Carrington v. Graden et al

Filing 180

ORDER: For the reasons set forth in this Order, the Court GRANTS Defendants' request for a permanent injunction against Carrington. The Court hereby ORDERS that Carrington be forbidden from filing any future suits in federal or state court aris ing from or relating to the subject matter in the instant action without the prior authorization of this Court. The Clerk of Court is directed to terminate the motion at docket entry 174. Counsel for Defendants are directed to serve this Order on Carrington and his current counsel by whatever means they have used to communicate with each of them in the past. (Signed by Judge Katherine Polk Failla on 9/11/2020) Copies Mailed By Chambers. (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROVIER CARRINGTON,
Plaintiff,
-v.BRIAN GRADEN; BRIAN GRADEN MEDIA, LLC;
VIACOM, INC.; VIACOM INTERNATIONAL,
INC.; PARAMOUNT PICTURES CORPORATION;
BRAD GREY; BRAD GREY ESTATE; and BRAD
ALAN GREY TRUST,

18 Civ. 4609 (KPF)
ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff Rovier Carrington filed an action in state court that was removed
to this Court in May 2018. After 17 months of protracted litigation, the Court
dismissed the action with prejudice after determining that Carrington had
fabricated, or caused to be fabricated, several key emails, and then lied about
their provenance. Undeterred, Carrington then sought to pursue an order of
protection in state court on related claims, again with fabricated documents,
and again without success. Carrington’s efforts have resulted in Defendants
incurring nearly $1 million in legal fees to prove Carrington’s perfidy, to say
nothing of the reputational damage caused by his allegations.
The Court understands that Carrington wishes to restart the cycle of
litigation with new counsel, and to bring another lawsuit alleging substantially
overlapping claims in another jurisdiction. Defendants have moved for
injunctive relief on an expedited basis, and the Court held a hearing on their
motion on September 10, 2020. As set forth in the remainder of this Order, the

Court retains the authority to enjoin Carrington from engaging in further
vexatious litigation, and it does so here by enjoining him from commencing,
without express prior leave of this Court, any new action in federal or state
court arising from or relating to the same subject matter that was addressed in
the instant action.
BACKGROUND
A.

The Instant Case and Its Resolution
1.

The Concerns Regarding Fabricated Emails

Carrington filed his initial Complaint in New York County Supreme Court
on May 1, 2018, and it was removed to this Court on May 24, 2018. (Dkt. #1).
Carrington then filed an Amended Complaint on June 20, 2018. (Dkt. #40).
The Amended Complaint included, among others, claims of antitrust violations,
fraud, breach of contract, unfair competition, theft of trade secrets, and
tortious interference. Such anodyne descriptions, however, fail to capture the
heart of Carrington’s claims, which was that he was passed around among
powerful figures in Hollywood and coerced into sexual relationships, only to see
his career prospects stalled and his intellectual property stolen when he
refused.
Carrington’s allegations were noteworthy for their salaciousness. Very
shortly after being served, however, Defendants announced that certain key
emails appended by Carrington to his Complaint were fabricated. Between the
filing of the original and the amended complaints, Defendants presented
evidence of fabrication to Carrington and the Court. (See, e.g., Dkt. #34; see
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also Dkt. #170 at 34-35 (referencing efforts by counsel for the Graden
Defendants on May 3, 2018, to explain falsity of allegations to Carrington’s
counsel)). Carrington nonetheless continued to include those emails in his
Amended Complaint.
From there, the parties and the Court embarked upon a 15-month saga
investigating the provenance of the challenged emails. Defendants presented
evidence in support of a request for targeted discovery on this topic (Dkt. #56),
and after listening to both sides at a pretrial conference held on July 17, 2018
(Minute Entry for July 17, 2018), the Court signed an Order for Limited
Discovery Concerning the Authenticity of Communications (Dkt. #64). Over
the period from August 2018 until October 2019, Carrington’s counsel
withdrew; Carrington attempted to transfer venue; Carrington attempted to
withdraw his lawsuit without prejudice; the parties presented evidence and
competing expert testimony on the issue of the emails’ provenance; and the
Court scheduled, and repeatedly rescheduled, a hearing at which the issue of
sanctions could be discussed. (See, e.g., Dkt. #70, 71, 73-145). On August 27,
2019, after learning from Carrington that (i) he was no longer experiencing the
issues that rendered him unable to travel to this Court, and (ii) counsel would
soon be entering an appearance on his behalf, the Court scheduled a hearing
on Defendants’ sanctions application for October 11, 2019, and made clear
that Carrington would be required to attend even if his counsel had failed to
appear by that time. (Dkt. #144).

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2.

The October 11, 2019 Sanctions Hearing

Carrington’s counsel did not enter a notice of appearance, and the
hearing went on without Carrington or his counsel on October 11, 2019. (Dkt.
#170 (transcript)). At its conclusion, the Court dismissed Carrington’s case
with prejudice after making the following findings about the resources
Defendants, and the Court, were forced to expend because of Carrington’s
fraud:
[T]here was an effort made to undertake — to figure out
how these emails came to be. There was a subpoena
return from Google, which confirmed that the
Trendsetter account was, in fact, deactivated on June
19th of 2018, one day after the amended complaint was
filed and after the first preservation order was sent.
We also found out, during the course of the hearing in
February of 2019, that the plaintiff turned in his iPhone
7, which he represented to me to be the vehicle used to
transmit all of the communications after the initial
preservation order.
After that, I received several declarations from
nonparties, along with the forensic expert declaration,
suggesting that these emails did not, in fact, exist in Mr.
Graden’s, Mr. Logan’s, or Darren Stein’s accounts. I
asked for — I ordered limited discovery and the
preservation of any communications concerning any
portion of the at-issue communications. I then selected
FTI as a neutral examiner.
FTI’s investigation found — of the Gmail account and
the Carrington Diaries account, found none of the
native versions besides the one whose validity was not
contested. And plaintiff informed the Court that the
Trendsetter account had been deactivated for years,
which is why no effort was undertaken to review it.
The investigation by FTI did find the forwards that
Carrington sent to the Landau firm, his prior counsel,
but none of the underlying emails. Plaintiff provided an
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affidavit from his own expert, stating that he had
transferred the contents of the Trendsetter account to
the Carrington Diaries account in 2017, but no natives
of the emails purportedly sent from the Trendsetter
account were found in the Carrington Diaries account,
and the defendants assert that the absence of these
native emails, coupled with the existence of the
forwarded emails, just could not be explained.
Plaintiff responded that he had been the victim of a
hack. The defendants observed that a hack could not
explain why the one valid email still existed and why the
forwarded emails from Mr. Carrington to the Landau
group remained.
***
In February of 2019, I issued an order that subpoenas
be issued to GoDaddy, Microsoft, and Google, the
Internet service providers for plaintiff’s three email
accounts,
to
obtain
subscriber
information,
nonsubscriber information, and that FTI conduct an
analysis of the iPhone 10, plaintiff’s phone, and emails
produced to or by the ISPs. The subpoena to Google
revealed that the Trendsetter account had only been
deactivated the day after the amended complaint was
filed and not years earlier, as had been repeatedly
represented.
The GoDaddy returns, which it should be noted are
not — I’ll be brief about this, because they’re not in the
public filings, but there was an indication that the
Carrington Diaries account had been closed and deleted
by plaintiff on or about September 8th of 2018, one
month after the Court’s order to preserve evidence.
The GoDaddy production also revealed that plaintiff
reached out to GoDaddy to confirm that a subpoena
would not return information about emails within a
deleted account. The returns also show repeated
password changes throughout 2018, undercutting a
previous claim that had been made that one of the
defendants might have known of Mr. Carrington’s
password and hacked into his account.

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The returns for the Gmail account produced no
instances of the at-issue communications.
FTI
[reviewed] the plaintiff’s most recent and current
iPhone, and it concluded that Mr. Carrington’s data had
migrated from the previous iPhone, but, again, found no
evidence of the at-issue communications in any of those
accounts.
(Dkt. #170 at 35-39).
In explaining its decision to dismiss the Amended Complaint with
prejudice, the Court emphasized Carrington’s evolving, but consistently false,
explanations for the emails:
Mr. Carrington has never provided an explanation for
how the forwards exist in the accounts for emails that
were sent — let me say that more precisely. The
explanation he has not provided is an explanation of
how the forwards exist in the Carrington Diaries
account for emails that were sent by the Trendsetter
account when there is no evidence of the emails being
sent from the Trendsetter account to the Carrington
Diaries account. It makes no sense to me.
I also do not understand what possessed Mr. Carrington
to turn over his iPhone in the middle of this litigation,
in the middle of this dispute about the authenticity of
these emails. All that I can conclude is that in every
instance where the plaintiff appears, again, to use the
vernacular, to be caught, he attempts to argue
something new, that these issues are the result of
someone else’s doing, that they are the result of the
hacking by one of the defendants or by defense counsel,
and it’s all just one large conspiracy. I have difficulty,
and indeed I cannot, credit that. I have enough sworn
statements and enough exploration of what I do have to
suggest that this is not the case.
And as I’ve mentioned, the purported hack does not
explain why Mr. Graden has similar-looking emails that
match in part, but not in whole, the at-issue
communications.

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Instead, there is an explanation from plaintiff, but I just
don’t credit it. It’s another coverup involving Mr.
Graden and Mr. Stein. Every time the defense has
produced compelling evidence of spoliation, of
fabrication, of obstruction of the litigation in this case,
the plaintiff has provided an explanation. And I believe
that going forward, every time it happens, he will
provide yet another explanation.
They are of
increasingly tenuous credibility, and they can’t explain
what I have in the record.
For these reasons, I can find, even under a clear and
convincing evidence standard, that Mr. Carrington has
sentiently set in motion some unconscionable scheme,
calculated to interfere with the judicial system’s ability
impartially to adjudicate the action, referring to the
Scholastic decision I cited earlier to the parties.
(Dkt. #170 at 48-49).
3.

The Explanations for Carrington’s Non-Appearance

As noted, Carrington did not appear for the October 11 hearing, though
an individual purporting to be his attorney requested an adjournment two days
prior to the hearing, which request was denied. Two months later, in January
2020, Carrington emailed the Court to advise that he had in fact failed to
appear because he had been threatened by Defendant Graden with murder,
and that he had instead spent the day obtaining an ex parte restraining order
in Los Angeles. 1 The news struck the Court as implausible, given the
procedural history that had immediately preceded the hearing; it advised
Carrington that it could not accept his ex parte submission, but that he could

1

The Court repeats this information in this Order because the underlying allegations of
threats by Graden are now known to all Defendants.

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file it under seal, where it would be viewable to the Court and parties only.
(Dkt. #172). Carrington elected not to file anything under seal.
B.

The Proceedings in Los Angeles Superior Court
At a telephonic hearing held on September 10, 2020, on Defendants’

motion for injunctive relief, to which Carrington and his current counsel (the
Court understands that he prefers the term “future,” in part to explain why
counsel declined to appear at the hearing) were invited, the Court learned more
about Carrington’s order of protection, and his modus operandi was brought
into sharper relief. A transcript of the September 10 telephonic hearing has
not yet been prepared, and so the Court presents this information from its own
notes:
Counsel for Graden represented — as an officer of the Court and without
dispute from anyone else at the hearing — that Carrington obtained a
temporary order of protection on or about October 11, 2019. Graden filed his
opposition on or about November 1, 2019. The opposition included, among
other things, evidence that Graden had had no contact with Carrington during
the relevant time period; that Graden’s phone records evidenced no contact;
and that Graden had work-related meetings with others at times he was
supposed to be communicating with Carrington. At a hearing on the order of
protection held on or about November 5, 2019, the presiding judge observed
the disconnect in the parties’ phone records and asked counsel to exchange the
records. Thereafter, an expert witness in cellular telephones explained to
Graden’s counsel how Carrington had “spoofed,” or caused to be “spoofed,”
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Graden’s telephone number(s) to make it appear that Graden had contacted
Carrington, when in fact the calls had been placed through a web application.
For this reason, Carrington (the putative recipient) showed Graden’s phone
numbers in his records, while Graden (the putative caller) showed nothing in
his. After counsel for Graden provided this information to prior counsel for
Carrington, the latter “stopped responding.”
At the next hearing on the order of protection, held in February 2020,
neither Carrington nor his counsel appeared. The court advised counsel for
Graden that counsel for Carrington had contacted the court to advise it of
Carrington’s intention to withdraw his application without prejudice to its
refiling. After hearing from counsel for Graden, the court dismissed the matter
with prejudice, and scheduled briefing on Graden’s application for sanctions.
Whether to justify his failure to appear in this Court or to start over in a
different court, Carrington resorted, again, to a trifecta of obstructive conduct:
fabrication of evidence, efforts to withdraw his litigation without prejudice
when the fraud was uncovered, and, ultimately, non-appearance in court.
Though the conduct was limited to only one of the Defendants in this case, the
litigation and reputational costs remained significant.
C.

The Threatened Litigation
By letters dated September 4 and 8, 2020 (Dkt. #174, 178), Defendants

advised the Court that Carrington intends to sue them again. The Court has
reviewed the demand letters from Carrington’s current counsel. In large
measure, the contemplated causes of action, and the factual support therefor,
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replicate those in the Amended Complaint; however, Carrington’s additional
claims are no less troubling. Carrington accuses counsel for Graden of acting
in a manner that, if true, would assuredly subject him to not just professional
discipline, but also disbarment and perhaps even criminal prosecution. Worse
yet, Carrington puts a false gloss on the sanction proceedings in this Court,
suggesting among other things that the Court either colluded with, or was
bribed by, one or more Defendants. At the September 10 hearing, Defendants
explained at length the toll — financial and emotional — that Carrington’s
conduct had exacted from their clients, and sought redress.
DISCUSSION
The Court Grants Defendants’ Request for Injunctive Relief
It “is beyond peradventure” that this Court possesses the authority to
enjoin Carrington from further vexatious litigation. Safir v. U.S. Lines, Inc., 792
F.2d 19, 23 (2d Cir. 1986). “In determining whether to restrict a litigant’s
future ability to sue, a court must consider ‘whether a litigant who has a
history of vexatious litigation is likely to continue to abuse the judicial process
and harass other parties.’” Eliahu v. Jewish Agency for Israel, 919 F.3d 709,
713-14 (2d Cir. 2019) (quoting Safir, 792 F.2d at 24). Specifically, the Second
Circuit has required district courts to consider the following factors:
[i] the litigant’s history of litigation and in particular
whether it entailed vexatious, harassing[,] or duplicative
lawsuits; [ii] the litigant’s motive in pursuing the
litigation, e.g., does the litigant have an objective good
faith expectation of prevailing?; [iii] whether the litigant
is represented by counsel; [iv] whether the litigant has
caused needless expense to other parties or has posed
an unnecessary burden on the courts and their
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personnel; and [v] whether other sanctions would be
adequate to protect the courts and other parties.
Id. at 714 (quoting Iwachiw v. N.Y. State Dep’t of Motor Vehicles, 396 F.3d 525,
528 (2d Cir. 2005) (per curiam)).
Upon consideration of the above factors, the Court finds that an
injunction enjoining Carrington from filing further lawsuits is both warranted
and necessary. First, the Court finds that Carrington’s past and present
behavior evinces a clear intent to further abuse the judicial process. Although
the Court acknowledges that Carrington has, as of yet, only filed two lawsuits
against Defendants, the Second Circuit has been clear that “[t]here is no[] …
strict numerosity requirement that must be met … to enjoin a litigant from
filing future actions. Rather, the court must consider the record as a whole
and the likelihood that the litigant will continue to abuse the judicial process.”
Eliahu, 919 F.3d at 714 (citing Safir, 792 F.2d at 24). Carrington has now
twice engaged in a pattern of filing outrageous claims, fabricating evidence,
attempting to escape the consequences of such fabrication, and then refusing
to appear in court, and all evidence indicates that he is preparing for a third
attempt. The first factor therefore weighs in favor of granting the injunction.
Second, there is no reason to afford Carrington any special solicitude, as
the Court would were he a pro se litigant. See Eliahu, 919 F.3d at 715 (noting
that, “[i]n considering a litigant’s status, we have recognized that pro se
litigants, in many cases, are entitled to special solicitude”). Although
Carrington has at times been unrepresented, his vexatious conduct cannot be
attributed to lack of counsel. Indeed, Carrington had the assistance of counsel
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when he fabricated evidence in the instant action and when he filed the
protective action in California, and he seemingly is represented by counsel
now. The third factor therefore similarly weighs in favor of injunctive relief.
Third, it is beyond dispute that Carrington’s actions have caused
needless expense to Defendants and placed an unnecessary burden on this
Court. As represented by Defendants’ counsel in their pending applications for
attorneys’ fees, Carrington’s actions in just the instant case have resulted in
almost $1 million in legal fees. (See Dkt. #151-58). Moreover, both this Court
and the California state court have been burdened with adjudicating
Carrington’s increasingly salacious claims, and then managing the fallout from
his perfidy. The fourth factor, too, favors precluding Carrington from further
burdening Defendants and the judicial system.
Fourth, and finally, the Court is persuaded that other sanctions are
inadequate. The Court has already deployed one of the most severe sanctions
in its arsenal — the dismissal with prejudice of the instant action (see Dkt.
#147) — and has pending before it applications for attorneys’ fees amounting to
almost $1 million. None of this has hindered Carrington from making ever
more outrageous claims, and even going so far as to impugn the integrity of
this Court. Given Carrington’s recent threat to begin anew his deceitful pattern
of behavior, the Court believes that the only path available to it is to preempt

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Carrington from carrying out his threat. Therefore, the fifth factor weighs in
favor of granting Defendants’ request for an injunction.
To summarize, four of the five factors outlined by the Second Circuit
counsel in favor of enjoining Carrington from filing future lawsuits arising out
of or relating to the subject matter in the instant action. Moreover, the second
factor — Carrington’s motive in bringing his various lawsuits — is, at best,
neutral. Due to Carrington’s dishonest behavior, the Court never had, and will
never have, the opportunity to learn which, if any, of Carrington’s claims are
meritorious. However, Carrington’s repeated fabrications and obstructive
behavior do lead the Court to view his claims with a skeptical eye. The Court
therefore finds that an injunction enjoining Carrington from filing, without the
express approval of this Court, future claims arising from or relating to the
subject matter of the instant litigation is more than justified. 2
CONCLUSION
For the reasons set forth in this Order, the Court GRANTS Defendants’
request for a permanent injunction against Carrington. The Court hereby
ORDERS that Carrington be forbidden from filing any future suits in federal or
state court arising from or relating to the subject matter in the instant action

2

The Court makes this finding with the understanding that such injunctions should be
narrowly tailored to the specific circumstance. See Safir v. U.S. Lines, Inc., 792 F.2d 19,
25 (2d Cir. 1986) (modifying a district court’s injunction due to it being “overly broad”).
The Court believes that it has tailored its injunction to the extent required to prevent
Carrington from doing further harm to Defendants and the judicial system.

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