[A revised version of this post is available to download as a paper on SSRN.]Profiles of U.S. Circuit Judge Ketanji Brown Jackson have proliferated since her announcement as a leading contender for the U.S. Supreme Court seat vacated by Justice Breyer, and President Biden announced her nomination yesterday.
Judge Jackson has practiced in both criminal and civil environments, and in public and private sectors. She focused in different practice roles on criminal law and appellate litigation, and she served on the federal bench at the trial and appellate levels. So much of her work, and that which has garnered the most attention, for example in the excellent SCOTUSblog profile by Amy Howe, interests me as a citizen in general more than as an academic and media-law-and-torts aficionado.
Nevertheless, I compiled here cases of interest to me, which I found whilst poking around in her trial-court record on the U.S. District Court for the District of Columbia (D.D.C.). You might not see these discussed elsewhere, but they might be of interest to comparative-bent, media-law types like me, if that's even a thing. In my ordinary-joe capacity, I am not in step with Judge Jackson's inclinations in some other areas of law. But any Supreme Court Justice, just like any political candidate, is going to be a mixed bag, especially in a compulsorily two-party system.
In the cases below, a decidedly unscientific sample, I like some of what I see, especially skeptical diligence in access-to-information cases, sound reasoning in intellectual property law, careful application of preemption doctrine in medical-product liability, and a couple of thought-provoking First Amendment entanglements. I see a mixed record on venue for transnational cases, something I've been worrying about lately, but the outcomes are defensible as consistent with lousy U.S. law.
Main topics:
● Civil procedure/statute of limitations: WMATA v. Ark Union Sta., Inc. (2017)
● Copyright/music royalties: Alliance of Artists & Recording Cos. v. Gen. Motors Co. (2018)
● Defamation, false light/actual malice: Zimmerman v. Al Jazeera Am., LLC (2017)
● First Amendment/child pornography: United States v. Hillie (2018)
● First Amendment/commercial speech, compelled speech: Am. Meat Inst. v. U.S. Dept. Agric. (2013)
● FOIA/national security, law enforcement: Elec. Privacy Info. Ctr. v. U.S. Dept. Justice (2017)
● FOIA/Vaughn index, trade secrets, deliberative process: McKinley v. FDIC (2017)
● FOIA/deliberative process/personal privacy: Conservation Force v. Jewell (2014)
● FSIA/CCFA, forum non conveniens: Azima v. RAK Invest. Auth. (2018)
● FSIA/torture: Azadeh v. Iran (2018)
● Insurance/settlement: Blackstone v. Brink (2014)
● Product liability/causation, preemption, learned intermediary: Kubicki v. Medtronic (2018)
● Trademark/infringement: Yah Kai World Wide Enter. v. Napper (2016)
● Wrongful death/sovereign immunity, contributory negligence: Whiteru v. WMATA (2017)
● Wrongful death, product liability/forum non conveniens: In re Air Crash ... So. Indian Ocean (2018)
Quirky pro se claims:
● Defamation/litigation privilege/statute of limitations: Ray v. Olender (2013)
● Copyright/infringement: Buchanan v. Sony Music Ent. (2020)
● Copyright/pleading: Butler v. Cal. St. Disbursement Unit (2013)
● Copyright/subject-matter jurisdiction: Miller v. Library of Congress (2018)
● FTCA/FOIA, civil rights: Cofield v. United States (2014)
● Legal profession/sovereign immunity, absolute immunity: Smith v. Scalia (2014)
And the case with the best name:
● A Love of Food I v. Maoz Vegetarian USA (2014)
Civil procedure/statute of limitations. WMATA v. Ark Union Sta., Inc., 269 F. Supp. 3d 196 (D.D.C. 2017). The transit authority of the District of Columbia alleged that negligent maintenance by the Union Station America Restaurant, defendants' enterprise, resulted in a burst sewer pipe that severely damaged the Metro Red Line in 2011. Judge Jackson opened the opinion cleverly, with what could almost be a
dad joke: "This is a case
about whose interests the [WMATA] serves when it spends money to repair
damaged transit infrastructure in the Metrorail system—a proverbial
third rail of this region's politics." (My emphasis. How could I not?)
D.C. has a generous five-year statute of limitations, but even that time had run. Determining that the corporate-body WMATA remained a creature of government for relevant purposes, evidenced by its operational subsidies—cf. WMATA, infra, in negligence/sovereign immunity—Judge Jackson applied "the common law nullum tempus doctrine, which dates back to the
thirteenth century," to exempt WMATA, as sovereign, from the statute of limitations. The court explained: "Although the nullum tempus doctrine originated as a 'prerogative of the Crown[,]' the doctrine's 'survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king.' .... Specifically, 'the source of its continuing vitality ... is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers'" (citations omitted).
Copyright/music royalties. Alliance of Artists & Recording Cos. v. Gen. Motors Co.,
306 F. Supp. 3d 422 (D.D.C. 2018). Judge Jackson dismissed a trade-group-plaintiff claim against automakers that their in-car CD hard drives
created digital music recordings (DMRs) within the meaning of the
federal statute, the Audio Home
Recording Act of 1992 (AHRA), entitling copyright holders to royalties. The AHRA was
intended by Congress to protect the music industry against the alarming ease of
creating high-fidelity copies of digital music by requiring
manufacturers, importers, and distributors to employ copy-control
technology. Though having earlier allowed the claim to proceed against
other technical challenges under the AHRA, the court decided, with the
benefit of the first phase of discovery, that the defendant automakers'
devices were not digital audio recording devices within the meaning of
the statute. In a methodical analysis, Judge Jackson explained that the
content of the hard drives was excluded from the statutory definition
of a DMR because of the coordinate presence of play software and other
data. The court rejected industry's theory that the appropriate frame
of analysis was a particular partition of the drive, where music code
might be located more readily. The D.C. Circuit affirmed, 947 F.3d 849
(2020).
Defamation, false light/actual malice. Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257 (D.D.C. 2017). Two professional baseball players, both called Ryan (a Zimmerman and a Howard), sued Al Jazeera America over a documentary,
The Dark Side: Secrets of the Sports Dopers (2015), in which an interviewee linked the pair to performance-enhancing drugs. The plaintiffs were clearly public figures, so actual malice was at issue. In a thorough explication of the making of the film followed by a straightforward recitation of the media torts, Judge Jackson narrowed the plaintiffs' claims to allegations stated in the film, excluding liability for promotional content. The court found it plausible, upon "contextual clues," that a reasonable viewer could attribute the interviewee's statements to the filmmakers: "The film weaves [the source's] statements into a broader narrative about doping
in sports that the producers themselves have purportedly confirmed
through their own investigation." Judge Jackson then explicated the actual malice standard and its amped up,
St. Amant, iteration of recklessness. Critically, the plaintiffs alleged that the source had recanted his claims about the Ryans during a subsequent, yet pre-publication, interview, giving Al Jazeera serious cause to doubt the source's veracity, if not actual knowledge of falsity.
Naturally, this case might be of interest to Court watchers, given the present hubbub over the Sullivan actual malice standard. I'm no fan, and I'll have more to say about that in the future. Zimmerman hardly depicts a Judge Jackson ready to pitch in with Justices Thomas and Gorsuch to upend the status quo. But she understands the standard and at least might be amenable to a semantically sincere construction of "reckless disregard."
First Amendment/child pornography. United States v. Hillie, 289 F. Supp. 3d 188 (D.D.C. 2018). Criminal cases are not usually my jam, but this one had a First Amendment angle. Judge Jackson allowed conviction of a defendant for sexual exploitation of a minor and possession
of images of a minor engaging in sexually explicit conduct. On the facts as explicated by the court, that sure seems like it was the defendant's intent: "carefully placing and positioning the camera in hidden locations in J.A.A.'s bedroom and bathroom" and "succeed[ing] in capturing several extended images of J.A.A.'s exposed genitals." Missing, though, was the express "lasciviousness" required by federal statutes, a fatal flaw for the prosecution, the D.C. Circuit ruled. 14 F.4th 677 (2021). The defendant relied on statutes, not the First Amendment, but the D.C. Circuit referenced First Amendment case law extensively to support its interpretation of what Congress required. Despite the substantial latitude to which the government is entitled to prosecute child pornography, beyond the legal constraints of outlawing obscenity as to adults, the appellate court concluded that Judge Jackson erred in permitting the jury to infer the defendant's lascivious objective. One might expect that social conservatives would side with Judge Jackson on this case.
First Amendment/commercial speech, compelled speech. Am. Meat Inst. v. U.S. Dept. Agric., 968 F. Supp. 2d 38 (D.D.C. 2013). This must have been a grilling initiation to the federal bench for Judge Jackson. A meat industry trade association challenged "country of origin labeling" regulations (truly, "the COOL Rule") promulgated by the Department of Agriculture, on, as one might expect from Big Meat, any legal theory that might stick to the cast iron: namely, the statutory authority of the Agricultural Marketing Act, promulgation under the Administrative Procedure Act, and the First Amendment. The first two make my eyes glaze over; it's the First Amendment that grabbed me. Meat and the First Amendment are, of course, long-time frenemies, going back to the heyday of
The Jungle, and on through the secret grocery workers of journalism ethics fame. Then there was the whole pink slime era, and animal-welfare activists came trespassing through to take pictures. Oh how we laughed until we cried.
Anyway, in this case, Judge Jackson capably explicated the niche case law of compelled commercial speech and charted the fine if squiggly line separating free speech and business regulation. The risk of deception was more than merely speculative here, she opined, and consumers were demonstrably confused. Industry mistakenly claimed a burden on its pocketbook, rather than its speech rights, Judge Jackson admonished. The COOL Rule was reasonable and hardly burdensome for its expectation of truthful and uncontroversial disclosure. Preliminary injunction was denied.
Big Meat was not easily deterred; the case went for a rodeo ride the following year. The D.C. Circuit affirmed, 746 F.3d 1065 (Mar. 28, 2014), vacated upon granting rehearing en banc, No. 13-5281 (Apr. 4, 2014), and then reinstated affirmance (July 29, 2014).
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FOIA/national security, law enforcement. Elec. Privacy Info. Ctr. v. U.S. DOJ, 296 F. Supp. 3d 109 (2017). Privacy advocate EPIC sued DOJ under the federal Freedom of Information Act (FOIA) to learn more about past wiretap spying under the post-9/11 Foreign Intelligence Surveillance Act. EPIC was especially keen to see how the government had justified surveillance requests it set before the famously amenable Foreign Intelligence Surveillance Court (FISC). Namely, EPIC sought: "(1) Westlaw printouts that were attached to a certain brief that the
government submitted to the [FISC], and (2) portions of certain reports that DOJ issued to
Congress, consisting of summaries of FISC legal opinions, descriptions
of the scope of the FISC's jurisdiction, and discussions of process improvements." DOJ produced a
Vaughn index.
Ex parte and
in camera, Judge Jackson reviewed the materials and adjudged them properly withheld under exemptions 1 (national security as to the congressional reports), and 3 and 7(E) (national security statutes and law enforcement techniques, as to everything else), with some nitpicks as to redactions and notations. I'm sure
EPIC did not care for the result, but the transparency problem seems to be a statutory one. Judge Jackson did a pretty deep dive on the docs.
FOIA/Vaughn index, trade secrets, deliberative process. McKinley v. FDIC, 268 F. Supp. 3d 234 (D.D.C. 2017),
then No. 1:15-cv-1764 (D.D.C. Sept. 30, 2018). Judicial Watch, per experienced FOIA-requester attorney Michael Bekesha, represented a plaintiff against the FDIC. In the reported opinion in 2017, the court compelled the FDIC to produce a
Vaughn index. The Judicial Watch plaintiff was investigating FDIC placement of Citibank into receivership in 2008 and 2009. The FDIC sought to protect 12 documents as trade secrets and eight documents as deliberative process. The court faulted the FDIC for failing to support either claim of exemption with any contextual explanation, including the nature of its decision-making authority on the latter claim.
I note that Judge Jackson's reasoning on the trade-secret analysis might have been undermined subsequently by the Supreme Court's industry-deferential ruling on exemption 4 in
Food Marketing Inst. v. Argus Leader Media (U.S. 2019). (I signed on to an
amicus on the losing side in
FMI.) In an earlier FOIA case,
Government Accountability Project v. FDA, 206 F. Supp. 3d 420 (D.D.C. 2016), Judge Jackson similarly relied on pre-
FMI doctrine to reject, as unduly conclusory, FDA resistance, at the behest of a pharma trade association, to production of records on antimicrobial medications.
Vaughn index in hand on remand, plaintiff persisted in challenging the adequacy of the FDIC search and "whether withheld information 'has already been made public through an official and documented disclosure.'" Judge Jackson rejected both claims in a short opinion in 2018. She found the first merely speculative. As to the second, the plaintiff "argued that the FDIC's withholdings were improper because the requested
information was 'officially' acknowledged by Former FDIC Chairman Sheila
Bair in the book Bull by the Horns—a book
that Bair published after leaving office." Judge Jackson held that "that contention, too, must be
rejected. A book or other material that a former government official
publishes in her personal capacity does not qualify as an 'official
acknowledgment' of the information contained therein for the purpose of
FOIA."
FOIA/deliberative process, personal privacy. Conservation Force v. Jewell, 66 F. Supp. 3d 46 (D.D.C. 2014). A nonprofit foundation that promotes big-game hunting sued U.S. Fish and Wildlife, in the Department of Interior, under the FOIA to obtain records related to denials of permits that would allow the import into the United States of hunting trophies of Canadian bison. For the record, I'm fine with denying those permits, and I could be persuaded to block importation of the hunters, too. Nevertheless, transparency....
Judge Jackson authored a workmanlike exploration of various exemption theories asserted by Interior: accepting attorney-client privilege (exemption 5) and personal-information exemption (6); rejecting deliberative-process exemption, crime-fraud exception to attorney-client privilege, and work product privilege (all exemption 5). She cited House reports to bolster her interpretations of what exemptions 5 and 6 require. In a pattern that became familiar, or maybe just speaks to agency neglect, she faulted Interior for a conclusory ("woefully short") Vaughn index that failed to support exemption. As to exemption 6, which has been aggressively enlarged by federal courts in furtherance of the privacy rage, Judge Jackson accepted Interior's redaction of employee personal information as more or less immaterial to the sought-after accountability. The D.C. Circuit affirmed summarily in No. 15-5131 (Dec. 4, 2015).
FSIA/CFAA; forum non conveniens. Azima v. RAK Invest. Auth., 305 F. Supp. 3d 149 (D.D.C. 2018). Judge Jackson was reversed in this one, 926 F.3d 870 (D.C. Cir. 2019), but I prefer her analysis. Under the Computer Fraud and Abuse Act (CFAA) and for common law conversion and unfair competition, plaintiff, a Kansas City, Mo., businessman, sued a business partner, a public investment authority (RAKIA) of the United Arab Emirates (UAE, specifically the Emirate of Ras Al Khaimah), after their business relationship soured, alleging that RAKIA "commissioned the repeated surreptitious hacking of his personal and
business laptops ... and then published
disparaging material that was illicitly gleaned from Azima's computers...." RAKIA sought dismissal under the Foreign Sovereign Immunities Act (FSIA) on grounds of sovereign immunity, under a contractual forum selection clause, and, relatedly, under the common law venue doctrine of
forum non conveniens.
Judge Jackson rejected all three grounds. The plaintiff plausibly portrayed RAKIA, an investor rather than governing entity, as a commercial actor and alleged tortfeasor, bringing into play the FSIA commercial and tort exceptions. As alleged, the hacking would have inserted malware into the plaintiff's computer systems, even if the insertion occurred abroad, so the locus of alleged tortious injury was Kansas City, bolstering the FSIA analysis. The forum selection clause did not pertain, Judge Jackson reasoned, because it was articulated in the parties' contract for a prior commercial venture; the contract hardly covered subsequent hacking.
As to venue, Judge Jackson faulted RAKIA for failing to meet its "heavy burden" to show that Azima would get a fair shake in RAKIA's preferred venue of London, where RAKIA might have hoped for a more favorable outcome on immunity. I like that analysis—but cf. infra, re wrongful death/forum non conveniens. My comparative law class just read Professor Vivian Curran's masterful recent work on foreign law in U.S. courts, in which she convincingly demonstrated U.S. federal judges' penchant to over-employ forum non conveniens and thus shirk their responsibility to adjudicate.
Perhaps proving Prof. Curran's thesis, the D.C. Circuit disagreed, holding that the forum selection clause burdened the plaintiff with having to show why London would not work as an appropriate venue, else face dismissal for forum non conveniens. I would be remiss not to mention also: Prof. Curran further faulted the courts for lazy reliance on partisan evidence (my words) when foreign law is concerned, and both Judge Jackson and the D.C. Circuit declared a lack of any responsibility to investigate themselves the adequacy of London as a forum.
FSIA/torture. Azadeh v. Iran, 318 F. Supp. 3d 90 (D.D.C. 2018). Plaintiff was an inmate of an Iranian jail and alleged torture and intentional torts at the hands of the republic. A U.S. court ruling in such a matter is principally symbolic. Iran will not respond; a plaintiff might hope to recover against a U.S. government claim on frozen assets. Accordingly, in this case, a magistrate judge recommended entering default judgment in favor of the plaintiff. I have here omitted cases in which Judge Jackson adopted in toto a magistrate's report; in this case, she did not.
Relying on a manual of the U.S. district courts, the plaintiff had effected service on the state of Iran erroneously, under the wrong order of process under the FSIA. Judge Jackson wrote: "Judges are sometimes called upon to set aside heart-wrenching and
terrible facts about a claimant's treatment at the hands of a defendant
and enforce seemingly draconian, technical mandates of law. This is an
especially difficult duty when the machinery of the judicial system
itself appears to have played a role in the claimant's mistaken view of
the applicable legal requirements. The somber circumstances of the
instant case present one such scenario...." The court put the default judgment on hold and gave the plaintiff a second crack at proper service. Judge Jackson subsequently entered default judgment against Iran, in the sum of $36,411,244, in No. 1:16-cv-1467 (D.D.C. Sept. 5, 2018). Reproduced therein, the magistrate's report detailed the plaintiff's ordeal.
Insurance/settlement. Blackstone v. Brink, 63 F. Supp. 3d 68 (D.D.C. 2014) (D.C. law). In an insurance dispute arising from the alleged wrongful death of a pedestrian, plaintiffs and their attorney apparently changed position on whether to settle with defendant-driver's insurer, State Farm, for the defendant's $100,000 policy limit. After a telephone conversation, State Farm sent a check and a release form to the plaintiffs' attorney. The check crossed in the mail with a letter from the attorney rejecting the offer. Applying D.C. law, Judge Jackson determined that the parties had reached an enforceable agreement on the telephone, evidenced by the specificity of the attorney's instructions on how and where to send the check. The court wrote of the parties' competing narratives: "On this record, it is far more plausible that [plaintiff counsel] accepted
[State Farm's] offer on behalf of his clients [plaintiffs], intended that it be final and
binding, and later had misgivings about his earlier decision to accept.
Unfortunately for Plaintiffs, courts have long held that such buyer's
remorse does not vitiate a demonstrated initial intent to be bound by the settlement agreement" (original emphasis).
Product liability/causation, preemption, learned intermediary. Kubicki v. Medtronic, 293 F. Supp. 3d 129 (D.D.C. 2018) (D.C. law). Parents of a diabetic consumer who suffered traumatic brain injury as
a result of low blood-sugar levels sued the manufacturers of an insulin pump, alleging various theories of product liability. Judge Jackson threw out some claims, against one manufacturer and upon one theory, as time barred, because plaintiffs had added them to the complaint too late for the District's three-year statute of limitations. Judge Jackson navigated the tricky shoals of preemption doctrine to find some but not all liability theories expressly preempted, and the remainder not impliedly preempted, by FDA medical-device approval. A sliver of remaining plaintiff theories survived summary judgment for presenting triable questions of fact on causation and on the learned intermediary doctrine relative to alleged failure to warn.
Trademark/infringement. Yah Kai World Wide Enter. v. Napper, 195 F. Supp. 3d 287 (D.D.C. 2016). The defendant ran the Everlasting Life Restaurant & Lounge as an enterprise of the African Hebrew Israelite community, "who claim to be descendants of biblical Israelites and who follow a strict vegan diet," until their relationship soured. The plaintiff-community sued when the defendant persisted in doing business as "Everlasting Life," which a community leader had registered as a service mark (pictured). Trial did not go well for the defense; Judge Jackson wrote that the defendant "displayed some signs of dissembling, such as the evasive nature of his answers
with respect to the existence of a purportedly independent and
unincorporated food business that he claimed to have created by himself
in his home garage prior to the Community's formation of its restaurant
businesses." The court found likelihood of confusion and, accordingly, infringement. If only defendant had partnered with Big Meat to serve litigious hungry hunters returning from Canada.
Wrongful death/sovereign immunity, contributory negligence. Whiteru v. WMATA, 258 F. Supp. 3d 175 (2017). This time the WMATA, the D.C. transit authority, was a negligent defendant rather than plaintiff—cf. WMATA, supra, in civil procedure/statute of limitations—and this time, the authority was ruled not
sovereign for purposes of immunity. In what was essentially a
slip-and-fall, the plaintiff-decedent's estate and parents blamed the
WMATA for not discovering the decedent—a lawyer, by the way—injured on a train platform, in
time to provide life-saving medical treatment. A creature of state
compact and D.C. statute, the WMATA enjoys an immunity analogous to that
of federal defendants under the Federal Tort Claims Act (FTCA). Borrowing the
FTCA rule of immunity for discretionary governmental functions, which
often presents a frame-of-reference problem in its granular application,
Judge Jackson rejected the WMATA theory that officials' conduct was
discretionary. Rather, properly, I think, the court accepted the
plaintiff's framing of the case as alleging unreasonable comportment with the WMATA standard operating procedures for platform inspection.
At
that time in 2017, factual questions in the case precluded summary judgment.
However, in 2020, Judge Jackson awarded the WMATA summary judgment upon
the plaintiff's contributory negligence. 480 F. Supp. 3d 185. The
District is not a comparative fault jurisdiction. The plaintiff's heavy
intoxication when he fell was undisputed, and, Judge Jackson opined,
video evidence plainly showed that the plaintiff fell because he
over-relied on a low wall for support. Just this month, the D.C. Circuit
reversed and remanded, ___ F.4th ___ (Feb. 11, 2022), holding that
under D.C. law for common-carrier liability, contributory negligence is
not the complete defense that it usually is in negligence in the
District.
Wrongful death, product liability/forum non conveniens. In re Air Crash Over the Southern Indian Ocean, 352 F. Supp. 3d 19 (D.D.C. 2018) (multi-district litigation). This case marks a tragic disappointment. Judge Jackson dismissed for improper venue,
forum non conveniens, the claims of families of passengers of missing airliner MH370 against defendants including Malaysia Airlines and Boeing. The claims arose under the Montreal Convention on international air carriage, common law wrongful death, and product liability. The thrust of the problem is that what happened to MH370, including the final resting place of the fuselage and an understanding of what went wrong, remains a mystery, and even less was known in 2018. My money is on pilot hijacking, by the way; read more in the
definitive account to date by the incomparable William Langewiesche for
The Atlantic. Judge Jackson opined:
All told, the Montreal Convention cases in this MDL
involve only six U.S. citizens with a direct connection to the Flight
MH370 tragedy, as either plaintiffs or decedents. Among the hundreds of
passengers on that flight, only three were citizens of the United States, and while the United
States undoubtedly has a strong public interest in the claims involving
their deaths, its interest pales in comparison to Malaysia's interest in
litigating these claims. Malaysia's public interest includes not only
an interest in the untimely deaths of the Malaysian pilot and crew, but
also an interest in determining precisely what happened to Flight MH370,
given that a Malaysian airline owned, operated, and maintained the
aircraft; the flight took off from an airport in Malaysia for a
destination outside the United States; and it disappeared from radar when Malaysian air traffic controllers were handing off the flight. And
Malaysian authorities made substantial investments of time and
resources in the wake of this disaster: Malaysia conducted extensive
civil and criminal investigations, and changes in Malaysian law led to
the creation of a new national Malaysian airline. It is Malaysia's
strong interest in the events that give rise to the claims at issue here
that makes this a distinctly Malaysian tragedy, notwithstanding the presence of the few Americans onboard Flight MH370.
I really want to lash out against this reasoning. But probably it would be like when I was a little kid fed up with allergy-testing shots and kicked my doctor. Despite my reservations about forum non conveniens, see Prof. Curran, supra, I admit that my frustration stems from doubt that the case could be fairly prosecuted in Malaysia, even if the plane is found, rather than a confidence that the United States is a logical venue. It might not even matter, as the Montreal Convention probably would curb recovery even in U.S. courts. Insofar as I have any legitimate gripe, it's in part that forum non conveniens is just a witless rule out of step with a globalized world, and in part that Judge Jackson should have done some independent investigation of the adequacy of Malaysia as a forum.
The aftermath of the MH370 disappearance revealed concerning deficits in transparency, and, thus, potentially in accountability, in the Malaysian investigative process. And while I don't think Boeing is to blame, having watched Downfall: The Case Against Boeing (2022) on Netflix just last weekend—Langewiesche wrote about the 737 MAX for The New York Times—leaves me distrustful. Indeed, however relying upon precedent, Judge Jackson declined MH370 plaintiffs' last-ditch demand that, at least, Boeing be compelled to promise to abide by U.S. discovery in connection with any subsequent litigation abroad.
The D.C. Circuit affirmed, 946 F.3d 607, and the Supreme Court denied cert., 141 S. Ct. 451, in 2020.
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Here are some quirky pro se claims, just to stimulate the noggin.
Defamation/litigation privilege/statute of limitations. Ray v. Olender, No. 13-1834 (D.D.C. Nov. 21, 2013). Judge Jackson dismissed an odd $5m pro se defamation claim against an attorney, apparently based on a 1965 suit for copyright infringement and counter-suit. She held the claim barred by the one-year D.C. statute of limitations and, anyway, based on statements in pleadings, protected by the litigation privilege.
Copyright/infringement. Buchanan v. Sony Music Ent., No.
18-cv-3028 (D.D.C. May 26, 2020). In a wide-ranging complaint, pro se
plaintiff accused defendant music producers of stealing from songs he
submitted for consideration. Dismissed, because three of four songs
were not registered; plaintiff could not show that any producer actually
received a copy of the fourth song demo tape; and plaintiff anyway
failed to allege substantial similarity, beyond allegation of
"steal[ing]," between defendants' hits and the plaintiff's "I Gos Ta Roll."
Copyright/pleading. Butler v. Cal. St. Disbursement Unit, No. 13-1684 (D.D.C. Oct. 23, 2013). Pro se plaintiff accused the state of copyright infringement for using his name in all capital letters. Dismissed for failure to plead adequately. BUTLER.
Copyright/subject-matter jurisdiction. Miller v. Library of Congress,
No. 1:18-cv-02144 (D.D.C. Nov. 5, 2018). Judge Jackson dismissed for
lack of subject matter jurisdiction a $100m pro se copyright
infringement claim by an author of "a book of songs" who alleged that
the Library of Congress stole the book and allowed it to be used by
others. Held, he should have filed in the Federal Claims Court. I'd return the book, but the fines....
FTCA/FOIA, civil rights. Cofield v. United States, 64 F. Supp. 3d 206 (D.D.C. 2014). A Maryland prisoner, pro se plaintiff sought billions in damages against ICANN and the Obama Administration for improper FOIA denials and race discrimination. On the latter count, the plaintiff essentially accused the government of establishing a business monopoly in ICANN that leaves African-American persons "intentionally omitted, to be left behind when it comes to technology ... by design[.]" An intriguing idea, but not the best spokesperson. The court dismissed for sovereign immunity, as the Federal Tort Claims Act (FTCA) authorizes neither FOIA complaints, which do not entitle a plaintiff to tort damages, nor constitutional claims.
Legal profession/sovereign immunity, absolute immunity. Smith v. Scalia, 44 F. Supp. 3d 28 (D.D.C. 2014). Yup,
that Scalia. The pro se plaintiff was denied admission to the Colorado Bar after "refus[ing] to submit to a mental status examination," and then sued officials, including judges who denied his appeals. Even the International Covenant on Civil and Political Rights, which rated among plaintiff's theories, cannot overcome federal sovereign and judicial absolute immunities, Judge Jackson held. She declined to order Rule 11 sanctions, but did hit the frequent-filing plaintiff with a pre-filing injunction, going forward.
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Finally, I don't really care what happened in this case; I just love its name: A Love of Food I v. Maoz Vegetarian USA (D.D.C. 2014). Plaintiff Love of Food was "a franchise of Maoz's vegetarian quick service restaurant" in D.C. When the business failed, Love of Food blamed Maoz. Maoz had failed to register its offering prospectus properly with the state of Maryland, but, Judge Jackson held, that omission did not give Love of Food standing. The court issued mixed results on the, uh, meatier claims of misrepresentation, finding a material dispute of fact over the veracity of startup estimates.
Just wait 'til Big Meat hears about this.
I gos ta roll.
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