UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
WILLIAMS, et al.,
Plaintiffs, v. No. 19-cv-183 (EGS) ROMARM S.A.,
Defendant.
MEMORANDUM OPINION
I. Introduction
On April 1, 2020, the Court granted Defendant Romarm S.A.’s
(“Romarm”) Motion to Dismiss, ECF No. 9; Plaintiffs J.H.
(through his legal representatives Norman Williams and Diane
Howe), Kevin Attaway, and Jamel Blakeley’s (collectively
“Plaintiffs”) action against Romarm under the District of
Columbia’s Assault Weapons Manufacturing Strict Liability
Statute (“SLA”), D.C. Code § 7-2551 et seq., for damages
stemming from two separate shootings in March 2010. See April 1,
2020 Order, ECF No. 20; see also Mem. Op. (“MTD Mem. Op.”), ECF
No. 22. Pending before the Court are: (1) Plaintiffs’ Motion for
Reconsideration (“Recon. Mot.”), ECF No. 22; (2) Romarm’s Motion
for Sanctions Pursuant to Rule 11 and 28 U.S.C. § 1927 (“Def.’s
Sanctions Mot.”), ECF No. 27; (3) Plaintiffs’ First Motion for
Sanctions (“Pls.’ Sanctions Mot.”), ECF No. 34; and (4) Romarm’s Motion to Strike Plaintiffs’ First Motion for Sanctions (“Def.’s
Strike Mot.”), ECF No. 37. Upon careful consideration of the
motions, the oppositions, the replies thereto, the applicable
law, and the entire record herein, the Court: (1) DENIES
Plaintiffs’ Recon. Mot., ECF No. 22; (2) GRANTS Def.’s Sanctions
Mot., ECF No. 27; (3) DENIES Pls.’ Sanctions Mot., ECF No. 34;
(4) DENIES Def.’s Strike Mot., ECF No. 37; and (5) ENJOINS
Plaintiffs from filing in any United States District Court any
new civil action against Romarm or any defendant, based on the
same operative facts, without first seeking leave to file such a
complaint.
II. Background
A. Factual Background
Much of the factual background for this case is set forth
in this Court’s prior Memorandum Opinion. See MTD Mem. Op., ECF
No. 21 at 3-4 (quoting Williams v. Romarm, S.A., 751 F. Appx.
20, 22 (2d Cir. 2018) (“Williams IX 2018”)). Since 2011,
Plaintiffs have been attempting to hold Romarm civilly liable
“for two separate shootings [that took place] in March 2010,
during which firearms manufactured by Romarm were allegedly
used.” MTD Mem. Op., ECF No. 21 at 1.
Since that time, Plaintiffs have filed suits alleging the
same claims, based on the same operative facts, against the same
defendant in various state and federal courts across the nation,
2 including this Court twice.1
In its April 1, 2020 Memorandum Opinion, the Court found
that Plaintiffs’ claims were barred under the doctrine of
collateral estoppel, see MTD Mem. Op., ECF No. 21 at 8; noting
that: (1) the “same issue now being raised was contested by the
parties and submitted for judicial determination in the prior
cases,” id. at 10; (2) the “issue was actually and necessarily
determined by a court of competent jurisdiction in the prior
cases,” id. at 12; and (3) “[p]reclusion in this case [did] not
work a basic unfairness to the parties bound by the prior
determinations,” id. at 13. In addition, noting that Plaintiffs’
“Complaint is devoid of factual allegations and legal claims,”
id. at 17, the Court held it was appropriate to subject
Plaintiffs’ Counsel to Rule 11 sanctions because “at the time
Plaintiffs’ counsel filed the Complaint in this case, it was not
1 Williams v. Romarm, S.A., 751 F. Appx. 20, 22 (2d Cir. 2018) (“Williams IX 2018”); Williams v. Romarm S.A., No. 2:17-CV-6, 2017 WL 6729849, at *1 (D. Vt. Nov. 21, 2017) (“Williams VIII 2017”); Williams v. Romarm S.A., No. 2:17-CV-6, 2017 WL 3842595, at *1 (D. Vt. Sept. 1, 2017) (“Williams VII 2017”); Williams v. Romarm, No. CV TDC-14-3124, 2017 WL 87014, at *1 (D. Md. Jan. 9, 2017) (“Williams VI 2017”); Williams v. S.A., No. CV TDC-14- 3124, 2016 WL 5719717, at *1 (D. Md. Sept. 30, 2016) (“Williams V 2016”); Williams v. Romarm, S.A., No. CV TDC-14-3124, 2016 WL 4548102, at *1 (D. Md. Feb. 19, 2016) (“Williams IV 2016”); Williams v. Romarm S.A., 116 F. Supp. 3d 631, 635 (D. Md. 2015) (“Williams III 2015”); Williams v. Romarm, SA, 756 F.3d 777 (D.C. Cir. 2014) (“Williams II 2014”); Williams v. Romarm, 187 F. Supp. 3d 63, 72 (D.D.C. 2013) (Sullivan, J.) (“Williams I 2013”); Williams v. Does Company Distributor, et al, Civil Docket 11-cv-01924 (Filed Nov. 1, 2011). 3 reasonable for him to believe that the Complaint was based on a
plausible view of the law,” id. at 20.
B. Procedural Background
Plaintiffs filed their Motion for Reconsideration on April
28, 2020, see Recon. Mot., ECF No. 22; to which Romarm filed its
Opposition (“Recon. Opp’n”) on May 12, 2020, see Recon. Opp’n,
ECF No. 23. Plaintiffs filed their Reply to Romarm’s opposition
(“Recon. Reply”) on May 20, 2020. See Recon. Reply, ECF No. 25.
On May 29, 2020, Romarm filed its Motion for Sanctions, see
Def.’s Sanctions Mot., ECF No. 27, to which Plaintiffs filed
their untimely Opposition (“Pls.’ Sanctions Opp’n”) on June 18,
2020, see Pls.’ Sanctions Opp’n, ECF No. 32. Romarm filed its
Reply to Plaintiffs’ Opposition (“Def.’s Sanction Reply”) on
June 25, 2020. See Def.’s Sanction Reply, ECF No. 33. Plaintiffs
then filed their Motion for Sanctions on July 30, 2020. See
Pls.’ Sanctions Mot., ECF No. 34. Romarm filed both its Motion
to Strike, see Def.’s Strike Mot., ECF No. 37, and Opposition to
Plaintiffs’ Motion for Sanction (“Def.’s Sanction Opp’n”), see
Def.’s Sanction Opp’n, ECF No. 38, on August 13, 2020, to which
Plaintiffs filed their combined Opposition to Romarm’s Motion to
Strike and Reply to Romarm’s Opposition to Plaintiffs’ Motion
for Sanction (“Pls.’ Combined Resp.”) on August 28, 2020. See
Pls.’ Combined Resp., ECF No. 39.
The motions are ripe and ready for the Court’s
4 adjudication.
III. Legal Standards
A. Reconsideration Pursuant to Federal Rule of Civil Procedure 59(e) Motions for reconsideration, pursuant to Federal Rule of
Civil Procedure 59(e), are “discretionary and need not be
granted unless the district court finds that there is an
intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
manifest injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C. Cir. 1996)(internal citations and quotation marked
omitted). A “Rule 59(e) motion may not be used to ... raise
arguments or present evidence that could have been raised prior
to the entry of judgment,” GSS Grp. Ltd v. Nat'l Port Auth., 680
F.3d 805, 812 (D.C. Cir. 2012) (internal citation omitted); as
these motions “are disfavored and relief from judgment is
granted only when the moving party establishes extraordinary
circumstances,” Niedermeier v. Office of Baucus, 153 F. Supp. 2d
23, 28 (D.D.C. 2001) (internal citation omitted). Thus, “the law
is clear that a Rule 59(e) motion is not a second opportunity to
present argument upon which the Court has already ruled, nor is
it a means to bring before the Court theories or arguments that
could have been advanced earlier.” Id. (internal citations and
quotation marks omitted).
5 B. Sanctions Pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and the Court’s Inherent Authority Pursuant to Rule 11 of the Federal Rules of Civil
Procedure, a court may impose sanctions on any party if a
“pleading, written motion, or other paper ... is presented for
any improper purpose; ... the claims, defenses, and other legal
contentions therein are unwarranted by existing law; ... the
allegations and other factual contentions have no evidentiary
support; or the denials of factual contentions are unwarranted
on the evidence.” Naegele v. Albers, 355 F. Supp. 2d 129, 143
(D.D.C. 2005) (citing Fed. R. Civ. P. 11(b)-(c)) (internal
brackets omitted). Rule 11(c) limits the types of sanctions that
may be imposed “to what suffices to deter repetition of the
conduct or comparable conduct by others similarly situated” and
allows for “an order to pay a penalty into [a] court.” Fed. R.
Civ. P. 11(c)(4).
Under 28 U.S.C. § 1927, an “attorney . . . who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally
the excess costs, expenses, and attorneys' fees reasonably
incurred because of such conduct.” “To qualify as unreasonable
and vexatious behavior, there must be ‘evidence of recklessness,
bad faith, or improper motive’ present in the attorney's
conduct.” Hall v. Dep't of Homeland Sec., 219 F. Supp. 3d 112,
6 119 (D.D.C. 2016) (quoting LaPrade v. Kidder Peabody & Co.,
Inc., 146 F.3d 899, 906 (D.C. Cir. 1998)), aff'd sub nom. Hall
v. Dettling, No. 17-7008, 2017 WL 2348158 (D.C. Cir. May 17,
2017)). “A court may infer this malicious intent from a total
lack of factual or legal basis in an attorney's filings,” Hall,
219 F. Supp. 3d at 119 (internal citation and quotation marks
omitted); and the “issuance of such an award is ultimately
vested in the discretion of the district court,” id.
Finally, “Federal courts possess certain ‘inherent powers,’
not conferred by rule or statute, to manage their own affairs so
as to achieve the orderly and expeditious disposition of cases,
. . . [and] [t]hat authority includes the ability to fashion an
appropriate sanction for conduct which abuses the judicial
process.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178,
1186 (2017) (internal citation and quotation marks omitted).
IV. Analysis
A. Plaintiffs’ Motion for Reconsideration Fails to Meet the Applicable Standard Under Rule 59(e)
To begin, Plaintiffs state that they do not argue that
there has been “an intervening change of controlling law” or is
“the availability of new evidence,” but contend only that there
is “clear error and manifest injustice.” Recon. Mot., ECF No. 22
at 1. However, Plaintiffs later state in their opposition to
Romarm’s motion for sanctions that Plaintiffs’ “Rule 59(e) was
7 filed, on the bases of ‘clear error and to prevent manifest
injustice’ and ‘intervening change in the law.’” Pls.’ Sanctions
Opp’n, ECF No. 32 at 1. Though not completely clear to the
Court, the alleged “intervening change in the law” stems from
Plaintiffs contention that
The legal posture of this case has changed radically since it was last before this Court and dismissed due to personal jurisdiction in Williams I [Williams I 2013]. Subject matter jurisdiction was never reached in that former case. Now, personal jurisdiction has been judicially established as the Law of the Case in Williams II [Williams VI 2017], in the District of Maryland.
Recon. Mot., ECF No. 22 at 1. Citing to Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 802 (1988), Plaintiffs
declare that the District of Maryland’s finding that the
District of Vermont had personal jurisdiction over Romarm
because it had “targeted Vermont specifically by funneling its
products through an exclusive distributor located there,” see
Williams VI 2017, 2017 WL 87014, at *2 (emphasis added); “has a
binding effect on this [District of Columbia] forum,” see Pls.’
Sanctions Opp’n, ECF No. 2 at 2; because the District of Vermont
never “overturned” the District of Maryland’s personal
jurisdiction finding. See Recon. Mot., ECF No. 22 at 2.
Plaintiffs’ argument is devoid of merit. In essence, this
entire action is a reconsideration of this Court’s decision in
Williams I 2013. In that case, involving the same parties, same
8 operative facts, same allegations, and the same defendant, this
Court ruled that Plaintiffs failed to establish that Romarm: (1)
was subject to statutory personal jurisdiction under the Foreign
Sovereign Immunities Act (“FSIA”), see Williams I 2013, 187 F.
Supp. 3d at 69-70; or (2) had the “minimum contacts” with the
District of Columbia required to establish personal jurisdiction
within this forum, see id. at 71-72. This Court’s finding was
affirmed by the Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) in Williams II 2014, 756 F.3d at 777.
As noted in the MTD Mem. Op., Plaintiffs filed this exact case
in various courts across the country and upon their return to
this Court, filed a document entitled “Second Amended Compliant”
which only “refer[ed] to the dismissal of the case by the Court
of Appeals for the Second Circuit (‘Second Circuit’) [in
Williams IX 2018, 751 F. Appx. at 22] and state[d] that
plaintiffs are refiling this action.” See ECF No. 21 at 2.
Though Plaintiffs readily note that the District of Maryland’s
decision in Williams VI 2017 was never “overturned,” Plaintiffs
fail to acknowledge that this Court’s decision in Williams I
2013 was also never overturned. That Plaintiffs completely
ignore this Court’s decision in Williams I 2013 is illustrative
of their faulty understanding of the “law of the case” doctrine
and-as Romarm points out-makes “Plaintiffs’ pending motion for
reconsideration . . . meritless.” See Recon. Opp’n, ECF No. 23
9 at 3.
The “law of the case” doctrine is the premise that “the
same issue presented a second time in the same case in the same
court should lead to the same result.” Kimberlin v. Quinlan, 199
F.3d 496, 500 (D.C. Cir. 1999). Though a Court should be “loathe
to [revisit a prior decision] in the absence of extraordinary
circumstances,” a court retains “the power to revisit prior
decisions of its own or of a coordinate court in any
circumstance.” Christianson, 486 U.S. at 817. In Christianson,
the Supreme Court held that the Court of Appeals for the Federal
Circuit, after finding that it lacked jurisdiction, “in
transferring the case to the [Court of Appeals for the] Seventh
Circuit, was the first to decide the jurisdictional issue. . . .
Thus, the law of the case was that the Seventh Circuit had
jurisdiction.” Id. Similarly, because this Court’s decision in
Williams I 2013 was “the first to decide the jurisdictional
issue,” unsurprisingly, the law of the case for this Court
remains that it lacks personal jurisdiction over Romarm. See id.
In any event, as Romarm points out-and the Court agrees-the
District of Maryland’s decision in Williams VI 2017, cannot be
considered an “intervening change in the law” because this
Court’s most recent dismissal in this action was issued on April
1, 2020, and the Court had previously considered this very
argument. See Def.’s Sanction Reply ECF No. 33; see also MTD
10 Mem. Op., ECF No. 21 at 18 (“Plaintiffs’ counsel provides no
legal authority for why, even if the Vermont District Court
could exercise personal jurisdiction over Romarm in Vermont,
this Court can exercise personal jurisdiction over Romarm in the
District of Columbia in view of this Court’s dismissal of these
same claims for lack of personal jurisdiction. . . .”).
With no intervening change in the law and no new evidence,
Plaintiffs’ motion for reconsideration is nothing more than a
blatant attempt to relitigate issues that have already been
decided. Compare Pls.’ Opp’n to Def.’s MTD, Williams I 2013, Dkt
No. 12-cv-436, ECF No. 19 at 8, Jan. 18, 2013 (arguing that
“FSIA itself, provides appropriate jurisdiction” over Romarm),
and Pls.’ MTD Opp’n, ECF No. 18 at 15 (arguing that Romarm’s
activities “satisfies the FSIA’s jurisdictional requirement”),
with Recon. Mot., ECF No. 22 at 3 (arguing that Romarm’s
commercial activity is the basis for subject matter jurisdiction
under FSIA). However, having had many “bites at the apple,”
Plaintiff may not use a motion under Rule 59(e) to again present
the same arguments. See Leidos, Inc. v. Hellenic Republic, 881
F.3d 213, 217 (D.C. Cir. 2018) (noting that Rule 59(e) motions
“may not be used to relitigate old matters”); Klayman v. Fox,
No. CV 18-1579 (RDM), 2019 WL 3752773, at *1 (D.D.C. Aug. 8,
2019) (denying a motion for reconsideration where the plaintiff
“merely rehashe[d] his prior arguments”).
11 Further, Plaintiffs do not point to any clear error or
demonstrate any manifest injustice. Under Rule 59(e), to
constitute a “clear error,” a party must show, under a “very
exacting standard,” Lardner v. F.B.I., 875 F. Supp. 2d 49, 53
(D.D.C. 2012) (internal citation and quotation marks omitted),
that a “final judgment [was] ‘dead wrong,’” Id. (quoting Parts &
Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233
(7th Cir.1988)). Manifest injustice, though harder to define,
see Roane v. Gonzales, 832 F. Supp. 2d 61, 64 (D.D.C. 2011);
“must entail more than just a clear and certain prejudice to the
moving party, but also a result that is fundamentally unfair in
light of governing law,” Slate v. Am. Broad. Companies, Inc., 12
F. Supp. 3d 30, 35–36 (D.D.C. 2013). Here, Plaintiffs do not
specify any clear error or raise any contentions that rise to
the level of a manifest injustice. At best, Plaintiffs’ motion
for reconsideration merely explains their profound disagreement
with the Second Circuit and this Court’s previous decisions, but
“[m]ere disagreement does not support a Rule 59(e) motion.” U.S.
ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284,
290 (4th Cir. 2002)(quoting Hutchinson v. Staton, 994 F.2d 1076,
1082 (4th Cir.1993)).
Accordingly, the Court finds that reconsideration is
unwarranted. See Dun v. Transamerica Premier Life Ins. Co., No.
CV 19-40 (JEB), 2020 WL 4001472, at *7 (D.D.C. July 15, 2020)
12 (denying motion for reconsideration where the plaintiff did “not
come close to satisfying” the clear error or manifest injustice
criteria); Smith v. Finley, No. CV 19-1763 (RC), 2020 WL
5253982, at *3 (D.D.C. Sept. 3, 2020)(denying a plaintiff’s
motion for reconsideration, of the court’s decision that it
lacked subject matter jurisdiction, where the plaintiff failed
to “raise any ‘intervening change of controlling law,’ allege
any new evidence, or establish any clear error in the Court's
prior ruling as required under Rule 59(e)”).
For these reasons, the Court DENIES Plaintiffs’ Motion for
Reconsideration, ECF No. 22.
B. Plaintiffs’ Counsel is Subject to Sanctions Pursuant to Rule 11, and Defendant is Entitled to Reasonable Attorneys’ Fees and Costs Pursuant to 28 U.S.C. § 1927
In its Motion for Sanctions, Romarm requests sanctions
against Plaintiffs and their counsel, Daniel Wemhoff, Esq. (“Mr.
Wemhoff”), on the grounds that Plaintiffs’ continued prosecution
of this case is: “(1) not warranted by existing law; (2)
unsupported by a nonfrivolous argument for extending, modifying,
or reversing existing law or for establishing new law; and (3)
brought for an improper purpose and/or is designed to harass
Defendant.” Def.’s Sanctions Mot., ECF No. 27 at 1.
For his part, Mr. Wemhoff argues that “he re-filed this
case on a good faith basis . . . in this forum after the Law of
the Case, that plaintiffs lacked personal jurisdiction, was
13 overturned after it left this forum in 2012, because then, as it
was known, Romarm had no legal ties to the District of
Columbia.” Pls.’ Sanctions Opp’n, ECF No. 32 at 1-2 (emphasis
added).2 He also states that Romarm’s “last-ditch filing, only
after Plaintiffs’ Rule 59(e) was filed . . . appears to be
driven by a worrisome outcome to what is normally a perfunctory
motion.” Id. at 1. Mr. Wemhoff then goes onto repeat his prior
jurisdictional arguments. See generally, id.
The record is this action indicates that sanctions against
Mr. Wemhoff, pursuant to Rule 11 and the awarding of attorneys’
fees and costs to Romarm, pursuant to 28 U.S.C. § 1927 are
appropriate.
Under Rule 11, there “are procedural and substantive
requirements set forth in the Rule that must be met before a
court may impose sanctions.” Naegele, 355 F. Supp. 2d at 143
(internal citations omitted). “Rule 11 mandates that sanctions
be imposed only ‘after notice and a reasonable opportunity to
respond.’” Id. (citing Fed. R. Civ. P. 11(c)) (internal brackets
2 Mr. Wemhoff states that he “was given 2 ½ days to oppose [Romarm’s motion for] sanctions.” Pls.’ Sanctions Opp’n, ECF No. 32 at 1. However, Mr. Wemhoff’s original motion for extension of time, ECF No. 30, was filed on June 13, 2020, one day passed the deadline to file a response, see LCvR 7(b), and was labeled as “unopposed” even though he had not received Romarm’s consent. Though the Court denied Mr. Wemhoff’s request for a 60-day extension to respond to Romarm’s sanctions motion, in total Mr. Wemhoff had approximately 18 days to file his response. See June 17, 2020 Min. Order. 14 omitted). Further, Rule 11 provides a safe harbor of twenty-one
days for the “challenged paper, claim, defense, contention, or
denial [to be] withdrawn or appropriately corrected.” Fed. R.
Civ. P. 11(c)(2).
The Court finds that Romarm has met Rule 11’s procedural
requirement. Romarm states that it provided Mr. Wemhoff with
notice of its intention to file its motion for sanctions and
gave him a reasonable opportunity to withdraw Plaintiffs’ motion
for reconsideration on May 7, 2020. See Def.’s Sanctions Mot.,
ECF No. 27 at 7; see also May 7, 2020 Notice of Intent to File
Rule 11 Motion, ECF No. 27-1. Mr. Wemhoff did not withdraw any
of Plaintiffs’ motions within twenty-one days of his receiving
Romarm’s notice, and Romarm filed its motion for sanctions on
May 29, 2020. See Def.’s Sanctions Mot., ECF No. 27.3
Next, “for the substantive requirements of Rule 11, the
court applies ‘an objective standard of reasonable inquiry on
represented parties who sign papers or pleadings.’” Naegele, 355
F. Supp. 2d at 143–44 (quoting Bus. Guides, Inc. v. Chromatic
Communications Enterprises, 498 U.S. 533, 554 (1991)). As noted
above, “sanctions may be imposed if [the] reasonable inquiry
discloses the pleading, motion, or paper is (1) not well
3 Mr. Wemhoff later withdrew Plaintiffs’ motion for recusal, after it had been fully briefed, on October 23, 2020. See Notice of Withdrawal of Mot., ECF No. 46. 15 grounded in fact, (2) not warranted by existing law or a good
faith argument for the extension, modification, or reversal of
existing law, or (3) interposed for any improper purpose such as
harassment or delay.” Westmoreland v. CBS, Inc., 770 F.2d 1168,
1174 (D.C.Cir.1985).
Since this Court has already found that Plaintiffs’ claims
that FSIA provided this Court with personal jurisdiction over
Romarm were precluded, see MTD Mem. Op., ECF No. 21 at 9; the
Court finds that Plaintiffs’ current round of pleadings are “not
warranted by existing law”, see id.; and are in bad faith. See
McLaughlin v. Bradlee, 803 F.2d 1197, 1205 (D.C. Cir. 1986)
(“[W]hen preclusion doctrine clearly forecloses consideration of
the merits, the groundlessness of the litigation or the bad
faith in which it was brought may become especially apparent.”).
Even in his response, Mr. Wemhoff continues to assert that this
Court’s decision concerning personal jurisdiction was
“overturned,” see Pls.’ Sanctions Opp’n, ECF No. 32 at 2; but
has never provided “any reasonable factual or legal basis to
support . . .[his] claim[].” Reynolds v. U.S. Capitol Police
Bd., 357 F. Supp. 2d 19, 26 (D.D.C. 2004). His “abuse of the
judicial process constitutes an egregious violation of Rule 11
in the judgment of this Court.” Id. at 25; see also Del Canto v.
ITT Sheraton Corp., 865 F. Supp. 934, 939 (D.D.C. 1994) (noting
that “it is without doubt appropriate to impose some sanction
16 under Rule 11 in order to deter repetition of the unacceptable
conduct of counsel and ‘comparable conduct by others similarly
situated.’”) (quoting Fed. R. Civ. P. 11(c)(2))).
Further, Mr. Wemhoff’s pending motions have clearly
“unreasonably and vexatiously” multiplied this litigation. See
LaPrade, 146 F.3d at 906. The record easily confirms that, with
the exception of the District of Maryland’s decision in Williams
VI 2017, Mr. Wemhoff has continued to file briefs in which he
makes arguments that disregard the judicial findings of all the
other courts that have reviewed this action. See generally,
Recon. Mot., ECF No. 22 (arguing that: (1) this Court’s decision
in Williams I 2013 was overturned by the District of Maryland’s
decision in Williams VI 2017; and (2) the Second Circuit’s
decision was incorrect because it failed to consider that
personal jurisdiction and subject matter jurisdiction are
intertwined under FSIA); see also Pls.’ Sanctions Opp’n, ECF No.
32 (same).
Moreover, Mr. Wemhoff filed Plaintiffs’ own motion for
sanctions, see Pls.’ Sanctions Mot., ECF No. 34; claiming that
Romarm has “prolonged this case” by seeking “to deprive this
court of jurisdiction by acts of fraud and deception, in (1)
suborning the filing of a false affidavit; (2) concealing the
Law of the Case, and (3) other devious tactics to undermine the
courts adjudication of jurisdiction,” id. at 1. Mr. Wemhoff, who
17 does not even claim to satisfy Rule 11(c)’s procedural
requirement, see Fed. R. Civ. P. 11(c), goes on to state that
(1) “this court, in the former case [Williams I 2013],
unwittingly fell prey to Romarm’s deception,” id. at 4; and (2)
“plaintiffs [had] proved prima facie personal jurisdiction over
Romarm, that remains persuasive law in this re-filed case, and
is plausibly conducive to subject matter jurisdiction,” id. at
18.
“Not only are [Mr. Wemhoff’s] accusations in his motion for
sanctions plainly without merit, the filing itself is abusive
and vexatious.” In re Yelverton, 526 B.R. 429, 431 (D.D.C.
2014). Mr. Wemhoff declares that “Romarm’s attorneys perpetrated
a fraud on the court” by producing an affidavit that “steer[ed]
this court away from deciding subject matter jurisdiction based
on its import-exports” and “forcing [the Court] instead into
taking the path of least resistance, by dismissing this case for
lack of personal jurisdiction.” Pls.’ Sanctions Mot., ECF No. 34
at 2. However, Mr. Wemhoff’s accusation has no merit.
In Williams I 2013, the Court held that “[n]owhere in the
complaint or in any of the briefing does plaintiff suggest that
[Romarm] has ‘continuous and systematic’ contacts with the
District of Columbia that would subject it to the general
jurisdiction of this forum.” 187 F. Supp. 3d at 71 (emphasis
added). Mr. Wemhoff has never refuted this, nor found any
18 support connecting Romarm to the District of Columbia. That Mr.
Wemhoff was later able to convince the District of Maryland that
Romarm had sufficient connections to the State of Vermont has no
bearing on the findings of this Court. See In re Yelverton, 526
B.R. at 431-32 (denying petitioner’s motion for sanctions where
the petitioner had himself made “abusive and vexatious” claims
that had been repeatedly “rejected as baseless”). Further, when
Plaintiffs were able to raise an argument for subject matter
jurisdiction in the District of Vermont, that court found that
it lacked subject matter jurisdiction over claims against Romarm
under FSIA. See Williams VII 2017, 2017 WL 3842595, at *6.
The Court also takes issue with Mr. Wemhoff’s insinuation
that the Court has somehow fell “prey” to Romarm’s arguments
concerning jurisdiction. See Pls.’ Sanctions Mot., ECF No. 34 at
3. It is axiomatic that before a court reviews the merits of any
suit, it must ensure that it has both subject matter
jurisdiction over the claim and personal jurisdiction over the
defendant. See Barry v. Islamic Republic of Iran, 410 F. Supp.
3d 161, 171 (D.D.C. 2019) (citing James Madison Ltd. by Hecht v.
Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996); Braun v. Islamic
Republic of Iran, 228 F. Supp. 3d 64, 74 (D.D.C. 2017)). As
noted by this Court and the district courts in both Maryland and
Vermont, it is Plaintiffs’ burden to establish that a court has
personal jurisdiction over Romarm. See Williams I 2013, 187 F.
19 Supp. 3d at 70 (“plaintiff bears the burden of establishing a
factual basis for personal jurisdiction over the defendant(s)”);
Williams III 2015, 116 F. Supp. 3d at 635 (“It is the
plaintiff's burden to establish personal jurisdiction by a
preponderance of the evidence.”); Williams VII 2017, 2017 WL
3842595, at *3 (Under FSIA, the “party seeking to establish
jurisdiction bears the burden of producing evidence establishing
that a specific exception to immunity applies”). Each of these
courts found that Plaintiffs did not meet their burden of
establishing both personal jurisdiction and subject matter
jurisdiction in their courts.
Because Mr. Wemhoff disregards this Court’s decisions in
Williams I 2013; the D.C. Circuit’s decision in Williams II 2014
affirming this Court’s ruling, the District of Maryland’s
decisions in Williams III 2015, Williams IV 2016, and Williams V
2016; the District of Vermont’s decisions in Williams VII 2017
and Williams VIII 20174; and the Second Circuit’s decision in
Williams IX 2018 affirming the District of Vermont’s ruling, the
Court infers “malicious intent from [the] total lack of factual
or legal basis in [Mr. Wemhoff’s] filings.” See Hall, 219 F.
4 Notably, in Williams VIII 2017, the District of Vermont denied another of Mr. Wemhoff’s Rule 59(e) motions, stating that Plaintiffs “point[ed] to no theories, facts, or court decisions that were unavailable to them” in the under case and that Plaintiffs only sought “an opportunity for both re-argument and reconsideration.” 2017 WL 6729849, at *2. 20 Supp. 3d at 119. Since this Court has found “that [the] pleading
is not well grounded in fact, not warranted by existing law or a
good faith argument for the extension, modification or reversal
of existing law, [and] is interposed for an[] improper purpose,
‘Rule 11 requires that sanctions of some sort be imposed.’”5
Rafferty v. NYNEX Corp., 60 F.3d 844, 852 (D.C. Cir. 1995)
(citing Westmoreland, 770 F.2d at 1174–75).
Rule 11 requires that any sanctions imposed “be limited to
what suffices to deter repetition of the conduct or comparable
conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(4).
However, a court may not impose a monetary sanction on a
represented party for putting forth claims that are not
warranted by existing law or making frivolous arguments to
change existing law. Fed. R. Civ. P. 11(c)(5)(A). Finally, the
district court has “discretion to ‘tailor Rule 11 sanctions as
appropriate to the facts of the case,’ striking a balance
between equity, deterrence, and compensation.” Reynolds, 357 F.
Supp. 2d at 26 (citing Hilton Hotels Corp. v. Banov, 899 F.2d
40, 46 (D.C.Cir.1990)).
This Court previously imposed a “$1,000 penalty” to be paid
5 Having already referred Mr. Wemhoff to the District of Columbia Bar Disciplinary Counsel and to the United States District Court for the District of Columbia Committee on Grievances, see MTD Mem. Op., ECF No. 21 at 24, the Court will update those entities with the Court’s additional findings. 21 to the Clerk of Court, finding that the sanction was “not more
severe than reasonably necessary to deter repetition of the
conduct.” MTD Mem. Op., ECF No. 21 at 22. Since most of the
Court’s findings concern Mr. Wemhoff’s disregard of existing
court precedent and implausible view of existing law, the Court
will not sanction Plaintiffs as the represented parties. For his
continued waste of judicial resources, even in the face of the
Court’s previously imposed penalty, the Court has determined in
its discretion that Mr. Wemhoff shall pay to the Clerk of the
Court an additional $5,000 penalty. In addition, pursuant to 28
U.S.C. § 1927, for his “unreasonably and vexatiously” extending
these proceedings, the Court has determined that Mr. Wemhoff
shall “reimburse [Romarm] the full cost of defending this
action” by paying its reasonable attorneys’ fees and costs for
all work completed since the filing of Plaintiffs’ motion for
reconsideration, ECF No. 22, on April 28, 2020. See John Akridge
Co. v. Travelers Companies, 944 F. Supp. 33, 34 (D.D.C. 1996),
aff'd, No. 95-7237, 1997 WL 411654 (D.C. Cir. June 30, 1997).
For these reasons, the Court GRANTS Romarm’s Motion for
Sanctions, ECF No. 27; and DENIES Plaintiffs’ First Motion for
Sanctions, ECF No. 34.
Further, Romarm requests that the Court strike Plaintiffs’
First Motion for Sanctions “because (1) it is procedurally
improper, (2) it improperly contains disparaging personal
22 attacks, and (3) it is filed for an improper purpose.” Def.’s
Strike Mot., ECF No. 37 at 3. In response, Plaintiffs argue that
Romarm’s motion to strike “Plaintiffs’ Motion for Sanctions is
more obsessed with killing the messenger than dealing with their
lack of candor to the courts exhibited throughout these
proceedings.” Pls.’ Combined Resp., ECF No. 39 at 1. “Pursuant
to Federal Rule of Civil Procedure 12(f), a court may strike a
pleading, or portions thereof, for insufficiency, redundancy,
immateriality, impertinence or scandalousness.” Judicial Watch,
Inc. v. U.S. Dep't of Commerce, 224 F.R.D. 261, 263 (D.D.C.
2004)(citing Fed. R. Civ. P. 12(f)). “A court has broad
discretion in ruling on a motion to strike; however, striking
portions of a pleading is a drastic remedy, and motions to
strike are disfavored.” Uzlyan v. Solis, 706 F. Supp. 2d 44, 51
(D.D.C. 2010). Here, though the Court agrees that some of the
assertions in Plaintiffs’ Motion for Sanctions are indeed
scandalous and impertinent, the Court is not in favor of
striking the motion because, as noted above, the Court has
considered the motion in its determination that Plaintiffs’
counsel, Mr. Wemhoff, should himself be sanctioned.
For these reasons, the Court DENIES Def.’s Strike Mot., ECF
No. 37.
C. A Pre-Filing Injunction Against Plaintiffs is Warranted
“The constitutional right of access to the courts ‘is
23 neither absolute nor unconditional.’” In re Yelverton, 526 B.R.
at 432 (quoting In re Green, 669 F.2d 779, 785 (D.C.Cir.1981)).
The Court “‘has an obligation to protect and preserve the sound
and orderly administration of justice.’” Id. (quoting Urban v.
United Nations, 768 F.2d 1497, 1500 (D.C.Cir.1985)). To “stem
the flow of frivolous actions,” a pre-filing injunction may be
issued to “protect the integrity of the courts and the orderly
and expeditious administration of justice.” Caldwell v. Obama, 6
F. Supp. 3d 31, 49–50 (D.D.C. 2013)(citing Urban, 768 F.2d at
1500). Before a court can issue such an injunction,
(1) the affected litigant must be provided with “notice and an opportunity to be heard,” or the chance to “oppose the entry of an order restricting him before it is entered”; (2) the court must create an “adequate record for review”; and (3) the court must “make substantive findings as to the frivolous or harassing nature of the litigant's actions.”
Crumpacker v. Ciraolo-Klepper, 288 F. Supp. 3d 201, 204 (D.D.C.
2018) (quoting Gharb v. Mitsubishi Elec. Corp., 148 F.Supp.3d
44, 56 (D.D.C. 2015)). However, the “requirement of notice and
an opportunity to be heard can be satisfied without a hearing in
court, so long as the affected litigants have an opportunity to
contest the injunction in briefing.” Crumpacker, 288 F. Supp. 3d
at 204 (citing Smith v. Scalia, 44 F.Supp.3d 28, 46 (D.D.C.
2014)).
In view of the history of this action, stretching back to
24 2011, with Plaintiffs filing lawsuits against Romarm “in no less
[than] nine separate actions across three circuits, with all
actions involving the same parties and the same operative
facts,” see October 8, 2020 Min. Order (“Oct. MO”), the Court,
sua sponte, ordered (1) Plaintiffs to file a supplemental brief
showing “why the Court should not enter a vexatious litigants
pre-filing injunction against the plaintiffs in this case,” and
(2) Romarm to file a supplemental response to Plaintiffs’ brief,
see id.
In reply to the Court’s order, Plaintiffs argue that: (1)
their Rule 59(e) motion is “based on ‘clear error’ and ‘manifest
injustice’” because “plaintiffs’ argued correctly in opposition
that they had attained personal jurisdiction over defendant,
Romarm, subsequent to this court’s similar dismissal when
plaintiffs were before this same court in 2013,” Pls. Suppl.
Resp., ECF No. 44 at 1-2; (2) “Personal jurisdiction,
heretofore, the Law of the Case, requires coordinate courts to
adopt it and arguably consider its constitutional significance
for subject matter jurisdiction under clause 1 . . . and as a
result, [Romarm] must be denied sovereign immunity,” id. at 2;
(3) the case was refiled in the District of Columbia because it
is the “forum designated by federal statute for suits against
foreign entities,” id. at 2 (citing 28 U.S.C. § 1391(f)(4)); (4)
personal and subject matter jurisdiction are “inextricably
25 intertwined” and was brought to the Court’s attention but
“disregarded favoring Romarm’s outmoded argument that the
court’s 2013 dismissal for lack of personal jurisdiction
prevailed, which it did not,” and “Plaintiffs’ prevailing Law
of the Case doctrine was re-asserted in their Rule 59(e) motion,
now pending, and as well as in their opposition to defendant’s
motion for sanctions pending,” Pls. Suppl. Resp., ECF No. 44 at
2-3; and (5) that three factors forced Plaintiffs from this
forum: (a) Romarm’s “perjured statement caused the court to
bypass subject matter jurisdiction under the FSIA and dismiss
this case on personal jurisdiction alone leaving it up to the
plaintiffs to secure another venue for jurisdiction,” (b) “this
Court’s denial of plaintiffs’ attempted limited jurisdictional
discovery which would have fleshed out Romarm’s firearms sales
to a U.S.,” and (c) “Plaintiffs[’] unawareness, and seemingly
that of the court’s, that venue under federal law and its rules,
designate the District Court of the District of Columbia as the
forum for suits against foreign states and aliens wherever
personal jurisdiction might exist,” id. at 4-5. Believing that
the Court’s request for briefing on a “vexatious litigants pre-
filing injunction” stems solely from Plaintiffs’ filing an
inappropriate, and now stricken, motion for summary judgement,
even though the case had been dismissed, see Oct. MO; Plaintiffs
argue that Crumpacker “offers little relevance to a single
26 motion for judgment in this case, or its predicate re-filing,
for injunctive relief, where no less than 13 pleadings were
filed in the above case under both real and assumed identities”
and Plaintiffs’ “filing for summary, or partial judgment was not
for purposes of delay or obfuscation, but to expedite and
incapsulate the jurisdiction issues in the proceedings,” Pls.
Suppl. Resp., ECF No. 44 at 6-7.
In its response to the Court’s order and in reply to
Plaintiffs’ supplemental response, Romarm first argues that,
that “although an identical matter was dismissed by this Court
for lack of personal jurisdiction seven years ago (and affirmed
on appeal), Plaintiffs filed the same lawsuit against Romarm,”
and “[d]espite numerous opportunities, Plaintiffs have never
cited legal authority permitting such a re-filing.” Def.’s
Suppl. Resp., ECF No. 47 at 2. Further, Romarm contends that
Plaintiffs’ counsel (1) “attempts to deflect from his own
vexatious conduct by continuing to baselessly denigrate
Defendant,” id.; (2) “blames the Court for not understanding the
law, denying the opportunity to conduct discovery, and for
referring Plaintiffs’ counsel for professional review,” id.; and
(3) “filing of this lawsuit, inappropriate filing of a motion
for reconsideration (and a motion to supplement the motion for
reconsideration), filing a dubious motion to recuse, filing a
retaliatory motion for sanctions, and incorrectly filing a
27 motion for summary judgment were procedural assaults launched,
and strategic decisions made, by Plaintiffs’ counsel alone,” id.
Next, Romarm states that Plaintiffs’ filing of a motion for
summary judgment when the case has been dismissed is not an
isolated incident, as Plaintiffs “have demonstrated a pattern of
submitting baseless filings; filing beside-the-point and
vexatious supplemental briefs; ignoring settled case law and
precedent; failing to accurately disclose the procedural or
factual history; misconstruing legal doctrines; failing to
comply with Federal Rules and Local Rules; and otherwise
harassing Defendant and burdening this Court.” Id. at 4.
Finally, Romarm argues that a pre-filing injunction is warranted
because “there is a clear pattern of harassment of, and
frivolous filings against, Romarm.” Id. at 5.
The record in this action demonstrates that a nationwide
pre-filing injunction against Plaintiffs and Mr. Wemhoff, based
on the same operative facts, is warranted. First, Plaintiffs
were given “notice and an opportunity to be heard,” see
Crumpacker, 288 F. Supp. 3d at 204, via the Court’s October 8,
2020 Minute Order, see Oct. MO; to which Plaintiffs responded on
October 22, 2020, see Pls. Suppl. Resp., ECF No. 44.
Second, the record in this action is clear. Plaintiffs
filed an action against the same defendant, Romarm, alleging the
same claims, based on the same operative facts as in Civil
28 Action No. 12-436 on March 20, 2012. See Dkt. 12-436.6 Mr.
Wemhoff’s theory for this Court’s jurisdiction over Romarm was
properly assessed and the Court found that (1) it lacked
personal jurisdiction over Romarm pursuant to FSIA, See Williams
I 2013, 187 F. Supp. 3d at 69 (noting that it “is simply not the
law in this Circuit” that “a foreign corporation that is state-
owned under the FSIA is automatically subject to personal
jurisdiction in this Court”); (2) jurisdictional discovery was
not warranted, id. at 73; and (3) the “Court's conclusion that
it lacks personal jurisdiction over [Romarm] moots defendant's
argument that the Court also lacks subject-matter jurisdiction,
and the Court need not reach the latter issue,” id. The D.C.
Circuit later affirmed this Court’s findings. See Williams II
2014, 756 F.3d at 781, 787 (“Appellants have failed to allege
any conduct by Romarm that was purposely directed toward the
District of Columbia.”). Absent a successful review to the
Supreme Court, this should have ended Plaintiffs’ claims against
Romarm based on the same operative facts.
Plaintiffs went on to bring this case in both the Districts
6 The Court notes that the action in Docket 12-436 was filed, while a related case involving the exact same parties, allegations, and facts was pending before Judge Amy Berman Jackson in Civil Action No. 11-1924. The Court has previously found that Mr. Wemhoff violated Local Civil Rule 40.5(b)(4) when he failed to notify this Court of the related case. See MTD Mem. Op., ECF No. 21 at 23. 29 of Maryland and Vermont. In Williams III 2015, the Court ruled
that “because the United States District Court for the District
of Columbia has already decided [the] issue [of personal
jurisdiction] in the parties' prior case, the doctrine of
collateral estoppel (issue preclusion) bars Plaintiffs from re-
litigating this question before this Court.” 116 F. Supp. 3d at
636. In Williams IV 2016, noting that the Plaintiffs had
recently alleged that “Romarm has received at least $1 million
in revenue from sales of its weapons that have been stored in
Maryland or sold by affiliated dealers in Maryland,” the court
allowed Plaintiffs to file an amended complaint, 2016 WL
4548102, at *2; and after Plaintiffs filed their amended
complaint, the court dismissed that complaint “[b]ecause
Plaintiffs ha[d] failed to cure the jurisdictional defects
necessitating dismissal of the original Complaint,” Williams V
2016, 2016 WL 5719717, at *1. In one final push before the
District of Maryland, Plaintiffs filed a motion to transfer the
action to the District of Vermont, which the court granted
because the Court found that “Plaintiffs ha[d] made a prima
facie showing [that Romarm had] both a regular course of sales
into Vermont and a specific effort to target the state of
Vermont.” Williams VI 2027, 2017 WL 87014, at *1. However, after
several rounds of briefings in the District of Vermont, that
court held that it lacked subject matter jurisdiction because
30 “Plaintiffs’ Amended Complaint is not ‘based upon’ Defendant's
conduct within the meaning of the FSIA,” Williams VII 2017, 2017
WL 3842595, at *6; and in Williams VIII 2017, that same court
denied Plaintiffs’ Rule 59(e) motion finding that “Plaintiffs
point[ed] to no theories, facts, or court decisions that were
unavailable to them when they opposed Defendant's motion to
dismiss” and noting that Romarm’s “motion to dismiss was not
only fully briefed, [but] it was [also] the subject of extensive
oral argument,” 2017 WL 6729849, at *2. Finally, the Second
Circuit, affirmed the lower court finding that it lacked subject
matter jurisdiction and affirmed the lower court’s denial of
Plaintiffs’ Rule 59(e) motion, finding that Plaintiffs waived
their “commercial exception” argument pursuant to clause one of
the FSIA. See Williams IX 2018, 751 F. App'x at 23.
The Court finds that the record readily demonstrates the
frivolousness of Plaintiffs’ filings. Plaintiffs have had
numerous “bites at the apple” but have only rehashed and
repeated a plethora of arguments that numerous courts have
already fully addressed and resolved. In Plaintiffs’
supplemental response to the Court’s Oct. MO, Mr. Wemhoff asks
“what canon of ethics stand in the way of plaintiffs’ zealously
searching for jurisdiction”? Pls. Suppl. Resp., ECF No. 44 at 6-
7. Rule 3.1 of the District of Columbia Rules of Professional
Conduct states that a “lawyer shall not bring or defend a
31 proceeding, or assert or controvert an issue therein, unless
there is a basis in law and fact for doing so that is not
frivolous, which includes a good-faith argument for an
extension, modification, or reversal of existing law.” (emphasis
added). When an attorney disregards a court’s prior rulings,
fails to note related cases, violates the Federal Rules of Civil
Procedure and the Court’s local rules, and continues to bring
claims using arguments that have already been assessed by other
courts, the attorney has stepped outside the zone of zealous
representation, and into the realm of bad-faith ligation. As has
long been recognized, “[i]t is emphatically the province and
duty of the [courts] to say what the law is.” Marbury v.
Madison, 5 U.S. 137, 177 (1803). Though Mr. Wemhoff may disagree
with the Court’s ruling, absent a successful appeal, that ruling
must stand. Regarding this litigation, “[a]t some point,
litigation must come to an end” and as far as this Court is
concerned, “[t]hat point has now been reached” in this case.
Facebook, Inc. v. Pac. Nw. Software, Inc., 640 F.3d 1034, 1042
(9th Cir. 2011).
“For the foregoing reasons, the Court finds that
[Plaintiffs’] repeated filings of meritless complaints in this
district [and other districts] is vexatious, harassing, and
‘imposes an unwarranted burden on the orderly and expeditious
administration of justice.’” Crumpacker, 288 F. Supp. 3d at 206.
32 Accordingly, Plaintiffs are ENJOINED from filing in any United
States District Court any new civil action against Romarm or any
defendant, based on the same operative facts, without first
seeking leave to file such a complaint. Id.
V. Conclusion
For the reasons set forth above, the Court DENIES Motion
for Reconsideration, ECF No. 22; GRANTS Defendant’s Motion for
Sanctions, ECF No. 27; DENIES Plaintiffs’ First Motion for
Sanctions, ECF No. 34; DENIES Defendant’s Motion to Strike
Plaintiffs’ First Motion for Sanctions, ECF No. 37, and ENJOINS
Plaintiffs from filing in any United States District Court any
new civil action against Romarm or any defendant, based on the
same operative facts, without first seeking leave to file such a
A separate Order accompany this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge January 14, 2021