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Kabbaj v. American School of Tangier

United States District Court, D. Delaware

May 19, 2015



MARY PAT THYNGE, Chief Magistrate Judge.

Since December 31, 2014, plaintiff, Younes Kabbaj, has filed thirteen motions and/or amended complaints. This Memorandum shall address the following motions: to certify an order as appealable under Federal Rule of Civil Procedure ("FED. R. CIV. P.") 54(b) (D.I. 88), to establish procedures to pursue claims (D.I. 89), to modify order and/or certify order as appealable under FED. R. CIV. P. 54(b) (D.I. 92), emergency motion to transfer and/or certify the previous transfer order as appealable under FED. R. Civ. P. 54(b) (D.I. 94), to file electronically (D.I. 101), and to modify the consent decree (D.I. 102).

In the instant matter, which was the first action filed in this court by plaintiff, certain parties[2] entered into a confidential settlement agreement and a joint motion to dismiss with prejudice and a consent order. The consent order was entered by the court on April 24, 2012.[3] The consent and dismissal order provides as follows:

Plaintiff may not bring a civil action against any of the Releasees'... in any court 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, Plaintiff must first provide written notice of such intention to the Defendants' counsel, Larry R. Seegull, Esq. via both electronic mail to "" and written letter to Larry R. Seegull, Esq., Jackson Lewis LLP, 2800 Quarry Lake Drive, Suite 200, Baltimore, Maryland 21209, XXX-XXX-XXXX.[4]

Thus, the dismissal/consent order, which incorporates by reference the settlement agreement, provides the court retained jurisdiction after dismissal for enforcing the settlement agreement and to resolve disputes regarding this agreement.[5] It also restrained and prohibited plaintiff from bringing a civil action against any releasee[6] absent "prior written permission of a judge of this Court, '' regarding "any matter not released by the Parties' settlement agreement" and "any claim that any Party has breached the settlement agreement."[7]

The language of the consent order is clear and instructs plaintiff how to proceed before commencing an action: provide proper and timely notice to defendants' counsel of the proposed claims and request permission of this court to file suit on those claims. To obtain permission and provide proper notice of and to the releasees named as potential defendants and of his claims and proposed action, a copy of the proposed complaint needs to be provided to the court and defendants' counsel. Merely filing a complaint or a notice or motion for permission without a proposed complaint attached are insufficient.[8] Since the consent order was issued in the original case, C.A. No. 10-431-RGA, that is the matter in which the motion along with the proposed complaint attached is to be filed.

To confirm that proper notification to defendants' counsel was provided, confirmation on the court docket that shows plaintiff timely provided a copy of the proposed complaint to defendants' counsel is also required.

Plaintiff agreed in the executed settlement documents to follow certain procedures regarding any further civil action against any releasee. As evidenced by his numerous court filings and the decisions of this court and other courts, he is familiar with the procedures required of him. Moreover, when he filed another action post-execution of settlement agreement and entry of the consent order, he did so in another jurisdiction before receiving permission to sue from this court. That conduct resulted in a transfer of that action to this jurisdiction, and plaintiff filed a motion for leave to file a lawsuit with a copy of his proposed complaint attached in the original action, C.A. No. 10-431-RGA.[9] Subsequently, he was directed regarding what he further needed to do to comply with the consent order.[10]

Since the consent order advises plaintiff of what he must do, and this court has previously provided guidance, his motion to establish procedures at D.I. 89 is denied.[11]

Plaintiff's motion to certify a previous "order as appealable as per FRCP 54(b)"[12] references three orders: an order by the Honorable Richard G. Andrews denying plaintiff's motion to recuse, [13] the order by the undersigned entered on December 18, 2014 denying plaintiff's motion to recuse, [14] and an order entered by Judge Andrews denying pre-rule 26(f) discovery in C.A. No. 14-982-RGA.[15]

Plaintiff provides no bases for his contention that the order denying recusal of the undersigned is appealable under Rule 54(b).[16] Besides mentioning that order in the present motion, plaintiff primarily focuses on the order of December 8, 2014 in C.A. No. 14-982-RGA denying pre-rule 26(f) discovery.[17] Recently, in that matter, the court dismissed the same motion as moot.[18] Further, as explained before, this judge was not referred or assigned C.A. No. 14-982-RGA, and does not have jurisdiction to address the orders by Judge Andrews denying discovery or his denial of recusal.[19] Moreover, this matter is closed and plaintiff has appealed Judge Andrews' decision.[20] His motion at D.I. 88 is denied.

Plaintiff's motion to modify an order and/or certify the order as appealable under FED. R. CIV. P. 54(b)[21] addresses the decision and order by the undersigned dated January 5, 2015, [22] repeats the same or similar arguments raised in many other filings, and references complaints filed in contradiction to the consent/dismissal order of April 24, 2012.[23] The filing of those complaints resulted in new actions referenced in his motion, specifically C.A. Nos. 14-982-RGA, 14-1001-RGA and 14-1484-RGA. Two of the actions were the result of transfers from other jurisdictions for failing to follow the consent order.[24] In paragraph 20 of the motion, plaintiff requests the court modify its January 5, 2014 [sic] ruling permitting him to sue AST, order the C.A. No. 14-982-RGA matter to proceed in Delaware, and grant his pending motions to return C.A. No. 14-1001-RGA to New York and to return C.A. No. 14-1484-RGA to Delaware [sic]. He reiterates the same requests in paragraph 23, but asks that C.A. No. 14-1001 be transferred to the Southern District of New York and C.A. No. 14-1484 be transferred to the Southern District of New York.[25]

Plaintiff's request for modification of the January 5, 2015 decision is essentially a motion for reargument or reconsideration. Such a motion is to "correct errors of law or fact or to present newly discovered evidence."[26] The grounds for a proper Rule 59(e) are limited to "(1) intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct a clear error or law or fact or to prevent manifest injustice."[27] None of plaintiff's arguments meet the elements of a motion for reconsideration or reargument.

The decision at issue involved a motion seeking to file a complaint. As discussed in that decision, the only reference to any alleged conduct on the part of AST was found in ΒΆΒΆ 9 and 10 of the proposed complaint. Paragraph 9 merely mentions AST, but fails to attribute any purported activity on its part. Paragraph 10 is wholly conclusory, references all defendants, includes conduct that occurred prior to the settlement agreement which released all claims against AST prior to its execution in 2012, is devoid of any facts in support of plaintiff's conclusions and fails to identify who allegedly was involved in the conduct. Further, paragraph 10 conflicted with the more detailed allegations against Simpson ...

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