quoting Ex. 10 (Klayman Dep.) at 278:18-20) (admitting that “the donors of Judicial Watch really never knew that [ATA] was the one that was doing the mailing]”). But JW has not provided any evidence that its relationship with ATA was not generally known to others in the public — for example, JW’s peers and competitors. Rather, JW simply asserts that “[i]t is undisputed
In addition, the Court notes that JW has not provided any record evidence to support its contention that Klayman did not obtain JW’s approval or authorization to use ATA for his campaign’s direct mailings. Pursuant to the plain terms of the Severance Agreement, “Klayman agrees that after the Separation Date, he shall not ... use Confidential Information for any purpose without written approval by an officer of Judicial Watch.” Severance Agreement ¶ 4.A. Again, although JW alleges that “Klayman used this non public information ... without obtaining written approval or authorization of an officer of Judicial Watch,” JW provides no record citation in support of this claim. Defs.’ Stmt. ¶ 143. This is particularly significant given that the date of Klayman’s contract with ATA is September 4, 2003 — i.e., prior to Klayman’s separation from JW. See id. ¶ 138.
Admittedly, Klayman, in opposition to JW’s motion, has not pointed the Court to any evidence demonstrating that the information was in fact publicly known or that he had authorization from JW to use ATA for his campaign’s direct mailing efforts. On summary judgment, however, it is the movant’s burden — here, JW’s — to prove that there is no disputed issue of material fact and that it is entitled to judgment as a matter of law. The burden is thus on JW to prove a breach of contract, which in turn requires evidence that Klayman’s used Confidential Information that is not generally known to the public without JW’s approval in violation of the Severance Agreement. As JW has not provided sufficient evidence on those points, the Court shall DENY JW summary judgment as to Count Ten of its Amended Counterclaim.
In summary, the Court grants-in-part and denies-in-part JW’s motion for partial summary judgment as to its Amended Counterclaims. Specifically, the Court grants JW’s motion as to Count One of its Amended Counterclaim insofar as it relates to Klayman’s liability for breach of contract based on unpaid expenses, but holds in abeyance JW’s motion insofar as it relates to its request for damages pending supplemental briefing by JW.
IV: CONCLUSION
For the reasons set forth above, the Court orders as follows. First, with respect to Klayman’s Second Amended Complaint, the Court hereby:
(1) GRANTS Defendants’ motions for summary judgment as to Count Four of Klayman’s Second Amended Complaint, which alleges false advertising and false endorsement in violation of the Lanham Act;
(2) DENIES Klayman’s partial motion for summary judgment and GRANTS Defendants’ cross-motions for partial summary judgment as to Count Six (breach of contract-rescission);
(3) DENIES-IN-PART and GRANTS-IN-PART JW’s motion for partial summary judgment as to Count Seven (breach of contract-damages) and Eight (breach of contract-specific performance). More specifically, the Court:
(a) GRANTS JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by failing to take affirmative steps to purchase the headquarters building, but DENIES JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by failing to make a good faith effort to remove Klayman as guarantor of the building’s lease;
(b) GRANTS JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by failing to forward Klayman’s telephone messages and mail;
(c) GRANTS JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by tortiously interfering with Freedom Watch;
(d) GRANTS JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by interfering with Klayman’s Senate campaign;
(e) GRANTS JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by failing to return property belonging to Klayman and his law firm, K & A;
ffi GRANTS JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by failing to pay Klayman’s health insurance premiums, but DENIES JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by failing to pay health insurance for Klayman’s children;
(g)DENIES JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by allegedly filing a false and frivolous legal pleading in Florida litigation;
(h) GRANTS JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by interfering with media outlets;
(i) GRANTS JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by failing to-remove him as guarantor for all corporate credit card accounts; and
(j) DENIES JW’s motion as to Klayman’s allegation that JW breached the Severance Agreement by failing to provide him with access to documents regarding Mr. Paul, but GRANTS as to Klayman’s allegation that JW breached the Severance Agreement by failing to provide him back-up documentation regarding claimed expenses; and
(4) GRANTS Defendants’ motions for partial summary judgment as to Count Nine, which alleges that Defendants made defamatory statements to JW’s employees and the media.
Second, with respect to the Amended Counterclaims, the Court (1) GRANTS-IN-PART and HOLDS-IN-ABEYANCE-IN-PART JW’s motion for partial summary judgment. More specifically, the Court:
(1) GRANTS JW’s motion as to Count One, finding Klayman liable for breach of the Severance Agreement based upon his failure to reimburse JW for personal costs and expenses incurred during his employment, but HOLDS IN ABEYANCE JW’s motion as to its request for damages;
(2) DENIES JW’s motion as to Count Two, which alleges that Klayman breached the Severance Agreement by failing to reimburse JW for debt owed to the organization by Klayman’s law firm, K & A;
(3) DENIES JW’s motion as to Count Three, which seeks indemnification from Klayman for amounts owed by K & A; and
Finally, the Court requires JW to submit, on or before July 17, 2009, a detailed accounting, with supporting documentation, of the amount of unpaid expenses owed by Klayman so that the Court can determine the appropriate amount of actual damages to award. The Court shall hold a status hearing in this matter on Wednesday, September 16, 2009 at 9:00 A.M. in Courtroom 28A, at which time the Court shall discuss the manner in which to proceed with resolution of this case. The Court encourages the parties to engage in settlement discussions prior to the status hearing and before a pre-trial schedule is set. T.o that end, the parties may contact the Court to request a referral to the Alternative Dispute Resolution Program (not a magistrate judge). An appropriate Order accompanies this Memorandum Opinion.
Notes
. Although both parties include copies of the Severance Agreement in their filings, the Court shall cite only to the copy attached to the Defendants' joint statement of material facts, for ease of reference.
. In addition, the Second Amended Complaint in this action included three claims (Counts One through Three) brought by Louise Benson, a resident of California who had been a supporter of and donor to Judicial Watch. Slip Op. at 3. In its January 17, 2007 Memorandum Opinion, the Court determined that Benson’s claims were limited to $15,000 that she allegedly donated to Judicial Watch. Slip Op. at 12-17. The Court concluded that Benson's claims therefore did not meet the amount-in-controversy requirement of 28 U.S.C. § 1332(a), and declined to exercise supplemental jurisdiction over Benson’s claims. Id. at 17-20. As such, the Court dismissed without prejudice Counts One, Two and Three of the Second Amended Complaint for lack of subject matter jurisdiction. Id. at 20.
. Indeed, Klayman is well aware of this requirement, as the Court previously struck his opposition to Defendants’ first motion for partial summary judgment, filed on January 30, 2007, for failure to comply with the local rules. See 2/2/07 Order, Docket No. [39], Accordingly, the Court-once again-advised Klayman that it "strictly adheres to the dictates of Local Civil Rules 7(h) and 56.1 and may strike pleadings not in conformity with these rules.” Id. at 1.
. In their opposition, Defendants argue that the affidavits attached to Klayman's statement of facts in support of his motion for partial summary judgment are inadmissable because: (a) they are not properly dated and sworn to under penalty of perjury; and (b) they largely consist of inadmissable hearsay evidence, reputation and character evidence, and impermissible legal conclusions.
See
Defs.' Opp’n at 2-4. The Court notes that Klayman, in his
. Although JW's motion appears to indicate that it has moved for summary judgment as to Counts Six and Eight in their entirety, see JW’s MSJ at 38, it is clear that JW has moved only for partial summary judgment as to those counts. JW moves for summary judgment as to Count Seven, which alleges breach of contract (damages), as to all allegations except Klayman’s "disparagement” claim. Id. Because JW moves for summary judgment as to Count Six and Count Eight for the same reasons, see id. at 28, the Court understands that JW moves on Counts Six through Eight as to all allegations, except for Klayman’s “disparagement” claim.
. Although Klayman is representing himself
pro se
in the instant litigation, he is an experienced, licensed attorney. As an officer of the court, Klayman should therefore be well aware of his obligations to timely respond to dispositive motions. Nonetheless, in an abundance of caution, the Court issued an order advising Klayman of Defendants’ motions for summary judgment and informing him of the consequences of a failure to respond, pursuant to the D.C. Circuit's decisions in
Fox v. Strickland,
. Klayman has attached identical copies of the Second Klayman Declaration to various filings submitted to this Court. See, e.g., Docket No. [288]; Docket No. [296-2], For convenience, the Court shall refer and cite solely to the version submitted with Plaintiff's reply in support of his motion for partial summary judgment. See PL’s Reply, Att. 3 (Second Klayman Aff.).
. The Court shall apply District of Columbia law to Klayman’s claims for breach of contract. Although neither party has specifically raised the issue in the motions now before the Court, the Court notes that the express terms of the Severance Agreement provide that the “Agreement shall be governed by and construed in accordance with the laws of the District of Columbia.” Severance Agreement, ¶ 23. Moreover, Defendants have relied upon District of Columbia contract law in their motions for summary judgment, and Klayman has not disputed that District of Columbia law should apply.
. As previously explained, Klayman also alleges that JW breached the Severance Agreement by disparaging him to the media and actively misrepresenting the reasons for his departure from JW. SAC ¶¶ 122, 123. Defendants admit that factual disputes exist as to this allegation and therefore have not moved for summary judgment on this question. See supra p. 121, n. 5.
. The Court notes that Klayman has not made any argument that this conduct — although perhaps not in violation of a particular provision of the Severance Agreement— was in breach of the covenant of good faith and fair dealing. See generally Second Klayman Aff. ¶¶ 23. Indeed, the Court emphasizes that Klayman has not asserted any claim based on an alleged breached of the covenant of good faith and fair dealing. See generally Second Amended Complaint.
. The Court notes that it has, in an abundance of caution, reviewed Klayman’s stricken opposition to JW’s motion for summary judgment. The only relevant argument asserted in the stricken opposition that is not also asserted in the Second Klayman Affidavit
In addition, Klayman has failed to produce any record evidence from which a reasonable jury could conclude that JW in fact opened his mail and/or failed to forward his mail and telephone messages to him. Although he claims that "Defendants did open my mail ... from the Internal Revenue Service,” and that "a cover letter from [Fitton] effectively admits that it was opened,” Klayman provides no citation to any evidence, such as a deposition transcript or copy of the cover letter he references, to support his claim. See Second Klayman Aff. ¶ 23.
. The Court emphasizes that Klayman asserts this claim only in support of his breach of contract claim and does not assert any independent tort claim based on JW’s alleged interference with Freedom Watch. See generally Second Amended Complaint.
. In an abundance of caution, the Court reviewed Klayman’s stricken opposition to JW’s motion for summary judgment. In addition to claiming tortious interference with Freedom Watch based on the organization's alleged opening of mail from the IRS, Klayman also broadly claims that "oral testimony of Klayman, Paul Rodriguez and others at trial will buttress this prima facie showing of tortious interference with Freedom Watch.” PL’s Opp'n at 9. This purported evidence, however, is not in the record, and Klayman’s speculation that witnesses may be helpful to prove his case is of entirely no value at the summary judgment stage.
. In an abundance of caution, the Court reviewed Klayman's stricken opposition to JW's motion for summary judgment, which also fails to include any response on this point. See generally Pl.’s Opp’n.
. Although Klayman testified at his deposition that he purchased the items on his "personal credit card," Klayman Dep. 245:13, he has not produced any evidentiary support for this claim. Moreover, as discussed above, Klayman now appears to have abandoned this claim, limiting his opposition to a discussion only of the artwork purchased at the Miami Art Deco Festival. See Second Klayman Aff. ¶ 20.
. In an abundance of caution, the Court reviewed Klayman’s stricken opposition to JW’s motion for summary judgment, which also fails to include any response regarding the three pieces purchased from the Kennedy Gallery. See generally Pl.'s Opp’n.
. In an abundance of caution, the Court has reviewed Klayman’s stricken opposition to JW’s motion for summary judgment, and notes that it advances no new argument or factual claims in opposition to Defendants’ arguments relating to the alleged failure to return Klayman’s personal property. See generally PL’s Opp'n.
. Although Klayman contends that JW initially cancelled his health care coverage, he does not dispute or challenge JW’s statement that the organization ultimately paid the premiums for Klayman’s individual health insurance in the 12 months immediately after separation. See First Klayman Aff. ¶ 2; Second Klayman Aff. ¶ 21. Moreover, as support for the claim that JW initially cancelled his health insurance, Klayman points only to: (1) an undated memorandum that purports to request Klayman’s insurance be cancelled effective his date of separation; and (2) the testimony of Ms. Cobas that Klayman "was told by the hospital that his COBRA coverage had been terminated by JW” and that he was therefore required to "use his own credit card to pay for back treatment.” See Docket No, [275-4] at p. 5 (e-mail bates-stamped DEF 0002354 indicating a request by JW to terminate coverage for Klayman’s health insurance); see Cobras Aff. II 5. Neither the undated memorandum or Ms. Cobas’ statements are sufficient to create a material issue of disputed fact. First, it is entirely unclear from the undated memorandum if Klayman’s coverage was, in fact, terminated; rather, the document only shows that a request to terminate his coverage was made at one time— whether that occurred is unknown. Second, Ms. Cobas does not explain how she has personal knowledge to testify that Klayman's COBRA coverage was terminated and that he paid for his own medical treatment by credit card. See Fed. R. Civ. P. 56(e) (an opposing affidavit "must be made on personal knowledge” and must “show that the affiant is competent to testify on the matters stated”). Moreover, she does not state when this alleged incident occurred — i.e., whether it occurred before or after the 12 month period for which JW agreed to pay Klayman’s health insurance premiums. Finally, the Court notes that Klayman has not produced any credit card or other receipts indicating that he personally paid for health care treatment in the 12 months immediately after his separation from JW due to a cancellation of his COBRA coverage.
. As explained previously, Klayman submitted amended versions of the affidavits he submitted in support of his motion for partial summary judgment — including an amended First Klayman Affidavit — in response to Defendants’ complaints that the original versions were inadmissible. See supra pp. 120-21, n. 4. Fie did not, however, re-attach any exhibits to the amended First Klayman Affidavit. Nonetheless, the Court shall overlook this administrative oversight and refer back to the exhibits attached to the original version of the First Klayman Affidavit.
. In an abundance of caution, the Court has reviewed Klayman’s stricken opposition to JW’s motion for summary judgment, and notes that it advances no new arguments or factual claims in support of his allegation that JW interfered with various media outlets. See generally Pl.'s Opp’n.
. In an abundance of caution, the Court has reviewed Klayman’s stricken opposition to
. Despite previously admitting in his Responses to Defendants' Request for Admission that he received the invoices in question, Klayman directs the Court to an affidavit by Sandra Cobas, in which she states that "I know that Mr. Klayman asked for backup documentation from Judicial Watch so he could fully analyze the claimed expenses but was refused by Judicial Watch.” PL's Reply, Ex. 3 (Affidavit of Sandra Cobas) (hereinafter "Cobas Aff.”) V 6. Ms. Cobas, however, does not explain how she has personal knowledge to testify that Klayman never received any expense documentation, particularly given his admission to the contrary. See Fed. R. Civ. P. 56(e) (an opposing affidavit "must be made on personal knowledge” and must “show that the affiant is competent to testify on the matters stated”).
. In an abundance of caution, the Court has reviewed Klayman’s stricken opposition to JW’s motion for summary judgment, and notes that it advances no new arguments or factual claims in support of his allegation that JW failed to provide him with expense docu
. The Court notes that the Individual Defendants have incorporated by reference the arguments set forth in JW's motion for summary judgment. See Farrell's MSJ at 2, n. 2; Fitton’s MSJ at 2, n. 2; Orfanedes MSJ at 2, n. 2.
. Significantly, Klayman does not deny that he reviewed, edited, and approved the October 2003 newsletter nor has he presented any evidence refuting the facts above. See generally Second Klayman Aff. Nonetheless, Klayman claims that he "never agreed that Defendant could use [his] name and likeness after [he] left.” Id. ¶ 13. The Court is unpersuaded by Klayman's attempt to split hairs — the documentary evidence proves that he edited and approved the mailings at issue with knowledge that the mailings were for the October 2003 newsletter and that he was engaged in severance negotiations. Klayman has failed to introduce any evidence, other than his own self-serving conclusory statements, to contradict Defendants' documentary evidence, which undisputedly demonstrates that Klayman, while still Chairman and General Counsel for JW, authorized the use of his name and identity in the October 2003 newsletter and mailings and signed the mailings in his role as then — Chairman and General Counsel for JW.
. A comparison between the final version of the October 2003 cover letter mailed to JW’s supporters, see Second Amended Compl., Ex. A, with the draft version edited by Klayman, see Fitton Decl., Ex. 4, confirms that Klayman's edits were incorporated into the final version. For example, on the first page of the cover letter, JW's business records demonstrate that Klayman suggested three separate edits, each of which are reflected in the final version of the newsletter. Compare Second Amended Compl., Ex. A at 2, with Fitton Decl., Ex. 4 at 2.
. Klayman has asserted that he is a “celebrity,” see, e.g., Second Amended Complaint ¶¶ 42, 101, and Defendants have not argued to the contrary. The Court therefore proceeds on the assumption that Klayman is a "celebrity” for purposes of his false endorsement claim.
. In an abundance of caution, the Court has reviewed Klayman’s stricken opposition to JW’s motion for summary judgment, and notes that it advances no additional argumerits or factual claims in support of his Lanham Act claims. See generally Pl.'s Opp’n at 2-4.
. In light of the Court's conclusion above, it does not reach Defendants' arguments in the alternative that: (a) Klayman’s Section 43(a) claim was released under the terms of the Severance Agreement; and (b) Klayman’s Section 43(a) claim must fail as against the Individual Defendants because they did not personally participate in and/or provide final authorization for the October 2003 newsletter. In addition, the Court notes that JW has requested indemnification for its attorneys fees and costs related to Klayman's claims under the Lanham Act. JW’s SAC-MSJ at 10. Such requests, however, are more appropriately addressed after the merits of the parties' claims and cross-claims have been resolved in their entirety, and the Court therefore DENIES WITHOUT PREJUDICE JW's request.
. As explained previously, in a Memorandum Opinion and Order dated January 17, 2007, the Court dismissed Count Nine insofar as it relates to allegedly defamatory statements made in JW’s Form 990 tax returns and allegedly doctored press quotations posted on JW’s website.
See 1117107 Klayman,
. The Court notes that the Individual Defendants have incorporated by reference the arguments set forth in JW’s motion for summary judgment. See Farrell’s MSJ at 2, n. 2; Fitton's MSJ at 2, n. 2; Orfanedes MSJ at 2, n. 2.
. In an abundance of caution, the Court has reviewed Klayman's stricken opposition to JW’s motion for 'summary judgment, and notes that it advances no additional arguments or factual claims in support of his either of his defamation claims discussed herein. See generally PL’s Opp’n at 2-4.
. As explained in the Court's January 17, 2007 Memorandum Opinion, the Court concluded that Klayman’s defamation claims should be properly evaluated under the District of Columbia law of defamation.
1117107 Klayman,
. Klayman also directs the Court to documents that he states are attached as Exhibit 2 to the Second Klayman Affidavit. See Second Klayman Aff. ¶ 10. Klayman, however, failed to attach any documents to his second affidavit. See generally id.
. Klayman also claims that Ms. Prytherch, Chief of Staff of JW, "effectively admitted [in her deposition] to being fired from her previous employment in a financial position because of her unethical or illegal conduct.” ■ Second Klayman Aff. ¶ 9. As an initial matter, Klayman provides no citation to that deposition nor even attaches the deposition for the Court's review. The Court therefore easily finds that such claims are unsupported by the record evidence. Moreover, it is patently obvious that such a statement, even it true — which the Court does not find it is — would not show, by clear and convincing evidence, that the invoices at issue in this case were manufactured.
. In light of the Court's conclusion above, it does not reach the Individual Defendants arguments in the alternative that they, as corporate officers, cannot be held liable for corporate torts they neither committed or participated in. See Farrell's MSJ at 16, 20; Orfanedes’ MSJ at 14, 18; Fitton's MSJ at 13.
. Klayman also directs the Court to documents that he states are attached as Exhibit 2 to the Second Klayman Affidavit. See Second Klayman Aff. V 10. Klayman, however, has not actually attached any documents to his second affidavit. See generally id.
. Klayman also complains again that he was not permitted to complete the deposition of Ms. Piytherch, thus denying him an opportunity to obtain information critical to his defense. Second Klayman Aff. ¶ 9. Klayman's failure to timely complete Ms. Prytherch's deposition before the close of discovery, despite being given the opportunity to do so, is well documented, and the Court need not reiterate herein its decision upholding Magistrate Judge Alan Kay's order denying Klayman’s motion to compel.
. In an abundance of caution, the Court-has reviewed Klayman's now-stricken opposition and concludes that, even if the Court were to consider the filing, the arguments and evidence set forth therein would be insufficient to defeat summary judgment. First, Klayman asserts that Ms. Prytherch's declaration is false, but provides no evidence to support this claim. Pl.’s Opp’n at 15. Second, Klayman refers the Court to the affidavit of Michael Pendleton, a former regional director of JW, which states — without support — that JW also "attempted to charge [him] for phony personal expenses which [he] had not incurred.” See id. at 13-14; Pendleton Aff. ¶ 3. Pendleton’s affidavit provides absolutely no support for this broad and conclusoiy allegation. Moreover, even if true, it would not demonstrate that the expenses at issue here are fraudulent or false.
. It appears that K & A may be (or may have been) a professional corporation, given that its full title is Klayman & Associates, P.C., see, e.g., Severance Agreement ¶ 11, but the Court is without sufficient information to definitively determine K & A's legal status.
. The Court notes that JW has not provided the Court with a break-down of the costs associated with its efforts to collect the debts owed by Klayman himself versus the costs associated with its efforts to collect the debts owed by K & A. The Court is therefore unable to determine what portion of those costs is due to efforts associated with collecting Klayman’s personal debt, which appears to be a more straightforward issue.