Weitsman et al v. Levesque
Filing
34
MEMORANDUM-DECISION AND ORDER granting in part 25 Motion for Default Judgment; finding as moot 29 Motion to Strike: The Court hereby ORDERS that Plaintiffs' motion for default judgment against Defendant (Dkt. No. 25) is GRANTED IN PART as to liability for the defamation claim, pending a hearing on damages; and the Court further ORDERS that Plaintiffs' business disparagement/trade libel, tortious interference, and intentional infliction of emotional distress claims are DISM ISSED; and the Court further ORDERS that Defendant Robert Arthur Levesque, III is hereby restrained and enjoined from publishing on the internet, or causing the publication of, any of the following false and defamatory statements, whether directly or indirectly, about Plaintiffs Adam Weitsman and/or Upstate Shredding: (1) that Plaintiffs Weitsman or Upstate Shredding is a "murderer;" (2) that Plaintiffs Weitsman or Upstate Shredding conspired to murder Michele Harris; (3) that Plaintiffs Weitsman or Upstate Shredding assisted, helped, and/or aided Calvin Harris or any other person in disposing of Michele Harris' body; (4) that Plaintiffs Weitsman or Upstate Shredding conspired, assisted, helped, and/or aided in th e murder of Michele Harris; (5) that Plaintiffs Weitsman or Upstate Shredding was paid money by Calvin Harris or any other person in connection with the murder or disappearance of Michele Harris; (6) that Plaintiffs Weitsman or Upstate Shredding conspired, assisted, helped, and/or aided Calvin Harris or any other person from being found guilty, convicted, arrested, detained, liable, responsible, and/or suspected of murdering Michele Harris; (7) that Plaintiff Upstate Shredding or any of its equipment was used to dispose of Michele Harris' body; (8) that Plaintiffs Weitsman or Upstate Shredding was involved in the disappearance of Michele Harris; (9) that Plaintiffs Weitsman or Upstate Shredding sold or sells illegal drugs; (10) that Plaintiffs Weitsman or Upstate Shredding is or has been involved with Joaquin "El Chapo" Guzman; (11) that Plaintiffs Weitsman or Upstate Shredding engaged or engages in money laundering; (12) that Plaintiffs Weitsman or Upstat e Shredding bribes or has bribed one or more government officials; (13) that Plaintiffs Weitsman or Upstate Shredding is or has been involved with covering up the death of Michael Burke; and (14) that Plaintiffs Weitsman or Upstate Shredding fool ed the Environmental Protection Agency ("EPA") by removing two feet of contaminated soil at the Jamestown Yard; and the Court further ORDERS that, within FOURTEEN (14) DAYS from the date of this Memorandum-Decision and Order, Defendant s hall remove from all websites, forums, blogs, lists, social media accounts, and any other forum of mass communication (collectively "Forums") all defamatory statement pertaining to Plaintiffs Weitsman or Upstate Shredding; and the Court further ORDERS that the Clerk shall schedule a damages inquest at the earliest convenience of the parties; and the Court further ORDERS that Plaintiffs' motion to strike (Dkt. No. 29) is DENIED as moot; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 4/25/2018. (Copy served via regular and certified mail)(ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ADAM WEITSMAN and UPSTATE
SHREDDING, LLC,
Plaintiffs,
vs.
3:17-CV-00727
(MAD/DEP)
ROBERT ARTHUR LEVESQUE, III,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
KELLY, WARNER PLLC
8283 N. Hayden Road, #229
Scottsdale, Arizona 85258
Attorneys for Plaintiffs
DANIEL R. WARNER, ESQ.
RAEESABBAS MOHAMED, ESQ.
LEVENE, GOULDIN LAW FIRM
- BINGHAMTON OFFICE
P.O. Box F-1706
Binghamton, New York 13902-0106
Attorneys for Plaintiff
PATRICIA M. CURTIN, ESQ.
ROBERT ARTHUR LEVESQUE, III
1845 Olive Street
Ramona, California 92065
Defendant pro se
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiffs commenced this action on July 5, 2017, seeking damages and a permanent
injunction stemming from several state-law claims, including the following: (1) defamation and
defamation per se; (2) business disparagement and trade libel; (3) tortious interference with
existing and prospective business relationships; and (4) intentional infliction of emotional
distress. See Dkt. No. 1. After being granted a motion for alternative service and serving
Defendant via email, Plaintiffs filed a motion for default judgment which is now before the Court.
II. BACKGROUND
According to the complaint, Defendant, Robert Arthur Levesque III, has uploaded
hundreds of posts on YouTube, Twitter, and Facebook making various accusations about Plaintiff
Adam Weitsman, including that Plaintiff is an accomplice in the high profile disappearance of
Michele Harris that took place in 2001, and that he is an international drug manufacturer and
dealer. See Dkt. No. 1. Most of the accusations revolve around Defendant's conspiracy theories
involving Plaintiffs' alleged role in the disposal of Michele Harris's body. See id. According to
the screen shots of Defendant's social media accounts submitted by Plaintiffs, Defendant has less
than two dozen followers on Twitter, and virtually none of his hundreds of posts have been liked,
commented on, or shared. See id.
Defendant failed to answer the complaint even though he was on notice of the suit against
him, as evidenced by his calls to this court, emails to opposing counsel, and various references to
the lawsuit on his social media accounts. See Dkt. No. 28-1 at 3. On January 2, 2018, despite
having failed to file an answer, Defendant filed a response to Plaintiffs' Motion for Default
Judgment.
III. DISCUSSION
A.
Default Judgment Standard
"Generally, 'Federal Rule of Civil Procedure 55 provides a two-step process that the Court
must follow before it may enter a default judgment against a defendant.'" United States v.
Simmons, No. 5:10-CV-1272, 2008 WL 685498, *2 (N.D.N.Y. Mar. 2, 2012) (quoting Robertson
2
v. Doe, No. 05-CV-7046, 2008 WL 2519894, *3 (S.D.N.Y. June 19, 2008)). "First, under Rule
55(a), when a party fails to 'plead or otherwise defend . . . the clerk must enter the party's
default.'" Id. (quotation omitted); see also Fed. R. Civ. P. 55(a). "'Second, pursuant to Rule
55(b)(2), the party seeking default is required to present its application for entry of judgment to
the court.'" Id. (quotation omitted). "'Notice of the application must be sent to the defaulting
party so that it has an opportunity to show cause why the court should not enter a default
judgment."' Id. (quotation omitted); see also Fed. R. Civ. P. 55(b)(2).
"When a default is entered, the defendant is deemed to have admitted all of the wellpleaded factual allegations in the complaint pertaining to liability." Bravado Int'l Group Merch.
Servs. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound Exhibitgroup,
Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). "While a default judgment
constitutes an admission of liability, the quantum of damages remains to be established by proof
unless the amount is liquidated or susceptible of mathematical computation." Flaks v. Koegel,
504 F.2d 702, 707 (2d Cir. 1974) (citations omitted); see also Bravado Int'l, 655 F. Supp. 2d at
189-90 (citation omitted). "[E]ven upon default, a court may not rubber-stamp the non-defaulting
party's damages calculation, but rather must ensure that there is a basis for the damages that are
sought." Overcash v. United Abstract Group, Inc., 549 F. Supp. 2d 193, 196 (N.D.N.Y. 2008)
(citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). "The
burden is on the plaintiff to establish its entitlement to recovery." Bravado Int'l, 655 F. Supp. 2d
at 189 (citing Greyhound Exhibitgroup, Inc., 973 F.2d at 158). "While 'the court must ensure that
there is a basis for the damages specified in a default judgment, it may, but need not, make the
determination through a hearing.'" Id. at 190 (citation omitted).
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When seeking a default judgment, the Local Rules require the party to submit an affidavit
attesting to the following:
1. The party against whom it seeks judgment is not an infant or an
incompetent person;
2. The party against whom it seeks judgment is not in the military
service, or if unable to set forth this fact, the affidavit shall state that
the party against whom the moving party seeks judgment by default
is in the military service or that the party seeking a default judgment
is not able to determine whether or not the party against whom it
seeks judgment by default is in the military service;
3. The party has defaulted in appearance in the action; [and]
4. Service was properly effected under Fed. R. Civ. P. 4[.]
N.D.N.Y. L.R. 55.2(a).
In the present matter, the Court finds that Plaintiffs have complied with the procedural
requirements necessary for the Court to grant their motion for default judgment. Specifically,
Plaintiffs have affirmed that Defendant is not an infant or incompetent person and that he is not in
military service. See Dkt. No. 9. Moreover, Defendant has defaulted in this action, and was
served with alternative notice after repeated attempts to personally serve Defendant with the
summons and complaint failed due to his evasive actions. See Dkt. No. 10; see also Dkt. No. 9 at
2. Finally, although Defendant filed a response to the motion for default judgment, it failed to
show cause why the Court should not grant default judgment. See Dkt. No. 27.
"When the party against whom the default or default judgment is entered is a pro se
litigant, an additional consideration is at play, namely, a concern about the ability of pro se
litigants to protect their rights." Roberts v. Keith, No. 04 Civ. 10079, 2007 WL 2712853, *2
(S.D.N.Y. Sept. 18, 2007) (citing Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993)).
Courts accordingly consider the Rule 55(c) "good cause" standard and its three
4
factors—willfulness on the part of the defaulting party, prejudice to the adversary, and the
presentation of a meritorious defense—in determining whether default judgement against a pro se
plaintiff is equitable. See, e.g., Niepoth v. Montgomery Cty. Dist. Attorney's Office, 177 F.R.D.
111, 112 (N.D.N.Y. 1998) (citations omitted).
In the context of default, willfulness on the part of the defaulting party "refer[s] to conduct
that is more than merely negligent or careless." S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir.
1998). For example, the Second Circuit has found there to be willfulness after the defendants had
"purposely evaded service for months before alternative service was authorized." Commercial
Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 244 (2d Cir. 1994). Both Plaintiffs' and
Defendant's submissions demonstrate that Defendant not only knew of the ongoing action against
him, but ridiculed Plaintiffs' legal efforts online while deliberately evading service by fleeing in
his car when approached by process servers. See Dkt. No. 1-4 at 3; Dkt. No. 9 at 2; Dkt. No. 28-1
at 3. This Court authorized alternative service shortly thereafter. See Dkt. No. 10. Considering
Defendant's conduct, this factor clearly weighs in favor of entering default.
As to the second factor, prejudice to the plaintiff "means the loss of evidence, increased
difficulties of discovery, or greater opportunity for fraud and collusion – circumstances that make
it more difficult for plaintiff to prosecute its case." Roberts, 2007 WL 2712853 at *5 (citing
Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983)). Other than the delay in obtaining relief that
would result from vacating the default judgment, Plaintiffs would not suffer any prejudice.
Further, a "delay alone is not a sufficient basis for establishing prejudice." Davis, 713 F.2d at 916
(citations omitted). However, the absence of prejudice is not dispositive in this context, as
"willful default and the absence of meritorious defenses [are] sufficient to support the district
court's disposition of the case." Rafidain Bank, 15 F.3d at 244 (citations omitted).
5
And finally, as to the third factor, the Second Circuit has held that whether a meritorious
defense is presented is "measured not by whether there is a likelihood that it will carry the day,"
but whether that defense would "if proven at trial constitute a complete defense." Enron Oil
Corp., 10 F.3d at 98. The only communication this Court has received from Defendant is an
unstructured reply in opposition to Plaintiffs' Motion for Default Judgment. Defendant does,
however, refer to Plaintiff Weitsman as a "public figure." Under New York defamation law, a
plaintiff who is a public figure must satisfy a more stringent standard to support a defamation
claim. As discussed below, however, even assuming that Plaintiff Weitsman is a public figure, he
has still alleged a plausible defamation claim against Defendant and, even if proven at trial,
Plaintiff Weitsman's status as a public figure would not constitute a complete defense at trial.
Since Plaintiffs have met the requirements to secure a default judgment, the Court must
now determine whether Plaintiffs' complaint plausibly alleges the four asserted claims.
B.
Defamation and Defamation Per Se
"To state a claim for defamation under New York Law, the plaintiff must allege (1) a false
statement about the plaintiff; (2) published to a third party without authorization or privilege; (3)
through fault amounting to at least negligence on part of the publisher; (4) that either constitutes
defamation per se or caused 'special damages.'" Gargiulo v. Forster & Garbus Esqs., 651 F.
Supp. 2d 188, 192 (S.D.N.Y. 2009) (citations omitted). Further, if the plaintiff is a public figure,
to succeed on a defamation claim the plaintiff must prove actual malice, that is "with knowledge
that the statement was 'false or with reckless disregard of whether it was false or not.'" Dongguk
Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013) (quotation omitted). "This includes when a
defendant acts 'with a high degree of awareness of [the statement's] probable falsity or [if the
defendant] entertained serious doubts as to the truth of his publication.'" Id. (quotation omitted).
6
According to the Supreme Court, "[a]bsent clear evidence of general fame or notoriety in
the community, and pervasive involvement in the affairs of society, an individual should not be
deemed a public personality for all aspects of his life." Gertz v. Robert Welch, Inc., 418 U.S. 323,
352 (1974). Rather, the court must look "to the nature and extent of an individual's participation
in the particular controversy giving rise to the defamation." Id. For a plaintiff to be classified as
a limited purpose public figure, a defendant must show that the plaintiff has:
(1) successfully invited public attention to his views in an effort to
influence others prior to the incident that is the subject of litigation;
(2) voluntarily injected himself into a public controversy related to
the subject of the litigation; (3) assumed a position of prominence
in the public controversy; and (4) maintained regular and
continuing access to the media.
Lerman v. Flynt Distributing Co., Inc., 745 F.2d 123, 136-37 (2d Cir. 1984).
In the present matter, the complaint plausibly alleges that Defendant repeatedly made false
statements about both Plaintiffs, that were published through Defendant's various social media
accounts, that the publication of these statements amounted to at least negligent conduct, and that
the alleged false statement constitute defamation per se. Generally, a defamation plaintiff must
plead special damages unless the defamation falls into any one of four per se categories: "(1)
statements charging the plaintiff with a serious crime; (2) statements that tend to injure the
plaintiff in her trade, business or profession; (3) statements that impute to the plaintiff a
'loathsome disease'; and (4) statements that impute unchastity to a woman." Nolan v. State, 158
A.D.3d 186, 195 (1st Dep't 2018) (citations omitted). Here, Defendant has repeatedly alleged
that, among other things, Plaintiff Weitsman used his business, Upstate Shredding, to dispose of
the body of Michele Harris and that Plaintiffs are involved with the sale of illegal drugs. Such
allegations clearly constitute "statements charging the plaintiff with a serious crime."
7
Additionally, the complaint plausibly alleges special damages in that Plaintiffs have
alleged that Defendant's conduct has caused loss in revenues, business goodwill, and future
business prospects. Such economic damages constitute special damages. See Sharratt v. Hickey,
20 A.D.3d 734, 735 (3d Dep't 2005) (holding that special damages constitute an "economic or
financial loss") (citations omitted).
Moreover, even assuming that Plaintiff Weitsman is a public figure, the complaint makes
clear that Defendant's conduct satisfies the malice standard in that Defendant's statements were
made with reckless disregard of whether they were false or not. See Dongguk Univ., 734 F.3d at
123 (quotation omitted). The complaint alleges that Defendant began making the defamatory
statements only after his employment at Upstate Shredding was terminated and that the
statements have been made solely to cause Plaintiffs harm.
Based on the foregoing, the Court finds that Plaintiffs are entitled to default judgment as
to their defamation claims.
C.
Business Disparagement/Trade Libel
"Under New York law, '[t]rade libel or product disparagement is an action to recover for
words or conduct which tend to disparage or negatively reflect upon the condition, value or
quality of a product or property.'" Enigma Software Group USA, LLC v. Bleeping Computer LLC,
194 F. Supp. 3d 263, 291 (S.D.N.Y. 2016) (quoting Angio–Med. Corp. v. Eli Lilly & Co., 720 F.
Supp. 269, 274 (S.D.N.Y. 1989)). "Like defamation, trade libel is based on an injurious
falsehood published to a third party." Id. (citing Ruder & Finn Inc. v. Seaboard Sur. Co., 52
N.Y.2d 663, 670 (1981)). "However, whereas defamation (in the commercial context) entails a
statement that 'impugns the basic integrity or creditworthiness of a business,' trade libel is based
on statements 'confined to denigrating the quality of a business' services [or products].'"
8
Id. (quotation omitted). To state a claim for trade libel, a plaintiff must adequately plead "'(1)
falsity of the statement, (2) publication to a third person, (3) malice (express or implied), and (4) [
] special damages.'" Id. (quotation omitted).
In the present matter, the Court finds that Plaintiffs are not entitled to default judgment as
to their second cause of action for business disparagement/trade libel. First, Plaintiffs have failed
to allege that Defendant made any statements denigrating the quality of the business' services or
products. Second, denying the motion as to this claim is also appropriate because the claim is
duplicative of Plaintiffs' defamation claims insofar as the facts underlying this claim are
duplicative of the facts supporting the defamation claim. See Enigma Software, 194 F. Supp. 3d
at 291 (citations omitted); see also Hengjun Chao v. Mount Sinai Hosp., 476 Fed. Appx. 892, 895
(2d Cir. 2012) (holding that the "district court correctly dismissed [plaintiff's] other tort claims as
duplicative of his defamation claim" where "the factual allegations underlying [those] . . . claims
[were] virtually identical to the facts underlying his defamation claim" and "the harms that
[plaintiff] contend[ed] he suffered as a result of the[ ] other torts . . . all flow[ed] from the effect
on his reputation caused by defendants' allegedly defamatory statements").
Based on the foregoing, Plaintiffs' motion for default judgment as to the second cause of
action is denied. Additionally, since this claim is duplicative of Plaintiffs' defamation claim, the
Court orders that it is sua sponte dismissed.
D.
Tortious Interference
"To state a claim for tortious interference with prospective economic advantage under
New York law, a plaintiff must show (1) business relations with a third party; (2) defendants'
interference with those business relations; (3) that defendants acted with the sole purpose of
harming the plaintiff or used dishonest, unfair, or improper means; and (4) injury to the
9
relationship." Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 417 (2d Cir. 2012) (citation
omitted). "The defendant's interference must be direct: the defendant must direct some activities
towards the third party and convince the third party not to enter into a business relationship with
the plaintiff." Kolchinsky v. Moody's Corp., No. 10 Civ. 6840, 2012 WL 639162, *6 (S.D.N.Y.
Feb. 28, 2012) (quoting B & M Linen, Corp. v. Kannegeisser, USA, Corp., 679 F. Supp. 2d 474,
485 (S.D.N.Y. 2010)). "[A]s a general rule, the defendant's conduct must amount to a crime or an
independent tort. Conduct that is not criminal or tortious will generally be 'lawful' and thus
insufficiently 'culpable' to create liability for interference with prospective contracts or other
nonbinding economic relations." Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190 (2004).
In the present matter, the Court finds that Plaintiffs failed to allege which, if any, of its
business relationships were harmed by Defendant's behavior. As such, they are not entitled to
default judgment as to this claim. See Kolchinsky, 2012 WL 639162 at *6 (holding that a
complaint must include a "'sufficiently particular allegation of interference with a specific
contract or business relationship'" and finding that the plaintiff's general allegations that the
defendant maligned his reputation among potential employers in the industry was insufficient to
support a claim for tortious interference with business relationships) (quotation and other citations
omitted). Additionally, the motion must be denied as to this claim because it is duplicative of
Plaintiffs' defamation claim. See Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d
705, 726 (S.D.N.Y. 2014) (dismissing tortious interference claim as duplicative of defamation
claim where all alleged injuries arose out of the allegedly defamatory statements); see also
Hengjun Chao, 476 Fed. Appx. at 895.
10
Based on the foregoing, the Court denies Plaintiffs' motion for default judgment as to the
tortious interference cause of action. Additionally, since this claim is duplicative of Plaintiffs'
defamation claim, the Court orders that it is sua sponte dismissed.
E.
Intentional Infliction of Emotional Distress ("IIED")
"'The elements of intentional infliction of emotional distress are (1) extreme and
outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing,
severe emotional distress; (3) causation; and (4) severe emotional distress.'" Brunache v. MV
Transp., Inc., 151 A.D.3d 1011, 1014 (2d Dep't 2017) (quotation and other citations omitted).
In the present matter, the Court finds that Plaintiffs are not entitled to default judgment on
their intentional infliction of emotional distress claim because it is duplicative of the defamation
claim. Indeed, it is the same course of conduct and injury that form the basis for both claims. See
Franco v. Diaz, 51 F. Supp. 3d 235, 243-44 (E.D.N.Y. 2014) (dismissing the defendants' IIED
counterclaim because "precisely the same conduct and the same injury fall within the ambit of
defendants' proposed defamation counterclaim"); McNamee v. Clemens, 762 F. Supp. 2d 584, 608
(E.D.N.Y. 2011) (dismissing the plaintiff's IIED claim as duplicative of his defamation claim)
(citations omitted); Sweeney v. Prisoners' Legal Servs. of N.Y., Inc., 146 A.D.2d 1, 7 (3rd Dep't
1989) (holding that "a cause of action for intentional infliction of emotional distress should not be
entertained 'where the conduct complained of falls well within the ambit of other traditional tort
liability' . . . conduct complained of in plaintiff's third cause of action falls entirely within the
scope of his more traditional tort claim for defamation") (citing Fischer v. Maloney, 43 N.Y.2d
553, 558 (1978)); Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 262 (1st Dep't 1995)
(holding that "the plaintiff's cause of action for intentional infliction of emotional distress must
also fail because it falls within the ambit of other traditional tort liability which, in this case, is
11
reflected in plaintiff's causes of action sounding in defamation"); Leonard v. Reinhardt, 20
A.D.3d 510, 510 (2d Dep't 2005) (holding that the cause of action alleging intentional infliction
of emotional distress should have been dismissed as duplicative of the causes of action alleging
malicious prosecution and assault and battery).
Based on the foregoing, the Court denies Plaintiffs' motion for default judgment as to the
claim for IIED and dismisses that claim as duplicative.
F.
Damages
"Damages, which are neither susceptible of mathematical computation nor liquidated as of
the default, usually must be established by the plaintiff in an evidentiary proceeding in which the
defendant has the opportunity to contest the amount." Greyhound Exhibitgroup, Inc., 973 F.2d at
158 (citations omitted). As relevant, Rule 55(b)(2) provides that "[t]he court may conduct
hearings . . . when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B)
determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D)
investigate any other matter." Fed. R. Civ. P. 55(b)(2). Nevertheless, the amount of damages to
award in connection with a default judgment may be decided by the court without a hearing. See
Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Division of Ace Young Inc., 109
F.3d 105, 111 (2d Cir. 1997) (quoting Fustock v. ContiCommodity Services, Inc., 873 F.2d 38, 40
(2d Cir. 1989) (holding that "'it [is] not necessary for the District Court to hold a hearing, as long
as it ensured there was a basis for the damages specified in the default judgment'")) (other
citations omitted). The court may find a basis for damages by "rely[ing] on detailed affidavits or
documentary evidence . . . to evaluate the proposed sum." Fustok, 873 F.2d at 40.
In the present matter, in support of their request for damages, Plaintiffs submitted the
affidavit of Plaintiff Adam Weitsman. See Dkt. No. 25-6. According to Plaintiff Weitsman, as a
12
result of Defendant's conduct, Plaintiffs have been harmed in the following ways: "(1) USS has
spent thousands of dollars on public relations to address and/or resolve the False Statement; (2) I
and representatives of USS have been contacted by news media asking whether the False
Statements are true, drawing unwanted attention to Defendant Levesque's False Statements; (3) I
receive numerous phone calls and text messages a day from personal friends asking if any of the
False Statements are true, whether I was involved with a murder and/or drugs, and whether I was
doing ok; (4) metal and recycling business insiders have come to know of the False Statements
and have contacted me and repesentative[s] [of] USS to inquire about the False Statements; (5)
certain metal and recycling business contacts have refrained from and/or decreased their business
with USS; (6) I have become less social, and even deactivated my Facebook account page, which
had nearly 15,000 friends/followers; (7) my wife has been in distress and fears for her safety;
[and] (8) I have and will continue to suffer public humiliation, extreme emotional distress,
anxiety, depression, stomach aches, headaches, muscle pain, lack of sleep, lack of a desire to eat,
emotional pain and suffering, anguish, and loss of self-esteem." Id. at ¶ 7. Plaintiff Weitsman
asserts that he is "seeking an award for lost profits in the amount of $200,000.00 (representing the
net profits that USS would have received but for the Defendant's defamation), in addition to
general damages for loss of reputation" in the amount of an additional $200,000.00. See id.
Further, Plaintiff Weitsman contends that he has paid his public relations manager,
Stephen Donnelly, "no less than $36,000 to assist with positive media coverage and internet
search optimization." Id. at ¶ 8. Additionally, he "estimate[s] that approximately no less than
$180,000 to $200,000 in scrap sales have been lost because of the False Statements." Id.
The Court finds that the evidence submitted is insufficient to support an award of damages
without an evidentiary hearing. Aside from the specific money spent on the public relations
13
manager, the requested amounts are unsupported by anything other than Plaintiff Weitsman's
speculation. As such, the Court denies without prejudice Plaintiffs' motion insofar as it seeks
damages. An evidentiary hearing will be scheduled so that Plaintiffs can present evidence in
support of their application.
G.
Preliminary and Permanent Injunction
According to well-established principles of equity, a plaintiff
seeking a permanent injunction must satisfy a four-factor test before
a court may grant such relief. A plaintiff must demonstrate: (1) that
it has suffered an irreparable injury; (2) that remedies available at
law, such as monetary damages, are inadequate to compensate for
that injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted; and (4)
that the public interest would not be disserved by a permanent
injunction.
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citations omitted).
"Constitutional concerns and long tradition make courts often wary of enjoining
defamation." Ferri v. Berkowitz, 561 Fed. Appx. 64, 65 (2d Cir. 2014) (citations omitted).
"Although courts are wary of enjoining speech, unprotected speech, like defamation, may be
enjoined in extraordinary circumstances." Id. at 65 n.2 (citation omitted).
In Ferri, the Second Circuit affirmed the district court's denial of permanent injunctive
relief, noting that "[t]he proposed injunction barred not only defamatory statements, but any
'negative statements or comments' by Appellee about Appellants or Berkowitz's family, business
associates, or lawyers." Ferri, 561 Fed. Appx. at 65. The district court properly concluded that
such language was over-broad and vague. See id.
In the present matter, the Court finds that Plaintiffs have established that they are entitled
to permanent injunctive relief. Defendant's constant barrage of defamatory statements have and
will continue to cause irreparable harm. The remedies available at law will be inadequate to
14
compensate Plaintiffs. The balance of hardships clearly favors Plaintiffs in that the only hardship
Defendant will suffer is that he will no longer be permitted to publish his defamatory remarks.
Further, the public interest will not be disserved by issuing a permanent injunction.
Moreover, although the Court acknowledges the general wariness courts have in enjoining
speech, such an injunction is appropriate in the present matter. The speech at issue is clearly
defamatory and, therefore, unprotected. Additionally, the proposed language for the injunction is
narrowly tailored to cover only the defamatory remarks at issue and, unlike Ferri, does not
include non-defamatory negative statements or opinions about Plaintiffs.
Finally, the Court finds that injunctive relief is particularly appropriate in the present
matter because of Defendant's conduct. Throughout this litigation, Defendant has repeatedly
made reference to the proceedings before this Court and made multiple attempts to evade service.
Despite his notice of the pending litigation, Defendant continued making defamatory statements,
prompting Plaintiffs' counsel to make several applications before the Court for interim relief.
Defendant's conduct has demonstrated that, without injunctive relief, his tortious conduct will
undoubtedly continue.
Based on the foregoing, the Court grants Plaintiffs' request for permanent injunctive
relief.1
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the reasons set forth herein, the Court hereby
1
The terms of the injunction are set forth below.
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ORDERS that Plaintiffs' motion for default judgment against Defendant (Dkt. No. 25) is
GRANTED IN PART as to liability for the defamation claim, pending a hearing on damages;
and the Court further
ORDERS that Plaintiffs' business disparagement/trade libel, tortious interference, and
intentional infliction of emotional distress claims are DISMISSED; and the Court further
ORDERS that Defendant Robert Arthur Levesque, III is hereby restrained and enjoined
from publishing on the internet, or causing the publication of, any of the following false and
defamatory statements, whether directly or indirectly, about Plaintiffs Adam Weitsman and/or
Upstate Shredding: (1) that Plaintiffs Weitsman or Upstate Shredding is a "murderer;" (2) that
Plaintiffs Weitsman or Upstate Shredding conspired to murder Michele Harris; (3) that Plaintiffs
Weitsman or Upstate Shredding assisted, helped, and/or aided Calvin Harris or any other person
in disposing of Michele Harris' body; (4) that Plaintiffs Weitsman or Upstate Shredding
conspired, assisted, helped, and/or aided in the murder of Michele Harris; (5) that Plaintiffs
Weitsman or Upstate Shredding was paid money by Calvin Harris or any other person in
connection with the murder or disappearance of Michele Harris; (6) that Plaintiffs Weitsman or
Upstate Shredding conspired, assisted, helped, and/or aided Calvin Harris or any other person
from being found guilty, convicted, arrested, detained, liable, responsible, and/or suspected of
murdering Michele Harris; (7) that Plaintiff Upstate Shredding or any of its equipment was used
to dispose of Michele Harris' body; (8) that Plaintiffs Weitsman or Upstate Shredding was
involved in the disappearance of Michele Harris; (9) that Plaintiffs Weitsman or Upstate
Shredding sold or sells illegal drugs; (10) that Plaintiffs Weitsman or Upstate Shredding is or has
been involved with Joaquin "El Chapo" Guzman; (11) that Plaintiffs Weitsman or Upstate
Shredding engaged or engages in money laundering; (12) that Plaintiffs Weitsman or Upstate
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Shredding bribes or has bribed one or more government officials; (13) that Plaintiffs Weitsman or
Upstate Shredding is or has been involved with covering up the death of Michael Burke; and (14)
that Plaintiffs Weitsman or Upstate Shredding fooled the Environmental Protection Agency
("EPA") by removing two feet of contaminated soil at the Jamestown Yard; and the Court further
ORDERS that, within FOURTEEN (14) DAYS from the date of this MemorandumDecision and Order, Defendant shall remove from all websites, forums, blogs, lists, social media
accounts, and any other forum of mass communication (collectively "Forums") all defamatory
statement pertaining to Plaintiffs Weitsman or Upstate Shredding; and the Court further
ORDERS that the Clerk shall schedule a damages inquest at the earliest convenience of
the parties; and the Court further
ORDERS that Plaintiffs' motion to strike (Dkt. No. 29) is DENIED as moot; and the
Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: April 25, 2018
Albany, New York
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