Hachem v. Barakat

Filing 125

MEMORANDUM OPINION and ORDER that Plaintiff's Motion to Modify This Court's February 7, 2025 Order (Dkt.No. 101) is DENIED. Signed by Magistrate Judge Lindsey R. Vaala on 3/12/2025. (kgall)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

MOUNTASSER HACHEM,

Plaintiff,
V.

NADINE B. ABOUSHAKRA, M2J
NADINE BARAKAT,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. l:24-cv-01219-MSN-LRV

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion to Modify This Court’s February 7,

2025 Order (the “Motion to Modify” or “Motion”) (Dkt. No. 101). On Feburary 7,2025, the Court

directed Plaintiff “to sit for a deposition in this Division before the close of discovery on March
14, 2025.

(Dkt. No. 99 at 3 (citing E.D. Va. L. Civ. R. 30(A).) Plaintiff’s Motion to Modify

“requests that the Court modify its February 7, 2025 Order to permit his deposition to be taken

remotely.”^ (Dkt. No. 101 at 1.) On February 28,2025, the Court held a hearing on the Motion at
which C. Dewayne Lonas, Esq., counsel for Plaintiff, and Defendant Nadine Barakat, who is

proceeding pro se, appeared. Following the hearing, the Court took the Motion under advisement
and directed Plaintiff to submit certain supplemental documentation discussed during the hearing.
{See Dkt. No. 110.)

Plaintiff submitted the requested documentation on March 5, 2025, in

accordance v^th the Court’s Order. {See Dkt. Nos. 112-24.)

1

The proposed order attached to Plaintiffs Motion asks the Court to replace “Plaintiff is directed
to sit for a deposition in this Division before the close of discovery on March 14, 2025” with
“Plaintiff is required to sit for a deposition remotely before the close of discovery on March 14,
2025.” (Dkt. No. lOM.)
1

The Court interprets Plaintiffs Motion to Modify as a motion for reconsideration.

Specifically, Plaintiff requests that the Court reconsider its February 7, 2025 Order directing
Plaintiff to “sit for a deposition in this Division before the close of discovery on March 14, 2025.
(Dkt. No. 101 (citing Dkt. No. 99).) Defendant opposes the Motion on the grounds that allowing

Plaintiff to be deposed remotely will result in “significant prejudice” to her and “hinder the fair
and proper administration of justice in this case.” (Dkt. No. 104 at 1.)
For the reasons that follow, the Court will deny Plaintiffs Motion.
I.

Procedural History

To date, this litigation has required significant judicial intervention and the record amply
sets forth the full procedural history. This Order assumes familiarity with the record and recites
only such history necessary to put into context the instant Motion to Modify.
Plaintiff, a citizen of Lebanon, filed a Complaint in this Division on July 12,2024, alleging

claims of defamation, defamation per se, insulting words, and intentional infliction of emotional
distress based on several social media posts allegedly made by Defendant Nadine Barakat in March
and April 2024.

(Dkt. No. 1.)

Defendant filed an Answer and Counterclaim and Amended

Counterclaim.^ (Dkt. Nos. 12, 29.) Discovery closes on March 14, 2025. (Dkt. No. 30.)
In an Order dated November 4, 2024, the undersigned scheduled an initial pretrial
conference to be conducted in person on December 4, 2024 and a settlement conference “to begin
immediately after the conclusion of the initial pretrial conference.

«3

(Dkt. No. 34 at 2.) Plaintiff

^ The Counterclaim and Amended Counterclaim ultimately were dismissed. (Dkt. Nos. 25, 66.)
^ The November 4, 2024 Order was entered after the District Judge ordered the parties to meet
with the undersigned to seek possible resolution. (Dkt. No. 24.) On October 11, 2024, the parties
contacted the undersigned’s chambers for available settlement dates and received three open dates
in October 2024 and three in November 2024. (See Dkt. No. 33-2.) Despite receiving the available
dates, the parties did not schedule a settlement conference - in part because Plaintiff purportedly
2

did not participate in the December 4 settlement conference - in person or by video conference.
Two counsel of record attended in person and a “legal consultant” from Lebanon participated by

video conference."^ Defendant attended in person. (See December 4, 2024 Minute Entry.) The
case did not settle, and the undersigned informed the parties that the Court would set a date to
continue the settlement conference and confirmed the continuation in writing.

(See Dkt. No. 48 |

16 (“The Court intends to enter an order setting a date for a continuation of the settlement
conference.”); December 4, 2024 Minute Entry (“As discussed with the conference participants,
the Court will set a date for a continuation of the settlement conference.”).)

On December 19, 2024, the Court scheduled a second settlement conference for January

13, 2025 and directed “Mr. Hachem, Ms. Barakat, and counsel of record for Mr. Hachem ... to

attend the settlement conference in person.” (Dkt. No. 51 at 2.) On December 31, 2024, Plaintiff
asked the Court to re-set the settlement conference for a later date.^

(Dkt. No. 58.) The Court

continued the settlement conference to February 3, 2025 in Alexandria Courtroom 501. (See Dkt.
Nos. 67, 77.) The Court again directed the parties to attend in person. (Dkt. No. 77 at 2.) At some

preferred not to engage in settlement discussions until after the Court ruled on Plaintiffs
forthcoming motion to dismiss Defendant’s Amended Counterclaim, Plaintiff received discovery
responses from Defendant, and Plaintiff deposed Defendant. (See Dkt. No. 33 at 2.)
The legal consultant, Mr. Elie Abou Assali, is not counsel of record for Plaintiff in this litigation.
Although not a party to the litigation, several months before the Complaint was filed, Mr. Assali
allegedly authored a series of emails to Defendant’s former employer that, among other things,
demanded that the employer “take action” against Defendant or risk Plaintiffs legal team engaging
“paid media outlets” to try to place unflattering stories about the employer and its employees in
the news. (See Dkt. Nos. 29-1, 29-2, 29-3). The emails further stated that Plaintiffs legal team
was traveling to the United States to meet with the FBI and CIA about Defendant’s social media
posts regarding Plaintiff (See Dkt. Nos. 29-1, 29-4.)

^ Plaintiff argued that the settlement conference date set by the Court was “premature” because he
had not yet received “full and complete responses to his discovery requests,” and also stated that
a “long-planned business trip” would preclude his in-person attendance. (Dkt. No. 59 at 3.)
3

point, the parties also agreed to set Plaintiffs deposition for February 4, 2025 in this Division.^
Plaintiff did not appear at the February 3, 2025 settlement conference or for his deposition
on February 4, 2025. Plaintiffs counsel of record and his legal consultant from Lebanon appeared
at the settlement conference and informed the Court that they did not know Plaintiffs whereabouts.

(See Dkt. No. 93.) The Court is now aware that Plaintiff resumed contact with his legal team on
the evening of February 3, 2025. At that time, however, Plaintiff and his legal team provided no

update or explanation to the Court regarding his failure to attend the settlement conference.
Indeed, Plaintiff did not provide any update to the Court until February 6, 2025, in response to the
Court’s February 5, 2025 Show Cause Order directing Plaintiff “to show cause why he should not

be held in contempt for failure to comply with the Court’s Orders directing him to attend the
February 3, 2025 settlement conference in person.” (Dkt. No. 93.) Plaintiff was further ordered

to provide “detailed information about his whereabouts during the settlement conference on
February 3, 2025,” information regarding his travel to and from the Washington D.C. area, and an
explanation as to why he failed to appear at the settlement conference or contact his counsel of
record or legal consultant regarding his whereabouts. (Id. at 2.) Additionally, Plaintiff s counsel
of record were ordered to file “declaration[s] setting forth any knowledge they have (directly or

indirectly) regarding Plaintiffs location on February 3, 2025, including when and how each
counsel learned such information.” (Id.)

On February 6, 2025, Plaintiff and his counsel of record filed their respective declarations

in response to the Court’s February 5, 2025 Show Cause Order. (See Dkt. Nos. 97-1, 97-2, 97-3,

^ In a pleading filed on January 31, 2025, Plaintiff argued that Defendant’s Motion to Request
Deposition of Plaintiff should be denied as “moot because Mr. Hachem has made himself available
for a deposition in-person on February 4, 2025, which he intended to do all along.” (Dkt. No. 92
at 1.)

4

and 97-4.)

Plaintiffs declaration states that after landing at Dulles International Airport on

February 2, 2025, he was flagged for secondary screening by U.S. Customs and Border Protection
(“CBP”), detained, and interrogated about his reasons for traveling to the United States. (Dkt. No.

97-1 ^ 8.) After several hours in detention, “a CBP officer informed [Plaintiff] that [he] was
inadmissible to the United States because [he] did not possess a valid non-immigrant visa.

»7

{Id.

^13.) Plaintiff “was then given the option of being removed from the United States, which would
bar [him] from re-entry the United States for five (5) years,” or withdrawing his application for
admission and returning to Lebanon, where he could reapply for a non-immigrant visa. {Id. ^ 14.)
According to his declaration, Plaintiff chose to withdraw his application for admission and was

placed on a return flight to Beirut via Paris on the evening of February 3, 2025.

{Id. ^ 16.)

Plaintiffs counsel learned that Plaintiff was being detained by CBP at approximately 2:50 p.m. on
February 3, 2025. (Dkt. No. 97-2 19, Dkt. No. 97-3 110, Dkt. No. 97-4 ^ 8.) Seven hours later,
counsel of record (Mr. Lonas, Ms. Davoli, and Mr. Goodman) learned that Plaintiff had been

released and was on a flight from Dulles to Paris. (Dkt. No. 97-2 H 11, Dkt. No. 97-3 ^ 13, Dkt.
No. 97-419.)

On February 7, 2025, the Court granted Defendant’s Motion to Request Deposition of
Plaintiff (Dkt. No. 85) and “directed [Plaintiff] to sit for a deposition in this Division before the
close of discovery on March 14, 2025.

(Dkt. No. 99 at 3 (citing E.D. Va. L. Civ. R. 30(A).)

Plaintiff now asks the Court to “modify its February 7, 2025 Order to permit his deposition to be

taken remotely.” (Dkt. No. 101 at 1.) In support of his reconsideration request, Plaintiff informed
the Court/or the ifrst time that his “B-l/B-2 visa to enter the United States was cancelled on

^ Plaintiffs U.S. non-immigrant B-l/B-2 visa was issued by the U.S. Consulate General in Dubai,
United Arab Emirates on November 21, 2022 and was not due to expire until October 25, 2027.
(Dkt No. 97-1 H 5.)
5

February 3, 2025.

{Id. at 2.) Neither Plaintiff nor his counsel specifically disclosed in their

February 6,2025 declarations that Plaintiffs visa was cancelled; only that Plaintiff had withdrawn
his application for admission and could reapply.
The Court held a hearing on Plaintiffs Motion to Modify on February 28, 2025. During
the hearing, the Court asked about the basis for the assertion that Plaintiffs B-l/B-2 nonimmigrant visa was cancelled.

In response to the Court’s questioning, Plaintiffs counsel

referenced a transcript of Plaintiffs interaction with CBP at Dulles and stated that CBP gave a

copy of the transcript to Plaintiff before Plaintiff boarded a flight back to Paris on February 3,
2025. Plaintiffs counsel described the transcript as the only written notification Plaintiff received
that his B-l/B-2 visa was cancelled.

The Court took Plaintiffs Motion under advisement and

directed Plaintiff to submit supplemental documentation, including the transcript. (Dkt. No. 110.)
On March 5, 2025, Plaintiff submitted a copy of the transcript, as well as a copy of an application

for significant public benefit parole (which appears to be un-dated) and a copy of his most recent

B-l/B-2 visa.^ {See Dkt. Nos. 112-1,112-2, and 112-3, filed under seal as Dkt. Nos. 115,116, and
117.)
II.

Analysis

It is well-established that “[t]he scope and conduct of discovery ... are within the sound
discretion of the district court.

Ga. Vocational Rehab. Agency Bus. Enter. Program v. United

States^ No. 4:18-CV-148, 2022 WL 19075660, at *2 (E.D. Va. July 5, 2022) {c^woXmg Erdmann v.

Preferred Research, Inc. of Ga., 852 F.2d 788, 792 (4th Cir. 1988); see also Bryant v. City of

* Plaintiff submitted the materials without an affidavit or declaration certifying their authenticity.
Plaintiff also submitted four out-of-district cases “pertaining to individuals being denied entry into

United States and remote depositions.” (Dkt. No. 112 at 1; .yee
Dkt. No. 112-4.) The Court
finds the cases factually distinguishable from the circumstances present here.
6

Norfolk, No. 2:20-CV-26, 2021 WL 11728137, at *3 (E.D. Va. Jan. 13, 2021) (“As the Supreme
Court has noted, ‘Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly

and to dictate the sequence of discovery.’”) (quoting Crawford-El v. Britton, 523 U.S. 572, 598
(1998)). The court’s discretion “extends to dictating the location of depositions.” Addax Energy
SA V. M/V Yasa .H Mulla,'tAo.2\\l-CN-m,2m WL 10470917, at *4 (E.D. Va. Nov. 13,2018)

{ciYmg Armsey v. Medshares Mgmt. Servs., Inc., 184 F.R.D. 569, 571 (W.D. Va. 1998)).

As indicated above, the Court interprets Plaintiffs Motion to Modify as a request for
reconsideration of the February 7,2025 Order. Under Federal Rule of Civil Procedure 54(b), “any
order or other decision ... that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Although the Fourth
Circuit has made clear that the standards governing reconsideration of final judgments are not
determinative of a Rule 54(b) motion, see Am. Canoe

’n v. Murphy Farms, Inc., 326 F.3d 505,

515 (4th Cir. 2003), courts in the Fourth Circuit have considered those factors in guiding the
exercise of their discretion under Rule 54(b). See Al Shimari v. CACI Intern., Inc., 933 F. Supp.
2d 793 (E.D. Va. 2013); McAfee v. Boczar, No. 3:1 l-cv-646, 2012 WL 2505263 (E.D. Va. June
28, 2012). Thus, motions for reconsideration under Rule 54(b) are generally limited to instances
where:

[T]he Court has patently misunderstood a party, or has made a decision outside the
adversarial issues presented to the Court by the parties, or has made an error not of
reasoning but of apprehension ... [or] a controlling or significant change in the law
or facts since the submission of the issue to the Court [has occurred].

McAfee , 2012 WL 2505263, at *2 (quoting Above the Belt, Inc. v. Mel Bohannan Rooifng, Inc.,
99 F.R.D. 99, 101 (E.D. Va. 1983). The power to grant relief under Rule 54(b) “is committed to
the discretion of the district court.

Am. Canoe Ass’n, 326 F.3d at 515 {citing Moses H Cone
7

Mem’l Hosp. v. Mercury Constr. Cor;?., 460 U.S. 1, 12 (1983)). Courts do not entertain motions
to reconsider which ask the Court to “rethink what the Court had already thought through—rightly

or wrongly.” McAfee, 2012 WL 2505263, at *2 (quoting Above the Belt, Inc., 99 F.R.D. at 101).
The Court issued the February 7, 2025 Order after reviewing all information submitted by
Plaintiff and his counsel of record in response to the Show Cause Order requesting an explanation
of Plaintiff s failure to appear at the February 3, 2025 settlement conference. Although available
to Plaintiff at the time the declarations were filed on February 6, Plaintiff (and his counsel) declined

to include certain information upon which he now seeks to rely.

Specifically, Plaintiff first

informed the Court on February 17,2025 that his visa was cancelled on February 3 and offered no
documentation in support of this assertion until the Court pressed for an explanation during the
February 28 hearing. {See Dkt. No. 102.) Only then did counsel disclose that Plaintiff received
the transcript before departing the United States. The Court then had to direct that the transcript
be submitted. Plaintiff could have presented this evidence and disclosed the transcript (which

provides a more fulsome picture regarding the events on February 2 and 3) prior to the February
7, 2025 Order, but elected not to do so. The Court will not reconsider its February 7, 2025 Order

based on information that Plaintiff elected not to provide to the Court previously. See McAfee,

2012 WL 2505263, at *2 (“Regardless, because McAfee could have presented evidence of the
prior subpoena in her brief in opposition to the motion to quash but failed to do so, the Court
declines to reconsider its decision.”); see also Boykin Anchor Co. v. Wong, No. 5:10-CV-591,2012

WL 937182, at *2 (E.D.N.C. Mar. 20, 2012) (“[A] motion to reconsider is not proper where it

only ... presents a better or more compelling argument that the party could have presented in the
original briefs on the matter.” (internal quotations and citations omitted)).
To be sure, Plaintiff now also provides information that is “new” since the issuance of the

8

February 7, 2025 Order. First, on February 12, 2025, Plaintiff apparently reapplied for a B-l/B-2

non-immigrant visa. {See Dkt. No. 102 at 2; see also 102-1 at 1.) He received a visa interview
date of May 4, 2026 and his request to expedite the interview was denied. (See Dkt. No. 102-2 at
3.) Second, an application and supporting documentation for a significant public benefit parole
has been prepared on Plaintiffs behalf, although it is unclear whether or when the application was

submitted.^

Dkt. No. 112 ^ 2;

a/i’o Dkt. No. 112-2, filed under seal as Dkt. No. 116.) In

the Court’s view, this information does not constitute “significant change[s] in the ... facts since

the submission of the issue to the Court” to justify reconsideration of the February 7, 2025 Order.
Above the Belt, Inc., 99 F.R.D. at 101.

An ongoing theme in this litigation has been Plaintiffs utter lack of personal involvement
in his own case. He declined to participate in the first settlement conference at all, sought to

postpone the second settlement conference, and appears unfamiliar with details of the case that
was filed in his name.

10

(See Dkt. No. 112-1, filed under seal as Dkt. No. 115.) Early in the

litigation, he began pressing to depose Defendant but appears to have given little effort or thought
to the realities and logistics of his own deposition until recently. Now, as the discovery period

draws to a close. Plaintiff seeks a waiver of the requirement in the Local Rules that he sit for

^ Plaintiff filed an unredacted version of his public benefit parole application under seal. (See Dkt.
No. 116.) The Court reviewed the unredacted application and is unable to determine when or
whether the application was submitted to U.S. Citizenship and Immigration Services or even the
date on which the application was prepared. The Court notes that Samuel McTyre, Esq., Plaintiff s
immigration attorney, executed a Form G-28 on “2/3/25.” (See id. at 44.)
10

For example, according to the February 3, 2025 transcript, Plaintiff told CBP that the actions
giving rise to the lawsuit happened “when I was in Miami about four months ago,” while his own
Complaint and the ensuing record make clear that his allegations are limited to certain posts
allegedly made by Defendant in March and April 2024. (Dkt. No. 115 at 4; Dkt. No. 1
16, 22,
23, 27, 30, 34, 59, 74, 90, 100.) Plaintiff also told CBP that he thinks Defendant lives in
Pennsylvania, yet his Complaint avers that she is a citizen and resident of the Commonwealth of
Virginia and speaks fluent Arabic. (Dkt. No. 115 at 4; Dkt. No. 1 ^ 2.)
9

deposition in this Division. See E.D. Va. L. Civ. R. 30(A). For the reasons explained above, and
in light of Plaintiff s pattern of behavior in this case, the Court declines to reconsider its February
7, 2025 Order. Having found that Plaintiff fails to satisfy the standard for reconsideration, the

Court need not address Defendant’s arguments regarding prejudice and burden.
It is hereby
ORDERED that Plaintiffs Motion to Modify This Court’s February 7, 2025 Order (Dkt.

No. 101) is DENIED.
ENTERED this 12th day of March, 2025.

———/s/

Lindsey Robinsonl/aaia

~

nited States Magistrate Judge

Alexandria, Virginia

10