Weitsman v. Levesque
| Decision Date | 20 November 2020 |
| Docket Number | Case No.: 19-CV-461 JLS (AHG) |
| Parties | ADAM WEITSMAN; UPSTATE SHREDDING, LLC, a New York limited liability company; WEITSMAN SHREDDING, LLC, a New York limited liability company; and WEITSMAN RECYCLING, LLC, a New York limited liability company, Plaintiffs, v. ROBERT ARTHUR LEVESQUE, III, Defendant. |
| Court | U.S. District Court — Southern District of California |
ORDER (1) GRANTING IN PART PLAINTIFFS' REQUEST FOR DAMAGES; AND (2) GRANTING IN PART PLAINTIFFS' REQUEST FOR A PERMANENT INJUNCTION
Presently before the Court are Plaintiffs Adam Weitsman; Upstate Shredding, LLC; Weitsman Shredding, LLC; and Weitsman Recycling, LLC's (collectively, "Plaintiffs") Third Supplemental Brief in Support of Motion for Default Judgment and Injunction ("3d Supp. Br.," ECF No. 98), Amended Third Supplemental Brief in Support of Motion for Default Judgment and Injunction ("Am. 3d Supp. Br.," ECF No. 99), Fourth Supplemental Brief in Support of Motion for Permanent Injunction ("4th Supp. Br.," ECF No. 103), Fifth Supplemental Brief in Support of Motion for Permanent Injunction ("5th Supp. Br.," ECF No. 104), and Sixth Supplemental Brief in Support of Motion for Permanent Injunction ("6th Supp. Br.," ECF No. 108). Also before the Court is Plaintiffs' Notice of Lodging ("Not. of Lodging," ECF No. 94), attached to which is Plaintiffs' Proposed Order Granting Permanent Injunction ("Proposed Order," ECF No. 94-1).
The Court initially vacated the hearing on this matter and took it under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 101. However, after Plaintiffs requested a status conference in their Fifth Supplemental Brief, the Court held a hearing on November 5, 2020,1 after which the Court again took this matter under submission. See ECF No. 106. Having carefully reviewed Plaintiffs' pleadings, briefs, supporting evidence, and the law; considered the Parties' arguments during the November 5, 2020 hearing; and weighed the relevant factors, the Court GRANTS IN PART Plaintiffs' damages requests and GRANTS IN PART Plaintiffs' request for permanent injunctive relief, as follows.
The Parties are familiar with the relevant allegations, evidence, and procedural history of this case. For the sake of brevity, the Court incorporates the thorough Background section contained in its February 14, 2020 Order, see ECF No. 97 at 2-7, and sets forth below only the new evidence and developments in the case.
On June 7, 2019, Plaintiffs requested that the Clerk of the Court enter default as to Defendant, see ECF No. 86, and the Clerk entered default on June 7, 2019, see ECF No. 87. On July 8, 2019, Plaintiffs filed a motion for default judgment. See ECF No. 89("Default Mot."). Plaintiffs filed supplemental briefs on August 22, 2019, and January 13, 2020. See ECF Nos. 90, 95. Defendant did not oppose the Default Motion.
On February 14, 2020, this Court issued its Order (1) Granting in Part and Denying in Part Plaintiffs' Motion for Default Judgment, (2) Denying Without Prejudice Plaintiffs' Request for a Permanent Injunction, and (3) Denying as Moot Plaintiffs' Request for an In-Person Status Conference. See ECF No. 97. The Court determined it had jurisdiction over this matter, see id. at 8-11, and, after weighing the factors set forth in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986), the Court granted Plaintiffs' request for default judgment as to their first cause of action for defamation and defamation per se but denied Plaintiffs' motion as to their remaining causes of action, see ECF No. 97 at 11-20.
As part of their Default Motion, Plaintiffs sought a permanent injunction "prohibiting Defendant from publishing any more False Statements and compelling him to remove all existing False Statements."2 Default Mot. at 13 (citing ECF No. 85 ("FAC") at Prayer ¶ A). Plaintiffs' First Amended Complaint ("FAC") also sought general, special, and punitive damages, see FAC at Prayer ¶¶ C-E, but Plaintiffs indicated their intention to brief that issue separately. See Default Mot. at 1, 9-10, 11, 17. The Court concluded that it could not determine on the record as it existed, without Plaintiffs having quantified their damages, whether those damages would provide an adequate remedy at law. ECF No. 97 at 22. Further, the Court indicated it had concerns about the constitutionality of a permanent injunction restraining future speech. Id. Accordingly, the Court denied without prejudice Plaintiffs' requested injunction and set a briefing schedule for a supplemental motion concerning Plaintiffs' requests for damages and injunctive relief. Id. at 23.
In accordance with the Court's February 14, 2020 Order, Plaintiffs filed their Third Supplemental Brief on February 27, 2020. See ECF No. 98. On February 28, 2020, they
/ / /filed an Amended Third Supplemental Brief. See ECF No. 99.3 In the Amended Third Supplemental Brief, Plaintiffs seek (1) a permanent injunction, (2) general/presumed damages in the amount of $800,000; and (3) punitive damages in the amount of $200,000. Id. at 2. Plaintiffs submit three declarations to support these requests.
The Declaration of Adam Weitsman (ECF No. 99-1, "Weitsman Decl.") avers that all of the False Statements published by Defendant are false and defamatory. Id. ¶ 5. Defendant has directed these False Statements to local and national news and media agencies, the New York State Police, the Federal Bureau of Investigations, NBC, the Crime Watch Daily, industry groups, and Mr. Weitsman's competitors via "tagging." Id. ¶ 6. "[L]ikely several hundred thousands and potentially millions" of people have seen Defendant's publicly viewable False Statements over the past four years. Id.
"The scrap metal industry generally relies approximately 90% on reputation and the remaining 10% on price." Id. ¶ 9. But many scrap metal vendors have stopped doing business with Plaintiffs since Defendant began publishing the False Statements, despite not making any complaints about service or price-related issues. Id. ¶ 12. And while Mr. Weitsman formerly received "numerous industry awards in the past," he has not since Defendant began publishing the defamatory statements. Id. ¶ 11. At least three of Plaintiffs' largest competitors are aware of the False Statements, and one of Plaintiffs' main competitors printed the False Statements out and distributed them to Plaintiffs' customers. Id. ¶ 8. In light of the foregoing, Mr. Weitsman believes people within his industry, both locally and nationally, "believe some or all of the false statements." Id. ¶ 13.
Mr. Weitsman and his family genuinely fear for their lives in light of Defendant's acts, which include posting pictures of Mr. Weitsman's wife and minor children and making public threats. Id. ¶ 14. They have cut down on their family vacations due to "Defendant's defamation campaign." Id. ¶ 17. Mr. Weitsman also has become less socialas a result, and for more than a year he completely disengaged from social media and stopped going out socially in public. Id. ¶¶ 15, 17. Mr. Weitsman "ha[s] suffered and will continue to suffer public humiliation, extreme emotional distress, anxiety, depression, stomachaches, headaches, muscle pain, lack of sleep, lack of desire to eat, emotional pain and suffering, anguish, and loss of self-esteem." Id. ¶ 15. He has seen medical professionals for both "physical ailments and stress caused by Defendant's years of daily torment online," and he has incurred expenses as a result. Id. ¶ 21. For more than three years, Mr. Weitsman "ha[s] spent the first 5 hours of every day stressing about Defendant's False Statements, who is seeing them, and the damage it was causing [his] reputation." Id. ¶ 16. This negative state of mind has impacted his home and marital life. Id. ¶ 18.
Despite a temporary order of protection, felony complaint, and arrest warrant, Defendant has not stopped publishing the False Statements. Id. ¶ 23. Mr. Weitsman has communicated with Facebook, and it is his understanding that Facebook will not take any action to remove Defendant's False Statements without a permanent injunction. Id. ¶ 24. Plaintiffs "have also incurred significant costs for public relations management, Internet search engine optimization costs, and increased pay to employees at [Weitsman Shredding, LLC], in order to identify, defend, and mitigate/defend against Defendant's defamation campaign of 3.5 years." Id. ¶ 22.
The Declaration of Stephen J. Donnelly (ECF No. 99-2, "Donnelly Decl.") details some of those public relations expenses. Mr. Donnelly is the president and owner of Dynamic Innovation Group, LLC ("Dynamic"), a public relations company. Id. ¶ 4. Plaintiffs' professional relationship with Dynamic started in 2002 but changed significantly in 2016 as a result of Defendant's conduct. Id. ¶ 5. Mr. Donnelly has "never seen anything like Defendant's infatuation and attacks on Plaintiffs" in his sixteen years in the public relations industry. Id. ¶ 6. Mr. Donnelly's company monitors Defendant's defamatory posts daily, reporting them and contacting websites as needed to assist with Plaintiffs' public relations needs. Id. ¶ 7. When Dynamic first began addressing these issues for Plaintiffs, Defendant's "posts were increasingly visible on the Google Search ResultsPage," but Dynamic was "relatively successful" in mitigating that harm. Id. ¶ 9; see also id. Exs. 1 & 2.
But, the harm extends beyond Plaintiffs' online presence. Id. ¶ 8. Mr. Donnelly has had to engage in "additional face-to-face, grassroots, local, 'offline' approaches" to put the False Statements to rest. Id. From June 1, 2018 through February 1, 2020, Plaintiffs have paid Dynamic $128,000 for public relations services solely devoted to addressing Defendant's False Statements. Id. ¶ 10; see also id. Ex. 3. Given the volume of work, Dynamic could easily have charged double its monthly fees, but gave deference to its "lengthy and friendly...
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