Queen v. Schultz
| Decision Date | 05 August 2015 |
| Docket Number | Civil Action No. (BAH) 11-0871 |
| Parties | MICHAEL QUEEN, Plaintiff, v. ED SCHULTZ, Defendant. |
| Court | U.S. District Court — District of Columbia |
MEMORANDUM OPINION
The parties in this lawsuit first met in a hallway at an NBC television studio in January 2008, when the plaintiff, Michael Queen, approached Ed Schultz, the defendant. See May 13, 2015 Tr. at 13, ECF No. 169 (Testimony of Michael Queen). From all outward appearances, the plaintiff seemed to be a "nice guy," yet his demeanor was "aggressive" and his clothing "Army fatigues." See May 15, 2015 AM Tr. at 65, ECF No. 183 (Testimony of Ed Schultz). The plaintiff was a fan of a popular nationally syndicated radio program, "The Ed Schultz Radio Show," and seized the opportunity to speak with its host. After exchanging greetings, the plaintiff and defendant had a brief, five to ten minute conversation, in which the plaintiff praised the defendant's radio show and told the defendant "you've got to be on TV." Id. at 65-66 (Testimony of Ed Schultz); see also May 13, 2015 Tr. at 13, 108-11 (Testimony of Michael Queen). The defendant responded, "I agree," id., since he had been trying seriously for nearly two years to host a national television program. See May 14, 2015 AM Tr. at 94, ECF No. 188 (Testimony of Paul Woodhull). Without prompting, the plaintiff asked the defendant whether he was "working with anybody" in order to get a television show. May 15, 2015 AM Tr. at 66 (Testimony of Ed Schultz). "No. You're it," the defendant replied, as a good-natured response toone of his fans. Id. This seemingly innocent exchange clenched a multi-year business partnership between the plaintiff and the defendant—at least according to the plaintiff's trial testimony. See May 13, 2015 Tr. at 108-11 (Testimony of Michael Queen). After hearing five days of testimony, and needing only two hours of deliberation, the jury reached an alternate conclusion: The parties never formed a business partnership. See Verdict Form, ECF No. 178.
The plaintiff now seeks to turn aside the jury verdict and present his claim anew for jury consideration. See Pl.'s Mot. & Mem. New Trial ("Pl.'s Mem."), ECF No. 192. For the reasons stated below, the plaintiff's request for yet another opportunity to convince a fact-finder of the merits of his claim is denied.
In 2008, the defendant was a political radio host based in Fargo, North Dakota. See May 12, 2015 AM Tr. at 98, ECF No. 186 (Testimony of Ed Schultz). He aspired to host a television show and, to that end, made frequent guest appearances on television news commentary programs. See May 15, 2015 AM Tr. at 60 (Testimony of Ed Schultz). On the day the parties met, the defendant had just made a guest appearance on "Hardball with Chris Matthews" and was leaving an NBC studio in Washington D.C. See id. at 64 (Testimony of Ed Schultz). The plaintiff, who worked at NBC as a cameraman, see May 13, 2015 Tr. at 11 (Testimony of Michael Queen), approached the defendant and introduced himself, see May 15, 2015 AM Tr. at 65 (Testimony of Ed Schultz).1 The two had a fleeting five-to-ten minute conversation, during which the plaintiff showed the defendant the studio of the "Meet the Press." Id.
During this brief encounter, the plaintiff urged the defendant to get his own television show. See May 13, 2015 Tr. at 13 (Testimony of Michael Queen); May 15, 2015 AM Tr. at 66 (Testimony of Ed Schultz) ("[Y]ou've got to have your own TV show."). The defendant agreed. "Are you working with anybody" to get a television show, the plaintiff asked. May 15, 2015 AM Tr. at 66 (Testimony of Ed Schultz). "No. You're it," the defendant responded, in what the defendant characterized as a general response to a fan. Id. The plaintiff then asked the defendant for his business card. Id. at 67. To be "courteous," the defendant's wife provided the plaintiff with the defendant's card, as the defendant did not want to "come off as a jerk" by refusing to give out his business card. Id.
Following this initial exchange and over the ensuing months, the plaintiff and defendant continued to communicate. The plaintiff called the defendant and the two launched "exploratory conversations about . . . a TV show." Id. These included teleconferences among the plaintiff, the defendant and a third person, Max Schindler, whom the plaintiff had recruited to participate because of Mr. Schindler's prior experience directing television programs.2 Id. at 68-69. During these teleconferences, the parties discussed the possibility of producing a syndicated talk show that would air on local stations, akin to the popular "McLaughlin Group."3 See May 12, 2015 PM Tr. at 83-84 (Testimony of Ed Schultz). Shortly after these discussions began, Mr.Schindler insisted on a signed written agreement between the parties. See May 15, 2015 AM Tr. at 70 (Testimony of Ed Schultz).
As a result, in March 2008, less than three months after their first brief introduction, the plaintiff put together a proposed partnership agreement and sent it, unsigned by either the plaintiff or Mr. Schindler, to the defendant for his consideration. Id. at 71. Upon receipt, the defendant forwarded the agreement to his personal attorney, Jeffrey Landa. Id. Mr. Landa's response was immediate and definite: "Ed, please do not sign that agreement." Id. Mr. Landa need not have feared, the defendant knew immediately that the proposed agreement was a "non-starter." See May 12, 2015 AM Tr. at 70-75. During trial, at plaintiff's counsel's express invitation and using a red pen supplied by plaintiff's counsel, the defendant explained all of his problems with the plaintiff's proposed partnership agreement. See id. at 67.4 Describing the terms on one page as "terrible" and "horrendous," the defendant proceeded to describe the fundamental unfairness and problems with the central terms of the proposed agreement. See id. at 69.
First, the defendant criticized the agreement's proposal for joint creative decision making. The proposal required creative decision making to be split between the defendant, the plaintiff, and Mr. Schindler (whom the plaintiff had yet to meet). Permitting the plaintiff and Mr. Schindler an effective veto over creative decision making was a "non-starter" for the defendant because "after 35 years of . . . being in [the entertainment] business, [the defendant was not] going to turn . . . control of [a] television show over to a man that [he has] never metbefore." Id. at 70. Second, the defendant criticized the agreement's contemplation of "Ed Schultz T-Shirts" and other related Ed Schultz paraphernalia. The defendant felt that such a term would permit Mr. Queen and Mr. Schindler to "invad[e] his career" and that he would be required to "turn everything over to them." Id. at 71-73. Third, the defendant criticized the term relating to salaries, which permitted "[s]alaries paid to individual partners [to] be negotiated on an individual basis by each individual without the approval of the other partners." Id. at 74-75. The defendant noted that such a term would permit the plaintiff and Mr. Schindler "to dictate . . . what their salary [was] going to be without [his] approval." Id. at 75. Fourth, the defendant criticized the requirement that all partners live in Washington D.C. and approve of all business-related travel, worrying that such a provision would permit the other partners to veto news stories the defendant might wish to pursue outside of Washington D.C. Id. at 78-80. Finally, the defendant criticized the termination provision of the agreement, which stated that the agreement would stay in effect until the defendant was off the air for a period of three years. Id. at 80. The defendant noted that television shows are frequently cancelled and that such a term would mean he was "done in the industry for the next three years" should any show be cancelled. Id. Needless to say, the defendant never signed the draft agreement and, indeed, the parties never signed any agreement. See May 15, 2015 AM Tr. at 73 (Testimony of Ed Schultz).
Around this same time, the parties also discussed the possibility of dividing any profits from a potential partnership fifty percent for the defendant, twenty-five percent for the plaintiff, and twenty-five percent for Mr. Schindler. See May 12, 2015 AM Tr. at 84 (Testimony of Ed Schultz) (testifying regarding email in which he stated that he would "agree to a 50, 25, 25 percentage formula of profits after expenses of the show").5 Although the parties discussed sucha potential division of profits, they never entered into a final agreement. See id. at 41. Due to the defendant's continued refusal to sign any agreement, Mr. Schindler stopped participating in the discussions between the plaintiff and the defendant. See May 12, 2015 PM Tr. at 78-79 (Testimony of Max Schindler).
On April 5, 2008, following Mr. Schindler's departure, the defendant sent the plaintiff an email:
I understand your concern about a financial arrangement moving forward. I can't give you specifics at this time. We do not know what we are dealing with at this point and what kind of opportunity may present itself. However, any TV deal will obviously involve you. I will not do a TV deal without your involvement and that includes a financial involvement. Rest assured, we are together on this. I hope this works for you at this point.
Queen II, 747 F.3d at 883. Despite the relevance of this email to the plaintiff's theory, and the fact that the email was specifically identified by the D.C. Circuit in its opinion on summary judgment as a critical piece of evidence, see id., plaintiff's counsel failed to ask the defendant during his direct examination about the email, and, as discussed below, failed to introduce the email into evidence until after he rested his case in chief.6 See May 14, 2015 AM Tr. at 196-97.
Discussions between the parties continued even after Mr. Schindler ceased...
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