Mifflinburg Tel., Inc. v. Criswell

• Decision Date: 28 September 2017
• Docket Number: No. 4:14–CV–0612,4:14–CV–0612
• Parties: MIFFLINBURG TELEGRAPH, INC., Plaintiff, v. Heidi CRISWELL, Dale E. Criswell, Wildcat Publications, LLC, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

277 F.Supp.3d 750

MIFFLINBURG TELEGRAPH, INC., Plaintiff,

v.Heidi CRISWELL, Dale E. Criswell, Wildcat Publications, LLC, Defendants.

No. 4:14–CV–0612

United States District Court, M.D. Pennsylvania.

Signed September 28, 2017

L. Renee Lieux, Bybel Rutledge LLP, Lemoyne, PA, for Plaintiff.

Heidi Criswell, Mifflinburg, PA, pro se.

Dale E. Criswell, Mifflinburg, PA, pro se.

Wildcat Publications, LLC, Mifflinburg, PA, pro se.

MEMORANDUM OPINION

Matthew W. Brann, United States District Judge

"In all literature, there is perhaps no more vivid example of a man wrestling with the knowledge of his own guilt than that of Raskolnikov in [Fyodor] Dostoyevsky's Crime and Punishment."¹ "Throughout Crime and Punishment, Dostoyevsky provides examples of physical actions and reactions that demonstrate Raskolnikov's consciousness of his guilt…such as Raskolnikov's psychosomatic illness and his internal monologue."² After murdering a pawnbroker for her money, Raskolnikov convinces himself that he could perform good deeds to offset the crime. When questioned by the police about an unrelated matter, Rasknolnikov finds himself forced to fabricate an alibi, "attempting to convince law enforcement that he was somewhere else, doing something other than murdering and stealing."³

Here, there is no murder. But there was stealing. Although the matter turns on the undisputed facts of this case, Defendant Heidi Criswell's pro se representations, written in the third person as if to distance herself from her own actions,⁴ are an admixture of consciousness of guilt and an attempt to convince the Court of her unbelievable naivety, leading me to the ineluctable conclusion based on the record of this matter that, despite her vociferous protestations to the contrary, there is a distinct absence of mistake here.

I. BACKGROUND

The procedural history and a brief background of this action are as follows. Plaintiff Mifflinburg Telegraph, Inc. filed a complaint on March 31, 2014, against Defendants Heidi Criswell, Dale E. Criswell, and Wildcat Publications, LLC.⁵ Hereinafter "Mifflinburg Telegraph," "Heidi Criswell," "Dale Criswell," and "Wildcat" respectively. The complaint began as a fifty-four page, two-hundred twenty paragraph, eighteen count complaint against six defendants. Jurisdiction is based on two federal causes of action: alleged violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the Lanham Act 15 U.S.C. § 1125. The Court is exercising supplemental jurisdiction over the pendant state claims.

Mifflinburg Telegraph is a small business located in Mifflinburg, Union County, Pennsylvania, that operated, previously, as both a print shop and a newspaper publisher, and as of 2014, only a print shop. Heidi and Dale Criswell are spouses who had been two of only five employees of Mifflinburg Telegraph until their February 3, 2014 resignation from the business.

Heidi Criswell had been a long time employee of Mifflinburg Telegraph when its owner, John Stamm, died in 2013. Hereinafter "Stamm." Heidi Criswell's title was 'primary designer and printer,' but it is widely acknowledged that in the years preceding Stamm's death, while he was ill, she ran the business in his stead. Dale Criswell worked for Mifflinburg Telegraph intermittently as a "delivery guy."

After Stamm's death, Heidi Criswell entered into negotiations with the Stamm Estate to purchase the business for $225,000. Negotiations ultimately failed, and in the autumn of 2013, unbeknownst to the estate or Mifflinburg Telegraph, Heidi Criswell started a competing business, Wildcat Publications, LLC.

Prior to her February 2014 departure from Mifflinburg Telegraph, she began providing customers with re-order forms listing Wildcat's contact information where Mifflinburg Telegraph's information had previously appeared. She also misappropriated from Mifflinburg Telegraph's customer lists and data files, and then subsequently and secretly deleted her computer identity from Mifflinburg Telegraph's computers. This deletion included any order history, so that if a customer returned to Mifflinburg Telegraph with a repeat order, the company could not simply reprint a prior order, but would have to start from scratch and recreate the customer's logo and any other information. Additionally, Heidi Criswell misappropriated a Ricoh commercial printer from Mifflinburg Telegraph for Wildcat's use.

The day after filing the complaint, Plaintiff filed for injunctive relief, and on April 17, 2014, I entered an order enjoining Defendants

1. From directly or indirectly processing reorders procured from placing re-order forms in Mifflinburg Telegraph's customers' orders;

2. From directly or indirectly processing orders placed with the Mifflinburg Telegraph;

3. From directly or indirectly processing orders with confidential and proprietary information taken, procured, or received from the Mifflinburg Telegraph;

4. From directly or indirectly processing orders with information, files, or images taken, procured or received from the Mifflinburg Telegraph, a Mifflinburg Telegraph computer or email, or received from clients while employed at the Mifflinburg Telegraph;

5. From directly or indirectly using Mifflinburg Telegraph templates, distribution lists, confidential or proprietary information or machinery in order to publish the Mifflinburg Free Press;

6. From directly or indirectly accessing or attempting to access Mifflinburg Telegraph computers or email;

7. From directly or indirectly using the RICOH C720S printer, serial number C40026787; and

8. From purposefully misleading customers and vendors into believing the Mifflinburg Telegraph is now Wildcat Publications, LLC, Heritage Printers or any other division or fictitious name of Wildcat Publications, LLC.⁶

On September 7, 2017, default judgment was entered as to Wildcat.⁷

Heidi and Dale Criswell initially were represented by counsel, including at the time of their depositions. Counsel filed an answer to the complaint on behalf of these Defendants.⁸ After a fashion, however, there was a breakdown in the relationship between counsel and Defendants. I eventually granted counsels' motion to withdraw.⁹ In so Ordering, I provided these Defendants with two months, until July 28, 2015, to find replacement counsel. When no counsel entered an appearance, I entered a second Order extending the time one additional month. However, I warned in that Order that:

if the Wildcat defendants do not find counsel by August 28, 2015, approximately ninety days after their original counsel withdrew, no further continuances will be granted to find new counsel. The individual Wildcat defendants, Dale E. Criswell, Heidi Criswell, and Darlene Sharp may proceed pro se, that is to say they will represent themselves. If Wildcat Publications, LLC. does not find counsel by August 28, 2015, entry of default will be made against it. See, e.g., Galtieri–Carlson v. Victoria M. Morton Enterprises, Inc ., No. 2:08-CV-01777, 2010 WL 3386473, at *1 (E.D. Cal. Aug. 26, 2010).¹⁰

Nearly two years later, these defendants still have not retained counsel and are currently proceeding pro se .

Presently pending before the Court are Motions for Partial Summary Judgment against Heidi Criswell¹¹ and against Dale E. Criswell.¹² The motion for summary judgment as to Dale Criswell will be denied, but final judgment is deferred for thirty days for additional response if the parties choose to file a response, but only as to those counts directed in this memorandum opinion. The motion for summary judgment as to Heidi Criswell is granted in part, denied in part, and final judgment deferred for thirty days if the parties choose to file an additional response, but only as to those counts directed in this opinion. I will enter final judgment in accordance with this opinion by October 31, 2017, barring any further responsive filings.

II. DISCUSSION

A. Motion for Summary Judgment Standard

"One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose."¹³ Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."¹⁴ "Facts that could alter the outcome are 'material facts,' and disputes are 'genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct."¹⁵

"A defendant meets this standard when there is an absence of evidence that rationally supports the plaintiff's case."¹⁶ "A plaintiff, on the other hand, must point to admissible evidence that would be sufficient to show all elements of a prima facie case under applicable substantive law."¹⁷

"[T]he inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits."¹⁸ Thus, "[i]f the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented."¹⁹ "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff."²⁰ "The judge's inquiry, therefore, unavoidably asks...'whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.' "²¹ Summary judgment therefore is "where the rubber meets the road" for a plaintiff, as the evidentiary record at trial, by rule, will typically never surpass that which was compiled...