Klayman Loses Ridiculous Defamation Suit

Klayman Loses Ridiculous Defamation Suit April 6, 2015

A couple years ago Larry Klayman filed a defamation suit against Ken Avidor and City Pages, an independent newspaper in Minnesota, along with the Phoenix New Times, claiming that they defamed him by quoting a court ruling in his custody battle with his ex-wife that found credible evidence that he had touched his children inappropriately (I quoted the same ruling, by the way). Judge Anne Conway has now granted summary judgment for the defendants and basically ripped the shit out of Klayman in the process.

In a footnote on the very first page of the ruling, the judge points out what I’ve been saying for years about every complaint Klayman files — they’re little more than political boilerplate with few actual legal claims within them. That footnote says:

This factual background is largely derived from Defendants’ motion as Plaintiff’s response contains a plethora of irrelevant conjecture and superfluous detail without record citation. Moreover, Plaintiff’s response fails to comply with the Court’s Case Management and Scheduling Order, which requires that a “memorandum in opposition [to a motion for summary judgment] shall specify the material facts as to which the opposing party contends there exists a genuine issue for trial . . . .” (Doc. No. 36 at pp. 5–6).

Lots of empty speculation about how the other side has it out for him and failing to comply with court procedures? Yep, that’s Klayman. In pretty much every case he files.

Judge Conway actually labels one section “Down the rabbit hole” and quotes this from Alice in Wonderland:

“Would you tell me, please, which way I ought to go from here?”

“That depends a good deal on where you want to get to,” said the Cat.

“I don’t much care where—” said Alice.

“Then it doesn’t matter which way you go,” said the Cat.

“–so long as I get somewhere,” Alice added as an explanation.

“Oh, you’re sure to do that,” said the Cat, “if you only walk long enough.”

Lewis Carroll, Alice’s Adventures in Wonderland (Macmillan and Co. 1865): Chapter 6.

And makes it quite clear that it was Klayman who had stepped through the mirror. And on page 14, yet another footnote pointing out that Klayman seems entirely incapable of following court procedures:

To date, Plaintiff has routinely shown a disregard for this Court’s Local Rules — Plaintiff’s response in opposition to Defendants’ motion for summary judgment being no exception. Plaintiff’s filing is twenty-five pages of written text, which is five pages more than the Court affords a responding party. Even more, Plaintiff, appearing to believe that the page limit is actually twenty-five pages, crams an absurd amount of text into footnotes to fit even more argument into his already violative filing. The amount of text in footnote fifteen alone would ordinarily take up almost a full page; yet, Plaintiff is able to squeeze this argument into half the amount of space by using single-spaced footnotes, apparently hoping the Court would not notice. The Court has become quite frustrated with Plaintiff’s various tactics to avoid Court rules throughout the course of this litigation. Unfortunately, the Court learned early on in this case that this approach to litigation is the norm and not the exception for Plaintiff. While the Court should strike Plaintiff’s filing as not in compliance with the Local Rules and Court Order, such a draconian punishment would be more in line with the Queen of Hearts’ disproportionate

sentencing guidelines. Despite a flagrant violation of the Local Rules, the Court has considered Plaintiff’s violative filing in its entirety.

She’s right, of course. Other judges in other cases have expressed their frustration with Klayman’s failure to follow court rules. In 2011, a court in Washington, DC sanctioned him for pretty much exactly the same thing:

“The court concludes that the requested sanction is appropriate under the unique circumstances presented in this case – most notably, Klayman’s consistent pattern of engaging in dilatory tactics, his disobedience of court-ordered deadlines, and his disregard for the federal rules of civil procedure and the local rules of this court, coupled with the patent failure of the court’s use of lesser sanctions in the past to have any discernible effect on Klayman’s conduct in this litigation,” U.S. District Judge Colleen Kollar-Kotelly wrote.

News flash: Klayman is a really, really shitty lawyer. But back to the case at hand, where once again the judge is hammering Klayman for making arguments without bothering to, ya know, actually support them:

Because Plaintiff simply hurls various theories of liability without legally supporting his arguments, the Court is forced to spend its limited resources researching issues that Plaintiff fails to. This is an exceedingly frustrating practice of Plaintiff’s when the Court makes every possible effort to fairly resolve the claims before it. This is also a violation of the Court’s Local Rules.

It should go without saying that counsel should support arguments with citations to relevant authority. Entirely out of an abundance of caution, the Court researched the issue and could not find any Florida authority for the proposition that providing links to statements already published, without more, republishes those statements.

The judge also criticizes Klayman for not understanding the legal meaning of “malice” in regard to defamation law. Because he is a public figure, in order to win a defamation case he has to prove that the defends acted with “actual malice,” but he doesn’t know what that legal term of art means — or doesn’t care. The magistrate judge in this case noted that “despite its name, the actual malice standard does not measure malice in the sense of ill will or animosity, but instead the speaker’s subjective doubts about the truth of the publication.” But Klayman thinks it means “they don’t like me and want to destroy me.”

Plaintiff’s filings in this case make clear that he does not fully cognize the difference between constitutional actual malice and “ill will” or “hatred,” often referred to as common law malice…

While discussed more fully below, Plaintiff’s argument mostly focuses on Defendants’ ill will towards Plaintiff. Plaintiff emphasizes how Defendants “intende[ed] to maliciously smear and destroy the reputation and credibility of Plaintiff,” how the articles at issue “drip with malice and bitter intent,” how it was Defendants’ “rabid, malicious desire to destroy Plaintiff and his clients and friends,” and how Defendants “maliciously linked” and “maliciously wrote” various articles. However, no amount of repeating the word “malice” will overcome the constitutional requirement that Plaintiff must provide evidence that Defendants made the statements at issue with knowledge as to their falsity or with reckless disregard to their truth — the standard of actual malice — with

convincing clarity…

Plaintiff’s failure to focus on whether or not the statements at issue were published with actual malice proves fatal to his claims. The Court finds, as a matter of law, that no jury could find by clear and convincing evidence the existence of actual malice in the publication of any of the statements in question.

Plaintiff makes a variety of arguments in an attempt to overcome Defendants’ motion for summary judgment on the issue. None succeed.

The judge then makes fun of a couple of Klayman’s arguments offered to show what he thinks is actual malice. As usual, they are just political rhetoric.

Third, Plaintiff argues that the articles are “hit pieces” intended to “maliciously smear and destroy the reputation and credibility” of Plaintiff, Bradlee Dean, and Michele Bachmann. Plaintiff continues, “If Plaintiff and his clients and friends, like Dean, Sheriff Joe Arpaio, and Bachmann can be attacked through defaming their lawyer, Plaintiff Larry Klayman, Defendants will continue to use this convenient vehicle of attacking others to further their political agenda”. According to Plaintiff, “[t]his explains [Defendants’] malice and business

decisions to defame these persons intentionally and maliciously.”. While this line of argument highlights Plaintiff’s confusion on the malice standard, this does little to show constitutional actual malice and is hardly “evidence” of the same.

Fourth, Plaintiff argues that actual malice can be shown because Defendant Hendley was previously convicted of crimes and used drugs. By Plaintiff’s account, “[t]his shows the malicious intent to defame Plaintiff Klayman through Sheriff Joe Arpaio, who is the chief police officer in the region that Defendant Hendley resides and works. Indeed, the articles at issue written by Defendant Hendley drip with malice and bitter intent.” Again, this argument confuses actual malice with common law malice. Even still, this is not evidence of even ill will, and nothing about these facts show that Defendants knew the statements at issue were false or that they entertained serious doubts about the truth of those statements…

Seventh, and venturing deeper into Wonderland, Plaintiff argues as evidence of actual malice that Avidor and Rupar sought to sell Avidor’s “malicious book” featuring “a computer doctored photo maliciously designed to make [Michele] Bachmann look like a deranged lunatic.” Plaintiff, while citing a Supreme Court of Kansas case which, in turn, generally cites to an encyclopedia, argues that “the showing of reckless indifference to the rights and

reputations of others may furnish a basis for an inference that the publications in question were malicious.” Without more, the Court is not so convinced. Again, this is irrelevant to the question presented here—whether this shows that Defendants published the statements at issue with knowledge of their falsity or reckless disregard for their truth.

And then the judge, after granting all motions for summary judgment on behalf of the defendants, added what she called an “admonition” pointing out Klayman’s bizarre behavior:

While the Court would not ordinarily conclude with an admonition, this is, of course, no ordinary case. Plaintiff’s approach to this litigation has been quite suspect, to say the least. As has been made clear in this case, as well as through reviewing the relevant proceedings at issue, when Plaintiff receives unfavorable rulings, he often plunges into a tirade against whomever he feels has wronged him—here, it has taken the form of motions to reconsider, objections, and even a petition for writ of mandamus with the Eleventh Circuit Court of Appeals. This is all to say that the Court will review any motion for reconsideration of this Order with a very sharp lens. Should Plaintiff file a motion to reconsider, the Court forewarns Plaintiff that any such motion must at least arguably meet the stringent standard for reconsideration of an Order, at the risk of facing sanctions from the Court. To this end, Plaintiff should keep in mind his obligations under Federal Rule of Civil Procedure 11.

To use a baseball metaphor, that’s what you might call a brushback pitch. Judge Conway is clearly fed up with Klayman’s incompetence and/or lack of concern for following procedural rules or for making actual legal claims rather than political ones. And if he tries to file yet another motion with her in that same manner, she seems fully prepared to hit him with Rule 11 sanctions, as other judges have done.

I can’t wait to read Klayman’s Worldnetdaily column or article fuming about how the judge is all part of the grand conspiracy to bring him down. Here’s the full ruling:

Klayman Order Granting Summary Judgement

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