klayman v judicial watch flsd 1:13-cv-20610-111

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IN UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 13-20610-CIV-ALTONAGA/Simonton

LARRY KLAYMAN,

Plaintiff,

v.

JUDICIAL WATCH, et. al.

Defendants.

_____________________________/

PLAINTIFF'S OPPOSITION TO DEFENDANT'S

MOTION IN LIMINE

Introduction

Plaintiff Larry Klayman brought this lawsuit against Defendant Judicial Watch

(Defendant) for defamation (pre se and otherwise), defamation by implication, tortious

interference with a contract, and for intentional infliction of emotional distress. The action arises

out of the knowingly false statements made by Constance Ruffley (Ruffley), an Office

Administrator and Management Representative of Defendant Judicial Watch ("Defendant"),

who, while acting under the authority and direction of Defendant's directors, maliciously and

willfully conveyed false and defamatory statements about Plaintiff, alleging that Plaintiff had

been convicted of a crime for not paying child support and that this information should be

published to Plaintiff's donors. Specifically, Ruffley represented to Taitz, "donors should know

about litigation in Ohio, where he [Plaintiff] was convicted just recentlty [sic] of not paying large

amount in child support."

Case 1:13-cv-20610-CMA Document 111 Entered on FLSD Docket 04/24/2014 Page 1 of 11

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On April 7, 2014 Defendant Judicial Watch filed its Motion in Limine seeking to

preclude Plaintiff from "presenting comment, argument, testimony, or evidence of alleged

monetary losses or, in the alternative, precluding plaintiff from presenting comment, argument,

testimony, or evidence of alleged monetary losses of monetary losses beyond what has been

produced in discovery." See Motion In Limine [Docket No. 107] at pp. 1. Plaintiff hereby

opposes Defendant's motion.

Defendant's motion is contrary to well-established Florida and U.S. Supreme Court law

and should be rejected. In a defamation case such as this one, the amount of damages is left

within the discretion of the jury, and Plaintiff may present any evidence he has available,

including billings statements and live testimony at trial. In addition, due to the very nature of the

case, damages need not be proven by Plaintiff with mathematical exactness in any event, and it is

for the jury to decide the proper amount. This is especially true given that damage occurred to

Plaintiff in many respects, including but not limited to the actual loss he suffered from unpaid

attorney's fees, the damage to his reputation, and the donations that were lost when donors saw

Defendant's defamatory comments. Finally, Defendant wrongly cites to cases in which attorney's

fees are being awarded to a party at the end of trial, not as compensatory damages.

Standard of Review

Motions in limine are meant to deal with discrete evidentiary issues related to trial, and

are not another excuse to file dispositive motions disguised as motions in limine. Dunn ex rel.

Albery v. State Farm Mutual Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D. Mich. 2009). A motion in

limine" is designed only to narrow the evidentiary issues for trial and to eliminate unnecessary

trial interruption." Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990).


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A court may exclude evidence in limine only when evidence is clearly inadmissible on

all potential grounds [internal citation omitted]. Hawthorne Partners v. AT&T Technologies,

Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). Unless evidence meets this high standard,

evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and

potential prejudice may be resolved in proper context. Id. Orders in limine which exclude

broad categories of evidence should rarely be employed. Sperberg v. Goodyear Tire & Rubber

Co., 519 F.2d 708, 712 (6th Cir.1975).

Plaintiff's Evidence Establishes Damage Caused By Defendant.

According to Florida law, as well as in many states around the country, the determination

of damages in a defamation case is left within the discretion of the jury, and there is no

requirement that an expert witness be obtained in order to establish the amount of damages.

"In Florida the damages rule must be flexibly applied so as to provide fair compensation

under the circumstances of the specific case." Slip-N-Slide Records, Inc. v. TVT Records, LLC,

2007 U.S. Dist. LEXIS 80788, 35-36 (S.D. Fla. Oct. 31, 2007) citing Christopher Adver. Group,

Inc. v. R & B Holding Co. Inc., 883 So. 2d 867, 871 (Fla. 3rd DCA 2004) (law does not

contemplate that damages must be calculated with mathematical exactness); G.M. Brod & Co.,

Inc. v. U.S. Home Corp., 759 F.2d 1526, 1538 (11th Cir. 1985) (proof of damages may be

indirect and based upon assumptions and estimates, as long as the assumptions rest on adequate

data).

"Thus, a Florida plaintiff's proof of damages will be sufficient if it provides some

evidence from which the amount of damages may be satisfactorily ascertained. Proof of the

amount of damages need not conform to any particular methodology, and exact proof of

the amount of damages is not required." Slip-N-Slide Records, Inc., 2007 U.S. Dist. LEXIS


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80788 at 35 (Emphasis added). Specifically, there is no requirement that expert witnesses must

be presented in order to calculate damages. See also Story Parchment Co. v. Paterson Parchment

Paper Co., 282 U.S. 555, 563 (U.S. 1931) ("it will be enough if the evidence show the extent of

the damages as a matter of just and reasonable inference, although the result be only

approximate.") Further, "[t]he wrongdoer is not entitled to complain that they cannot be

measured with the exactness and precision that would be possible if the case, which he alone is

responsible for making, were otherwise." Eastman Kodak Co. v.Southern Photo Co., 273 U.S.

359, 379.

Further in Firestone v. Time, Inc., 305 So. 2d 172, 176-177 (Fla. 1974), the Florida

Supreme Court was asked to review jury instructions stating that "[t]here is no exact standard for

fixing the compensation to be awarded on account of such damages. Any such award should be

fair and just in light of the evidence." In approving of the jury instructions, the Court held,

The jury heard the testimony and considered the evidence before it and the

factors enumerated in the instruction of the trial judge which are the same as those

set out by the Supreme Court of the United States in Gertz, supra, and upon the

evidence decided that a just and fair award for the damages suffered by petitioner

would be $100,000. This award is supported by competent evidence concerning

the injury. As aforestated, the Supreme Court of the United States in Gertz,

supra, recognized that there need be no evidence which assigns an actual

dollar value to the injury.

Firestone v. Time, Inc., 305 So. 2d 172, 176-177 (Fla. 1974)(Emphasis added) citing

Gertz v. Robert Welch, Inc., 418 U.S. 323(1974).

Also directly on point is a decision by the Supreme Court of California, Scott v. Times-

Mirror Co., 181 Cal. 345, 365 (Cal. 1919), in which an attorney was defamed by the Los

Angeles Times newspaper. In Scott, the Supreme Court of California held that:

The respondent is not required to prove, and in the nature of things cannot prove,

the extent to which he has been damaged by this libel, or of what legal fees he has

been deprived through its circulation, or what clients he has lost because of it. It


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is well settled that in such cases as this a jury may consider as a basis for its

award of actual damages all of such matters as those set out above, including

the wide publicity given to the libel, plaintiff's prominence in the community

where he lives, his professional standing, his good name and reputation, his

injured feelings and his mental sufferings.

Scott v. Times-Mirror Co., 181 Cal. 345, 365 (Cal. 1919)(Emphasis added). See also Straw v.

Chase Revel, Inc., 813 F.2d 356, 360 (11th Cir. Ga. 1987)("Under Georgia law the measure for

compensatory damages in an action for defamation is left to the enlightened conscience of the

jury.")

Thus, as clearly established, under the laws of Florida and the U.S. Supreme Court, the

awarding of damages is left to the discretion of the jury, who may rely on whatever means and

evidence that is presented to them at trial. Plaintiff is not required to present expert witness

testimony, as the jury may consider factors such as testimony and any evidence in front of it. In

this case, Plaintiff further suffered loss as a result of donors who had seen Defendant's

defamatory comments and had chosen to no longer donate money to Plaintiff's legal activism.

Plaintiffs in Defamation Cases Are Not Required to Prove Actual Loss In Any Event

In defamation actions, no proof of damages is required. As the U.S. Supreme Court held

in the seminal case of Gertz v. Robert Welch:

The common law of defamation is an oddity of tort law, for it allows recovery of

purportedly compensatory damages without evidence of actual loss. Under the

traditional rules pertaining to actions for libel, the existence of injury is presumed

from the fact of publication. Juries may award substantial sums as compensation

for supposed damage to reputation without any proof that such harm actually

occurred.

Gertz v. Robert Welch, 418 U.S. 323, 349 (U.S. 1974). In speaking of the calculation of

damages, the U.S. Supreme Court further held, "Suffice it to say that actual injury is not limited

to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory


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falsehood include impairment of reputation and standing in the community, personal humiliation,

and mental anguish and suffering." Id. at 250.

This precedent has of course been extended to Florida cases as well. On point is Johnson

v. Clark, 484 F. Supp. 2d 1242, 1258 (M.D. Fla. 2007), where a jury returned a verdict finding

defendant liable for two counts of defamation against plaintiff attorney and awarding him

compensatory damages in the amount of $1 million. The Middle District of Florida, a sister

court to this Court, held that, "[i]n the case at bar, Plaintiff did not present (nor, as previously

indicated, was he required to present) evidence of economic harm. Contrary to Defendant's

contention, however, the Court nonetheless finds that the evidence was sufficient to support

more than a nominal award for damages to Plaintiff's reputation." Id. (Emphasis added).

Here, even thought Plaintiff is not required to present any evidence of actual loss,

Plaintiff has provided a billing statement which shows a fraction of his legal fees that were not

paid by Plaintiff's clients as a result of Defendant's tortious actions. Exhibit 1. Further, more

harm was caused as a result of donors no longer giving money to Plaintiff in order to pursue his

legal activism. This is another area of damages that Plaintiff need not prove with mathematical

exactness. Plaintiff will further demonstrate the damage during trial, when Plaintiff will present

his own live testimony, as well as the testimony of witnesses who can attest from personal

knowledge the amount of compensation lost as a result of Defendant's actions, as well as the total

amount necessary to make Plaintiff whole. These compensatory damages arise not only from

unpaid legal fess, but also from the amount of donations that were lost when Defendant defamed

Plaintiff and requested that it be published for all his donors to see.

Thus, Defendant wrongly alleges in its Motion In Limine that Plaintiff needs to prove

actual loss with absolute certainty. Plaintiff is not required to show evidence of actual loss with


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absolute exactitude, due to the very nature of the damage caused. Indeed, the decision of the

amount of damages is properly left for the jury to decide, and any attempt to exclude evidence of

damages is flat out wrong.

Plaintiff's "Attorney's Fees" Are Compensatory Damages

Throughout Defendant's Motion in Limine, Defendant refers to the damages sought by

Plaintiff as "Attorney's Fees." See Motion in Limine at pp. 4-6. Where Defendant is wrong,

however, is that in this case the "attorney's fees" owed to Plaintiff are his compensatory

damages. Plaintiff is owed compensatory damages for lost business just like any other

businessman, and the fact that is an attorney does not change the type of recovery he is seeking.

Plaintiff has sought to be made whole for the legal fees that were not paid to him as a result of

Defendant's tortious actions, and is not seeking to tax attorney's fees after trial. The billing

statement, attached as Exhibit 1, is simply a quantifiable measure of a portion of lost billings that

were caused by Defendant.

Each case cited by Defendant deals with when a party is seeking to calculate attorney's

fees to be awarded by a court at the end of a case, and not being awarded as compensatory

damages as part of a jury verdict. For example, in Crittenden Orange Blossom Fruit v. Stone,

514 So.2d 351, 352-53 (Fla. 1987), attorney's fees were taxed at the end of a case of an

employee's claim for workers' compensation benefits where the fees were incurred proving

employer's bad faith in denying the claim. Further, in Brewer v, Solovsky, 945 So.2d 610, 611

(Fla. 4th DCA 2006), attorney's fees were awarded in a dissolution of marriage case. Finally, in

Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), attorney's fees were

calculated and awarded at the end of trial pursuant to Fla. Stat. ch. 768.56 (1981), that provides

for the payment of attorney fees in medical malpractice cases.


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Here, Plaintiff is not seeking the taxation of attorney's fees, but is simply seeking

compensatory damages for lost billings that he incurred as a result of Defendant's tortious

conduct. That Plaintiff happens to be an attorney does not mean that his compensatory damages

do not include the quantifiable attorney's fees he charged, but was not paid as a result of the

Defendants tortious acts. It is wrong for Defendants to claim that an expert must be sought to

ascertain Plaintiff's compensatory damages. The use of expert may bear on the weight of the

evidence, but not its admissibility. See U.S. v. 14.38 Acres of Land, More or Less Situated in

Leflore Cnty., Miss ., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chm. Co., 826

F.2d 420, 422 (5th Cir. 1987); "); United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th

Cir.1993), below.

Calculation of Attorney's Fees Does Not Require the Use of An Expert in Any Event

Even if attorney's fees were being taxed at the end of the trial, which they are not, an

expert witness is still not necessary. See, i.e. District of Columbia v. Patterson, 667 A.2d 1338,

1343")([t]he most useful starting point for determining the amount of a reasonable fee is the

number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.")

(quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)). This

method of calculating attorney's fees by multiplying the number of hours reasonably expended

on the litigation multiplied by a reasonable hourly rate is the so-called "lodestar method." U.S.

District Courts in Florida also utilize the lodestar method. See, i.e. Rodriguez v. Cap World, Inc.,

2014 U.S. Dist. LEXIS 48299 (M.D. Fla. Apr. 7, 2014)( "the Court uses the lodestar method for

guidance.") citing Comstock v. Fla. Metal Recycling, LLC, 2009 U.S. Dist. LEXIS 47219, 2009

WL 1586604, at *2 (S.D. Fla. June 5, 2009). At no point is an expert witness required, but


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instead the lodestar method is used, which calculates the amount of attorney fees by multiplying

a reasonable hourly fee by the number of hours reasonably expended on the litigation.

Expert Witness Testimony Does Not Affect Admissibility

Further, an expert witness' testimony goes to the weight of the evidence, not to the

admissibility. See, e.g. U.S. v. 14.38 Acres of Land, More or Less Situated in Leflore Cnty., Miss

., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chm. Co., 826 F.2d 420, 422 (5th

Cir. 1987)). ("As a general rule, questions relating to the bases and sources of an expert's opinion

affect the weight of the evidence rather than its admissibility, and should be left for the jury's

consideration.'"); United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir.1993) ("any

weaknesses in the factual basis of an expert witness' opinion ... bear on the weight of the

evidence rather than on its admissibility.")

Conclusion

For the foregoing reasons, Plaintiff respectfully requests that Defendant's Motion in

Limine be denied, as it is contrary to the laws of Florida and U.S. Supreme Court precedent. It is

for the jury to decide the proper amount of damages to be awarded to Plaintiff and they may rely

on any evidence before them, including live testimony and the billing statement presented by

Plaintiff and attached as Exhibit 1. Further, in this type of case, where Plaintiff has been

defamed, Plaintiff is not required to prove actual loss. There is simply no reason that Plaintiff's

evidence should be excluded from trial and this motion should respectfully be denied.

Dated: April 24, 2014

Respectfully Submitted,

/s/ Larry Klayman

LARRY KLAYMAN

2520 Coral Way, Suite 2027

Miami, FL 33145


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(310) 595-0800

[email protected]

Plaintiff Pro Se


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 24, 2014, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF filing system. I also certify that the foregoing document is

being served this date on all counsel of record or pro se parties on the attached Service List in the

manner specified, either via transmission of Notices of Electronic Filing generated by the

CM/ECF system or in some other authorized manner for those counsel or parties who are not

authorized to receive electronically Notices of Electronic Filing.

/s/ Larry Klayman

LARRY KLAYMAN

Plaintiff Pro Se

SERVICE LIST

Douglas James Kress Schwed Kahle & Jenks, P.A.

11410 North Jog Road

Suite 100

Palm Beach Gardens, FL 33418

561-694-0070

Fax: 561-694-0057

Email: [email protected]

VIA CM/ECF


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Exhibit 1

Case 1:13-cv-20610-CMA Document 111-1 Entered on FLSD Docket 04/24/2014 Page 1 of 2

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Klayman Law Firm

2020 Pennsylvania Avenue, N.W., Suite 345, Washington, DC 20006-1811 Telephone: (310) 595-0800 [email protected]

July 23, 2012

BILLING STATEMENT

FOR SERVICES RENDERED to George Miller, Pamela Barnett, Sam Sewell,

ObamaBallotChallenge.com, Article II Super PAC, and the Constitution Action Fund from June

19, 2012 to the present, including but not limited to research and preparation and service of

process of new complaint for declaratory relief, legal research and preparation and filing of

24 page proposed order with factual and legal citations for Judge Terry Lewis, review of

proposed order of the Defendants, preparation of second amended complaint and review of

motion to strike and response, preparation for and hearing on leave to file second amended

complaint before Judge Terry Lewis, review of Judge Terry Lewis decision and strategy

discussions and other communications with clients and preparation of memorandum on

how to appeal directly to Florida Supreme Court, preparation and filing of notice of appeal,

notice of filing transcript, preparation and filing of opposition to defendants' motion to

strike, preparation and dissemination of two press releases regarding Judge Lewis

decision and notice of appeal, communications with media, and related matters :

37 hours x $150 per hour for Naveed Mahboobian, Esq. and Ryan Patterson, Esq..........$5,550.00

16.5 hours x $395 per hour for Larry Klayman, Esq. (reduced from normal billing rate of $600

per hour)............................................................................................................................$6,517.50

Itemized Expenses (Attached)...........................................................................................$4,017.05

Total = $16,084.55

Case 1:13-cv-20610-CMA Document 111-1 Entered on FLSD Docket 04/24/2014 Page 2 of 2

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klayman v judicial watch flsd 1:13-cv-20610-111

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