Williams v. Rigg

• Decision Date: 04 May 2020
• Docket Number: CIVIL ACTION NO. 3:19–cv–00423
• Citation: 458 F.Supp.3d 468
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Hershel Woodrow WILLIAMS, Plaintiff, v. Bryan Mark RIGG, et al., Defendants.

458 F.Supp.3d 468

Hershel Woodrow WILLIAMS, Plaintiff,

v.Bryan Mark RIGG, et al., Defendants.

CIVIL ACTION NO. 3:19–cv–00423

United States District Court, S.D. West Virginia, Huntington Division.

Signed May 4, 2020

Brittany Given, John H. Mahaney, Dinsmore & Shohl, Huntington, WV, for Plaintiff.

Alexander Chesney Frampton, Thomas M. Hancock, Nelson Mullins Riley & Scarborough, Huntington, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, CHIEF JUDGE

Pending before the Court is Plaintiff Hershel Woodrow "Woody" Williams' ("Plaintiff" or "Williams") Amended Motion for Entry of Temporary Restraining Order.¹ (ECF No. 46.) For the reasons discussed more fully below, the Court DENIES Plaintiff's motion.

I. BACKGROUND

This case arises out of an alleged oral contract dispute between Plaintiff and Defendant Bryan Mark Rigg ("Rigg") over the publication of a book. On March 20, 2020, during the pendency of this lawsuit, Rigg self–published the book in controversy entitled Flamethrower: Iwo Jima Medal of Honor Recipient and U.S. Marine Woody Williams and His Controversial Award, Japan's Holocaust and the Pacific War ("Flamethrower "). (ECF No. 47 at 4.) This book is currently being offered for sale on Amazon.com. (Id. )

Williams is a Congressional Medal of Honor recipient, so earned for his heroism during the Battle of Iwo Jima in World War II, and a well–known public figure who makes frequent public appearances and has been interviewed for numerous articles. (ECF No. 59 at 3, ¶ 10.) The parties first met in 2015, while accompanying other veterans on a tour of Guam and Iwo Jima. (Id. ¶ 12.) After this initial introduction, Plaintiff states the parties had several discussions concerning the possibility of collaborating to write Williams' biography. (Id. ¶ 13.) However, Rigg, a historian and author, states he had already decided to write a book about the Pacific campaign of World War II prior to the parties' initial introduction. (ECF No. 48 at 4.) He states he had traveled to Guam and Iwo Jima as part of this research, and then, after meeting Williams, decided to incorporate Williams in the book as a vehicle to tell the stories of all servicemen who fought in the Pacific campaign. (Id. at 4–5.)

In July of 2016, Rigg visited West Virginia, where Williams was born and still resides, and met with Williams and his family to gather personal details about Williams' life. (ECF No. 59 at 4, ¶ 14.) On February 12, 2017, Rigg returned to West Virginia to again meet with Williams and his representatives at the Holiday Inn hotel in Barboursville, West Virginia, where Plaintiff alleges the parties discussed the terms of their collaboration. (Id. ¶ 15.) Plaintiff contends the parties both agreed to the following:

1. Mr. Williams would provide Defendant Rigg with personal information about his life and his military service;

2. Defendant Rigg would conduct research as necessary for the book and prepare a draft manuscript of the book;

3. The information contained in the book would be factual as it related to Mr. Williams;

4. Mr. Williams, along with Defendant Rigg, would have input into, and authority over, the text and content of the book; and

5. Mr. Williams and Defendant Rigg would share equally in any proceeds from the book.

(Id. ) Based on this alleged agreement, Williams provided Rigg with information, including untold stories and sentimental items, which Rigg used to prepare drafts of the book. (Id. ¶ 19.)

During the writing process, Rigg shared drafts of the book with Williams and Williams in turn would provide suggested edits and revisions. (Id. at 6, ¶ 21.) Towards the end of 2017, the parties attempted to draft a written contract to memorialize the alleged oral agreement. (Id. at 7, ¶ 23.) Over the course of a year, the parties, through Williams' representatives, exchanged numerous drafts of this proposed written contract, but were ultimately unable to reach an agreement. (Id. ¶¶ 24–25; ECF No. 48 at 7.) Thereafter, the relationship between the parties began to deteriorate due to both parties' dissatisfaction with the failed written contract. (ECF No. 59 at 8, ¶ 27.) After this breakdown in communication, Williams became aware of additions to the manuscript which called into question his military actions during the Battle of Iwo Jima and the legitimacy of his Medal of Honor. (ECF No. 47 at 3.) Plaintiff alleges these statements are "defamatory and misleading." (ECF No. 59 at 8–9, ¶ 31.) As a result of this, Plaintiff filed this suit alleging the following six causes of action: (1) preliminary and permanent injunction to enforce oral agreement; (2) breach of oral contract; (3) promissory estoppel/detrimental reliance; (4) conversion of an idea; (5) joint venture; and (6) interference with the right of publicity. (ECF No. 59.)

On March 21, 2020, in response to Defendant's self–publication of the book, Plaintiff filed his Amended Motion for Entry of Temporary Restraining Order. (ECF No. 46.) Defendant responded, (ECF Nos. 48, 49), and Plaintiff replied, (ECF No. 56). On March 30, 2020, third–party Eugene Volokh filed his Amicus Curiae Brief after being granted leave by the Court. (ECF No. 63.) A motion hearing was held by the Court on March 30, 2020, and an evidentiary hearing was held on April 6, 2020. (ECF Nos. 61, 68.) As such, this motion has been fully briefed and argued by the parties and is ripe for adjudication.

II. LEGAL STANDARDS

A. Preliminary Injunction

" Rule 65 of the Federal Rules of Civil Procedure provides for the issuance of preliminary injunctions as a means of preventing harm to one or more of the parties before the court can fully adjudicate the claims in dispute." Fred Hutchinson Cancer Research Ctr. v. BioPet Vet Lab, Inc. , 768 F. Supp. 2d 872, 874 (E.D. Va. 2011). A preliminary injunction is an extraordinary remedy never awarded as of right. See Real Truth About Obama, Inc. v. FEC , 575 F.3d 342, 345 (4th Cir. 2009) (hereinafter " Real Truth I "), vacated on other grounds , 559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010), reissued as to Parts I & II, Real Truth About Obama, Inc. v. FEC , 607 F.3d 355 (4th Cir. 2010). In each case, the Court must balance the competing claims of injury and consider the effect of granting or withholding the requested relief. "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v. Romero–Barcelo , 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982).

"A plaintiff seeking a preliminary injunction must establish (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren , 553 U.S. 674, 689–90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ). "All four elements must be established by a ‘clear showing’ before the injunction will issue."

Imagine Medispa, LLC v. Transformations, Inc. , 999 F. Supp. 2d 862, 868 (S.D. W. Va. 2014) (quoting Real Truth I , 575 F.3d at 346 ). The plaintiff bears the burden of showing a "sufficient factual basis" for granting the injunction "beyond the unverified allegations in the pleadings." Id. at 868–69 (citations omitted).

The plaintiff must demonstrate a likelihood of irreparable harm without a preliminary injunction; a mere possibility of harm will not suffice. Id. at 21, 129 S.Ct. 365. Such likelihood of irreparable harm justifies a preliminary injunction to protect the status quo and "preserve the court's ability to render a meaningful judgment on the merits." United States v. South Carolina , 720 F.3d 518, 524 (4th Cir. 2013) (quoting In re Microsoft Corp. Antitrust Litig. , 333 F.3d 517, 525 (4th Cir. 2003) ). See also Univ. of Tex. v. Camenisch , 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ("The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held."). A plaintiff does not have to prove his or her case in full to succeed on a motion for preliminary injunction, and the findings of fact and conclusions of law made at this stage are not binding at a trial on the merits. See id. (citations omitted).

Regarding likelihood of success, prior law in the Fourth Circuit was that there is a " ‘flexible interplay’ among all the factors considered ... for all four [factors] are intertwined and each affects in degree all the others." Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co. , 550 F.2d 189, 196 (4th Cir. 1977) (citations omitted). Accordingly, plaintiffs were not strictly required to demonstrate likelihood of success on the merits. Rather, "it [was] enough that grave or serious questions on the merits [were] presented." Id. But in the wake of the Supreme Court's decision in Winter , the Blackwelder balancing approach "may no longer be applied in granting or denying preliminary injunctions in the Fourth Circuit." Real Truth I , 575 F.3d at 347. Instead, the Fourth Circuit has held that a party seeking a preliminary injunction must demonstrate by "a clear showing that it is likely to succeed at trial on the merits." Id. at 351. The Fourth Circuit has not expressly required a movant to prove that success on the merits is "more likely than not" in order to meet the requirement of a clear showing, but the new requirement "is far stricter than the Blackwelder requirement that the plaintiff demonstrate only a grave or serious question for litigation." Id. at 345–46.

B. Temporary Restraining Order

Rule 65(b) of the Federal Rules of Civil Procedure authorizes a court to issue a temporary restraining order without notice to the opposing party if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and

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