United States District Court, S.D. New York
MARCUS I. WASHINGTON, Plaintiff,
WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC, formerly known as the WILLIAM MORRIS AGENCY, INC., JEFF MEADE, and SARAH WINIARSKI, Defendants.
MEMORANDUM AND ORDER
P. KEVIN CASTEL, District Judge.
Plaintiff Marcus Isaiah Washington, proceeding pro se, brings this action against defendants William Morris Endeavor Entertainment, LLC ("William Morris Endeavor"), and two William Morris Endeavor Human Resources employees, Jeff Meade and Sarah Winiarski. Washington moves for reconsideration of this Court's Memorandum and Order, filed March 27, 2014, denying his motion for recusal. Defendants move to confirm an arbitration award rendered by Arbitrator Timothy K. Lewis on June 25, 2014, which dismissed Washington's claims and ordered he pay $43, 707.60 in costs and fees. Defendants also seek a filing injunction against Washington. For the reasons further discussed, Washington's motion is denied and defendants' motions are granted.
The following facts are derived from the parties' evidentiary submissions and matters of which judicial notice may appropriately be taken, and are undisputed unless otherwise noted.
Plaintiff Marcus Washington initially filed suit against the defendants on December 22, 2010, asserting claims of discrimination and retaliation under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 et seq., as well as New York State Human Rights Law, N.Y. Exec. Law § 296, and New York City Human Rights Law, N.Y.C. Admin. Code § 8-107. (Compl. ¶ 1, Docket # 2.) In a Memorandum and Order dated July 20, 2011, the Court stayed the litigation pending an award in arbitration. Washington v. William Morris Endeavor Entm't, LLC, No. 10-cv-9647 (PKC)(JCF), 2011 WL 3251504, at *1 (S.D.N.Y. July 20, 2011). Familiarity with the facts as described in the Memorandum and Order is assumed.
Washington subsequently appealed the Court's ruling to the Second Circuit. A panel dismissed the appeal for lack of jurisdiction as a final order had not yet been issued by this Court. Washington v. William Morris Endeavor Entm't, LLC, No. 11-3576-cv (2d Cir. Dec. 13, 2011), Docket # 39. The panel also denied Washington's motions for reconsideration en banc and for a stay pending the filing of a petition for a writ of certiorari. Washington v. William Morris Endeavor Entm't, LLC, No. 11-3576-cv (2d Cir. Feb. 3, 2012), Docket # 46; Washington v. William Morris Endeavor Entm't, LLC, No. 11-3576-cv (2d Cir. May 23, 2012), Docket # 65. Washington subsequently sent a letter to the Chief Judge of the Southern District of New York to "inform [her] about the bias, impropriety and corruption that is happening within the Southern District of New York and Second Circuit." (Washington Letter, Apr. 20, 2012, at 1, Docket # 28.) In the letter, he requested that the Chief Judge "personally intervene and enlist a special committee to investigate the facts and allegations in [the] letter to prevent manifest injustice." (Id. at 3.)
On June 15, 2012, Washington submitted a demand for arbitration with the American Arbitration Association (the "AAA"). (Zweig Decl., July 3, 2014, Ex. 1, at 1-2.) David L. Gregory was initially selected as the arbitrator. (See Emergency Mot. to Disqualify P. Kevin Castel & James C. Francis ("Washington Mot.") Ex. Y, at 3, 15, Docket # 40.) In the arbitral proceeding, the parties indicated to Arbitrator Gregory that they were amenable to him deciding the matter without an on-site hearing. (Id. at 3.) Washington moved for summary judgment on his claims and the defendants moved for the claims to be dismissed. (Id. at 3-4.) Washington also argued that the arbitration agreement he signed was "unconscionable, tainted with illegality, malum in se, and signed under duress in the depths of the Great Recession." (Washington Mot. Ex. CC, at 4.)
In a series of "Interim Decisions, " Arbitrator Gregory set discovery schedules and ruled on threshold issues. (See Washington Mot. Ex. EE, at 1, 2-6.) In addition, Arbitrator Gregory expressed concerns as to Washington's behavior during the course of the arbitration, and found that Washington had defamed the defendants:
Claimant appears to regard as part of a White Supremacist criminal conspiracy virtually every person he perceives as not in complete agreement with him, including distinguished federal judges Patterson and Castel. Claimant, taking issue with Interim Decision 2, surmises that I must have been "threatened" or "bribed" in order to have written such a "deceptive" Interim Decision 2. I can assure everyone, including Claimant, that I have never been bribed or threatened in may entire career. Respondents' lawyers and employees have been subjected to a stream of invective from the inception. Every person, including Claimant, is entitled to their opinions. But, we are not each entitled to our own facts.... Before I arrived on the scene as the Arbitrator in the summer of 2012, Claimant had already crossed over the line from constitutionally protected First Amendment speech into unprotected torts of defamation, libel, and slander. I FIND that Claimant's tortious speech continues substantially unabated.
(Id. at 4-5.) On December 17, 2013, Arbitrator Gregory issued a "Partial Final Award" finding that William Morris Endeavor had discriminated against Washington in violation of "pertinent federal, state, and local law." (Washington Mot. Ex. A, at 1, 13.) Arbitrator Gregory then ordered Washington to file a motion for reasonable fees and costs. (Id. at 12.)
Approximately one month later, on defendants' motion, the AAA's Administrative Review Council (the "ARC") disqualified Arbitrator Gregory under AAA Employment Arbitration Rule 16. (Zweig Decl., July 3, 2014, Ex. 4, at 2.) In February 2014, the parties selected Timothy K. Lewis as a replacement arbitrator. (Id.)
After his appointment as the replacement arbitrator, Arbitrator Lewis issued a Confidentiality Order in order to "restore order, efficiency, and decorum to a process that had become bogged down in personal attacks and unwarranted innuendo, and to enable [the] matter to proceed in good faith." (Zweig Decl., July 3, 2014, Ex. 3, at 2.) The Confidentiality Order explicitly prohibited parties from discussing the proceedings through "any form of communication, including but not limited to the internet, blogs, and other online media." (Washington Mot. Ex. KK, at 2.) Arbitrator Lewis read the contents of the Confidentiality Order during his first conference call with the parties. (See Zweig Decl., July 3, 2014, Ex. 3, at 3.) While the call was in progress, Washington made posts to his blog concerning the Confidentiality Order and attached the Confidentiality Order to one of the posts. (Id. at 4.) According to Arbitrator Lewis, the posts were "inflammatory, racist, and in direct violation of the Confidentiality Order." (Id.)
From the time of Arbitrator Lewis's appointment, Washington expressed frustration with both him and the proceeding. (See Washington Mot. Ex. JJ, at 1 ("If Hon. Lewis is not given and does not begin to read these pleadings before our conference call OR submit a notarized version of his oath, then there is absolutely no point in me getting on this call. I am not going to waste my time talking with someone who is going to receive $1, 000/hour about my case, who knows very little about what has happened and has made a conscious decision to remain in the dark.").) According to Arbitrator Lewis, during the first conference call Washington was "extremely disruptive, " repeatedly interrupted other parties on the call, and called Arbitrator Lewis "crazy." (Washington Mot. Ex. LL ¶ 2.)
After the call, Arbitrator Lewis decided to hold separate calls with each party. (Id. ¶ 4.) The call with Washington did not go well. Arbitrator Lewis described the call as follows:
I then spoke with Claimant. I explained to Claimant that his claims are serious and deserve careful consideration but that he must conduct himself in an appropriate manner as he is acting as his own counsel and is a party to this arbitration. Claimant refused to listen. Claimant insisted that I have no authority to conduct this arbitration; that he will not read, respond to, or abide by any of my orders; and that, despite the previous arbitrator's finding of discrimination, he plans to file a motion in federal court to have this arbitration "thrown out" (even though, as I explained to Claimant, only a partial award has been entered and this arbitration is, therefore, not final; and despite the fact that the United Stated District Court for the Southern District of New York previously ruled that he is bound by the agreement he signed to have his claims arbitrated and his appeal of that ruling to the United States Court of Appeals for the Second Circuit was dismissed). I asked Claimant if there was anything more he wanted to discuss, and he said no.
(Id. ¶ 6.)
After concluding the telephone conversations, Arbitrator Lewis ordered the parties to participate in good faith and warned that further violations of the Confidentiality Order "may result in the dismissal of all claims for abuse of the arbitration process." (Id. ¶ 7.) Arbitrator Lewis then invited the parties to submit cross motions to vacate Arbitrator Gregory's Partial Final Award. (Id.)
Defendants subsequently submitted a motion to vacate Arbitrator Gregory's Partial Final Award. (Zweig Decl., July 3, 2014, Ex. 4, at 3.) Washington neither submitted his own motion, nor submitted a response to Arbitrator Lewis. (Id.) On April 18, 2014, pursuant to AAA Employment Arbitration Rule 18, Arbitrator Lewis granted the motion and vacated Arbitrator Gregory's award. (Id. at 3-5.)
While defendants' motion to vacate was pending before Arbitrator Lewis, Washington sought leave from this Court to file an "Emergency Motion" requesting that both the undersigned and Magistrate Judge Francis, to whom the case had been assigned for general pretrial supervision, recuse themselves from the case. (Docket # 33.) As the arbitration was still pending before the AAA at that time, the Court ordered that "[n]o motion to disqualify may be filed until 14 days following a Final Award in the arbitration proceeding." (Order, Mar. 7, 2014, at 2, Docket # 38.) Despite the Court's explicit Order, Washington filed his proposed motion. (Docket # 40.) In addition to requesting recusal, Washington requested that a replacement judge sanction opposing counsel and issue a default judgment in his favor. (Washington Mot. 3.) Washington's motion was denied by both Magistrate Judge Francis and the undersigned. Washington v. William Morris Endeavor Entm't, No. 10-cv-9647 (PKC)(JCF), 2014 WL 1258308, at *1 (S.D.N.Y. Mar. 26, 2014); (Order, Mar. 27, 2014, at 3, Docket # 43.) Washington subsequently filed a motion for reconsideration. (Docket # 46.) In support of his motion, Washington stated that, should the Court rule against him, he would file a separate action "against all parties involved" including the undersigned, Magistrate Judge Francis, and Judge Patterson. (Pl.'s Mot. for Recons. 30-31.)
In addition to his submissions in support of his motion, Washington also submitted a letter to the Court in which he stated that "[d]ue to the on-going fraud that has occurred since the inception of this case, I cannot and will not continue litigating this case any further under the jurisdiction and supervision of the American Arbitration Association...." (Washington Letter, Mar. 28, 2014, at 2, Docket # 2 (emphasis in original).) Washington made similar statements to Arbitrator Lewis and the AAA on a number of occasions. (See, e.g., Washington Letter, Mar. 13, 2014, Ex. A, at 1, Docket # 39 ("I am not proceeding any further with the AAA and Lewis can do whatever he wants to do...."); Pl.'s Mot. for Recons. Ex. D, at 8-9 ("I refuse to re-arbitrate the merits of my case or entertain other legal aspects of this case....").)
Between the time Arbitrator Lewis issued the Confidentiality Order and the time he vacated Arbitrator Gregory's Partial Final Award, Washington continued to post updates to his blog concerning the litigation, in violation of the Confidentiality Order. (Zweig Decl., July 3, 2014, Ex. 3, at 4.) The posts contained private communications, the text of Arbitrator Lewis's orders, as well as personal attacks directed at both Arbitrator Lewis and his law firm. (Id. at 3-4 n.2 (detailing and quoting Washington's blog posts from February 25, 2014, through March 15, 2014).) Washington also admitted to recording conference calls. (Id. at 5 n.3.)
One of the issues Washington detailed in his postings was the alleged relationship between the AAA and William Morris Endeavor's counsel. On March 10, 2014, Washington discovered that one member of defendants' legal team was married to an attorney employed by the AAA. (Washington Mot. 55.) According to Washington, as the relationship had not been previously disclosed, this was "undeniable proof" that opposing counsel and the AAA had conspired against him. (Id.) In response to Washington's allegations, Arbitrator Lewis attested that, though he knew the AAA employee and had worked with her, he did not know her husband, or that she was married, before Washington raised the issue. (Zweig Decl., July 3, 2014, Ex. 3, at 8 n.7.) Arbitrator Lewis further stated: "In any event, the fact of this previously unknown relationship has absolutely no bearing on my impartiality in this arbitration just as it did not, and obviously could not have, before Mr. Washington made me aware of it." (Id.)
Defendants subsequently moved for sanctions for violations of the Confidentiality Order. (Id. at 1.) In response to the motion, Washington repeatedly stated that he would continue to violate the Confidentiality Order. (Pl.'s Mot. for Recons. Ex. D, at 9 ("Lewis cannot genuinely believe that he can come into a three year litigation and issue a Confidentiality Order not knowing the facts of this case, and think that I'm going to comply...."); Id. at 10 ("Until I receive complete and total justice, I will continue to publicly share with the world, the truth about what is happening to me in this case.").) On April 18, 2014, Arbitrator Lewis concluded that Washington had acted in bad faith and ordered an award to defendants of two-thirds of its legal fees and costs as a sanction. (Zweig Decl., July 3, 2014, Ex. 3, at 7, 9-10.) Based on defendants' accounting, the fees totaled $43, 707.60. (Zweig Decl., July 3, 2014, Ex. 2, at 15.) Arbitrator Lewis noted that he had authority to sanction Washington through the 2009 arbitration agreement between Washington and William Morris Endeavor as its scope included "all disputes" between the parties. (Zweig Decl., July 3, 2014, Ex. 3, at 8-9.) Arbitrator Lewis further warned Washington that his conduct was "unacceptable" and that further actions "may result in additional sanctions, including [a] recommendation to the AAA that it terminate [the] arbitration, with prejudice." (Id. at 10 (emphasis removed).)
Despite Arbitrator Lewis's warning, Washington continued to make posts to his blog discussing the proceedings. (Washington Letter, July 15, 2014, Ex. A, at 2-7 nn.1-9, Docket # 57 (detailing and quoting Washington's blog posts from April 18, 2014, through June 10, 2014).) In one blog post, Washington stated that he was working on a new complaint against opposing counsel, Arbitrator Lewis, and others and threatened to file commercial liens against "all parties involved." (Id. at 2-3 & n.1; Zweig Decl., July 10, 2014, Ex. C, at 2.) In a later post, Washington posted an image of the cover page of a complaint he was drafting naming as defendants, inter alia, opposing counsel, Arbitrator Gregory, Arbitrator Lewis, three named Circuit Judges, Judge Patterson, the Chief Judge of the Southern District of New York, the undersigned, the AAA, and the United States of America. (Zweig Decl., July 10, 2014, Ex. E, at 1.)
In his subsequent communications, Washington repeatedly suggested that Arbitrator Lewis dismiss the case. (Pl.'s Mot. for Recons. Ex. D, at 10; Zweig Decl., July 3, 2014, Ex. 2, at 2.) On April 29, 2014, Arbitrator Lewis held a conference call with the parties. (Washington Letter, July 15, 2014, Ex. A, at 3.) The call quickly descended into disorder. (Id.) According to Washington, this occurred when he raised the issue of arbitrability and asserted that his due process and equal protection rights were being violated, fraud was being committed, and Arbitrator Lewis was exceeding his powers. (Id.) Arbitrator Lewis repeatedly asked whether Washington would proceed in good faith, or whether he desired a dismissal of the arbitration. (Id.) Each time, Washington stated that due to "ongoing fraud" he would not continue in good faith. (Id.) Near the end of the call, Washington stated that he would "soon" be suing Arbitrator Lewis as well. (Id.) Washington states that "of course" he recorded the call and recorded all the conference calls. (Id.)
Arbitrator Lewis then invited defendants to move to dismiss Washington's claims given Washington's request to do so and his violations of the Confidentiality Order. (Id.) Defendants subsequently moved for an order dismissing Washington's claims. (See id. at 1.) In response to the motion, Washington sent an e-mail to opposing counsel stating that an adverse ruling would not prevent him from litigating his case and promising that neither defendants nor opposing counsel would "get away" with their actions. (Zweig Decl., July 10, 2014, Ex. F, at 1.)
On June 25, 2014, Arbitrator Lewis dismissed Washington's claims "with prejudice and on the merits." (Washington Letter, July 15, 2014, Ex. A, at 14.) Arbitrator Lewis provided two bases for his dismissal. First, he ordered dismissal because Washington requested the arbitration to be terminated. (Id. at 8.) Second, Arbitrator Lewis found that dismissal was warranted as a sanction for Washington's repeated violations of his orders, including the Confidentiality Order. (Id.) Arbitrator Lewis drew authority for the sanction from the parties' arbitration agreement and the "rules and applicable ...