Weitsman v. Levesque

ADAM WEITSMAN; UPSTATE SHREDDING, LLC, a New York limited liability company;WEITSMAN SHREDDING, LLC, a New York limited liability company;and WEITSMAN RECYCLING, LLC, a New York limited liability company, Plaintiffs, v. ROBERT ARTHUR LEVESQUE, III, Defendant.

Case No.: 19-CV-461 JLS (AHG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

February 14, 2020

ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT, (2) DENYING WITHOUT PREJUDICE PLAINTIFFS' REQUEST FOR A PERMANENT INJUNCTION, AND (3) DENYING AS MOOT PLAINTIFFS' REQUEST FOR AN IN-PERSON STATUS CONFERENCE

(ECF Nos. 89, 95, 96)

Presently before the Court are Plaintiffs Adam Weitsman; Upstate Shredding, LLC; Weitsman Shredding, LLC; and Weitsman Recycling, LLC's Motion for Default Judgment and Injunction ("Mot.," ECF No. 89), Supplemental Brief in Support of Motion ("1st Supp.," ECF No. 90), Second Supplemental Brief in Support of Motion ("2d Supp.," ECF No. 95), and Request for In-Person Status Conference Regarding Motion ("Req.," ECF No. 96). Having carefully reviewed Plaintiffs' pleadings, briefs, supporting evidence, and the law and having weighed the relevant factors, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion (ECF Nos. 89, 95), DENIES WITHOUT PREJUDICE Plaintiffs' request for permanent injunctive relief (ECF Nos. 89, 94, 95), and DENIES AS MOOT Plaintiffs' Request for a status conference, as follows.

BACKGROUND

I. Plaintiffs' Allegations and Evidence

Plaintiff Weitsman is the founder and principal owner of corporate Plaintiffs Upstate Shredding, Weitsman Shredding, and Weitsman Recycling, which are successful scrap metal and recycling businesses in the State of New York. See First Am. Compl. ("FAC," ECF No. 85) ¶¶ 1-4, 10. "Upstate Shredding has 18 locations, and Weitsman Shredding and/or Weitsman Recycling [have] approximately 500 employees to support Upstate Shredding's recycling operations." Id. ¶ 11. "Because 'Upstate Shredding' has become a well-established brand in the recycling industry, people often refer to 'Upstate Shredding' when discussing any of Weitsman's business entities, including Weitsman Shredding and Weitsman Recycling." Id. ¶ 10.

In November 2011, Weistman Shredding hired Defendant as a scrap metal inspector in Owego, New York. Id. ¶ 12. In March 2014, Defendant "began exhibiting bizarre, erratic, and abnormal behavior during the course of his employment," including "wearing a satanic mask at the office during work hours[] and making racially motivated and derogatory remarks to and/or about Upstate Shredding customers." Id. ¶ 13. Consequently, Plaintiffs terminated Defendant in March 2014. Id. ¶ 14. At Defendant's request, however, Mr. Weitsman provided Defendant a second chance and rehired him. See id. But because Defendant "continued to engage in erratic and bizarre behavior," Plaintiffs again terminated Defendant in December 2014. Id. Defendant then moved to Clayton, North Carolina, and, shortly thereafter, to Ramona, California. See id. ¶¶ 5, 15.

After his termination and move to North Carolina, Defendant began to publish defamatory statements regarding Plaintiffs on the Internet. See id. ¶ 16. "Among other things, [Defendant] has falsely accused Plaintiffs of murder, conspiracy to commit murder, and conspiring to dispose of a missing person (Michele Harris) at the Upstate Shredding recycling plant." Id. ¶ 16 & n.1 (footnote omitted).

For example, "[u]nder the user name 'robertlev100[,' Defendant] published at least four YouTube videos about Plaintiffs, all of which falsely identify Plaintiffs as being murderers, co-conspirators to commit murder, accomplices to murder, and otherwise responsible for the disappearance of Ms. Harris." Id. ¶ 17. Defendant "also owns and operates the Instagram account bearing the user name 'scrapkingslayer[,'] which he uses to promote his Facebook page containing substantial false and defamatory statements about Plaintiffs." Id. ¶ 29. Finally, Defendant owns multiple Twitter accounts, including "Sandbarfight," "VidaliaSBF," and "TheScrapKingSlayer," which he has used to publish hundreds of false and defamatory statements over many years. See id. ¶¶ 20-21; see also id. Ex. A; Decl. of Raeesabbas Mohamed ("Mohamed Decl.," ECF No. 89-2) ¶ 12 & Ex. 3.

Defendant's "defamatory Twitter posts include images of Upstate Shredding, Mr. Weitsman, and his family," FAC ¶ 21, and, among other things, "falsely accuse[] Plaintiffs of accepting envelopes full of cash from Calvin Harris in exchange for agreeing to dispose of Michele Harris's body," id. ¶ 23; see also id. ¶ 24; raping a child, see id. ¶ 28(a); see also id. Ex. E; laundering money for "El Chapo," see id. ¶ 28(b); see also id. Ex. F; killing "100's, if not thousands[,] through the heroin epidemic and just straight up murder," see id. ¶ 28(c); see also id. Ex. G; and "conspir[ing] . . . to wiretap [Defendant's] phone calls and . . . transmit[ing] a death threat to a witness that was involved in [Defendant's] case." See id. ¶ 28(d); see also id. Ex. H. Defendant also has posted on Twitter his own research regarding defamation and defamation per se, see id. ¶ 25; see also id. Ex. B, and has accused third parties of defamation for allegedly posting false information about him. See id. ¶ 25; see also id. Ex. C.

On "April 17, 2017, Plaintiffs' counsel demanded that [Defendant] refrain from defaming Plaintiffs, and that he remove all of the defamatory statements he [has] published on the Internet." Id. ¶ 26. Defendant "mocked Plaintiffs' demand on Twitter, refused to remove any defamatory statements, and continued" to post defamatory statements. See id.; see also id. Ex. D. Defendant's defamatory statements have "harmed the corporate Plaintiffs as well as Weitsman himself." Id. ¶ 27. Mr. "Weitsman has suffered and will continue to suffer humiliation, extreme emotional distress, anxiety, depression, stomach aches, headaches, muscle pain, lack of sleep, lack of a desire to eat, emotional pain and suffering, anguish, and loss of self-esteem." Id. ¶ 66. Further, "[c]urrent and prospective customers, employees, and other third parties have . . . seen [Defendant]'s YouTube Defamation and Twitter Defamation." Id. ¶ 27. "As a result . . ., Plaintiffs have sustained, and will continue to sustain, harm and injury, including, but not limited to, damage to reputation[;] loss of revenues, profits, goodwill, and business relations with existing and future business prospects[;] and loss of competitive business advantage, opportunity, and/or expectancy." Id. ¶¶ 37, 50, 59.

II. Procedural Background

Plaintiffs Weitsman and Upstate Shredding filed this action for damages and preliminary and permanent injunctive relief in the United States District Court for the Northern District of New York on July 5, 2017, alleging causes of action for defamation and defamation per se, business disparagement/trade libel, tortious interference, and intentional infliction of emotional distress. See generally ECF No. 1. Following United States Magistrate Judge David E. Peebles' authorization, see ECF No. 10, Plaintiffs effected service of their initial complaint by electronic mail on October 2, 2017. See ECF No. 12. Plaintiffs requested entry of default on October 26, 2017, see ECF No. 17, which the Clerk entered on November 6, 2017. See ECF No. 23. On December 6, 2017, Plaintiffs moved for default judgment, see ECF No. 25, which Defendant opposed. See ECF No. 27.

On April 25, 2018, United States District Judge Mae A. D'Agostino granted in part Plaintiffs' motion for default judgment as to liability for their defamation claims and entered an injunction enjoining Defendant from making certain false and defamatory statements and requiring Defendant to remove all defamatory statements from all websites, forums, blogs, lists, social media accounts, and any other forum of mass communication. See ECF No. 34 at 16-17. Judge D'Agostino then held a hearing regarding Plaintiffs'damages on June 1, 2018. See ECF No. 41. While Judge D'Agostino's decision regarding Plaintiffs' damages was pending, Plaintiffs filed two motions for contempt orders. See ECF Nos. 43, 46.

On August 27, 2018, Judge D'Agostino sua sponte ordered Plaintiffs to show cause why this action should not be dismissed or transferred for lack of personal jurisdiction over Defendant, a resident of California. See ECF No. 54. On January 11, 2019, Judge D'Agostino concluded that New York lacked personal jurisdiction over Defendant, vacated her April 25, 2018 Order, and transferred this action to this District pursuant to 28 U.S.C. § 1406(a). See generally ECF No. 65.

Following the transfer on March 11, 2019, see ECF No. 70, this Court ordered the Parties to file a joint status report. See ECF No. 73. The Parties filed separate status reports on March 25, 2019. See ECF Nos. 74, 76. The Court then ordered Defendant to respond to Plaintiffs' original complaint on or before April 16, 2019. See ECF No. 77.

On April 17, 2019, Defendant filed an answer, see ECF No. 83, which Plaintiffs moved to strike. See ECF No. 84. Concurrently with their motion to strike, Plaintiffs filed the operative First Amended Complaint, alleging the same causes of action as their initial complaint but adding two new Plaintiffs, Weitsman Shredding and Weitsman Recycling. See generally ECF No. 85. Plaintiffs served the First Amended Complaint by mailing a copy via First-Class Mail to Defendant's address in Ramona, California. See id. at 17 (per CM/ECF).

On June 7, 2019, Plaintiffs requested that the Clerk of the Court enter default as to Defendant, see ECF No. 86, and the Clerk entered default on June 7, 2019. See ECF No. 87. The Court denied as moot Plaintiffs' motion to strike, see ECF No. 88, after which Plaintiffs filed the instant, unopposed Motion. See generally ECF No. 89. Plaintiffs filed supplemental briefs on August 22, 2019, and January 13, 2020. See ECF Nos. 90, 95.

III. Subsequent Factual...