IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KIRSHA BROWN-YOUNGER, )

)

Plaintiff, )

)

v. ) Case No. 12 C 1979

)

LULU.COM, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Kirsha Brown-Younger ("Brown-Younger") is totally out of control.1

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.

 During the 104 day time span that began with Brown-Younger March 19 submission of 1

her self-prepared Complaint and ended with June 30, this action amassed no fewer than 87

docket entries. During June alone Brown-Younger herself made 13 filings. But it is their

content rather than their volume that reveals a deeply disturbed individual whose fulminations

call for the consideration of possible sanctions, including the ultimate possibility of dismissal. 

And because Brown-Younger's most recent filings include a June 27 motion for this Court's

recusal (Dkt. 83), this detailed opinion is called for both to demonstrate why sanctions must be

considered and then to show the emptiness of that motion to disqualify this Court.

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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. It found that Brown-Younger's claim 2

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.

 Although 28 U.S.C. § 1915A is limited to requiring such screening only in prisoner 2

complaints, this Court follows that procedure as to all complaints tendered by pro se litigants

who seek in forma pauperis treatment -- see Lee v. Clinton, 209 F. 3d 1025, 1026 (7th Cir. 2000)

and later cases applying the same principle.

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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. Understandably 3

 In what this Court has since learned is a pattern of conduct on Brown-Younger's part, 3

she also filed charges against that same lawyer with the Illinois ARDC, which swiftly responded:

We have reviewed the communication and have determined that no action by this

Commission is warranted.

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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

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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

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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

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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. This Court has deferred consideration of that motion 4

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 "extrajudicial 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:

 As if to underscore the irony of her charging this Court with having violated her rights, 4

on the very next day -- June 28 -- Brown-Younger delivered a copy of her motion to the Chief

Judge of this District Court and also filed a Judicial Misconduct Complaint with our Court of

Appeals, both without this Court having had an opportunity to address her motion. Needless to

say, the Chief Judge of the Court of Appeals immediately dismissed the latter complaint as

outside of that Court's jurisdiction, while on the following day the Chief Judge of the District

Court rejected the motion as beyond his authority.

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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 "extrajudicial 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. 

5

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

 One example is her persistence in arguing that her contractual undertaking with Lulu to 5

submit all disputes to arbitration is somehow trumped by the alternative dispute resolution

provision of Title 28 that applies to the potential for such a court-ordered alternative, as

contrasted with the contractual agreements to which the Federal Arbitration Act applies. This

Court explained that distinction to Brown-Younger when she first raised the issue, only to find

her repeating it once again in a heedless filing.

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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."

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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.

__________________________________________

Milton I. Shadur

Senior United States District Judge

Date: July 3, 2012.

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