Ebersole v. Kline-Perry et al
Filing
122
MEMORANDUM OPINION re Motion to Vacation the Judgment. Signed by District Judge James C. Cacheris on 5/23/13. (klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
RUSSELL L. EBERSOLE, d/b/a
ABERDEEN ACRES PET CARE
CENTER,
Plaintiff,
v.
BRIDGET KLINE-PERRY,
Defendant.
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1:12cv26 (JCC/TRJ)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendant Bridget
Kline-Perry’s (“Defendant”) Rule 60(b) Motion to Vacate the
Judgment (“Motion”).
[Dkt. 115.]
For the following reasons,
the Court will grant Defendant’s Motion.
I.
Background
This case involves allegedly libelous statements made
by Defendant about Plaintiff Russell Ebersole (“Plaintiff”) and
his pet care business, Aberdeen Acres Pet Care Center.
Defendant also allegedly engaged in a conspiracy to harm
Plaintiff’s business.
Following local media reports of an
investigation of Plaintiff arising from alleged acts of animal
abuse at Aberdeen Acres, Defendant made a number of statements
in which she accused Plaintiff of animal abuse and violating
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laws pertaining to dog training.
These statements were
published in various e-mails and Facebook postings.
For
example, Defendant posted to her Norsire Farms Facebook page a
letter composed by her and her friend, Charlie Oren, accusing
Plaintiff of animal abuse and fraudulent acts, and asked others
to share it.
Defendant also sent a letter to People for the
Ethical Treatment of Animals (“PETA”), asking the organization
to stage a protest regarding Plaintiff and Aberdeen Acres due to
the alleged instances of animal abuse.
On December 13, 2011, Plaintiff, proceeding pro se,
filed suit in Loudon County Circuit Court.
[Dkt. 1.]
On
January 9, 2012, Defendant timely removed the action to this
Court on the basis of diversity jurisdiction.
[Id.]
Plaintiff
subsequently retained counsel [Dkt. 14] and filed an amended
complaint on March 23, 2012 [Dkt. 31].
In the amended
complaint, Plaintiff alleged libel, business conspiracy in
violation of Va. Code § 18.2-499, and tortious interference with
a business expectancy.
During discovery, Defendant served document requests
on Plaintiff which included requests for “[c]omplete copies of
all customer boarding and/or training files including, but not
limited to, intake forms, pet medical instruction forms, pet
medical waivers, contracts, agreements and other documents
pertaining to the services provided.”
2
Ebersole v. Kline-Perry,
No. 1:12cv26, 2012 WL 3776489, at *4 (E.D. Va. Aug. 29, 2012).
Plaintiff did not produce any copies of videos to Defendant in
response to this or any other discovery requests, although
Plaintiff did make Defendant aware during discovery of the
existence of a number of “positive” videos of dog trainings,
videos which subsequently were introduced at trial during
rebuttal.
Id.
Defendant also issued a subpoena to the
Frederick County Sheriff’s office during discovery, requesting
copies of “[a]ny and all documentation pertaining to any
investigation involving or related to reports of animal abuse by
Russell L. Ebersole or Aberdeen Acres Pet Care Center, including
photographs, video, electronic records or data in your
possession or under your control.”
3.)
(Def. Mem. [Dkt. 116] at 2-
At the time, the sheriff’s office provided Defendant with a
number of documents but no videos. 1
(Id. at 3.)
On July 23, a jury trial commenced.
During the trial,
Defendant produced testimony by herself and other witnesses that
Plaintiff engaged in a number of instances of abuse of dogs
entrusted to his training and care.
of particular note.
The following testimony is
Defendant testified that she observed
1
At the hearing on May 17, 2013, Defendant submitted an affidavit from Deputy
Sheriff Megan Moreland from the Frederick County Sheriff’s office. In that
affidavit, she stated that at the time of that subpoena, there were no
responsive videos in her or the Sheriff’s possession because a number of
computers and other electronic devices which had been seized from Plaintiff
had been forwarded to the United States Secret Service for technical
assistance. (Moreland Aff. At 1-2.)
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Plaintiff choke and yank a puppy off the ground using a choke
collar, lifting the puppy off his feet, if the puppy did not
follow his commands adequately.
337:21-25, 340:17-19.)
(Kline-Perry Testimony, Tr. at
Another witness, Matt Phillips,
testified that he viewed Plaintiff pull and step on a dog’s
leash, causing the dog to “yip” in pain and the dog’s hind legs
to be pulled off of the ground.
325:9-326:5.)
(Phillips Testimony, Tr. at
Emily Cleveland testified that she saw Plaintiff
choke a dog with a leash in a choke chain, pin the dog to the
ground by placing his foot on the dog’s leash, and also hold the
dog up in the air by the leash attached to the choke chain.
(Cleveland Testimony, Tr. at 297:17-25, 298:1-4.)
Finally,
Megan Redmer testified that she observed Plaintiff swing a dog
around off of the ground by a choke chain like a helicopter.
(Redmer Testimony, Tr. at 418:24-25, 435:17-19.)
None of these
witnesses testified that the dogs at issue were engaged in
violent or vicious behavior at the time of the alleged abusive
treatment by Plaintiff, or that any other behavior reasonably
justifying Plaintiff’s actions toward the dogs.
Later in the
trial, during cross-examination of Plaintiff, Plaintiff
testified that he had “no idea what [Phillips] observed” and “no
idea what dogs he was talking about,” that Defendant, Cleveland,
and Redmer were wrong in the way that they described Plaintiff’s
conduct towards dogs, and that all the witnesses who had
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testified against him had mischaracterized his conduct due to
their own agendas and jealousy.
(Ebersole Testimony, Tr. 471-
20-25, 472-476:17.)
After the close of Plaintiff’s evidence, Defendant
moved for judgment as a matter of law pursuant to Federal Rule
of Civil Procedure 50 with respect to the business conspiracy
and tortious interference claims as well as a portion of the
libel claim.
The Court granted Defendant’s Rule 50 motion as to
the tortious interference claim.
The Court also granted the
motion as to certain of Defendant’s allegedly libelous
statements.
The business conspiracy claim and the libel claim
(as to the remaining allegedly libelous statements) were
ultimately submitted to the jury.
On July 25, 2012, the jury returned a verdict in favor
of Plaintiff.
The jury awarded Plaintiff $7,500 in compensatory
damages on his libel claim, $7,500 in compensatory damages on
his business conspiracy claim, and $60,000 in punitive damages.
On July 27, 2012, the $7,500 in compensatory damages awarded to
Plaintiff on his business conspiracy claim was increased to
$22,500 pursuant to his entitlement to treble damages under Va.
Code §§ 18.2-499 and 18.2-500.
On August 6, 2012, Defendant filed a Motion for New
Trial or, in the Alternative, to Alter the Judgment, which this
Court conditionally denied dependent on Plaintiff’s acceptance
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of a remitted award of punitive damages of $15,000.
[Dkt. 105.]
On September 5, 2012, Plaintiff accepted the remitted punitive
damages award.
[Dkt. 108.]
On September 26, 2012, this Court
awarded Plaintiff $79,786.42 in attorneys’ fees and costs.
[Dkts. 111-112.]
On January 28, 2013, Defendant’s counsel received a
number of videos and other materials which had been produced by
the Frederick County Sheriff’s office in response to a subpoena
issued in a civil lawsuit filed by Plaintiff against another
individual in the United States District Court for the Western
District of Virginia, Ebersole v. Oren, No. 5:2012-cv-105.
(Def. Mem. at 3.)
Three of these videos are dog training videos
showing Plaintiff engaging in behavior which, based on the
Court’s review of the videos, fairly could be characterized as
abusive.
In the first video, Video A, Plaintiff can be seen
training a small puppy on a leash.
Near the end of the video,
Plaintiff makes a gesture towards the camera indicating that the
camera should be turned off and then, without provocation, yanks
the puppy off of its feet using the collar and leash and swings
the puppy back and forth by its neck with all of its feet off
the ground.
(See Video A; Def. Mem. at 4.)
In the second
video, Video B, Plaintiff is training a large Doberman-type dog
on a collar and leash.
As in Video A, near the end of the video
Plaintiff gestures for the camera to be turned off and then,
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again without provocation, jerks the dog off of its feet using
the collar and leash.
(See Video B; Def. Mem. at 4.)
Finally,
in the third and longest video, Video C, Plaintiff is training a
medium-sized black and white dog on a collar and leash.
Multiple times during the video, Plaintiff yanks on the leash
using his hands or foot with sufficient force to cause the dog
to yelp in pain.
Near the end of the video, Plaintiff commands
the dog to remain lying down and when the dog stands up,
Plaintiff walks toward the dog and proceeds to kick it in the
throat or chest area, causing it to yelp loudly and retreat from
Plaintiff.
(See Video C; Def. Mem. at 5.)
On April 12, 2013, Defendant filed a Rule 60(b) Motion
to Vacate the Judgment and accompanying memorandum in support.
[Dkts. 115-116.]
Plaintiff filed his opposition on April 22,
2013 [Dkt. 117], and Defendant replied on May 2, 2013 [Dkt.
119].
Defendant’s Motion is now before the Court.
II.
Standard of Review
The relief provided by Rule 60(b) is an
“extraordinary” remedy.
Compton v. Alton S.S. Co., Inc., 608
F.2d 96, 102 (4th Cir. 1979).
A Rule 60(b) motion is committed
to the sound discretion of the district court.
August
Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d
808, 810 (4th Cir. 1988) (quoting Park Corp. v. Lexington Ins.
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Co., 812 F.2d 894, 896 (4th Cir. 1984)).
To succeed on a Rule
60(b) motion, “the party moving for relief must clearly
establish the grounds therefore to the satisfaction of the
district court . . . and such grounds must be clearly
substantiated by adequate proof.”
In re Burnley, 988 F.2d 1, 3
(4th Cir.1992) (internal citations and quotations omitted).
III.
Analysis
Defendant brings her Motion under Rule 60(b)(2)
and (3).
Rule 60(b) provides six grounds for relief from a
final judgment.
Fed. R. Civ. P. 60(b).
Rule 60(b)(2) allows a
court to provide relief from a final judgment due to “newly
discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule
59(b).”
Fed. R. Civ. P. 60(b)(2).
Rule 60(b)(3) allows a court
to provide relief due to “fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.”
Fed. R. Civ. P. 60(b)(3).
Motions under both
subsections must be made within a year after the entry of
judgment or order or the date of proceeding, a requirement which
has been met here.
Fed. R. Civ. P. 60(c)(1).
Because the Court
concludes that Defendant satisfies the requirements for relief
under Rule 60(b)(3), as discussed below, the Court will analyze
only the requirements for that subsection and not the
requirements for Rule 60(b)(2).
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In the Fourth Circuit, a moving party must establish
three factors to prevail on a Rule 60(b)(3) motion: “(1) the
moving party must have a meritorious defense; (2) the moving
party must prove misconduct by clear and convincing evidence;
and (3) the misconduct prevented the moving party from fully
presenting its case.”
Schultz v. Butcher, 24 F.3d 626, 630 (4th
Cir. 1994) (citing Square Constr. Co. v. Washington Metro. Area
Transit Auth., 657 F.2d 68, 71 (4th Cir. 1981)).
After
assessing these factors, “the court must balance the competing
policies favoring the finality of judgments and justice being
done in view of all the facts, to determine within its
discretion, whether relief is appropriate in each case.”
Id.
(quoting Square, 657 F.2d at 71).
First, the Court concludes that Defendant has shown a
meritorious defense to the defamation claim and the interrelated
business conspiracy claim.
The meritorious defense requirement
ensures that granting relief from the judgment under Rule 60(b)
would not “in the end [be] a futile gesture.”
905 F.2d 764, 769 (4th Cir. 1990).
Boyd v. Bulala,
In determining whether a
moving party has a meritorious defense, “the trial court must
have before it more than mere allegations that a defense
exists.”
Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir.
1970); see also Teamsters, Chauffeurs, Warehousemen & Helpers
Union, Local No. 59 v. Superline Transp. Co., Inc., 953 F.2d 17,
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21 (1st Cir. 1992)(“Even an allegation that a meritorious claim
exists, if the allegation is purely conclusory, will not suffice
to satisfy the precondition to Rule 60(b) relief.”).
To
establish the existence of a meritorious defense, a party must
present or proffer “evidence, which, if believed, would permit
either the Court or the jury to find for the [moving] party.”
United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982).
The
movant, however, “is not required to establish a meritorious
defense by a preponderance of the evidence[,] . . . the mere
assertion of facts constituting a meritorious defense in an
original complaint” may be sufficient.
Cent. Operating Co. v.
Util. Workers of Am., 491 F.2d 245, 252 n. 8 (4th Cir. 1974)
(citing Tolson v. Hodge, 411 F.2d 123, 130 (4th Cir. 1969))
(same).
Here, Defendant’s primary defense to the defamation
claim was that her statements were substantially true.
Def. Mem. at 7-8.)
(See
Under Virginia law, truth “acts an absolute
defense to any defamation” because in order for a statement to
be actionable as defamatory, the plaintiff must prove by a
preponderance of the evidence that the statement is false.
Goddard v. Protective Life Corp., 82 F. Supp. 2d 545, 560 (E.D.
Va. 2000).
A statement “is not false if its content or
imputation is substantially true,” meaning that the “statement
is a fair and accurate description of the event in question.”
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PBM Prods., LLC v. Mead Johnson Nutrition Co., 678 F. Supp. 2d
390, 400 (E.D. Va. 2009) (internal quotations omitted).
In
addition, as the alleged defamatory statements are the asserted
means by which Defendant injured Plaintiff’s business and
business reputation, substantial truth forms the basis of
Defendant’s defense to this related claim as well.
Mem. at 1; Tr. 14:1-9.)
(See Def.
In Virginia, to recover damages for
statutory business conspiracy, a plaintiff must show that the
defendant and others had “combined to accomplish some criminal
or unlawful purpose, or to accomplish some purpose, not in
itself criminal or unlawful, by criminal or unlawful means.”
Shirvinski v. U.S. Coast Guard, 1:09-CV-896 AJT TRJ, 2010 WL
4279254, at *4 (E.D. Va. Oct. 25, 2010) aff’d, 673 F.3d 308 (4th
Cir. 2012) (quoting Potomac Valve & Fitting, Inc. v. Crawford
Fitting Co., 829 F.2d 1280, 1284 (4th Cir. 1987)).
Accordingly,
Defendant may defend against this claim by showing that she did
not engage in the alleged unlawful conduct, defamation, by which
she supposedly injured Plaintiff’s business or business
reputation.
When previously tried, this case was close.
At
trial, as well as through the new evidence provided with the
current motion, Defendant presented evidence to support the
above defenses which could allow a fact-finder reasonably to
find for Defendant.
As a result, the Court finds that Defendant
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has shown that she has a meritorious defense for purposes of
Rule 60(b)(3).
Second, the Court finds that Defendant has proven
misconduct, fraud, or misrepresentation by clear and convincing
evidence in light of the three newly obtained videos and their
content.
To begin, an adverse party’s failure, either
inadvertent or intentional, to disclose or produce pertinent
requested discovery material constitutes misconduct under Rule
60(b)(3).
See Schultz, 24 F.3d at 630; Square, 657 F.2d at 71;
Anderson v. Cryovac, Inc., 862 F.2d 910, 923-27 (1st Cir. 1988);
Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983).
In
addition, a party’s subornation of, or engagement in, perjury
during trial constitutes fraud, misrepresentation, or misconduct
within the purview of Rule 60(b)(3), provided the moving party
can meet the other requirements for such relief under that
section, including timeliness.
See Great Coastal Exp., Inc. v.
Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of
Am., 675 F.2d 1349, 1353, 1355 (4th Cir. 1982)
In this case, Plaintiff failed to produce or, at the
very least, disclose the existence of highly pertinent evidence
responsive to Defendant’s discovery requests: dog training
videos created by Plaintiff showing him engaging in treatment of
dogs which could be characterized reasonably as abusive and
which was consistent with and/or strongly relevant to
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Defendant’s allegedly defamatory statements.
Although
Plaintiff’s failure to produce these videos during discovery is
complicated somewhat by assertions that he was not in physical
possession of his laptop computer, where he stored the backup
files for his dog training videos, due to its seizure by local
government during a separate ongoing animal abuse investigation,
the Court concludes that Defendant has shown misconduct here
nonetheless.
Rule 34 provides that a party may request the
production of items which are in the responding party’s
possession, custody, or control.
Fed. R. Civ. P. 34(a)(1).
Courts in this circuit have defined control for purpose of Rule
34 as “actual possession of a document or ‘the legal right to
obtain the document on demand.’”
Hatfill v. N.Y. Times Co., 242
F.R.D. 353, 355 (E.D. Va. 2006) (quoting Terry v. Modern
Investment Co. Ltd., 2006 WL 2434264, at *6 (W.D. Va. Aug. 21,
2006).
While Plaintiff may not have had physical possession of
the videos during discovery, he was the creator and legal owner
of the videos and the laptop on which they were stored.
therefore had “control” over the videos.
He
Given the content of
the videos, they clearly were responsive to Defendant’s document
request for “[c]omplete copies of all customer boarding and/or
training files including, but not limited to, intake forms, pet
medical instruction forms, pet medical waivers, contracts,
agreements and other documents pertaining to the services
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provided.”
Accordingly, Plaintiff’s failure to produce, or at
least disclose these negative videos’ existence and any
difficulties in accessing them at the time, constitutes clear
and convincing evidence of misconduct.
In addition, the content of the videos indicates that
Plaintiff also arguably engaged in misconduct or
misrepresentation by his testimony at trial.
As described
above, Plaintiff testified that Defendant and other defense
witnesses were wrong and mischaracterized his treatment of dogs
by their testimony that Plaintiff had choked and jerked dogs by
yanking and stepping on their leashes, yanked dogs off their
feet in punishment, lifted and swung dogs off the ground, and
kicked dogs.
The treatment of the dogs recorded in the videos,
however, demonstrates that Plaintiff did engage in such behavior
and that he therefore offered false testimony at trial.
As a
result of the clear and convincing evidence of Plaintiff’s
discovery misconduct and trial misrepresentations, Defendant has
met the second requirement for Rule 60(b)(3) relief.
Third, the Court concludes that Plaintiff’s misconduct
prevented Defendant from fully presenting her case at trial.
The videos go directly towards establishing the truth of
Defendant’s statements about Plaintiff’s alleged abuse of dogs,
and thus would have helped Defendant bolster her defense.
Schultz, 24 F.3d at 630.
Plaintiff’s failure to disclose or
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produce these videos also “denied [Defendant] access to evidence
that could well have been probative on an important issue, [and]
closed off a potentially fruitful avenue of direct or cross
examination.”
Anderson, 862 F.2d at 924.
The same is true of
Plaintiff’s statements at trial in which he denied the defense
witnesses’ specific testimony and implied generally that he
never had engaged in abusive treatment of dogs entrusted to his
care.
In addition, knowledge of the contents of these videos
“may well have led the defense attorneys to additional evidence”
that was favorable and supported the substantial truth of
Defendant’s allegedly defamatory statements.
at 630.
Schultz, 24 F. 3d
The Court notes that the Fourth Circuit has made clear
that the new evidence which was withheld by misconduct “does not
have to be result altering to warrant a new trial on a Rule
60(b)(3) motion” as this subsection “focuses not on erroneous
judgments as such, but on judgments which were unfairly
procured.”
Id. at 631.
Finally, given the highly relevant content of the
videos at issue here, the Court finds that the consideration of
finality of judgments is outweighed by the Court’s interest in
“justice being done in view of all the facts.”
Id. at 630.
As
in Schultz, “the fairness and integrity of the fact finding
process is of great concern and a party’s failure to produce a
requested document so favorable to an adversary impedes that
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process and requires redress in the form of a new trial.”
Id.
at 631.
In light of this concern for justice, combined with
Defendant’s meritorious defense of substantial truth, the clear
and convincing evidence of Plaintiff’s discovery misconduct
through the concealment of highly relevant negative videos and
of Plaintiff’s trial misrepresentation given the videos’
content, and this misconduct and misrepresentation’s significant
impact on Defendant’s ability to fully present her case at
trial, the Court finds that Defendant has met -- by clear and
convincing evidence -- her burden to vacate the judgment and to
receive a new trial.
IV.
Conclusion
For the foregoing reasons, the Court will grant
Defendant’s Motion and, accordingly, grant a new trial.
An appropriate Order will issue.
May 23, 2013
Alexandria, Virginia
___/s/____
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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