IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
July 3, 2012
KIRSHA BROWN-YOUNGER, PLAINTIFF,
DEFENDANTS. LULU.COM, ET AL.,
The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Kirsha Brown-Younger ("Brown-Younger") is totally out of control.*fn1
Always combative, she has now unraveled to the point where she lashes out at everyone (including this Court) who dares to disagree with her patent misapprehensions about the law (about which she professes to be all-knowing). This Court has reached the conclusion that this action has increasingly become a vehicle for abuse on Brown-Younger's part, rather than a legitimate lawsuit. Accordingly this opinion will conclude by ordering her response as to why dismissal of this action is not appropriate.
Lest there be any sense that this conclusion may simply be a reaction affected by Brown-Younger's personalized attack on this Court, some substantial background explanation is called for. This opinion therefore turns to a review of the bidding.
On that score, to spare the reader the burden of having to retrieve this Court's recent June 19 memorandum opinion and order (Dkt. 67), a copy is attached to this opinion as Ex. 1, to enable it to be read at the outset -- that is, now. . . . When that task has been completed, this opinion will then revert briefly to some of the very early history of this litigation, and it will then return to the present (post-June 19) developments that show the further obsessive misconduct by Brown-Younger that in this Court's view appears to cry out for dismissal.
It is a substantial understatement to say that this Court began its involvement in this case by extending to Brown-Younger every courtesy (as well as every benefit of the doubt). Literally one day after the March 19, 2012 receipt of her Complaint in the Clerk's Office, with a delivery of the judge's copy to this Court's chambers taking place on that same March 19 date, this Court screened the pleading to determine its non-frivolousness.*fn2 It found that Brown-Younger's claim of copyright infringement of her book of poems, Glimpses of Life, appeared plausible enough to satisfy that second component of in forma pauperis qualification, as set out in the cases referred to in n.2.
Accordingly this Court granted Brown-Younger in forma pauperis status immediately --on March 20. Then, when something over a month later Brown-Younger filed a Motion for Appointment of Counsel, it took this Court only a few days to obtain the name of a member of the District Court's trial bar to represent her on a pro bono publico basis and to appoint the lawyer for that purpose.
When it developed that the originally appointed counsel had a conflict of interest, this Court obtained the name of another trial bar member, who shortly thereafter sought and was granted leave to withdraw, after which a third lawyer was obtained for Brown-Younger from the same source. But within a few weeks after that last appointment, Brown-Younger filed a June 5 Motion for Sanctions (Dkt. 45) in which she leveled the following charges against that third counsel as well as against another lawyer who had been appointed to represent her in a different action pending before this Court's colleague Honorable George Lindberg (a case about which this Court has no knowledge):
These Attorneys have jeopardized and sabotaged the integrity of this case, and the court. These Attorneys have committed abuse of process, by misrepresenting the Plaintiff, Kirsha Brown-Younger, on the basis of her disability and race. Both Attorneys have represented the opposing parties, and presented conduct that implies that they are working on the behalf of the opposing counsel. The Attorneys have violated FRCP Rule 11b, by conducting improper purpose.
This Court naturally viewed those accusations as evidencing Brown-Younger's desire to fire the third appointed counsel, and it immediately granted that relief -- but in its June 12 memorandum opinion and order that terminated the lawyer's representation it ordered him to file a written response to Brown-Younger's charges (meanwhile declining to appoint still another lawyer, pending what that response would reveal). Sure enough, the lawyer then filed a detailed and persuasive response that put the lie to Brown-Younger's scurrilous charges.*fn3 Understandably this Court determined that no new counsel would be appointed (a discretionary matter under this District Court's LR 83.39), so that since then Brown-Younger has again been acting pro se.
Only one other matter bears mention about the earlier proceedings in the case. When Brown-Younger sought the entry of an order of default against one of the defendants, Barnes & Noble, Inc., because it had failed to file a responsive pleading, this Court promptly granted that motion and confirmed that conversion of the order of default into a default judgment would require a prove-up hearing. Needless to say, nothing about that aspect of the case contained even a hint of bias on the part of this Court.
Fast forward then to the June 27 hearing that had been anticipated by the attached June 19 opinion. During the course of that hearing it developed that Brown-Younger had filed an ARDC charge (sound familiar?) against the lawyer for defendant Amazon.com, asserting that he had originally appeared on her behalf but had then withdrawn to appear for Amazon -- a clear conflict of interest charge, but simply a flat-out lie. When called on that falsehood, Brown-Younger first crawfished ("I had so many lawyers, several court-appointed, in getting on my case and withdrawing"), after which this Court inquired whether she felt that it was all right "to shoot first and ask questions later." This exchange then took place:
THE COURT: Do you know what a lawyer's reputation involves? Do you know that the idea of filing with the ARDC a complaint about a lawyer is a serious matter?
MS. BROWN-YOUNGER: I have an absolute right to do that. I reserve the right to file it.
THE COURT: You have a right to do that?
MS. BROWN-YOUNGER: The main reason why I filed a complaint against him is because he contacted me e -- by e-mail requesting in his office discovery, that I would -- you know, and I felt like it was ex parte [sic!] communication.
Quite apart from Brown-Younger's apparent predilection for trotting out legal terms and concepts without really knowing what they mean ("ex parte," indeed), her purported explanation is no explanation at all.
As to Amazon, the same June 27 hearing confirmed not only that Amazon had never purchased or sold the Brown-Younger book, but also that the book had not even been listed for sale on Amazon's website. Amazon's counsel had therefore sent Brown-Younger a Fed. R. Civ. P. ("Rule") 11 letter asking that she withdraw her claim against it, triggering a lame excuse on her part that she had assumed that if the book was listed on other booksellers' websites it would have been on Amazon's as well.
To any objective observer, that renders even more shocking the totally false personal attack that Brown-Younger had launched against Amazon's counsel. Despite her protestations that she has a First Amendment right to have done what she did, such a "right" must be understood in the Holmesian sense that anyone who exercises a claimed "right" that harms another must be prepared to pay the price that the law may attach to that exercise. Here it would be totally unfair to Amazon's counsel for Brown-Younger's ARDC charge to be left uncorrected by her, and she is accordingly ordered to file an appropriate retraction and withdrawal of that charge with the ARDC on or before July 12, 2012, with a copy of her filing to be delivered to this Court's chambers solely for informational purposes (not for filing).
This opinion now turns to Barnes & Noble's June 29 presentment of its motion to vacate the order of default that this Court had entered against it -- a motion that Brown-Younger claimed had not been properly noticed (another of her falsehoods). Moreover, that motion and its June 29 scheduling had been expressly spoken of during the June 27 hearing, when this Court had inquired as to whether Barnes & Noble's lawyer was expected to join those present for the hearing. Not only was Brown-Younger present during that discussion, but it is also noteworthy that her extraordinarily frequent filings and her frequent oral references to current filings confirm her daily monitoring of the docket. But in any event, Brown-Younger called this Court's chambers at 5:55 a.m.(!) on June 29 to say that she would not appear in court that day, at which point this Court -- understandably the only one in chambers at such an early hour, so that he had answered the phone himself -- referred to the discussion during the June 27 hearing and advised Brown-Younger that this Court would not anticipate ruling on the motion in her absence, so that if Barnes & Noble's lawyer appeared to present the motion Brown-Younger might possibly incur the cost of Barnes & Noble's dry run. This Court then terminated the call.
When the Barnes & Noble motion was called for hearing on this Court's June 29 motion call, Brown-Younger was indeed absent, while the Barnes & Noble lawyer appeared in accordance with its notice of motion. Just as this Court had told Brown-Younger, it advised counsel that it would not rule on the motion in Brown-Younger's absence -- nor of course would it do so without giving her a full opportunity to respond. When Barnes & Noble's local counsel responded in part by referring to a threat by Brown-Younger to log an ARDC charge against its California lawyer (does that sound even more familiar?), this Court requested and was provided copies of that e-mail and another e-mail that Brown-Younger had transmitted after her June 29 call to this Court's chambers. Those e-mails are also attached as Exs. 2 and 3 to provide further insight into the "totally out of control" characterization set out at the very beginning of this opinion.
It will be recalled that the second paragraph of this opinion referred to Brown-Younger's "personalized attack" on this Court. That has taken the form of a motion for this Court's disqualification (Dkt. 83) filed on June 27.*fn4 This Court has deferred consideration of that motion to this point because what has been discussed up until now demonstrates the utter poverty of Brown-Younger's position.
To begin with, any notion of purported personal bias on this Court's part should first be looked at in light of what has become known as the "extra-judicial source" doctrine, as to which the leading case of Liteky v. United States, 510 U.S. 550-51 (1994) has said this in part:
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. As Judge Jerome Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." In re J. P. Linahan, Inc., 138 F. 3d 650, 654 (CA2 1943).
Just two weeks ago our Court of Appeals put the same concept succinctly in these terms (Khor Chin Lim v. Courtcall, Inc., No. 12-1265, 2012 WL 2305631 at *2 (7th Cir. June 19)), rejecting a litigant's effort to disqualify that court based on its rulings adverse to him:
He contends that the orders we entered in this case and in Staples show that we are biased against him. This contention is frivolous. Adverse decisions do not establish bias or even hint at bias.
But it is totally unnecessary to rely on that "extra-judicial source" legal doctrine to reject the motion for recusal -- one that reflects (again ironically) the bias that this vengeful litigant harbors against anyone whom she perceives as crossing her. Here it is not simply that this Court has reached and expressed its views as to Brown-Younger based entirely on what her conduct in this litigation has revealed -- it is also essential to understand that this Court harbors no personal animus or malice toward her. To this Court Brown-Younger is far more to be pitied than censured, for it is almost uncanny how she finds it possible to articulate arguments while totally lacking the ability to listen to why her arguments have no merit.*fn5
As she did with her former lawyer in her earlier-referred-to motion for sanctions, Brown-Younger charges this Court with bias based on her race and disability and her pro se status. That first claim is nothing short of outrageous -- Brown-Younger ought to engage in some inquiry and investigation before launching such a charge. As for disability, the only "disability" of which this Court is aware is Brown-Younger's inability to listen, in which she has exhibited the legal equivalent of a music critic who is tone deaf. And as to Brown-Younger's status as a pro se litigant, the description earlier in this opinion of this Court's efforts on her behalf in that regard torpedoes any claim of bias. In sum, Brown-Younger's groundless motion for disqualification is denied out of hand.
What then does all that has gone before call for in terms of this litigation as such? It has been said earlier that this Court's original grant of in forma pauperis status was based on the surface plausibility of the Brown-Younger Complaint. But what has been learned since is that her claim is virtually bankrupt in substantive terms:
1. Brown-Younger's claim against defendant Lulu is assertable only in arbitration, not in litigation, under the terms of the Membership Agreement that she entered into with Lulu. And the fact that Lulu's total sales of Brown-Younger's book of poetry amounted to four copies, two of which she bought herself, renders her effort to mulct defendants (including Lulu) for copyright infringement damages in excess of $150,000 (at one point in her filings she has upped the ante to $750,000) cannot be advanced in good faith.
2. As to all of Brown-Younger's other targeted defendants, none has been shown to have sold even a single copy of her work, with each having represented that it has conducted a file search that confirms such to be the case. And that negates liability and damages altogether -- 2 Goldstein on Copyright § 7.5.1 (3d ed. 2011) states that for a copyright infringement action to be viable "an actual transfer must take place" and "a mere offer of sale will not infringe the right."
3. Brown-Younger's inclusion of Amazon as a defendant, as stated earlier, is totally indefensible.
In short, if this Court had known then what it knows now about the poverty of Brown-Younger's substantive claim, she would not have gotten out of the starting gate because she would have flunked the requirement exemplified by Lee v. Clinton. Meanwhile, Brown-Younger plainly appears during the pendency of this action -- despite its temporal brevity -- to have committed multiple violations of Rule 11(b). In that respect, our Court of Appeals' per curiam opinion in Gay v. Chandra, No. 11-2523, 2012 WL 1939916, at *5 (7th Cir. May 30) has summarized the operative law in these terms:
Nevertheless, district courts also can impose both monetary and non-monetary sanctions under Rule 11 for filing or maintaining claims for an improper purpose or without adequate legal or factual support. Fed. R. Civ. P. 11(b), (b); see Fabriko Acquisition Corp. v. Prokos, 536 F.3d 605, 609-10 (7th Cir. 2008).
As plain as Brown-Younger's multiple Rule 11 violations appear to be, Rule 11(c)(3) calls for her to be given the opportunity to show cause why no such violations have taken place and, in this instance, why dismissal of this action is not an appropriate sanction. This Court orders her to file such a showing on or before July 24, 2012.