SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Civil Division
BRADLEE DEAN, et. al., Plaintiffs,
v.
NBC UNIVERSAL, et. al.,
Defendants.
Civil Action No: 2011 CA 006055 B
CORRECTED NOTICE OF FILING OF SUPERIOR COURT RULE 63-I AFFIDAVIT,
CERTIFICATE, AND MEMORANDUM OF LAW
Plaintiffs Bradlee Dean and You Can Run But You Cannot Hide International hereby file,
pursuant to Superior Court Rule 63-I, an affidavit setting forth grounds for the recusal and or
disqualification of Judge Zeldon (Exhibit 1)1, Certification of Counsel (Exhibit 2) and the
accompanying Memorandum Of Law In Support Of Affidavit And Certification For Recusal Or
Disqualification Of Judge (Exhibit 3) in the above styled lawsuit.
Dated: July 10, 2012
Respectfully Submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
D.C. Bar No. 334581
Klayman Law Firm
2020 Pennsylvania Ave. NW #345
Washington, DC 20006
Tel: (310) 595-0800
Email: [email protected]
1 In the previous filing of July 9, 2012 the affidavit was inadvertently scanned missing a page of the affidavit. Page
six (6) of the affidavit has been inserted into this corrected notice.
Exhibit 1
Exhibit 2
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Civil Division
BRADLEE DEAN, et. al., Plaintiffs,
v.
NBC UNIVERSAL, et. al.,
Defendants.
Civil Action No: 2011 CA 006055 B
CERTIFICATE OF COUNSEL
I certify that I am counsel of record for Bradlee Dean and You Can Run But You Cannot
Hide International, co-claimants in the above named action. I am informed as to the proceedings
in the above-entitled action, and Plaintiffs' Affidavit and accompanying Memorandum Of Law In
Support Of Affidavit And Certification For Recusal Or Disqualification Of Judge were made in
good faith and not for the purpose of hindrance or delay.
Dated: July 9, 2012
Respectfully Submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
D.C. Bar No. 334581
Klayman Law Firm
2020 Pennsylvania Ave. NW #345
Washington, DC 20006
Tel: (310) 595-0800
Email: [email protected]
Exhibit 3
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Civil Division
BRADLEE DEAN, et. al., Plaintiffs,
v.
NBC UNIVERSAL, et. al.,
Defendants.
Civil Action No: 2011 CA 006055 B
MEMORANDUM OF LAW IN SUPPORT
OF AFFIDAVIT AND CERTIFICATION FOR RECUSAL OR DISQUALIFICATION
OF JUDGE
"In order to preserve the integrity of the judiciary, and to ensure that justice is carried out
in each individual case, judges must adhere to high standards of conduct." York v. United States,
785 A.2d 651, 655 (D.C. 2001). "A judge should disqualify himself in a proceeding in which his
impartiality might reasonably be questioned. . . ." ABA Code Of Judicial Conduct Canon 3(C)(1)
see also Scott v. United States, 559 A.2d 745, 750 (D.C. 1989) (en banc).
Recusal is required when judicial remarks create the appearance that the court's
impartiality may be called into question, and "could suggest, to an outside observer, such a 'high
degree of favoritism or antagonism' to defendants' position that 'fair judgment is impossible.'
Liteky v. United States, 510 U.S. 540, 555, 127 L. Ed. 2d 474, 114 S. Ct. 1147 (1994)); See also
Jackson v. Microsoft Corp., 135 F. Supp. 2d 38, 40 (D.D.C. 2001) (recusal was proper because
the judge "ha[d] created an appearance of personal bias or prejudice").
Judicial bias "has been described as a ‘hostile feeling or spirit of ill will or undue
friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed
2
anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind
which will be governed by the law and the facts.’” State v. LaMar, 95 Ohio St. 3d 181, 189
(2002). The courts strive to eliminate even the appearance of bias. "Thus even if there is no bias
in fact, an appearance of bias or prejudice requires recusal if it is sufficient to raise a question in
the mind of 'the average citizen' about a judge's impartiality." York, 785 A.2d at 655.
In the Superior Court for the District of Columbia, recusal is by statute. Civil Procedure
rule 63-I, which is analogous to 28 U.S.C. § 144, provides in its entirety:
Rule 63-I. Bias or prejudice of a judge.
(a) Whenever a party to any proceeding makes and files a sufficient affidavit that
the judge before whom the matter is to be heard has a personal bias or prejudice
either against the party or in favor of any adverse party, such judge shall proceed
no further therein, but another judge shall be assigned, in accordance with Rule
40-I(b), to hear such proceeding.
(b) The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists and shall be accompanied by a certificate of counsel of record
stating that it is made in good faith. The affidavit must be filed at least 24 hours
prior to the time set for hearing of such matter unless good cause is shown for the
failure to file by such time.
Super. Ct. Civ. R. 63-I. It is clear that there is no discretion involved. Rule 63-I states "such
judge shall proceed no further therein." Id. (emphasis added). Indeed, As the Court of Appeals
for the District of Columbia has consistently held, "[t]he rule is by its terms mandatory." In re
Evans, 411 A.2d 984, 993 (D.C. 1980) citing Brotherhood of Locomotive Firemen & Enginemen
v. Bangor & Aroostook Railroad Co., 380 F.2d 570, 576 (D.C. 1967), cert. denied, 389 U.S. 327,
88 S. Ct. 437, 19 L. Ed. 2d 560. "If an affidavit meets the rule's standards, the judge has a duty to
recuse himself." Id. citing Morse v. Lewis, 54 F.2d 1027, 1031 (4th Cir.), cert. denied, 286 U.S.
557, 76 L. Ed. 1291, 52 S. Ct. 640 (1932) (emphasis added).
The criteria that trigger mandatory recusal are as follows: "1. The facts must be material
and stated with particularity; 2. The facts must be such that, if true they would convince a
3
reasonable man that a bias exists; 3. The facts must show the bias is personal as opposed to
judicial, in nature." In re Bell, D.C.App., 373 A.2d 232, 234 (D.C. 1977). See also State v.
LaMar (2002), 95 Ohio St. 3d 181, 189 (“Judicial bias has been described as a ‘hostile feeling or
spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with
the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished
from an open state of mind which will be governed by the law and the facts.’”).
Courts have also held that a jurist is subject to disqualification when extra‐judicial bias
toward the client’s attorney becomes manifest. Souder v. Owens‐Corning Fiberglas Corp. 939 F.
2d 647, 653 (8th Cir. 1991) ("bias against an attorney can reasonably be imputed to a party").
939 F. 2d at 653; United States v. Sykes, 7 F. 3d 1331 (7th Cir. 1993). See also United States v.
Jacobs, 855 F. 2d 652, 656 (9th Cir. 1988); In re Beard, 811 F. 2d 818, 830 (4th Cir. 1987);
United States v. Ritter, 540 F. 2d 459, 462 (10th Cir. 1976); Davis v. Board of Sch. Comm’rs,
517 F. 2d 1044, 1050‐51 (5th Cir. 1975). Judges have also been disqualified for their comments
made in the course of a lawsuit. See generally In re Disqualification of Hoover, 113 Ohio St. 3d
1233 (2006) (disqualifying a judge who had made belittling comments toward a party in the
course of litigation); Disciplinary Counsel v. Squire, 116 Ohio St. 3d 110 (2011) (holding that
rude comments by a family court judge and his refusing to disqualify himself in a child custody
proceeding violated the Code of Judicial Conduct).
It is evident that Judge Zeldon held and continues to hold a bias against the Plaintiffs and
in favor of Defendants. Judge Zeldon's favoritism toward Defendants and prejudice against
Plaintiffs, their religious beliefs, and this lawsuit, caused Judge Zeldon to be unable to
impartially rule upon this case. In accordance with the Bell standards, Plaintiff has set forth an
affidavit showing with particularity the material facts which establish Judge Zeldon's clear extra-
4
judicial bias and prejudice. Snide and offensive comments were made regarding Plaintiffs'
counsel's appearance by telephone when he was recovering from a fractured knee that, upon the
doctor’s advice, prevented him from traveling from Los Angeles to Washington, D.C., a five
hour flight. Dean Affidavit ¶ 7. Judge Zeldon’s remarks, in the context of her entire
Memorandum and Order of June 25, 2012, also show her biased and prejudiced view that
Plaintiffs faked an injury in order to delay litigation. Id. Judge Zeldon mocked and ridiculed
Plaintiffs and their counsel while, to the contrary, Judge Zeldon referred to Defendants' counsel
approvingly as "distinguished," stating in effect that Plaintiffs and their counsel are not. Id.
Judge Zeldon went so far as to imply that Plaintiffs were scoundrels for daring to challenge the
inflated attorneys' fees and costs set forth by Defendants. Id. Judge Zeldon denied Plaintiffs'
request for discovery into the true amount of attorneys' fees and costs, instead claiming that
Defendants and their counsel -- without any factual record or basis -- are “distinguished” and
were thus incapable of inflating the fees and costs. Id. Judge Zeldon could also have properly
held a hearing to determine the true amount of attorneys' fees and costs, and allowed for cross
examination, given Plaintiffs' assertion that they were inflated, but would not do so since
Defendants counsel are “distinguished” and Plaintiffs thus are not.
Moreover, at the initial stages of this case, Judge Zeldon chose to hold on to this action,
despite having already announced her retirement from the bench. Dean Affidavit ¶ 4. This was
obviously done so that she could ultimately dismiss Plaintiffs’ claims, with prejudice, and protect
the Defendants while punishing the Plaintiffs. Id. Despite her retirement, and Plaintiffs'
legitimate re-filing of this action to the federal court, Judge Zeldon then threw unnecessary
obstacles into the federal action by threatening to dismiss the case before her with prejudice –
thereby cutting off Plaintiffs' legal rights in federal court -- if Plaintiffs did not pay these inflated
5
and exorbitant fees and costs within 30 days. Id. Plaintiffs had an absolute right to bring the
action against Defendants in the federal court. Id. Indeed, both parties were set to continue
Plaintiffs’ claims in federal court, and were in the same legal position as before Defendants
moved to reinstate this action. A reasonable person could conclude that these actions were an
effort to put an end to Plaintiffs' claims against Defendants.
With all the evidence set forth demonstrating Judge Zeldon's extra-judicial bias in favor
of Defendants and against Plaintiffs, and since Plaintiffs have submitted the requisite affidavit
and certification, Judge Zeldon must, respectfully, remove herself from the proceedings in
accordance with Superior Court Civil Rule 63-I. Accordingly, the Court must recuse itself and
vacate all prior orders.
On July 5, 2012 Plaintiffs contacted counsel for Defendants to ask for their consent to the
recusal of the Court. Defendants did not consent.
Dated: July 9, 2012
Respectfully Submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
D.C. Bar No. 334581
Klayman Law Firm
2020 Pennsylvania Ave. NW #345
Washington, DC 20006
Tel: (310) 595-0800
Email: [email protected]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of July, 2012 a true and correct copy of the foregoing Corrected Notice of Filing Affidavit, Certificate, and Memorandum of Law (Civil Action Number
2011 CA 006055 B) was submitted electronically to the Superior Court of the District of Columbia
Civil Division and served via courier, electronic mail, or U.S. mail upon the following:
Via electronic service and U.S. mail: Laura R. Handman John Rory Eastburg Davis Wright Tremaine LLP 1919 Pennsylvania Ave., N.W., Suite 800 Washington D.C. 20006-3401 [email protected]; [email protected] Attorneys for Defendants NBC Universal, MSNBC and Rachel Maddow Via U.S. mail: Susan Weiner Chelley Talbert NBCUniversal Media, LLC 30 Rockefeller Plaza New York, New York 10112-0002 [email protected]; [email protected] Attorneys for Defendants NBC Universal, MSNBC and Rachel Maddow
Respectfully Submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
D.C. Bar No. 334581
Klayman Law Firm
2020 Pennsylvania Ave. NW #345
Washington, DC 20006
Tel: (310) 595-0800
Email: [email protected]
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