Kabbaj v. American School of Tangier et al
Filing
55
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 3/3/2015. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
YOUNES KABBAJ,
Plaintiff,
v.
Civil Action No. 14-982-RGA
AMERICAN SCHOOL OF TANGIER,
et al.,
Defendants.
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Younes Kabbaj, Pro Se Plaintiff.
Michael Brennan Rush, Esquire, Potter Anderson & Corroon, LLP, Wilmington,
Delaware; Counsel for Defendants American School of Tangier, Board of Trustees for
the American School of Tangier, Stephen E. Eastman, and Edward M. Gabriel.
Randolph Karl Herndon, Jr., Esquire, McDermott Will & Emery LLP, Washington, D.C.;
Counsel for Defendants Mark S. Simpson and Brian K. Albro.
MEMORANDUM OPINION
3,
March
2015
Wilmington, Delaware
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ANDR~~~
Plaintiff Younes Kabbaj filed this action pursuant to 28 U.S.C. ยง 1332 alleging
diversity of citizenship and damages in excess of $75,000, which he elsewhere specifies
as $2,694,400. (D.I. 1, ~13; D.I. 1-1 ). He appears prose and has paid the filing fee.
(Docket Text re: D.I. 1). He has moved to amend the complaint, accompanied by a
proposed amended complaint. (D.I. 13 & 14; see also D.I. 19; D.I. 23). There was a
further motion to amend the complaint that was not accompanied by a proposed
amended complaint. (D.I. 37 & 38). There was later a further "Notice of First Amended
Complaint" (D.I. 47) and "First Amended Complaint." (D.I. 48). Before the Court are
Defendants' motions to dismiss (D.I. 10, 25, 27), as well as various other motions. (D.I.
11, 28, 32, 52).
Kabbaj too has filed numerous motions. (D.I. 6, 13, 20, 23, 24, 30, 37,
48, 49, 50, 51 ).
Kabbaj is a former employee of the American School of Tangier. He has filed
numerous lawsuits. 1 In the first action, C.A. No. 10-431-RGA, he named as defendants
the American School of Tangier; its Board of Trustees; Stephen Eastman, Chairman of
the Board of Trustees; Edward Gabriel; and Mark Simpson. (C.A. No. 10-431-RGA, D.I.
12). The parties (excepting Mr. Simpson, who does not appear to have been served,
and did not respond to the complaint) entered into a confidential settlement agreement,
followed by a joint motion to dismiss with prejudice and consent order, granted by the
Court on April 24, 2012. (See C.A. No. 10-431-RGA, D.I. 52, 53, 54). The dismissal
order provided that the Court would retain jurisdiction of the matter following dismissal
1
See C.A. Nos. 10-431-RGA, 12-1322-RGA-MPT, 13-1522-RGA, 14-780-RGA, 14-1001-RGA, 14-1484RGA.
for the purpose of enforcing the parties' written settlement agreement and to resolve
disputes regarding that settlement agreement. (C.A. No. 10-431-RGA, D.I. 54 at 3).
The dismissal order restrained and prohibited Kabbaj from having any contact with
about forty-five (45) named persons and entities (i.e., the "Releasees") and many more
individuals and entities not identified by name. The dismissal order further provided
that, unless "prior written permission of a judge of this Court" was obtained, Kabbaj
could not bring a civil action against any of the Releasees "with respect to any matter
not released by the Parties' settlement agreement" and with respect to "any claim that
any Party has breached the settlement agreement." (C.A. No. 10-431, D.I. 54 at 2).
The Releasees include the American School of Tangier ("AST"), its Board of Trustees,
Edward M. Gabriel, Stephen E. Eastman, and Mark Simpson. (Id. at 1-2).
On July 25, 2014, Kabbaj filed the instant complaint against AST, its Board of
Trustees, Gabriel, Eastman (collectively, "AST defendants"), Simpson, Brian K. Albro,
and John Does 1-83 without receiving written permission from the Court. Kabbaj
alleges conspiracy, defamation, breach of contract, tortious interference with contract,
negligence, negligent misrepresentation, fraudulent misrepresentation, negligent
infliction of emotional distress, intentional infliction of emotional distress, malicious
prosecution, and false imprisonment. (D.I. 1). Subsequent amended complaints do not
substantially change the defendants, other than adding more John Doe defendants, but
do reduce the number of claims. (E.g., D.I. 14 (85 John Doe defendants; four claims
including breach of contract, tortious interference with contract, and
"negligence/negligent misrepresentation/ fraudulent misrepresentation"); D.I. 48 (108
John Doe defendants; four claims)).
2
The AST defendants, Simpson, and Albro move to dismiss the complaint for
Kabbaj's failure to comply with the April 24, 2012 order. (D. I. 10, 27). In addition, the
AST defendants seek an order relieving them from having to respond to further filings
made by Kabbaj unless specifically directed to do so by the Court (e.g., D.I. 10 ~9) and
Albro and Simpson move to strike certain filings by Kabbaj. (D.I. 52). Finally, the AST
defendants seek sanctions in the sum of $2,000 for having to respond to the complaint
in light of Kabbaj's failure to comply with the April 24, 2012 order. (D.I. 27). In turn,
Kabbaj seeks sanctions. (D.I. 30). Simpson and Albro similarly move for dismissal on
the grounds that Kabbaj failed to obtain permission to file this action as required by the
April 24, 2012 order. (D.I. 25, 26)
AST, its Board of Trustees, Gabriel, Eastman, and Simpson were named as
Releasees in the settlement of C.A. No. 10-431-RGA. According to the Court's April 24,
2012 order:
[Kabbaj] may not bring a civil action against any of the "Releasees" [ ] in
any court of law 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, [Kabbaj] must first provide written notice of such intention to
the Defendants' counsel, Larry R. Seegull, Esq., via both electronic mail to
"larry.seegull@jacksonlewis.com" and written letter to Larry R. Seegull,
Esq., Jackson Lewis LLP, 2800 Quarry Lake Drive, Suite 200, Baltimore,
Maryland 21209, 410-415-2004.
(C.A. No. 10-431-RGA, D.I. 54, at 2-3).
3
Kabbaj has represented in other filings that Albro is Simpson's husband. 2 Under
the terms of the settlement agreement and the April 24, 2012 order, Releasees include
family members of the named Releasees, and Kabbaj is required to obtain permission
from this Court before instituting any new action against them. John Does 1-83(or1108) are identified by internet protocol address, as owners, operators and/or
administrators of biogs, and as owners, operators, and/or administrators of email
addresses. The John Doe defendants may or may not be Releasees. 3
There is nothing on the court docket that indicates Kabbaj provided a copy of the
instant complaint to Seegull. Nor did Kabbaj seek leave to file a complaint against the
named Releasees. Kabbaj agreed in the executed settlement documents to follow a
certain procedure regarding any further civil action against any Releasee, yet he failed
to do so. As is evidenced by his numerous court filings, Kabbaj is well aware of the
procedures by which he is required to abide. Yet he chose not to follow the procedures
to which he agreed. Thus, the motions to dismiss will be granted 4 and the complaint will
be dismissed for failure to follow the procedure to which Kabbaj agreed. 5 See Kabbaj v.
2
See Kabbaj v. Google, Inc., 2014 WL 1369864, at *6 n.4 (D. Del. Apr. 7, 2014 ). In the instant action,
Kabbaj alleges that Albro resides at the same address as Simpson (D.I. 1, mf 6 & 8) and is Simpson's
"unmarried boyfriend." (D.I. 23-1, '18).
3
The Court is unable to determine whether any of the John Does are Releasees under the settlement
agreement. For those John Does identified by an "http" address or an email address, it seems that they
could be Mark Simpson. (E.g., D.I. 23-1, mf 10 & 11 - John Does 40, 41, 49, 50, 53, 54, 63, 73, 83, who
all have "Simpson" as part of the address). The John Doe defendants who are identified by IP addresses
are represented as being in "NY," "OR," or "Paris, France," (D.I. 23-1, '19), which suggests this Court may
not have personal jurisdiction over them. The Court also notes that Kabbaj's initial attempt to sue
Simpson was dismissed for lack of personal jurisdiction, and the dismissal was affirmed on appeal. See
Kabbaj v. Simpson, 547 F. App'x 84 (3d Cir. 2013).
4
Nothing in any of the proposed amended complaints changes this analysis.
5
On October 18, 2012, Kabbaj filed a motion for leave to file a lawsuit against Releasee Mark S. Simpson
in C.A. No. 10-431-RGA at D.I. 55, which he originally filed in the United States District Court for the
Southern District of New York. This Court ultimately granted Kabbaj leave to file a lawsuit against
Simpson. The New York case was transferred to this Court and assigned C.A. No. 12-1322-RGA-MPT.
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Google Inc., No. 14-2663 (3rd Cir. Feb. 10, 2015) (affirming dismissal on this basis in an
appeal from C.A. No. 13-1522-RGA).
The majority of the allegations are directed towards Simpson and Albro. In
general, the allegations relate to "a massive internet operation against [Kabbaj]." (D.I.
1, 1f16). Kabbaj names the John Doe "internet defendants" (D.1. 1, 1f17) as acting on
behalf of the AST defendants, Simpson, and Albro. 6 As recently held by the United
States Court of Appeals for the Eleventh Circuit, the John Doe defendants were
allegedly agents to Simpson's principal, and Kabbaj was therefore required to obtain
permission before filing this action. See Kabbaj v. Doe, 2015 WL 106656, at *3 (11th
Cir. Jan. 8, 2015). Thus, the settlement agreement does not permit the suit against the
John Does. 7
The Court notes that Kabbaj, after following the appropriate procedure and in
compliance with the April 24, 2012 order, was recently given permission to file a
As noted (n.5, supra), the matter was subsequently dismissed for lack of personal jurisdiction. On January
2, 2014, Kabbaj filed another motion to file a lawsuit against AST and Simpson. (C.A. No. 10-431-RGA at
D.I. 65). Kabbaj did not provide a proposed complaint for the Court to review to determine the adequacy
of the pleading and proposed action, and the motion was denied. (Id. at D.I. 87). Next, on March 21,
2014, Kabbaj filed a motion to file a complaint against AST, Simpson, and Brian Albro, who is described
as Simpson's husband. (Id. at D.I. 70). On January 5, 2015, the Court denied the motion to file a new
complaint as to AST and granted the motion to file a new complaint as to Simpson and Albro. (Id. at D.I.
87).
6
Simpson and Albro are named as defendants in other cases filed by Kabbaj. See C.A. Nos. 10-431-RGA
(Simpson), 12-1322-RGA-MPT (Simpson), 14-780-RGA (both), 14-1001-RGA (both).
7
It appears that Kabbaj's operative theory against the John Doe defendants is that they tortiously
interfered with the settlement agreement. (D.I. 23-1, 1f 69). "Under Delaware law, the elements of a claim
for tortious interference with a contract are: '(1) a contract, (2) about which defendant knew, and (3) an
intentional act that is a significant factor in causing the breach of such contract, (4) without justification, (5)
which causes injury."' Bhole, Inc. v. Shore Investments, Inc., 67 A.3d 444, 453 (Del. 2013). It is doubtful
that Kabbaj states a claim against the John Doe defendants, but, if he does, it is only because they must
be assumed to be Simpson's agents.
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complaint, somewhat similar to the complaint herein, against Simpson, Albro, and John
Doe defendants. (See C.A. No. 10-431-RGA at D.I. 70, 87).
The Court will grant Defendants' motions to dismiss. (D.I. 10, 25, 27). The Court
will dismiss the complaint and all proposed amended complaints as the original
complaint was filed in contravention of the April 24, 2012 order and the settlement
agreement entered into by Kabbaj. Kabbaj and Defendants have filed numerous other
motions in this case. (D.I. 6, 11, 13, 20, 23, 24, 25, 28, 30, 32, 37, 48, 49, 50, 51, 52).
Most of the motions (D.I. 6, 11, 13, 20, 23, 25, 30, 32, 37, 48, 49, 51, 52) are moot, and
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will therefore be dismissed.
As to D.I. 24, Kabbaj moves to unseal exhibits and pleadings and, in particular,
D.I. 14, 15, 16, 17, 18, and 22, which were previously sealed by the Court. The sealing
of D.I. 14, 15, 16, 18 and 22 was erroneous. They will therefore be unsealed.
Subsequent to the filing of the motion to unseal, the Court sealed D.I. 38, which is 533
pages long. Having reviewed D.I. 38, it also appears that it should not have been
sealed. Most of the contents of the sealed documents were publicly available prior to
having been filed with the Court. Previous public availability, at least in the
circumstances of this particular case and considering the documents at issue, indicates
that the documents should not remain under seal. See generally West Penn Allegheny
Health Sys., Inc. v. UPMC, 2012 WL 512681, *8-9 (W.D. Pa. Feb. 14, 2012). But D.I.
17 also contain irrelevant personal information. 8 Therefore, the Court will grant the
8
For example, Kabbaj includes the purported home addresses of two family members of former
presidents of the United States. Thus, I will direct that the Clerk's Office redact from 0.1. 17 the addresses
that appear to belong to these two individuals.
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motion to unseal as to D.I. 14, 15, 16, 18, and 22, and will grant it as to a redacted copy
of D.I. 17. The Court will also sua sponte unseal D.I. 38.
As to D.I. 28, since the Court is dismissing the case, the Court will grant the
motion to quash third party subpoenas. (D.I. 28).
As to D.I. 30, since Kabbaj's position is meritless, his request for sanctions (D.I.
30) will be denied.
As to D.I. 50, the Motion Requesting Establishment of Procedure to Pursue
Claims, it relates to C.A. No. 10-431-RGA, and not to this case. Therefore, it will be
denied.
At this juncture, the Court declines to impose the sanctions sought by the AST
defendants. Kabbaj, however, is placed on notice that future complaints that name any
of the Releasees and are filed without seeking permission pursuant to the process
established in No. 10-431-RGA will be summarily dismissed. In addition, sanctions may
issue should Kabbaj continue to file new complaints containing repetitive allegations
and/or repetitive motions or motions in closed cases.
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