Robles v. In the Name of Humanity, We Refuse to Accept a Fascist America et al

Filing 49

NOTICE OF TENTATIVE RULING ON MOTION TO REVOKE PRO HAC VICE. Signed by Judge Claudia Wilken on 5/23/18. (dtmS, COURT STAFF) (Filed on 5/23/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KIARA ROBLES,

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Plaintiff,

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NOTICE OF TENTATIVE RULING ON
MOTION TO REVOKE PRO HAC VICE

v.
IN THE NAME OF HUMANITY, WE
REFUSE TO ACCEPT A FASCIST
AMERICA, et al.,

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United States District Court
Northern District of California

Case No. 17-cv-04864-CW

(Dkt. Nos. 7, 15)

Defendants.

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Plaintiff Kiara Robles filed this suit against Defendants In

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the Name of Humanity, We REFUSE to Accept a Fascist America, The

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Regents of the University of California, University of California

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Police Department, City of Berkeley (Berkeley), Ian Dabney

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Miller, Raha Mirabdal, and DOES 1-20.

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Berkeley filed a motion to revoke pro hac vice admission of Larry

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Klayman, Robles’ attorney.

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papers and the record, the Court issues a tentative ruling

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granting Berkeley’s motion to revoke the pro hac vice admission.

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On October 2, 2017,

Docket No. 15.

Having reviewed the

BACKGROUND
I.

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Klayman’s history of judicial reprimands and sanctions
Over the years, numerous courts have sanctioned Klayman,

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called his behavior into question, or revoked his pro hac vice

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admission.

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life.

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Two courts have banned Klayman from their courts for

For example, the Second Circuit affirmed a Southern District

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of New York court’s revocation of Klayman’s pro hac vice status,

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denial of any future application to appear before the district

court on a pro hac vice basis, and order to provide a copy of the

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district court’s opinion imposing sanctions when applying for pro

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hac vice admission before any other judge in the Southern

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District of New York.

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Inc., 157 F.3d 956, 960 n.3 (2d Cir. 1998).

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noted that Klayman made “claims of partisan and racial basis with

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no factual basis,” which were “discourteous, degrading to the

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court, and prejudicial to the administration of justice.”

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United States District Court
Northern District of California

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960 (internal punctuation and brackets omitted).

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MacDraw, Inc. v. CIT Grp. Equip. Fin.,
The Second Circuit

Id. at

Similarly, the Federal Circuit upheld a Central District of

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California court’s decision permanently barring Klayman from

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appearing before it pro hac vice and requiring him to attach a

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copy of the order to any pro hac vice applications filed in the

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same district.

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78 F.3d 550, 561-62 (Fed. Cir. 1996), as modified on reh’g (May

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22, 1996).

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finding that Klayman had acted in bad faith and had made several

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misrepresentations to the court, including that he had never been

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sanctioned or denied pro hac vice privileges.

Baldwin Hardware Corp. v. FrankSu Enter. Corp.,

The Federal Circuit affirmed the district court’s

Id. at 562.

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In addition, the Ninth Circuit affirmed the District of

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Nevada’s decision to deny Klayman’s application for pro hac vice:

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Under our decisions, the district court had more than
ample cause to turn down Klayman’s application: he is
involved in an ethics proceeding before the District of
Columbia Bar, and he was not candid with the court
about the status of those proceedings; he disclosed
that he was twice barred in perpetuity from
appearing pro hac vice before judges in the Central
District of California and the Southern District of New
York, but he failed to list numerous cases—all
available on Westlaw or LEXIS—in which he has been
reprimanded, denied pro hac vice status, or otherwise
sanctioned for violating various local rules; and he
has a record of going after judges personally, and

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shortly after Chief Judge Gloria Navarro denied his
application, Bundy filed a frivolous Bivens action
against her in her own court. This litany of reasons
for denying Klayman pro hac vice status demonstrates
that the district court did not abuse its discretion,
much less commit clear error.

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In re Bundy, 840 F.3d 1034, 1036 (9th Cir. 2016), subsequent
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mandamus proceeding, 852 F.3d 945 (9th Cir. 2017).

The Ninth

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Circuit collected the following examples of Klayman’s
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“sanctioned, sanctionable, or questionable behavior”:
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United States District Court
Northern District of California

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The Federal Circuit affirmed the district court’s
revocation of Klayman’s ability to appear before
the district court pro hac vice in perpetuity and
its sanctioning of Klayman for accusing the trial
judge of anti-Asian bias and “unreasonably and
vexatiously multiplying the proceedings.” Baldwin
Hardware Corp. v. FrankSu Enter. Corp., 78 F.3d
550, 555 (Fed. Cir. 1996).
The Second Circuit affirmed the district court's
revocation of Klayman’s ability to appear before
the district court pro hac vice in perpetuity and
its sanctioning of Klayman for “undignified and
discourteous conduct that was degrading to the
[district court] and prejudicial to the
administration of justice” by, among other things,
making accusations of racial and political bias
and acting “abusive[ly] an obnoxious[ly].”
MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 994
F.Supp. 447, 455 (S.D.N.Y. 1997), aff’d, 138 F.3d
33 (2d Cir. 1998).
Klayman was sanctioned for filing an untimely
complaint and opposing the government’s motion
with “frivolous filings” that “wasted time and
resources of defendants as well as of the
court.” Wire Rope Importers’ Ass’n v. United
States, 18 C.I.T. 478, 485 (Ct. Int’l Trade 1994).
Klayman exhibited “often highly inappropriate
behavior” and his performance “was episodically
blighted by rude and unprofessional behavior which
was directed toward the presiding judge and
opposing counsel.” Material Supply Int’l, Inc. v.
Sunmatch Indus., Co., No. Civ. A. 94–1184, 1997 WL
243223 at *8, *10 n.7 (D.D.C. May 7, 1997), aff’d
in part and reversed in part, 146 F.3d 983 (D.C.
Cir. 1998).
Klayman “apparently misread (or never read) the
local rules” and the district court threatened
sanctions for any future failures to comply with
local rules. Alexander v. FBI, 186 F.R.D. 197,
199 (D.D.C. 1999). The district court “gr[ew]
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United States District Court
Northern District of California

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weary of [Klayman’s] use—and abuse—of the
discovery process” and “ha[d] already sanctioned
[Klayman] for making misrepresentations to the
court, allowing the court to rely upon those
representations in a favorable ruling, and then
later contravening those very
(mis)representations.” Alexander v. FBI, 186
F.R.D. 188, 190 (D.D.C. 1999).
Klayman responded to the district court’s orders
with a “forked tongue” and made arguments with
“malicious glee.” Judicial Watch of Fla., Inc. v.
U.S. Dep’t of Justice, 159 F. Supp. 2d 763, 764
(D.D.C. 2001).
Klayman made arguments regarding the conduct of
the district court that were “bizarre” and “beyond
the far-fetched.” Dely v. Far E. Shipping Co.,
238 F. Supp. 2d 1231, 1241 (W.D. Wash. 2003).
[ . . . ]

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Klayman’s “fail[ure] to comply with even the most basic
of discovery requirements” was “not simply an
unexplained hiccup in an otherwise diligently
prosecuted case” and thus warranted sanctions. Klayman
v. Barmack, No. 08–1005 (JBD), 2009 WL 4722803, at *1
(D.D.C. Dec. 4, 2009).
After “the patent failure of the Court's use of lesser
sanctions in the past to have any discernible effect on
Klayman’s conduct,” 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” necessitated further, more severe,
sanctions. Klayman v. Judicial Watch, Inc., 802 F.
Supp. 2d 137, 138–39 (D.D.C. 2011).
Klayman repeatedly did not “attempt to comply” with
local rules, and the district court threatened
sanctions for any further violations. Montgomery v.
Risen, No. 15-cv–02035–AJB–JLB, 2015 WL 12672703, at *1
(S.D. Cal. Oct. 2, 2015).

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Id. at 1045–46.

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II.

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Disciplinary proceedings in Florida and the District of
Columbia
Klayman is a member of both the Florida and District of

Columbia bar associations.

Both bar associations have brought

proceedings against him for violating rules of professional

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conduct.

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On June 19, 2017, the Board of Professional Responsibility
of the District of Columbia Court of Appeals issued a Report and

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Recommendation finding by clear and convincing evidence that

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Klayman violated D.C. Rule of Professional Conduct 1.9 in two

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matters and Florida Rule of Professional Conduct 4-1.9(a) in

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another matter.

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Decl.), Ex. A (District of Columbia Court of Appeals, Board on

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United States District Court
Northern District of California

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Professional Responsibility, Hearing Committee Number Nine,

See Declaration of Lynne Bourgault (Bourgault

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Report and Recommendation (June 19, 2017)).

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Klayman’s conduct during the proceeding before it “was dishonest

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and lacked candor in further aggravation of his misconduct.”

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at 37.

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to be the “most egregious examples”: Klayman “testified falsely

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that he acted under the advice of counsel” when in fact “[h]e did

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not,” his brief “repeatedly mischaracterized” a witness’

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testimony, and he lacked “the candor required of an attorney in a

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disciplinary proceeding.”

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convincing evidence” that Klayman’s conduct “raises a serious

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doubt as to his ability to practice in conformance with the

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rules.”

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“suspended for 90 days, with reinstatement only upon showing his

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fitness to practice law.”

The Board found that

Id.

The Board cited the following examples of what it deemed

Id. at 41.

Id.

The Board found by “clear and

Thus, the Board recommended that Klayman be

Id. at 41-42; see also id. at 43.

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In 2011, the Supreme Court of Florida reprimanded Klayman

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for violating four of Florida’s rules of professional conduct.

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See Bourgault Decl., Ex. B (Supreme Court of Florida Order (Aug.

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29, 2011)).

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her with legal services after receiving a $25,000 retainer.

Klayman’s client alleged that he failed to provide

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Bourgault Decl., Ex. C (July 4, 2011 Consent Judgment).

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settled the matter with his client.

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agreement, Klayman admitted his conduct violated Florida Rules of

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Professional Conduct, but agreed to a public reprimand.

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III. The instant action

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Id.

Klayman

Pursuant to the

Id.

On June 15, 2017, Plaintiff filed a complaint in this Court
against sixteen Defendants, including Berkeley, alleging that she

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was subjected to violence and infringement of her constitutional

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United States District Court
Northern District of California

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rights during a protest at a February 1, 2017 event on the UC

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Berkeley campus featuring speaker Milo Yiannopoulos.

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The Regents of the University of California, Berkeley et al.,

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Case No. 17-3235-CW (Robles I), Docket No. 1.

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represented by Klayman and Michael Kolodzi, who serves as local

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counsel.

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undersigned based on the undersigned’s graduation from the

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University of California, Berkeley, and nomination by former

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President William J. Clinton.

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25, 2017, this Court denied the motion, noting it was “both

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unsworn and legally insufficient.”

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same day, Plaintiff voluntarily dismissed the case.

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57.

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See id.

Robles v.

Plaintiff was

Klayman filed a motion to disqualify the

Robles I., Docket No. 50.

Docket No. 56 at 2.

On July

On the

Docket No.

Plaintiff filed this action on August 22, 2017, alleging

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nearly identical facts and claims.

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again represented by Klayman and Kolodzi.

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for pro hac vice on the same day.

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judge originally assigned to this case granted Klayman’s motion

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for pro hac vice admission.

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Berkeley filed a motion to revoke Klayman’s pro hac vice

Docket No. 1.

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Klayman filed a motion

Docket No. 2.

Docket No. 6.

Plaintiff was

The magistrate

On November 20, 2017,

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admission before the then-assigned magistrate judge.1

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No. 7.

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the present action to Robles I, which resulted in the

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reassignment of this case to the undersigned.

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Berkeley then brought the present motion to revoke pro hac vice

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admission.

Shortly thereafter, this Court issued an order relating

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See Docket

Docket No. 8.

Docket No. 15.
LEGAL STANDARD

Pursuant to Civil Local Rule 11-3, an “attorney who is not a

United States District Court
Northern District of California

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member of the bar of this Court may apply to appear pro hac vice

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in a particular action in this district” by submitting a written

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application, a certificate of good standing issued no more than

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one year prior to the date of application, and an oath

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certifying:

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(1) That he or she is an active member in good
standing of the bar of a United States Court or of the
highest court of another State or the District of
Columbia, specifying such bar;
(2) That he or she agrees to abide by the Standards of
Professional Conduct set forth in Civil L.R. 11-4, and
to become familiar with the Local Rules and Alternative
Dispute Resolution Programs of this Court and, where
applicable, with the Bankruptcy Local Rules;

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(3) That an attorney, identified by name and office
address, who is a member of the bar of this Court in
good standing and who maintains an office within the
State of California, is designated as co-counsel.

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The district court has the power to deny or revoke an

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attorney’s pro hac vice status, which is grounded within the

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court’s inherent power “to control admission to its bar and to

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discipline attorneys who appear before it.”

Lasar v. Ford Motor

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Because that motion is duplicative of the present motion,
that motion is terminated as moot.
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Co., 399 F.3d 1101, 1118 (9th Cir. 2005).

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to do so is reviewed for abuse of discretion.

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court’s decision to deny pro hac vice admission must be based on

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criteria reasonably related to promoting the orderly

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administration of justice or some other legitimate policy of the

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courts.”

United States District Court
Northern District of California

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See id.

“[A]

Bundy, 840 F.3d at 1042 (citation omitted).

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The court’s decision

DISCUSSION
As an initial matter, Klayman’s motion for leave to appear
in pro hac vice did not attach a certificate of good standing

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issued no more than one year prior to the date of application, as

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required by Civil Local Rule 11-3.

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justifies revoking Klayman’s pro hac vice admission.

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See Docket No. 2.

This alone

More importantly, however, Klayman continues to demonstrate

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a lack of candor and respect for the orderly administration of

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justice.

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District of Columbia proceeding is still pending and that he “has

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never been actually found to have acted unethically in this

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matter.”

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been found by any bar association--whose function it is to govern

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attorney conduct--to have acted unethically or improperly for his

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conduct before any judge.”).

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address the June 19, 2017 Report and Recommendation of the Board

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of Professional Responsibility of the District of Columbia Court

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of Appeals.

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negotiated discipline never entered into effect because [he]

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chose to withdraw it after having thought the better of having

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signed the affidavit and agreeing to negotiated discipline since

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he felt strongly that he acted ethically at all times.”

In opposition to this motion, Klayman asserts that the

Opp. at 4; see also id. at 1 (“Mr. Klayman has never

Klayman does not even attempt to

He instead states that “the prior attempted

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Id.

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This is the same argument Klayman advanced in Bundy, which the

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Ninth Circuit noted was “woefully misleading” because Klayman’s

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affidavit was not withdrawn, it was rejected.

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1044.

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The Court explained:
Klayman was not forthcoming with the district court. In
his “renewed application,” Klayman corrected the
record—but only in part. He told the district court
that the stipulation was of no effect because he had
“thought the better of having signed the affidavit and
agreeing to negotiated discipline.” Klayman may have
had second thoughts about stipulating to his “public
censure,” but his statement was woefully misleading. In
fact, a Hearing Committee for the D.C. Bar had rejected
that stipulation on behalf of the Bar because it was
“unduly lenient.” That prompted the hearings in
January 2016, a Hearing Committee recommendation, and
Klayman's March 2016 brief to the D.C. Bar.

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United States District Court
Northern District of California

Bundy, 840 F.3d at

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Id.

The fact that Klayman has again provided false information

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about the District of Columbia Bar Proceeding, even after the
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Ninth Circuit’s reprimand in Bundy, indicates that he continues
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to take no responsibility for his actions and is likely to
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continue to present false and misleading information to the
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Court.

This justifies denying Klayman’s application for pro hac

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vice admission.

Id. at 1045.

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It is clear that Klayman has engaged in a pattern of
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flouting local and federal rules, making misrepresentations and
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omissions, and accusing judges of bias without adequate factual
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basis.

Id.

Based on this behavior, “numerous” courts have found

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“that he is unfit to practice based on his ‘inappropriate and
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unethical behavior.’”

Id.

Klayman has continued his pattern in

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this case.

As discussed previously, he has made the same

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misrepresentations he made in other cases.

He also voluntarily

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dismissed Robles I, on the same day that the Court denied his
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disqualification motion, only to file essentially the same case

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less than a month later.

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consider whether the present case should be related to Robles I,

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as required by Civil Local Rule 3-12.

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failure to follow the court’s local rules, as well as an attempt

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at “judge shopping, a practice that abuses the integrity of the

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judicial system by impairing public confidence in the

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impartiality of judges.”

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United States District Court
Northern District of California

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No. C 08-00836 SI, 2008 WL 5411497, at *2 (N.D. Cal. Dec. 29,

Klayman did not file a motion to

This evinces both a

Keilholtz v. Superior Fireplace Co.,

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2008).

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failed to file Plaintiff’s opposition to Berkeley’s motion to

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dismiss by the deadline and then filed a motion to extend time

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that was not compliant with Civil Local Rule 6-1.

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25.

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as “legally insufficient,” Klayman continues to suggest the

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undersigned is biased.

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brought the present motion “only because they believe that Judge

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Wilken will favor them and grant it” because she “attended UC

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Berkeley’s Boalt Hall School of Law and taught there for six

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years”).

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disregard for local rules, ethics, and decorum; and he has

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demonstrated a lack of respect for the judicial process,” which

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justifies revoking his pro hac vice admission.

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at 1049.

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Klayman also failed to follow the local rules when he

See Docket No.

And, even after the Court denied the disqualification motion

See Opp. at 1 (asserting that Berkeley

In sum, Klayman has demonstrated “a pattern of

Bundy, 840 F.3d

Klayman argues that he is merely zealously advocating for

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the right of his client to secure counsel of choice under the

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Sixth Amendment.

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cases.

But the Sixth Amendment does not apply to civil

See City and County of San Francisco v. Cobra Solutions,
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Inc., 38 Cal. 4th 839, 846 (2006) (in considering

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disqualification motion as involving “a conflict between the

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clients’ right to counsel of their choice and the need to

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maintain ethical standards of professional responsibility”).

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the “Sixth Amendment right to chosen counsel is not absolute,”

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but “can be abrogated to serve a ‘compelling purpose,’” which

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includes “[e]nsuring the ethical and orderly administration of

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justice.”

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United States District Court
Northern District of California

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1996).

And

United States v. Ries, 100 F.3d 1469, 1471 (9th Cir.

Additionally, as the Ninth Circuit noted in Bundy, which

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was a criminal case, Klayman has every right to be “persistent,

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vociferous, contentious, and imposing, even to the point of

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appearing obnoxious when acting in [his] client’s behalf,” but

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does not have the right to “cross[] the line,” which he had done

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on multiple occasions.

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Id. at 1047.
CONCLUSION

The Court issues a tentative ruling granting Berkeley’s

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motion to revoke pro hac vice admission of Larry Klayman (Docket

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No. 15).

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motion by filing a request for hearing on the docket, at which

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point the Court will set a hearing date and briefing schedule.

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If Klayman does not timely file a request for a hearing, then the

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Court’s tentative ruling shall become final.

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Klayman has seven days to request a hearing on this

IT IS SO ORDERED.

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Dated: May 23, 2018
CLAUDIA WILKEN
United States District Judge

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