Kabbaj v. John Doe 01- IP 108.6.2.98 et al

Filing 21

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 8/11/2015. (nms)

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

v.

Civil Action No. 14-1484-RGA

JOHN DOES 1-108,
Defendants.

Younes Kabbaj, Pro Se Plaintiff.

'MEMORANDUM OPINION

August /I , 2015
Wilmington, Delaware

'~~-.

1stnct

Judge~:----...

Plaintiff Younes Kabbaj has filed a motion (D.I. 14) which in part seeks to
substitute his amended complaint (D.I. 13) for his earlier-filed complaint. I will grant that
motion to the extent ofthe making the substitution. The amended complaint claims
jurisdiction by diversity of citizenship. (DJ. 13 ·,-r 6). The Court also claims
"supplemental jurisdiction" pursuantto 28 U.S.C. § 1367(a)1 and that venue in Delaware
is-proper pursuant to 28 U.S.C. § 1391 (b)(3). 2 He appears prose and has.been granted
leave to proceed in forma pauperis. (D.I. ·6). Typically, the court would proceed to
review and screen the amended complaint pursuant to 28 U.S.C. § 1915(e)(2). As a
preliminary matter, however, Kabbaj must seek permission before filing lawsuits against
certain individuals or·entities.
Kabbaj is a former employee of the American School of Tangier. He hasiiled
numerous other lawsuits. 3 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. 10431-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
1

The complaint does not raise claims under any federal statutes. Section 1367(a) provides that in any
civil action of which the district courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article Ill of the United States Constitution.
2

Section 1391 (b )(3), a venue statute, provides that a civil action may be brought in any judicial district in
which any defendant is subject to the court's personal jurisdiction with respect to such action if there is no
district in which an action may otherwise be brought.
3

See C.A. Nos. 10-431-RGA, 12-1322-RGA-MPT, 13-1522-RGA, 14-780-RGA, 14-982-RGA, and 141001-RGA.

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 for the purpose of enforcing the parties' written settlement
agreement and to resolve disputes regarding that settlement agreement. (C.A. No. 10431-RGA, DI 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).
On July 29, 2014, Kabbaj filed a complaint in the United States District Court for
the Southern District of Florida without receiving written permission from the court. That
complaint alleged that John Does ·1 through 58 conspired with others to interfere with
lhe settlement agreement by cyber-stalking and defaming Kabbaj on the internet. (D.I.
1). It further alleged that Does 1 through 58 had become the "protectors" of Simpson,
that they "destroyed" the settlement agreement and made it impossible for the parties to
adhere to its provisions, and provoked additional litigation between" Kabbaj and the
settling parties. (Id. at ,-r 16). The complaint also alleged that Does 1 through 58
engaged in tortious interference with the settlement agreement "thereby making it
impossible for the parties to the [American School of Tangier] Contract to adhere to its
confidentiality provisions." (Id. at ,-r 20).

2

Upon review of the complaint, the Florida District Court found that venue was in
Delaware as set forth in the settlement agreement reached in C.A. No. 10-431-HGA.
(D.I. 4). The Florida District Court further found that the action expressly referred to the
prior litigation(s) in Delaware, and that the complaint filed in its court appeared to impact
·the settlement agreement. It therefore transferred the matter to this court on December
15, 2014. (Id.).
Thereafter, Kabbaj filed the amended complaint on January 13, 2015. (D.I. 13).
The amended complaint names as defendants John Does 1 through 1.08 and identifies
some of the Doe defendants as being residents of New York, Oregon, and France. (D.I.
13 ·,-r 3). Kabbaj seeks to restrain a cyber-stalking campaign that is being waged against
him by the Doe Defendants "using the anonymity of the internet." (Id. ar,-r 7). The
amended complaint alleges that persons operating internet accounts made defamatory
communications to tortiously interfere with a settlement contract reached in related
litigation. (Id. at 1J 9). The amended complaint alleges that unlawful communications
originated from accounts established by Mark Simpson, who, along with his boyfriend
Brian Albro, deny sending the communications. (Id. at 1J 10). Count one ofthe
amended complaint seeks declaratory relief that the Doe defendants engaged in
tortious interference with a previous settlement agreement and to enjoin the defendants
from republishing the false allegations; count two raises a defamation claim; and count
three is similar to count one and requests declaratory relief that the Doe defendants
deliberately engaged in tortious interference with Kabbaj's settlement contract with his
previously employer by engaging in an unlawful defamation campaign.
According to the court's April 24, 2012 order:

3

[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
"[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).
Having reviewed the amended complaint, the court finds that the allegations
against the John Doe Defendants consist of "bald assertions" and purported "legal
conclusions." In addition, as discussed by the Florida District Court, .and similar to the
original complaint, Kabbaj's amended complaint impacts the settlement agreement to
which he is a party. There is nothing on the court docket that indicates Kabbaj provided
a copy ofthe instant complaint to Seegull before filing it. Nor did Kabbaj seek leave to
file the complaint, either in this court or in the Florida District Court. 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. 4 Thus, the
4

On October 18, 2012, Kabbaj filed a motion for leave to file a lawsuit against Releasee Mark S. Simpson.
(C.A. No. 10-431-RGA, D.I. 55). Kabbaj had originally filed the complaint 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..
The matter was subsequently dismissed for lack of personal jurisdiction. The dismissal was affirmed on
appeal. See Kabbaj v. Simpson, 547 F. App'x 84 (3d Cir. 2013). On January 2, 2014, Kabbaj filed
another motion to file a lawsuit against AST and Simpson. (C.A. No. 10-431-RGA. 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. The motion was denied. (Id., D.I. 87). On March 21, 2014, Kabbaj filed a motion to file
a complaint against AST, Simpson and Brian Albro, who is described as Simpson's "boyfriend/husband"
and as a "family member" to Simpson and thus a "Release[e]." (Id., D.I. 70-1, mf 14, 22). On January 5,

4

amended complaint will be dismissed for failure to follow the procedure to which Kabbaj
agreed. 5 Therefore, the court will dismiss the case as it was filed in contravention of the
April 24, 2012 order and the settlement agreement entered into by Kabbaj.
There would also be a problem with subject matter jurisdiction in this case even
were Kabbaj excused from following the procedures setforth in the settlement
agreement. The only basis for jurisdiction is diversity jurisdiction, which requires
complete diversity of citizenship. Plaintiff alleges he is a citizen of Florida. There is no
allegation of citizenship of the 108 John Doe defendants, and since they are alleged to
be unknown individuals, their citizenship cannot be alleged. As stated by the Court of
· Appeals forthe Seventh Circuit, "because the existence of diversity jurisdiction cannot
be determined without knowledge of every defendant's place of citizenship, 'John Doe'
defendants are not permitted in federal diversity suits." Howell v. Tribune Entertainment
Co., 106 F.3d 215, 218 (7th Cir. 1997). 6 See also Marte/lite v. Novartis Crop Protection,
Inc., 460 F.3d 483, 494 (3d Cir. 2006) (John Doe parties destroy diversity jurisdiction if

their citizenship cannot truthfully be alleged). Thus, were Kabbaj not procedurally
barred from filing this lawsuit, I would, alternatively, pursuant to the Court's duty only to
proceed in cases in which it has subject matter jurisdiction, dismiss the case for lack of
subject matter jurisdiction.

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., D.I. 87).
5

The court makes no finding, but notes that it is far from clear that this court has personal jurisdiction over
the 108 John Doe defendants.
6

This Court is not bound by the Seventh Circuit's decision, and notes that there are cases reaching a
different conclusion. See, e.g., Getaway.com LLC v. John Does 1-26, No. 15-531-SLR (D.I. 6), slip. opin.
at 3-4 (D. Del. July 30, 2015).

Kabbaj has filed six motions in this case. (0.1. 8, 9, 11, 12, 14, 20). As indicated,
0.1. 14 will be granted in part. Most of the other motions (0.1. 8, 11, 12, the remainder
of 14, 20) will be dismissed as moot. The Motion Requesting Establishment of
Procedure to Pursue Claims (0.1. 9) relates to C.A. No. 10-431-RGA-MPT, and not to
this case. Therefore, it will be denied.

6