Zinner v. Olenych

108 F.Supp.3d 369

Edward M. ZINNER, Plaintiff,

v.Richard P. OLENYCH and Lone Tree Printing, LLC, Defendants.

Civil Action No. 2:14cv163.

United States District Court, E.D. Virginia, Norfolk Division.

Signed June 4, 2015.

Louis Napoleon Joynes, II, The Joynes & Gaidies Law Group PC, Virginia Beach, VA, for Plaintiff.

Linda Wong, Mark William Thompson, Wong Fleming PC, Princeton, NJ, Thomas Averill Duckenfield, Wong Fleming, Washington, DC, for Defendants.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on a Motion for Summary Judgment, ECF No. 26, filed by Richard P. Olenych ("Olenych") and Lone Tree Printing, LLC ("Lone Tree" and, collectively with Olenych, "Defendants"). After examining the briefs and the record, the Court determines that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. Fed. R. civ. P. 78(b) ; E.D. Va. Loc. R. 7(J).

I. FACTUAL AND PROCEDURAL BACKGROUND¹

Edward Zinner ("Plaintiff" or "Zinner") brought this Lanham Act action against Defendants based on Defendants' use of the domain name edzinner.com. Plaintiff is a musician who has performed live music as a member of several bands and also recorded music with other artists. In addition, Plaintiff is the owner or part-owner of Ocean Equity Group ("OEG") and Ocean Equity Payment Solutions, LLC ("OEPS"). Also relevant to this dispute, on March 13, 1995, in the United States District Court for the Eastern District of Pennsylvania, Plaintiff pleaded guilty to racketeering charges arising from his operation of a multiple employer welfare arrangement. Plaintiff's conviction resulted in a term of imprisonment and substantial restitution judgment.

Olenych is the principal owner of Lone Tree, a printing company. Olenych is also the author of one self-published novel, Joe Sales. Beginning in 2010, Lone Tree provided printing services to Plaintiff's companies, OEG and OEPS.

In 2012, as a favor to Olenych, OEPS hired Olenych's son, Perry Olenych, to work as an independent contractor. OEG also employed Perry Olenych as an employee beginning in January 2013. In March 2013, Perry Olenych resigned from OEPS and OEG and, along with another former OEPS employee, Doug Wilson, formed Ally Merchant Services, LLC ("Ally"). Olenych is a minority shareholder of Ally and has very little involvement in its day-to-day operations. Once Plaintiff learned of Ally, Plaintiff told Olenych that Perry Olenych and Doug Wilson could not use their knowledge of the OEPS and OEG customer lists to take Plaintiff's clients.

On August 29, 2013, OEG and OEPS sued Perry Olenych and Doug Wilson in the Circuit Court for the City of Virginia Beach. OEG and OEPS asserted causes of action for breach of contract and tortious interference with business relations.

In September or October 2013, Olenych began drafting a fictionalized novel, "EZ the Hard Way," about his relationship with Plaintiff. Olenych based "EZ the Hard Way" on his experiences with Plaintiff. The main character of Olenych's draft novel is "Ed Zinner." According to Olenych, although the characters in the novel are not Plaintiff's family members, it is not a coincidence that the fictionalized "Ed Zinner's" wife and children have the same names as Plaintiff's wife and children. In a draft of the novel, "Joe," the owner of a printing company that performed work for "Ed," plots to take retribution against "Ed" for interfering with "Joe's" family.

See Pl.'s Resp. Opp'n Mot. for Summ. J. Ex. K, ECF No. 27–15. As part of his retaliatory scheme, "Joe" seeks to inflict "total humiliation" on "Edward W. Zinner" by exposing the truth about "Ed" on the internet, television, newspaper, and radio. See id. "EZ the Hard Way" remains in draft form, is not ready for publication, and has not been shown to anyone other than in connection with this matter.

On March 6, 2014, Defendants—without consent to use Plaintiff's name as a domain name—purchased the domain name "edzinner.com" from HostPapa, a hosting service. At that time, Defendants provided HostPapa with accurate registration information, including their name, address, and other contact information. However, to protect themselves from Plaintiff, Defendants opted to pay an additional fee for HostPapa to instruct the domain registrar, Tucows, Inc. ("Tucows") to keep Defendants' registration information private. Aside from the edzinner.com domain name, Defendants do not own any domain name with a person's name other than Olenych's own name.

The only content of the edzinner.com website was the following text:

Does history repeat itself?

It does with Ed Zinner. And that is what this page is all about.

We will review his documented statements and actions prior to his Multiple Employer Welfare Arrangement Industry or MEWA conviction. The book "Broken Promises: Fraud by Small Business Health Insurers " by Robert Tillman devoted a whole chapter to Edward M. Zinner.

Here's the link:

http://books.google/com/books?id=tr9Q0w6aX30C&pg=PA75&1pg=PA75&dq=ed+zinner+scams&source ...

It's not only about Ed Zinner's felony conviction that we are going to review, it is his blatant lies and outrageous antics that continue today that need to be exposed. If Mr. Zinner had simply done his jail time and reformed [,] this web site would not be here. [H]e chose not to[ ].

So his past will be revealed in chronological order. We hope to demonstrate to the world that Ed Zinner has not changed or repented for his actions and continues with his old habits.

Defs.' Mot. for Summ. J. Ex. 14, ECF No. 26–16. Aside from that text, the edzinner.com website did not state that the edzinner.com domain name was available for purchase and did not provide information identifying its owners, Defendants.

On March 25, 2014, Samuel Brown—an attorney representing Plaintiff in his state-court action against Doug Wilson and Perry Olenych—emailed the edzinner.com domain registrar, Tucows. In the email, Mr. Brown demanded that Tucows provide him with the name of the domain name registrant and forward the email to the registrant. The email demanded a response from the registrant by March 28, 2014.

Tucows forwarded the email, from Mr. Brown, to Olenych. In a response email to Mr. Brown, Tucows stated that the edzinner.com domain name had enabled privacy protections. However, Tucows informed Mr. Brown that it had forwarded the email to the domain name registrant and Tucows provided Mr. Brown with a link to a form through which Mr. Brown could directly contact the registrant. Neither Mr. Brown nor Plaintiff ever attempted to use the contact form to contact the edzinner.com domain name registrant.

On the morning of March 27, 2014, Olenych told Tucows that his attorney would contact Mr. Brown by April 4, 2014. That same morning, Tucows informed Mr. Brown that the registrant's attorney would contact him by April 4, 2014. In response, Mr. Brown stated that he could not wait that long for a response because the website was "causing serious damage and may be subject to criminal activity...." Defs.' Mot. for Summ. J. Ex. 15, ECF No. 26–17. Mr. Brown then "ask[ed] that [Tucows] reveal the source as soon as possible to avoid litigation." Id.

That afternoon, a representative of Tucows advised Olenych that Mr. Brown had threatened litigation against Tucows and instructed Olenych to contact Mr. Brown by the end of the day, or Tucows would remove the privacy protections on the edzinner.com domain. In response to the threat from Tucows that it would remove the privacy protection on the edzinner.com domain, Olenych altered the registration information to a fictitious name and address. On the following morning—March 28, 2014—Olenych emailed a representative of Tucows and informed her that his attorney, Justin Fernandez, would be contacting Mr. Brown that day.

On March 28, 2014, Mr. Fernandez contacted Mr. Brown. Although Mr. Brown was not available to receive his call, Mr. Fernandez left the following voicemail message:

Hi, this is attorney Justin Fernandez in Cincinnati,

Ohio. My phone number is [xxx]-[xxx]-[xxxx]. I'm call[ing] regarding the domain name edzinner.com. Uh, I'm representing a client who is interested in selling that domain name. Again, Justin Fernandez, [xxx][xxx]-[xxxx], in Cincinnati. Thank you very much, Mr. Brown. Bye, bye.

Id. Ex. 17, EOF No. 26–19. Mr. Brown called Mr. Fernandez in response to the voicemail message and had several conversations with Mr. Fernandez. In the conversations, Mr. Brown and Mr. Fernandez primarily discussed whether Mr. Fernandez was required to disclose the name of his client to Mr. Brown. In addition, the gist of the conversation between Mr. Fernandez and Mr. Brown was that Mr. Fernandez's client wanted to be paid for the website. Brown Dep. 50:20–21, Nov. 24, 2014, ECF No. 26–6. And "the tone of the conversation was, it would take a lot of money to pay off this mysterious owner of this website." Id. at 49:24–25, 50:1. That said, Mr. Fernandez never provided Mr. Brown with a specific offer to sell the website.

While events unfolded regarding the edzinner.com domain name, there was an important development in Plaintiff's state-court action. On March 31, 2014, Plaintiff filed a Third Amended Complaint, which named Olenych and Ally as defendants. Defs.' Mot. for Summ. J. Ex. 20, ECF No. 26–22.

Returning to the edzinner.com domain name dispute, on April 2, 2014, Tucows emailed Mr. Fernandez to inform him that Mr. Brown was threatening litigation against Tucows and that Tucows would remove the privacy protections from the edzinner.com domain name. Tucows then removed the privacy protections.

That same day, after Tucows had removed the privacy protections, Mr. Brown emailed Tucows to advise it that the registration information for the domain name was inaccurate. Tucows then informed Defendants that it would suspend the domain name unless Defendants corrected the domain name registration information or demonstrated that...