Queen v. Schultz, Civil Action No. 11–871 (BAH).

Citation888 F.Supp.2d 145
Decision Date30 August 2012
Docket NumberCivil Action No. 11–871 (BAH).
CourtUnited States District Courts. United States District Court (Columbia)
PartiesMichael QUEEN, Plaintiff, v. Edward SCHULTZ, Defendant. Edward Schultz, Counter–Claimant, v. Michael Queen, Counter–Defendant.

888 F.Supp.2d 145

Michael QUEEN, Plaintiff,
v.
Edward SCHULTZ, Defendant.

Edward Schultz, Counter–Claimant,
v.
Michael Queen, Counter–Defendant.

Civil Action No. 11–871 (BAH).

United States District Court,
District of Columbia.

Aug. 30, 2012.


[888 F.Supp.2d 148]


Frazer Walton, Jr., Law Office of Frazer Walton, Jr., Washington, DC, Mark Lane, Charlottesville, VA, for Plaintiff.

John C. Hayes, Jr., Nixon Peabody LLP, Washington, DC, Jeffrey B. Landa, Fargo, ND, for Defendant.


MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

This case concerns the nature of the relationship between two parties involved in the formation of “The Ed Show”—a political news commentary television program hosted by the defendant, Ed Schultz,

[888 F.Supp.2d 149]

on MSNBC. The plaintiff, Michael Queen,1 claims that he was left out of the show when it was brought to air on MSNBC, and as a result he brings five causes of action against the defendant: breach of contract, breach of implied-in-fact contract, fraud in the inducement, tortious interference with a business relationship, and intentional infliction of emotional distress. The plaintiff claims, in essence, that he and the defendant were engaged in a joint enterprise to put the defendant on television and that, as a result, he is now entitled to twenty-five percent of the profits earned by the defendant as a result of the “The Ed Show.” The defendant, in turn, makes three counterclaims all sounding in tort: fraud in the inducement, libel, and slander. The defendant seeks damages for what he claims were false promises made to keep him involved in the project and retributory actions taken after it became clear that the plaintiff would not be involved in “The Ed Show.”

Pending before the Court are two motions for summary judgment filed by the defendant and a cross-motion for partial summary judgment filed by the plaintiff, which in combination seek dismissal of all claims and counterclaims. For the reasons stated below, the Court grants all three motions.

I. BACKGROUND

The plaintiff alleges that in 2007, while working for NBC in Washington, D.C., he developed an idea for a television show featuring the defendant, who at that time was a radio talk show host. Compl. ¶¶ 5, 8, ECF No. 1. Although the plaintiff and the defendant had yet to meet, id. ¶ 6, in January 2008 the plaintiff says he spoke to the late Timothy Russert, “who at that time was the Senior Vice President of NBC News and Washington Bureau Chief, pitching the idea for an NBC television show” featuring the defendant. Id. ¶ 7.

In January 2008, according to the plaintiff, he and the defendant met for the first time, when the plaintiff gave the defendant a tour of the NBC Washington office building. Id. ¶ 9. It was during that tour that the plaintiff allegedly first pitched the idea for the show to the defendant, and in response the defendant allegedly expressed interest in moving forward with the show's development. Id. ¶ 10–11. Taking the defendant's interest as a green light, the plaintiff began developing and pitching the show in earnest. The plaintiff claims that he continued to meet with Russert to develop the show, he created a “demonstration reel” of the defendant's guest appearances on other programs, and he brought in a former NBC News co-worker, Max Schindler, to help develop the show. Id. ¶¶ 14, 16–18; see also Decl. of Max Schindler (“Schindler Decl.”) ¶ 2, ECF No. 24–1.

Between March and June of 2008, the plaintiff claims that he, the defendant, the defendant's attorney Jeffrey Landa,2 and

[888 F.Supp.2d 150]

Schindler engaged in a number of communications via telephone and e-mail, attempting to negotiate a contract that would govern the process of their joint development of the proposed show. Compl. ¶¶ 19–26, 28–29, 45–48; Pl.'s Opp'n to Def.'s Mot. Summ. J. (“Pl.'s First Opp'n”) Exs. 1, 3–4, 6, 9–11, 14, ECF No. 24–4. The first recorded communication in this regard took place on March 5, 2008, when the defendant sent the plaintiff an e-mail saying that he would “agree to a 50–25–25 percentage formula of profits after expenses of the show.” Pl.'s First Opp'n Ex. 1. Although not specified in the e-mail, the implication was that 50% would go to the defendant, 25% would go to the plaintiff, and 25% would go to Schindler. On March 16, 2008, Landa sent the plaintiff an e-mail expressing agreement in principle to having the defendant sign a partnership agreement whereby the defendant, the plaintiff, and Schindler would form a “partnership or corporation ... for any television broadcast opportunities that occur as a result of this agreement,” with final terms to be executed within 30 days. Id. Ex. 14.3 The written partnership agreement contemplated by Landa's e-mail, however, was never executed.

Landa also sent the plaintiff a second e-mail on the same day, March 16, 2008, entitled “Proposed Agency Agreement.” Id. Ex. 3. The second e-mail purported to memorialize an exclusive representation or agency agreement, granting the plaintiff and Schindler exclusive authority to negotiate a television show on behalf of the defendant with CNN. Id. It further provided that if such a show were successful, “Ed Schultz will enter into an exclusive agreement with [Michael Queen and Max Schindler] for the production of that show at terms to be negotiated according to industry standards.” Id.4

Sometime after March 16, 2008, Schindler left the project and encouraged the plaintiff to do so as well, citing a lack of trust in the defendant as the reason for his departure. Schindler Decl. ¶ 3 (“I did not trust Mr. Schultz. I warned Mike that it was my belief he should abandon this project with Schultz or he would regret it.”).

[888 F.Supp.2d 151]

Apparently, the departure of Schindler, and the reason for his departure from the project, prompted the defendant to provide assurances to the plaintiff. Pl.'s Statement of Material Facts as to Which There Exists a Genuine Issue Necessary to Be Litigated (“Pl.'s Statement of Material Facts”) ¶¶ 12–13, ECF No. 24. Specifically, on April 5, 2008, the defendant personally e-mailed the plaintiff assuring him: “I will not do a TV deal without your involvement and that includes financial involvement.” Pl.'s First Opp'n Ex. 4; see also id. Ex. 11 (June 8, 2008 e-mail from Schultz to Queen stating “I really want you to be a partner but you seem to have a hard time trusting me and understanding that”).5

Assuaged by the defendant's assurances, the plaintiff says that he then began contacting television networks to “pitch” the idea of a show starring the defendant. Compl. ¶¶ 30–42. The plaintiff alleges that: he met with Jeff Zucker, CEO of NBC Universal, in late March or early April 2008; he sent the demonstration reel of the defendant to Benjamin Silverman, chairman of NBC Entertainment, on April 17, 2008 and followed up to ensure that he saw the proposal; he wrote to Roger Ailes, Chairman of FOX Media Group, on April 22, 2008, to pitch the show; and he e-mailed Phil Griffin, President of MSNBC, on April 28, 2008, to pitch the show.6Id. Despite these efforts, the plaintiff was unable to secure a show for the defendant through any of these communications.

In parallel with his efforts to “pitch” the show idea to various networks, the plaintiff began making arrangements to produce and film a pilot episode of the proposed show, presumably to aid the plaintiff's ongoing marketing efforts. See id. ¶¶ 41–43. Although the defendant promised to “pay for [the pilot],” Pl.'s First Opp'n Ex. 11, the plaintiff claims that he initially paid the expenses for the pilot himself, which totaled $11,500. See Compl. ¶¶ 48–49. While the preparations for the pilot were under way, the plaintiff sent an e-mail to Landa on May 29, 2008, outlining proposed contract terms relating to the show being developed in the pilot. See Pl.'s First Opp'n Ex. 6. In that e-mail, the plaintiff proposed that he and the defendant would enjoy “[e]qual ownership” of the show, that the plaintiff “would receive an amount equal to 10% of Ed's television salary for the duration of any TV production formed from this agreement,” and that the plaintiff “would be included in any television enterprise.” Id.

Landa responded three days later, on June 1, 2008, stating that he would discuss the proposal with the plaintiff, but that “30% ownership [i.e., equal ownership] in my opinion is out of the question.” Decl. of Jeffrey Landa (“Landa Decl.”) Ex. 7, ECF No. 25–1. Landa sent yet another e-

[888 F.Supp.2d 152]

mail to the plaintiff on June 6, 2008 stating once again that “30% ownership by you is out of the question” and adding that “Ed is not interested in having your ‘salary’ based on his ‘salary.’ ” Pl.'s First Opp'n Ex. 9. Also prior to the pilot being shot, the plaintiff and defendant discussed their intentions to draft an agreement memorializing their joint venture to produce the pilot and an “understanding about moving forward after the pilot.” See id. Exs. 10–11.7 It appears, however, that no such agreement was ever memorialized. Nevertheless, the pilot was shot in Washington, D.C. on June 26, 2008, and the plaintiff claims that the defendant then shipped copies of the pilot “throughout the industry in an attempt to promote the show.” Compl. ¶¶ 50–51. Despite his promises to “pay for [the pilot]” in June 2008, see Pl.'s First Opp'n Ex. 11, the defendant refused to pay NBC when payment was requested in February 2009, see id. Ex. 13 (responding to NBC's demand for payment: “Tell em to sue us ....”), and waited until May 2009, to reimburse the plaintiff $12,000 for the costs of producing the pilot, see Decl. of Jeffrey Landa in Supp. Def.'s Reply to Mot. for Pro Hac Vice Admission Ex. 8, ECF No. 23–1.

After the pilot was completed, on August 11, 2008, the plaintiff alleges that he “pitched” the show to Allan Horlick, President and General Manager of WUSA TV 9, the CBS affiliate station in Washington, D.C. Compl. ¶ 52. The apparent intention of this “pitch”...

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