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Kabbaj v. Simpson

United States District Court, Third Circuit

June 6, 2013

YOUNES KABBAJ, Plaintiff,
v.
MARK SUTHERLAND SIMPSON, a/k/a MARK SHERMAN SIMPSON, Defendant.

REPORT AND RECOMMENDATION

MARY PAT THYNGE, Magistrate Judge.

I. Procedural Background

Plaintiff, Younes Kabbaj, acting pro se, initially filed this action in the United States District Court for the Southern District of New York on October 2, 2012, against defendant, Mark Sutherland, asserting claims for declaratory and injunctive relief and damages for tortious interference of contract, breach of contract and defamation. Plaintiff previously sued defendant, among others, in this court in Kabbaj v. American School of Tangiers, C.A. No. 10-431-RGA/MPT. According to the record in that matter, service of process was never effectuated on defendant.[1] That matter settled; however, pursuant to the order of April 24, 2012, plaintiff was required to obtain permission of this court before initiating any new civil action against any individual released under the settlement agreement.[2] Because of that order, the New York court transferred the present matter to this court on October 12, 2012. Subsequently, on November 2, 2012, this court granted plaintiff permission to file the present action against defendant.[3] According to that order, plaintiff was required to ascertain the proper court in which to file his action where personal jurisdiction and effective service of process could be obtained. In addition, if plaintiff determined the District of Delaware was the proper forum, he was required to effectuate service of process on defendant on or before November 27, 2012. Plaintiff purportedly served defendant on November 24, 2012.[4]

Thereafter, on December 7, 2012, defendant filed motions to dismiss for lack of personal jurisdiction and failure to state a claim.[5] In response, plaintiff filed a first amended complaint under FED. R. CIV. P. 15(a)(1)(B) on December 24, 2012.[6] Because of plaintiff's amended complaint, the court denied as moot defendant's previously filed motions.[7]

Subsequently, a number of motions were filed by plaintiff which were denied by this court on March 7, 2013.[8] Plaintiff filed objections on March 21, 2013, and defendant filed his response to plaintiff's objections on March 25, 2013.[9] The March 7 decision was adopted by the Honorable Richard G. Andrews on April 8, 2013.[10]

On December 31, 2012, defendant renewed his motion to dismiss for lack of personal jurisdiction, as well as moving to strike the pleadings and for failing to state a claim under Rule 12(b)(6).[11] Plaintiff responded to defendant's motions on January 17, 2013.[12] Defendant's reply brief on his motions was filed on January 22, 2013.[13]

This report and recommendation addresses defendant's motions for lack of personal jurisdiction, failure to state a claim and to strike plaintiff's pleadings as containing scandalous and irrelevant material.[14]

In analyzing defendant's motions, the court is cognizant of the more liberal approach granted pro se litigants like plaintiff; however, pro se parties are required to follow rules of procedure and substantive law.[15] The court is further aware that the present matter is at least plaintiff's third experience in the civil litigation system having filed previous actions in this jurisdiction and in Florida. Plaintiff also had the wherewithal to obtain the proper training to permit him to file materials with the court electronically.[16] He is neither a novice nor unfamiliar with the federal court system.

II. Background[17]

Plaintiff's relationship with defendant began when defendant became the new headmaster of the American School of Marrakesh, which is the Marrekesh branch of American School of Tangiers ("AST") in September 2008.[18] At the time of defendant's hire, plaintiff was already employed as Head of Technology for AST, a non-profit educational institute which owns and operates two kindergarten through 12th grade school campuses in Morocco.[19] According to plaintiff, shortly after defendant's employment began, difficulties arose between them, most of which occurred during their employment with AST. In his present complaint, plaintiff lists a number of incidents between them, which eventually led to both parties either being terminated or leaving their employment with AST. These incidents, which occurred in Morocco, were the bases of plaintiff's original action in this court which was settled in April 2012, but are re-alleged in the present matter.[20] His present action also includes allegations regarding incidents of purported defamation by defendant after settlement of the first Delaware action.

Plaintiff filed his first action in this jurisdiction against AST, defendant and others in 2010.[21] He also sued AST, defendant and others in the United States District Court for the Southern District of Florida in 2011.[22]

Regarding the first Delaware action, plaintiff admits in the amended complaint in the instant matter that he:

attempted to serve the Defendant..., but could not locate him without expending substantial resources he did not have, due to... Defendant Simpson sold his last known residence in California and had moved to France, and he did not provide a forwarding address in France where he could be located.
61. After Defendant Simpson left Marrakesh, he thereby began to evade Plaintiff while moving around the world.[23]

Plaintiff represents he is a resident of Florida and claims defendant is a resident of New York City, California, Oregon, Paris, France and elsewhere, who purportedly has multiple residences, changes his location frequently, and lives in various other countries around the world.[24] Plaintiff further admits that "both Plaintiff and Defendant have no personal connection to Delaware, " but somehow "are bound" to litigate this matter in this jurisdiction, because the target of the tortious conduct is AST, which is a Delaware corporation.[25] Plaintiff, however, also acknowledges defendant's only connection to Delaware was a conference he attended in this state in 1998.[26] Plaintiff further represents he was unable to accomplish service over defendant in the first Delaware action "because he [defendant] was rumored to be hiding out in France with the intent to evade litigation...." Plaintiff, however, contends, that because AST is incorporated in Delaware, defendant was employed by AST, and his present wrongful acts target AST, personal jurisdiction over defendant by this court is justified.[27]

Paragraphs 68 through 73 of his amended complaint outline how defendant has defamed not only plaintiff, but others and his alleged attempted extortion of money from AST. In paragraphs 74 through 123, plaintiff explains in great detail how defendant allegedly defamed him through use of the Internet via defendant's blogs, websites and emails, in English, French and Arabic languages which are "native to Morocco, and other regions of the world (including the Middle East and Europe)."[28] Plaintiff cites to various books authored by defendant which he claims are equally defamatory.[29] Plaintiff, however, also maintains defendant's book tours posted on Amazon, none of which were in the United States, were fictitious.[30]

In his first claim, plaintiff seeks declaratory and injunctive relief against defendant for libel per se, requesting all defamatory statements be removed from any website or blog, to restrict and remove a book authored by defendant from publication and sale, and to enjoin defendant from future defamatory statements regarding plaintiff.[31] His second claim is for breach of contract because defendant has purportedly continued to defame him in violation of the 2012 settlement agreement. Because of defendant's conduct, plaintiff also asserts that he "has and will continue to breach" the confidentiality provisions of that agreement, which subjects him to potential exposure to reimburse AST for the full settlement amount.[32] Plaintiff acknowledges this claim may be dismissed if AST does not seek reimbursement from him for those admitted violations. Plaintiff's third claim, although captioned as breach of contract, is couched as tortious interference because defendant's purported conduct has made it "impossible" for plaintiff to comply with the confidentiality provisions of the 2012 settlement agreement. Again, if AST does not enforce those terms, then this claim could also be dismissed.[33] As evidenced by plaintiff's admissions in claims two and three, AST, not defendant, provided the funds for settlement of the first Delaware action. His fourth claim is for damages for libel per se.

As noted herein, plaintiff acknowledges neither party to this action has any connection to Delaware, except for the settlement agreement in the first litigation.

According to the docket entries in the present matter, two summons returns were filed November 27, 2012, representing that defendant was purportedly served on November 19 and November 24, 2012.[34] A review of those returns show that on November 19, 2012, a process server left a summons obtained from this court at the door of an apartment in Portland, Oregon. When service was attempted on November 13, 2012, "an unnamed male occupant" advised via the intercom that defendant did not reside there. Without seeing that individual, the process server concluded "defendant" was lying and left the summons at the door of the apartment. In addition, a copy of the summons was sent by certified mail to the Oregon address. Thus, there is no evidence that a copy of the summons and complaint were delivered to defendant personally, that a copy of the these documents were left at defendant's dwelling or usual place of abode or with someone of suitable age, or that the appropriate documents were delivered to an agent authorized by appointment or by law to receive service of process.[35]

Regarding the second alleged service, according to the affidavit of the process server, on November 24, 2012, a summons was left with a doorman at the New York City apartment complex where defendant lived, but was not present. This summons, however, was obtained from the Southern District of New York, but was "served" after the matter was transferred to Delaware.[36] That ...


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