Kabbaj v. American School of Tangier et al

Filing 110

MEMORANDUM. Signed by Judge Mary Pat Thynge on 5/19/15. (kjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

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YOUNES KABBAJ,
Plaintiff,

v.

Civil Action No.10-431-RGA

AMERICAN SCHOOL OF TANGIER,
et al.,
Defendants.

MEMORANDUM 1
Since December 31, 2014, plaintiff, Younes Kabbaj, has filed thirteen motions
and/or amended complaints. This Memorandum shall address the following motions:
to certify an order as appealable under Federal Rule of Civil Procedure ("FED. R. C1v.
P.") 54(b) (D.I. 88), to establish procedures to pursue claims (D.I. 89), to modify order
and/or certify order as appealable under FED. R. C1v. P. 54(b) (D.I. 92), emergency
motion to transfer and/or certify the previous transfer order as appealable under FED. R.
C1v. P. 54(b) (D.I. 94), to file electronically (D.I. 101 ), and to modify the consent decree
(D.I. 102).
In the instant matter, which was the first action filed in this court by plaintiff,
certain parties2 entered into a confidential settlement agreement and a joint motion to
1

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This Memorandum will not describe the lengthy previous factual and procedural
history. For a detailed understanding of that history, see Kabbaj v. Simpson, C.A. No.
12-1322-RGA/MPT, 2013 WL 2456108 (D. Del. June 6, 2013) and Kabbaj v. American
School of Tangier, 10-431-RGA, 2015 WL 64893 (D. Del. Jan. 15, 2015).
2
Plaintiff named as defendants the American School of Tangier ("AST"), its
board of trustees, Stephen Eastman, Chairman of the Board of Trustees, Edward
Gabriel, and Mark Simpson ("Simpson"). No service was ever effectuated on Simpson

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dismiss with prejudice and a consent order. The consent order was entered by the
court on April 24, 2012. 3 The consent and dismissal order provides as follows:
Plaintiff may not bring a civil action against any of the 'Releasees' ... in
any court in the United States, with respect to any matter not released by
the Parties' settlement agreement, including but not limited to any claim
that any party has breached the settlement agreement, without the prior
written permission of a judge of this Court. Also, at least four (4) business
days before seeking the permission of the Court to initiate such a civil
action, Plaintiff must first provide written notice of such intention to the
Defendants' counsel, Larry R. Seegull, Esq. via both electronic mail to
"[e-mail]" and written letter to Larry R. Seegull,
Esq., Jackson Lewis LLP, 2800 Quarry Lake Drive, Suite 200, Baltimore,
Maryland 21209, 410-415-2004. 4
Thus, the dismissal/consent order, which incorporates by reference the
settlement agreement, provides the court retained jurisdiction after dismissal for
enforcing the settlement agreement and to resolve disputes regarding this agreement. 5
It also restrained and prohibited plaintiff from bringing a civil action against any
releasee 6 absent "prior written permission of a judge of this Court,'' regarding "any
matter not released by the Parties' settlement agreement" and "any claim that any Party
has breached the settlement agreement." 7
The language of the consent order is clear and instructs plaintiff how to proceed
before commencing an action: provide proper and timely notice to defendants' counsel
of the proposed claims and request permission of this court to file suit on those claims.

and he never responded to the complaint or appeared in the action.
3
See C.A. No, 10-431-RGA at D.I. 52-54.
4
Id. at D.I. 54 at 2-3 (emphasis added).
5
Id. at 3.
6
The extensive list of the releasees is found at paragraph 11 of the Confidential
Settlement Agreement and in the consent order.
7
C.A. No.10-431-RGA at D.I. 54 at 2.

2

To obtain permission and provide proper notice of and to the releasees named as
potential defendants and of his claims and proposed action, a copy of the proposed
complaint needs to be provided to the court and defendants' counsel. Merely filing a
complaint or a notice or motion for permission without a proposed complaint attached
are insufficient. 8 Since the consent order was issued in the original case, C.A. No. 10431-RGA, that is the matter in which the motion along with the proposed complaint
attached is to be filed.
To confirm that proper notification to defendants' counsel was provided,
confirmation on the court docket that shows plaintiff timely provided a copy of the
proposed complaint to defendants' counsel is also required.
Plaintiff agreed in the executed settlement documents to follow certain
procedures regarding any further civil action against any releasee. As evidenced by his
numerous court filings and the decisions of this court and other courts, he is familiar
with the procedures required of him. Moreover, when he filed another action
post-execution of settlement agreement and entry of the consent order, he did so in
another jurisdiction before receiving permission to sue from this court. That conduct
resulted in a transfer of that action to this jurisdiction, and plaintiff filed a motion for
leave to file a lawsuit with a copy of his proposed complaint attached in the original
action, C.A. No. 10-431-RGA. 9 Subsequently, he was directed regarding what he

8

Based upon plaintiff's experience of filing complaints in various federal courts,
he should be aware that just filing a complaint results in a new action being instituted.
9
C.A. No. 10-431-RGA at D.I. 55. Because plaintiff failed to abide by the
consent order, the transfer from another federal district court resulted the
commencement of a new matter in this court, C.A. No. 12-1322-RGA.

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further needed to do to comply with the consent order. 10
Since the consent order advises plaintiff of what he must do, and this court has
previously provided guidance, his motion to establish procedures at D.I. 89 is denied. 11
Plaintiff's motion to certify a previous "order as appealable as per FRCP 54(b)" 12
references three orders: an order by the Honorable Richard G. Andrews denying
plaintiff's motion to recuse, 13 the order by the undersigned entered on December 18,
2014 denying plaintiff's motion to recuse, 14 and an order entered by Judge Andrews
denying pre-rule 26(f) discovery in C.A. No. 14-982-RGA. 15
Plaintiff provides no bases for his contention that the order denying recusal of
the undersigned is appealable under Rule 54(b ). 16 Besides mentioning that order in the
present motion, plaintiff primarily focuses on the order of December 8, 2014 in C.A. No.
14-982-RGA denying pre-rule 26(f) discovery. 17 Recently, in that matter, the court

10

Id. at 56.
This motion in part reiterates events that occurred in other matters in this court,
specifically C.A. No. 13-1522-RGA, which was not referred or assigned to this judge
and is now closed and on appeal, and C.A. No. 12-1322-RGA, which was dismissed for
lack of personal jurisdiction and affirmed on appeal. See Kabbaj v. Simpson, 547 Fed.
Appx 84 (3d Cir. 2013); see also Kabbaj, 2013 WL 2456108 (D. Del. June 6, 2013).
12
C.A. No.10-431-RGA at D.I. 88. Plaintiff filed motions to recuse Judge
Andrews and the undersigned in every action instituted by him in this court.
13
Id. at D.I. 78. Although the motion under consideration was filed in every
matter instituted by plaintiff in this court, his arguments are directed to C.A. No. 14-982RGA.
14
Id. at D.I. 82.
15
C.A. No. 14-982-RGA at D.I. 39.
16
REVIEW OF FEDERAL JUDGE'S GRANT OR DENIAL OF MOTION TO RECUSE, 64 A.LR.
Fed 433 (1983).
17
Id. Plaintiff briefly refers to the order by Judge Andrews denying recusal in the
final paragraph of this motion, arguing exhibit 1 attached is further evidence that recusal
is "more than justified." C.A. No. 10-431-RGA, D.I. 88 at 3.
11

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dismissed the same motion as moot. 18 Further, as explained before, this judge was not
referred or assigned C.A. No. 14-982-RGA, and does not have jurisdiction to address
the orders by Judge Andrews denying discovery or his denial of recusal. 19 Moreover,
this matter is closed and plaintiff has appealed Judge Andrews' decision. 20 His motion
at D.I. 88 is denied.
Plaintiff's motion to modify an order and/or certify the order as appealable under
FED. R. C1v. P. 54(b)21 addresses the decision and order by the undersigned dated
January 5, 2015, 22 repeats the same or similar arguments raised in many other filings,
and references complaints filed in contradiction to the consent/dismissal order of April
24, 2012. 23 The filing of those complaints resulted in new actions referenced in his
motion, specifically C.A. Nos. 14-982-RGA, 14-1001-RGA and 14-1484-RGA. Two of
the actions were the result of transfers from other jurisdictions for failing to follow the
consent order. 24 In paragraph 20 of the motion, plaintiff requests the court modify its
January 5, 2014 [sic] ruling permitting him to sue AST, order the C.A. No. 14-982-RGA
matter to proceed in Delaware, and grant his pending motions to return C.A. No. 141001-RGA to New York and to return C.A. No. 14-1484-RGA to Delaware [sic]. He

18

C.A. No. 14-982-RGA at D.I. 56.
Kabbaj v. American School of Tangier, et al., C.A. No. 10-431-RGA, 2014 WL
7240528, at *1 n.1 (D. Del. Dec. 18, 2014).
20
D.I. 62, 64.
21
C.A. No. 10-431 at D.I. 92.
22
See Kabbaj v. American School of Tangier, et al., C.A. No. 10-431-RGA, 2015
WL 64893 (D. Del. Jan. 5, 2015).
23
Id. at D.I. 86, 87.
24
See C.A. No. 12-1322-RGA, D.I. 2; C.A. No. 14-1484-RGA, D.I. 4. C.A. No.
12-1322-RGA originated in the Southern District of New York, while C.A. No. 14-1484RGA was initiated in the Southern District of Florida. Both matters were transferred to
this court because of the consent order.
19

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reiterates the same requests in paragraph 23, but asks that C.A. No. 14-1001 be
transferred to the Southern District of New York and C.A. No. 14-1484 be transferred to
the Southern District of New York. 25
Plaintiff's request for modification of the January 5, 2015 decision is essentially a
motion for reargument or reconsideration. Such a motion is to "correct errors of law or
fact or to present newly discovered evidence." 26 The grounds for a proper Rule 59(e)
are limited to "(1) intervening change in controlling law; (2) the availability of new
evidence; or (3) the need to correct a clear error or law or fact or to prevent manifest
injustice." 27 None of plaintiff's arguments meet the elements of a motion for
reconsideration or reargument.
The decision at issue involved a motion seeking to file a complaint. As
discussed in that decision, the only reference to any alleged conduct on the part of AST
was found in

mf 9 and

10 of the proposed complaint. Paragraph 9 merely mentions

AST, but fails to attribute any purported activity on its part. Paragraph 10 is wholly
conclusory, references all defendants, includes conduct that occurred prior to the
settlement agreement which released all claims against AST prior to its execution in
2012, is devoid of any facts in support of plaintiff's conclusions and fails to identify who
allegedly was involved in the conduct. Further, paragraph 10 conflicted with the more
detailed allegations against Simpson and Brian Albro. 28 The court has the inherent

25

C.A. No. 10-431-RGA at D.I. 92 at 9at1f 20 and 11at1f 23.
Max's Seafood Cafe ex. rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1991 ).
27
Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (citing N. River Ins. Co.
v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
28
Kabbaj, 2015 WL 64893, at *5 n.26.
26

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authority to dismiss claims sua sponte for failure to state a claim upon which relief may
be granted consistent with Rule 12(b)(6). 29
Moreover, the court did not rule plaintiff could not seek permission to bring a
proper complaint against any releasee. In fact, plaintiff continues to file various
amended complaints, with or without motions, and recently filed new requests seeking
permission to institute two separate actions against certain releasees. 30
Although plaintiff complains the undersigned's decision on January 5, 2015
addresses an old, dated complaint, most of his amended complaints or motions for
leave to file an amended complaint or to substitute and/or amend the complaint were
filed in C.A. No. 10-431-RGA after this decision. 31
Regarding plaintiff's request to transfer C.A. No. 14-1001-RGA to New York or
the Southern District of New York and to return C.A. No. 14-1484-RGA to the Southern
District of Florida, 32 neither of these matters were referred to the undersigned either by
consent or pursuant to 28 U.S.C. § 636. Thus, the undersigned has no jurisdiction to

29

Bintiff-Ritchie v. Am. Reinsurance Co., 285 Fed. Appx 940, 943 (3d Cir. 2008);
Bryson v. Brand Insulations, Inc., 621 F.2d 556 (3d Cir. 1980).
3
C.A. No. 10-431-RGA, D.I. 103.
31
D.I. 93 (first amended complaint), 95 (first amended complaint), 96 (motion to
substitute and/or amend complaint and engage in pre-Rule 26(f) discovery), 97(notice
of substitution), all filed January 13, 2015; D.I. 103 (emergency motion requesting
permission to proceed with proposed complaints) filed March 10, 2015, and D.I. 107
(emergency motion to approve lawsuit and notice of filing) filed April 1, 2015. The court
has not ruled the propriety of these pleadings.
32
Although plaintiff requested C.A. No. 14-1484-RGA be transferred to Delaware
and the Southern District of New York, the court assumes the reference to Delaware
and New York were typographical errors, since this matter was originally filed in a
federal court in Florida, which transferred the matter to Delaware for the review
process.

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address plaintiffs request. 33 The only jurisdiction retained in C.A. No. 10-431-RGA is
for enforcement of the consent order. Moreover, in C.A. No. 14-1001-RGA, Judge
Andrews, to whom this matter is assigned, recently dismissed the original complaint
and all proposed amended complaints because they were filed in contravention of the
April 24, 2012 consent order and settlement agreement. 34
Therefore, plaintiffs motion found at D.I. 92 is denied.
In his emergency motion to transfer and/or certify a previous transfer order as
appealable under FED. R. C1v. P. 54(b), plaintiff requests that C.A. No. 14-1484-RGA be
immediately transferred back to the District Court for the Southern District of Florida
where it originated. In the alternative, if the court refuses that request, the plaintiff asks
the court "to immediately certify the transfer order issued" by the Florida court "as
appealable to the Third Circuit Court of Appeals as a final order dismissing the case so
that Plaintiff can consolidate the appeal of this case into an already pending appeal of
the dismissal of the 13-1522 case,'' purportedly in the interests of judicial efficiency. 35
The same motion was filed in C.A. No. 14-1484-RGA. 36
As explained above, C.A. No. 14-1484-RGA is not assigned or referred under 28
U.S.C. §636. Neither was C.A. No. 13-1522-RGA referred or assigned, which is
presently closed and on appeal.
Plaintiff presumes that because this court authorized the filing of an action

33

See Kabbaj, 2015 WL 64893, at *2 n.13.
Kabbaj v. Simpson, et al., C. A. No. 14-1001-RGA, 2015 WL 993221, at *3 (D.
Del. Mar. 4, 2015).
35
C.A. No. 10-431-RGA at D.I. 94at1f 1.
36
C.A. No. 14-1484-RGA at D.I. 13.
34

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against a single releasee, Simpson, in its order of November 2, 2012, it gave him an
unbridled right to proceed with any complaint in the future until the order was revoked.
Plaintiff is mistaken. First, as noted in the November 2, 2012 order, plaintiff certified
that his request for leave to file an action was limited to the present action he filed. In
granting authorization to file suit, the court relied upon that representation. Since that
order, as evidenced by his later filings, plaintiff has greatly expanded the number of
individuals he wants to sue and his allegations. Second, the date, November 27, 2012
at paragraph 2 of that order, requiring plaintiff to file the action in a proper jurisdiction,
has long expired. Third, the order directed plaintiff, should he determine that this court
was the proper forum for that complaint, to docket all further filings in C.A. No. 12-1322RGA/MPT. As noted before, that matter was dismissed for lack of personal jurisdiction
over Simpson, which was affirmed on appeal, ending the case, along with the
commencing document, that is, the complaint or any amended complaints, and any
effect or purpose for the November 2012 order. 37
Finally, the District Court for the District of Delaware, located within the
jurisdiction of the Third Circuit Court of Appeals, cannot certify under any circumstance,
including Rule 54(b ), a decision issued by the District Court for the Southern District of
Florida, which is a different court and within the jurisdiction of the Eleventh Circuit Court
of Appeals. If plaintiff wanted the Florida court transfer decision certified as appealable,
that request had to be timely made to the court issuing the decision.

37

See Kabbaj v. Simpson, 547 Fed. Appx 84 (3d Cir. 2013); see also, Kabbaj v.
Simpson, C.A. No. 12-1322-RGA-MPT, 2013 WL 2456108 (D. Del. June 6, 2013); FED.
R. CIV. P. 3.

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For these reasons, plaintiff's motion at D.I. 94 is denied.
Plaintiff also moves for approval to file electronically arguing this privilege was
revoked without cause and to enable him to receive notices through email in the
absence of a mailing address .38 Plaintiff's electronic filing privileges were revoked in
C.A. No. 12-1322-RGA and C.A. No. 13-1522-RGA. 39 As plaintiff stated in his motion
filed on March 10, 2015, anyone with a PACER account can access or view docket
entries. 40 Apparently, plaintiff has access to a PACER account since he provided the
document links for a number of exhibits filed in the Third Circuit. Attached to all his
filings is a representation that he provides counsel with copies of his filings through
email. Since the remaining purpose of C.A. No. 10-431-RGA is for enforcement of the
consent decree, only a limited number of pleadings should be filed in this matter.
Recently, most have been filed by plaintiff.
After the filing of this motion, based on his representation that he no longer
receives mail at his previous address of record, and consistent with Rule 5(b)(2)(D), his
address of record was ordered to be "c/o Clerk of the Court, 844 King Street,
Wilmington, De 19801" for matters in this court. 41
Thus, plaintiff's motion at D.I. 101 is denied.

38

C.A. No. 10-431 at D.I. 101.
These were the only two matters in which electronic filing privileges were
authorized. Contrary to plaintiff's claim as to why his electronic filing privileges were
revoked, they were revoked in C.A. No. 13-1522-RGA on December 17, 2013 without
comment. D.I. 50. Subsequently, they were revoked in C.A. No. 12-1322-RGA (D.I.
79) on April 11, 2014, after the court denied his request for the waiver of fee for
electronic filing (D.I. 75), and after the Third Circuit affirmed this court's decision of lack
of personal jurisdiction, which ended the matter. D.I. 77.
40
Id. at D.I. 103.
41
Id. at D.I. 63.
39

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Plaintiff requests that the consent order be modified by moving the phrase
"subject to the provisions in the Confidentiality provision, Paragraph 21 of the
Settlement Agreement" from the end of the paragraph to follow the phrase "with the
following persons and entities" at the beginning of the paragraph. Plaintiff makes this
request based on grammar and an isolated comment in my decision of January 5,
2015. No finding in the decision was based upon that comment. Therefore, plaintiff's
motion at D.I. 102 is denied.
Conclusion

For the foregoing reasons, plaintiff's motions at D.I. 88, 89, 92, 94, 101 and 102
are denied. An appropriate order will follow.
May 19, 2015

Isl Mary Pat Thynge
CHIEF, UNITED STATES MAGISTRATE JUDGE

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