Kabbaj v. Simpson et al

Filing 77

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 3/4/2015. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
YOUNES KABBAJ,
Plaintiff,

v.

Civil Action No. 14-1001-RGA

I

MARKS. SIMPSON,
et al.,
Defendants.

Younes Kabbaj, Pro Se Plaintiff.
Randolph Karl Herndon, Jr., Esquire, McDermott Will & Emery LLP, Washington, D.C.;
Counsel for Defendants Mark S. Simpson and Brian K. Albro.

MEMORANDUM OPINION

Lf-,

March
2015
Wilmington, Delaware

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Plaintiff Younes Kabbaj filed this action in the United States District Court for the
Eastern District of New York ("EDNY"), pursuant to 28 U.S.C. § 1332, alleging diversity
of citizenship and damages in excess of $75,000. (D.I. 1, 1[8). He appears prose and
was granted leave to proceed in forma pauperis. (D.I. 56). Named as defendants were
Mark S. Simpson, Brian K. Albro, and ten John Does. EDNY promptly transferred the
case to this Court. (D.I. 16). Plaintiff has since moved to amend the complaint,
accompanied by a proposed amended complaint. (D.I. 36 & 38). The proposed
amended complaint adds New York City detectives and prosecutors as defendants.
There was another motion to amend the complaint, with a proposed amended complaint
with the same defendants. (D.I. 40 & 40-1 ). There was another motion to amend the
complaint, without a proposed amended complaint, but intending to continue with the
same defendants and some extra John Doe defendants. (D.I. 52 at 3,

1f 07).

There

was a later First Amended Complaint, docketed as "Third Motion for Leave to File
Amended Complaint" (D.I. 66). Plaintiff also filed a "Motion to Substitute Amended
Complaint" (D.I. 67), but it does not appear to correspond to any filed proposed
amended complaint. Before the Court are Defendants' motions to dismiss (D.I. 30, 42),
as well as various other motions. (D.I. 32, 44, 57, 68, 70, 72). Kabbaj too has filed
numerous motions. (D.I. 22, 36, 40, 41, 51, 52, 62, 63, 65, 66, 67).
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

1

See C.A. Nos. 10-431-RGA, 12-1322-RGA-MPT, 13-1522-RGA, 14-780-RGA, 14-982-RGA, 14-1484RGA.

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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, 0.1.
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, 0.1. 52, 53, 54). The dismissal
order provided that the Court would retain jurisdiction of the matter following dismissal
for the purpose of enforcing the parties' written settlement agreement and to resolve
disputes regarding that settlement agreement. (C.A. No. 10-431-RGA, 0.1. 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-RGA, 0.1. 54 at
2). The Releasees include Mark Simpson. (Id. at 1-2).
Kabbaj filed the instant complaint in the EONY without receiving written
permission to do so from this Court. The EONY transferred the matter to this Court,
finding that Kabbaj's claims had no connection to the EONY. (0.1. 16). In doing so, the
EONY Court referred to this Court's April 24, 2012 order that restrains and prohibits
Kabbaj from having any contact with defendants, and found that the EONY was not the
appropriate forum in which to file the action. (Id.).

3

In the instant complaint, Kabbaj alleges conspiracy, defamation, breach of
contract, tortious interference with contract, negligence, negligent infliction of emotional
distress, intentional infliction of emotional distress, malicious prosecution, and false
imprisonment. (D.I. 1, mf 77-94). Kabbaj made similar allegations in Kabbaj v.
American School of Tangier, C.A. No. 14-982-RGA at D.I. 1. Kabbaj alleges that

Simpson, Albro, and John Does 1-10 established numerous internet accounts,
websites, biogs, emails, social networking profiles, paperback and digital books,
defaming and threatening Kabbaj, all of which were in violation of the 2012 settlement
agreement. (D.I. 1,

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25).

Subsequent amended complaints do not substantially change Plaintiff's legal
theories (see, e.g., D.I. 66,

mf 72-86) but do add numerous defendants and a civil rights

charge.
Simpson and Albro move to dismiss the complaint for Kabbaj's failure to comply
with the April 24, 2012 order and various other grounds. 2 (D.I. 30, 42). In addition, they
seek to hold Kabbaj in contempt. (D.I. 44). They seek an order quashing nine
subpoenas Kabbaj may have served. (D.I. 57). They seek an order relieving them from
having to respond to further filings made by Kabbaj unless specifically directed to do so
by the Court. (D.I. 70).
Simpson was named as a Releasee 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
2

The other grounds include that the complaint violates Federal Rule of Civil Procedure 8, does not contain
sufficient allegations of personal and subject matter jurisdiction, and does not state a claim upon which
relief can be granted.

4

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
"[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.
(C.A. No. 10-431-RGA, D.I. 54, at 2-3).
Kabbaj has represented in other filings that Albro is Simpson's husband. 3 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 1-10 are
identified by internet protocol addresses (D.I. 1,

mf 5 & 6), and later John Does 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. 4
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 Releasee Simpson. 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

3

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 3 & 4) and later states that
they are "acting as 'one' family unit." (D.I. 1, 119).

4

The Court is unable to determine whether any of the John Does are Releasees under the settlement
agreement. The John Doe defendants who are identified by IP addresses are represented as being in
New York City or Paris, France. (D.I. 1, 115 & 6).

5

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 (D.I. 30, 42) will be
granted 5 and the complaint will be dismissed for failure to follow the procedure to which
Kabbaj agreed. 6 See Kabbaj v. 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 allegations in the complaint are directed towards Simpson and Albro. 7 The
John Doe defendants were added for "acting in concert with each other to harm
Plaintiff." (D.I. 1,

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11 ). 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.
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
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).
5

Nothing in any of the proposed amended complaints changes this analysis.

6

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.
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 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 Simpson and Albro. (Id. at D.I. 70). On January 5, 2015,
the Court granted the motion to file a new complaint as to Simpson and Albro. (Id. at D.I. 87).
7

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), 14-982-RGA (both).

6

The Court will grant Defendants' motions to dismiss. (D.I. 30, 42). 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. 22, 32, 36, 40, 41, 44, 51, 52, 57, 62, 63, 65, 66, 67, 68, 70, 72). Most
of the motions (D.I. 22, 32, 36, 40, 51, 52, 62, 65, 66, 67, 68, 70, 72) are moot, and will
therefore be dismissed.
As to D.I. 41, Kabbaj moves to unseal exhibits and pleadings and, in particular,
D.I. 37 and 38, which were previously sealed by the Court. The sealing of D.I. 37 was
erroneous. It will therefore be unsealed. D.I. 38 will also be unsealed except as noted
below. Subsequent to the filing of the motion to unseal, the Court sealed D.I. 53, which
is 533 pages long. Having reviewed D.I. 53, 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). D.I. 38

contains irrelevant personal information. 8 Therefore, the Court will grant the motion to
unseal as to D.I. 37, and will grant it as to a redacted copy of D.I. 38. The Court will
also sua sponte unseal D.I. 53.
Since the Court is dismissing the case, the Court will grant the motion to quash

8

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 D.I. 38 the addresses that appear to belong to
these two individuals.

7

third party subpoenas. (D.I. 57).
As to D.I. 63, 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.
As to D.I. 44, Defendants' motion for contempt of court and for a further
injunction, this appears to me to relate to C.A. No. 10-431-RGA too. Jurisdiction in that
case was retained to enforce the terms of the settlement agreement. Therefore, the
motion filed in this case will be denied.
At this juncture, the Court declines to impose the sanctions sought by
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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