Cretella v. Kuzminski
| Decision Date | 31 July 2009 |
| Docket Number | Civil No. 3:08CV109. |
| Citation | 640 F.Supp.2d 741 |
| Parties | Victor E. CRETELLA, Plaintiff, v. David L. KUZMINSKI, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Douglass Hayden Fisher, D. Hayden Fisher, Esquire, PLC, Richmond, VA, for Plaintiff.
David L. Kuzminski, Petersburg, VA, pro se.
This matter is before the Court on Defendant David L. Kuzminski's Motion to Set Aside the Verdict. (Docket No. 67.) For the reasons set forth in the accompanying Memorandum Opinion, the Motion to Set Aside the Verdict will be GRANTED IN PART, DENIED IN PART and DENIED CONDITIONALLY IN PART, where the Court finds that the total, remitted amount of Fifty-Three Thousand Dollars ($53,000.00) in damages, both actual and punitive, is appropriate as follows:
1. In regard to the jury awards of actual and punitive damages—
a. As to Count I, Defendant's request for judgment as a matter of law as to both actual and punitive damages is DENIED, and his request for a new trial is DENIED CONDITIONALLY, dependent on the Plaintiff's acceptance of a remitted portion of the actual damages in the amount of Six Thousand Dollars ($6,000.00) and punitive damages in the amount of Five Thousand Dollars ($5,000.00);
b. As to Count II, Defendant's request for judgment as a matter of law as to both actual and punitive damages is DENIED, and his request for a new trial is DENIED CONDITIONALLY, dependent on the Plaintiff's acceptance of a remitted portion of the actual damages in the amount of Six Thousand Dollars ($6,000.00) and punitive damages in the amount of Five Thousand Dollars ($5,000.00);
c. As to Count III, Defendant's request for judgment as a matter of law as to both actual and punitive damages is DENIED, and his request for a new trial is DENIED CONDITIONALLY, dependent on the Plaintiff's acceptance of a remitted portion of the actual damages in the amount of Six Thousand Dollars ($6,000.00) and punitive damages in the amount of Five Thousand Dollars ($5,000.00);
d. As to Count IV, Defendant's request for judgment as a matter of law as to actual damages is DENIED, with his request for judgment as a matter of law as to punitive damages being GRANTED, and his request for a new trial is DENIED CONDITIONALLY on the Plaintiff's acceptance of the remitted amount of Six Thousand Dollars ($6,000.00) as to actual damages; and
e. As to Count V, Defendant's request for judgment as a matter of law as to both actual and punitive damages is DENIED, and his request for a new trial is DENIED CONDITIONALLY, dependent on the Plaintiff's acceptance of a remitted portion of the actual damages in the amount of Six Thousand Dollars ($6,000.00) and punitive damages in the amount of Eight Thousand Dollars ($8,000.00);
2. Defendant's demand for a new trial on the basis of alleged misconduct by the Plaintiff, Plaintiffs counsel and/or error by this Court is DENIED; and
3. Plaintiff shall notify the Court and the Defendant within ten (10) business days of this date whether he accepts the remitted damages as to the remaining claims, or whether a new trial is to ensue.
Let the Clerk docket this Order and accompanying Memorandum Opinion, electronically notify counsel for the Plaintiff, and forward copies to Defendant at his address of record.
It is so ORDERED.
This matter is before the Court on Defendant David L. Kuzminski's Motion to Set Aside the Verdict. (Docket No. 67.) The relevant issues have been extensively briefed. The Court will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court, and argument would not aid in the decisional process. For the reasons set forth herein, the Motion to Set Aside the Verdict will be GRANTED IN PART, DENIED IN PART and DENIED CONDITIONALLY IN PART, depending on whether Plaintiff accepts the remitted awards as determined by the Court herein.
Plaintiff, Victor E. Cretella, III ("Cretella"), filed the action in February 2008, alleging that Defendant, David L. Kuzminski ("Kuzminski") had defamed him on several occasions in a series of web-postings he had posted on his personal webpage and on an on-line forum known as the Absolute Write website (www.Absolute Write.com, hereinafter "Absolute Write"). (Compl. ¶¶ 6-15.)1 Specifically, Plaintiff alleged that Kuzminski had made several false and defamatory statements which included questioning Plaintiffs ethical conduct as a practicing attorney, accusing him of the criminal act of extortion, and stating that Plaintiff had been discharged from his employment with a law firm as a result of such conduct. (Compl. ¶¶ 6-15.) In response, Defendant asserted that he had not defamed Plaintiff, but had used constitutionally-protected and/or otherwise appropriate means to lodge complaints concerning Plaintiffs conduct in order to lawfully warn others of Plaintiff's actions. (Answer at 1.)
Plaintiff is a licensed attorney who practices in the state of Maryland, and is currently employed as in-house counsel for the publishing company PublishAmerica, Inc. ("PublishAmerica"). (Tr. 56-57.)2 Before becoming employed at PublishAmerica, Plaintiff practiced law at a small law firm in Maryland. (Tr. 63.) During the course of his employment at the law firm, Plaintiff was introduced to one of the owners of PublishAmerica. (Tr. 64.) Plaintiff thereinafter accepted PublishAmerica as one of his clients in 2001, and proceeded to represent the Company in several matters, including contractual issues, intellectual property claims, and other legal issues related to the publishing business. PublishAmerica remained one of Plaintiff's clients through 2007, when Plaintiff left the law firm and accepted the position as in-house counsel with the company. (Tr. 69.)
PublishAmerica is a publishing company that utilizes a digital press system. (Tr. 67.) A digital press system provides the capability to publish as many, or as few, publications as desired at any given stage. (Tr. 67.) Thus, with such a system, a publishing source does not have to publish a certain number of copies of a particular work in advance; but instead, it can determine the existing demand for the publication first, and then publish only the number needed to meet the existing demand. (Tr. 67; Pl.'s Ex. 51.)3 Such a system reduces the publishing company's overhead costs and allows it to publish unknown authors who may not be able to attract the interest of larger publishing firms, or publish their work without being responsible for substantial fees. (Tr. 67; Pl.'s Ex. 50; Pl.'s Ex. 51.) As a consequence of using a digital press system, publishing companies like PublishAmerica do not typically "mass produce" the books that they publish, and as such, they do not engage in the type of broad promotion the way that larger publishing houses might. (Tr. 66-67; Pl.'s Ex. 51.) As a consequence, PublishAmerica emphasizes on its website to all of their new or potential authors that while they do sell their publications to large retailers such as Barnes and Noble and Amazon.com, the author bears the personal responsibility of promoting their own publications if they desire to be contacted by such large book retailers. (Pl.'s Ex. 51; Tr. 73.)
From 2001 until his acceptance of an in-house counsel position with PublishAmerica in 2007, Plaintiff worked on various projects with the company as one of his clients, including author disputes, representing the company in arbitration proceedings, intellectual property cases, and landlord disputes. (Tr. 69, 92-93.) One such project, viewed by both parties as the impetus of this case, was a letter that Plaintiff sent on behalf of PublishAmerica to a Ms. Christine Norris, an author and Absolute Write website participant4, in February 2007. (Tr. 70; Pl.'s Ex. 8.) Plaintiff testified at trial that he had sent Ms. Norris the letter because she had posted comments on the Absolute Write website in which she referred to PublishAmerica as a "scam." (Tr. 74.) Plaintiff testified that the letter was meant to explain to her that her statements were false, and that they constituted defamation for which she could be liable. (Tr. 70; Pl.'s Ex. 8.) In his letter, Plaintiff also indicated that Ms. Norris should consult the PublishAmerica website where she would find that their policies and procedures were clearly outlined and quite proper. (Tr. 70-73; Pl.'s Ex. 8.) Ms. Norris did not respond directly to Plaintiff; rather, she posted the following message on the Absolute Write website board on February 7, 2007:
"YOU HAVE TO BE KIDDING ME!!
WTF? Tonight a courier shows up at my door. Inside is a lovely letter from our friend VCretella. Within, among a long list of my quotes from THIS MESSAGE BOARD, they tell me that I cannot call PA a scam.
No. Seriously. They went to all of the trouble to look up my home address and paid a courier service to deliver it. I feel so special. Three pages of things I've said and why what I said is a lie. If I don't cease and desist, that they will sue me. Oh, and that they've send [sic] a bunch of things I've said to the AG's office. As if. I'll believe it when the Feds show up.
Yanno what, PA? Bring. It. On. I'm sure I could find a lawyer (or one will volunteer ... Jaws, you listening?) to take you on in court.
Oh, and if I call them on the phone and discuss a `settlement', they won't file charges or seek the damages in `excess of $100,000' ...
OFFICIALLY, I believe PA to be a less than truthful about their business practices. I believe their sole purpose is to sell books to their authors, Instead of using the business plan of mainstream commercial publishers. This is clearly my opinion, based on facts and anecdotal evidence."
(Pl.'s Ex. 13.) Ms. Norris continued to discuss the receipt of the letter on the...
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