Saidak v. Schmidt
| Decision Date | 20 November 2020 |
| Docket Number | Case No. 3:19-cv-00487 |
| Citation | 501 F.Supp.3d 577 |
| Parties | Derek SAIDAK, Plaintiff, v. Michael SCHMIDT and Trumpet of the Lord, Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
ORDER ADOPTING THE REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation filed by U.S. Magistrate Judge Debra C. Poplin on October 30, 2020 (ECF No. 65.) In the Report and Recommendation, the Magistrate Judge recommends that the Plaintiff's Motions requesting a preliminary injunction (ECF Nos. 36, 39) be DENIED. (ECF No. 65 at PageID 702.) The Magistrate Judge further recommends that the portion of Defendant's post-hearing brief requesting that the case be dismissed (ECF No. 63 at PageID 657) be STRICKEN as an improperly filed motion. Finally, the Magistrate Judge DIRECTS the Clerk's Office to correct the docket entry for ECF No. 42 to reflect that the filing is "Defendant's Response to Plaintiff's Motions for Preliminary Injunction." (ECF No. 65 at PageID 702.)
"Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2). Neither party has filed any objections to the Report and Recommendation, and the time for filing objections expired on November 13, 2020. See Fed. R. Civ. P. 5(b)(2), 6(d), 72(b)(2).
"When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b) advisory committee note. On clear-error review of the Magistrate Judge's Report and Recommendation, the Court hereby ADOPTS the Report and Recommendation in its entirety. Accordingly, the Court DENIES Plaintiff's Motions for Preliminary Injunction, STRIKES the portion of Defendant's post-hearing brief requesting dismissal of the case, and DIRECTS the Clerk's Office to correct the docket entry for ECF No. 42 to reflect that the filing is "Defendant's Response to Plaintiff's Motions for Preliminary Injunction."
SO ORDERED , this 20th day of November, 2020.
REPORT AND RECOMMENDATION
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and the referral Order [Doc. 38] of the District Judge.
Now before the Court is Plaintiff's First Motion for Preliminary Injunction [Doc. 36] Plaintiff's Supplemental Motion for Preliminary Injunction [Doc. 39], and Defendant's Motion Con[t]esting Preliminary Injunction [Doc. 42].1 The Court held evidentiary hearings on these Motions via videoconference on July 24, 2020, and August 13, 2020. Attorneys Christopher Martin and Raymond Stephens appeared on behalf of Plaintiff. Defendant Michael Schmidt appeared pro se.2 The Court permitted post-hearing briefs, which were filed on September 4, 2020, by Plaintiff [Doc. 62] and September 8, 2020, by Defendant [Doc. 63].3
During the evidentiary hearings, Plaintiff presented the testimony of Rochelle Pettus and himself. Defendant presented the testimony of Roderick Purvis, Dan Alex Payne, Patricia Schmidt, and himself. The Court has considered the filings in this case and the evidence presented at the hearings on July 23 and August 13, 2020. Accordingly, for the reasons explained below, the Court RECOMMENDS that Plaintiffs’ Motions requesting a preliminary injunction [Docs. 36, 39 ] be DENIED .4
The Complaint [Doc. 1] in this matter was filed on November 27, 2019. The Complaint states that Plaintiff formed a business venture in 2012 under the name "Legends Brass," designing mouthpieces for trumpets and other brass wind instruments. [Id. at ¶ 9]. Plaintiff entered into a manufacturing agreement with Pickett Brass to manufacture the mouthpieces that Plaintiff designed. [Id. ]. The Complaint states that Plaintiff later met Defendant, an avid trumpet player, who became interested in Legends Brass's products. [Id. ]. Defendant expressed an interest in a custom mouthpiece, which Plaintiff designed and produced through Pickett Brass. [Id. ]. As homage to Defendant, Plaintiff labeled the mouthpiece the "Outlaw." [Id. at ¶ 10]. In addition, as further homage to Defendant, Plaintiff mentioned Defendant on Legends Brass's website. [Id. ]. The Complaint states, however, that Defendant did not design the Outlaw mouthpiece, or any other mouthpieces that were sold by Legends Brass and manufactured by Pickett Brass. [Id. ].
The Complaint states that Defendant became embroiled in a series of social media controversies involving third parties not related to Plaintiff or Legends Brass. [Id. at ¶ 11]. As a result, however, Plaintiff dropped all references to Defendant on the Legends Brass website and on all promotional advertising for Legends Brass. [Id. ]. The Complaint alleges that Defendant became upset at his omission on the Legends Brass website and its promotional advertising. [Id. ].
The Complaint avers that Defendant began a calculated campaign to defame, slander, and libel Plaintiff and Legends Brass. [Id. at ¶ 12]. The Complaint states that Defendants posted numerous articles and defamatory remarks regarding Plaintiff and Legends Brass on social media, including on websites maintained by Defendants under the name, "Trumpet of the Lord." [Id. ]. Specifically, the Complaint alleges that Defendant repeatedly labeled Plaintiff as a "dishonest crook" and stated that Plaintiff did not design any Outlaw mouthpieces "in any way." [Id. ]. In addition, Defendant accused Plaintiff of stealing Defendants’ intellectual property and also accused Plaintiff of unethical behavior. [Id. ]. Further, Defendant made repeated demands for the removal of the Outlaw mouthpiece from Legends Brass's internet catalogue and all advertising and further demanded that Plaintiff and Legends Brass cease and desist from selling the Outlaw and other mouthpieces. [Id. ].
The Complaint further alleges that in September 2019, a picture of Plaintiff was posted on the Trumpet of the Lord's website,5 along with a post contending that Plaintiff lied about Defendant and that the Legends Brass website contained several lies. [Id. at ¶ 13]. In addition, the Complaint states that Defendant made repeated telephone calls to numerous employees at the ORNL Federal Credit Union ("ORNL"), where Plaintiff serves as the Chief Lending Officer. [Id. at ¶ 14]. During his contacts with ORNL employees, Defendant made false accusations that Plaintiff was a dishonest crook and that Plaintiff and Legends Brass stole Defendant's intellectual property. [Id. ].
In addition, the Complaint alleges that Defendant contacted Dr. C.E. (Jack) Johnson, III, the Senior Pastor of the First Baptist Church of Lenoir City ("Church"), and other members of the Church, claiming that Plaintiff was dishonest and that Plaintiff lied about Defendant. [Id. at ¶ 15]. The Complaint further alleges that Defendant published false statements and allegations to Pickett Brass. [Id. at ¶ 16].6 The Complaint avers that Defendant included Pickett Brass in his social media postings relating to Plaintiff and Legends Brass and that Defendant asked readers to call Pickett Brass and complain about Plaintiff and Legends Brass. [Id. ]. The Complaint alleges that Plaintiff and Legends Brass "have and are likely to suffer personal injury directly traceable to [Defendant] Schmidt's false statements and allegations ...." [Id. at ¶ 17].
With respect to the above allegations, the Complaint alleges defamation and intentional interference with business relationships. [Id. at 7–8]. In addition, the Complaint requests a declaratory judgment that Defendants hold no trademarks or intellectual property rights with respect to the Outlaw. [Id. at 8–10]. Finally, the Complaint alleges violations of the Lanham Act, 15 U.S.C. § 43. [Id. at 11–13].
Defendants filed an Answer and Counterclaim [Doc. 18], asserting breach of contract, slander and libel, and unlawful seizure of intellectual property.7
As mentioned above, during the evidentiary hearings, Plaintiff presented the testimony of Rochelle Pettus and himself. Defendant presented the testimony of Roderick Purvis, Dan Alex Payne, Patricia Schmidt, and himself.
The Court will now summarize the testimony presented at the hearings.
Rochelle Pettus ("Pettus") testified that she had been employed at ORNL for almost thirty (30) years. Currently, she is the Vice President of Call Centers Operations. She testified that Defendant is not eligible for membership at ORNL and that he has never been an ORNL member. Pettus testified that she has access to ORNL's call center records and that she has reviewed such records to determine whether Defendant has contacted ORNL. Specifically, Pettus testified that Exhibit 1 is an accurate transcript of Defendant's chat session with Karen Brown ("Brown"), a chat agent at ORNL's Call Center Services.8
In relevant part, Exhibit 1 shows that Defendant contacted ORNL's call center and stated that Plaintiff was bullying and mocking him on Plaintiff's website by calling Defendant "Howdy Ho." During the chat session, Defendant explains that a " ‘Howdy Ho’ referrs [sic] to a piece of sh*t that is flushed down the commode." [Ex. 1]. Defendant stated that he needed ORNL to get Plaintiff to stop harassing and suing him. Defendant states as follows:
Your VP is lying about me[,] and I have proof. I am about to take all of this to the press. Do you want OTNL [sic] Federal Credit Union known for having AN EMPLOYEE WHO IS SUING AND HARASSING A COMPLETELY DISABLED PERSON? ... I am going to the press on Friday unless you get him to drop the lawsuit that he has against me by Friday at noon.
[Id. ] (Emphasis in original). Defendant then requests the number to ORNL's personnel department, which Brown provides. [Id. ].
Pettus testified that she reviewed records for other contacts by Defendan...
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