United States District Court, D. Oregon
W. Christiansen Attorney for Plaintiff
Timothy Rote Pro Se Defendant
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
arbitration, numerous lawsuits, and an inordinate expenditure
of time and resources, Plaintiff Max Zweizig and pro se
Defendant Timothy Rote have been unable to resolve disputes
stemming from the end of an employment relationship over
thirteen years ago. This Court is now faced with the latest
iteration of the dispute, in which Plaintiff brings claims of
“Retaliation for Opposing Unlawful Conduct, ”
under Oregon Revised Statute § (O.R.S.) 659A.030(1)(f);
and “Aiding and Abetting, ” under O.R.S.
659A.030(1)(g); against Defendant Rote and several corporate
moves for summary judgment against Defendant. Defendant brings
a cross-motion for summary judgment against Plaintiff. The
Court denies both motions.
worked for corporate defendant Northwest Direct Teleservices,
Inc. (“NDT”) from September 1, 2001 to November
15, 2003, as Director of Information Technology. Zweizig
Decl. ¶ 2, ECF 118. Plaintiff was terminated by
Defendant Rote, who was NDT's owner and CEO. Zweizig
Decl. ¶ 2.
March 18, 2004, Plaintiff sued Defendant, NDT, and Doe
defendants in the Superior Court of New Jersey. Zweizig Decl.
Ex. 2, ECF 11-82. Plaintiff alleged that the defendants had
taken adverse employment-related actions against Plaintiff
because he reported civil and criminal fraud committed by NDT
to law enforcement. Id. at ¶¶14-15.
many years and various procedural motions, the dispute
between Plaintiff and NDT ended up in arbitration in Oregon.
Zweizig Decl. ¶ 6, Ex. 3. On March 31, 2011, the
arbitrator issued an Opinion & Order. Zweizig Decl. Ex. 3
(noting the matter “had not reached a conclusion for an
extended period of time”). The arbitrator found that
Plaintiff was terminated in retaliation for reporting that
the defendants were overbilling some of their clients.
Id. at 5. The arbitrator awarded Plaintiff $75, 375.
Id. at 6-8; Rote Decl. Ex. D at 8, ECF 116-4.
February 14, 2012, this Court confirmed the arbitration
award. Nw. Direct Teleservices, Inc. v. Zweizig, No.
3:11-CV-910-PK, 2012 WL 512404, at *1 (D. Or. Feb. 14, 2012).
On March 11, 2014, Plaintiff filed a lawsuit in this Court
against Defendant, NDT, and related corporate entities,
alleging that the defendants violated the Uniform Fraudulent
Transfer Act and engaged in other fraudulent activity to
defeat Plaintiff's ability to enforce the judgment from
the arbitration. Zweizig v. Rote et al., No.
3:14-cv-00406-HZ. To date, NDT has failed to satisfy the
judgment. Compl. ¶ 22, ECF 1.
about February 27, 2015, Defendant created a website,
“Sitting Duck Portland- Another Story on Arbitrator
Corruption and Costs, ” which describes the arbitration
between Defendant, his companies, and Plaintiff. Id.
at ¶ 25. Defendant published materials pursuant to a
licensing agreement between NDT and himself. Rote Decl. Ex. F
at 5, ECF 116-6. At some point in late 2016, Defendant
deleted the Sitting Duck Portland website and republished
similar material on a different website, “The Explosion
of Fake Whistleblowing.” Zweizig Decl. ¶¶
16-17, Ex. 12, ECF 118-12-22.
website comprised a detailed rendition of the arbitration
proceeding between Plaintiff and Defendant, including all of
the different ways that Defendant considered the arbitration
corrupt and unfair. See, e.g., Zweizig Decl. Ex. 5
at 15, ECF 118-5 (“We will tell this story of bias, of
cronyism, or bribery, of corruption, of fraud.”).
Defendant explained the motivation for his website:
Now that they . . . have alleged that we have been engaged in
fraud, we might as well bring the history of their bad
behavior to the world so that everyone can learn from it
an[d] perhaps there will be a ground swell enough to make
some changes here . . . who knows.
* * *
We need to monetize our experience as much as possible to pay
for the defense of this baseless suit.
Decl. Ex. 6 at 9, EC 118-6. The website also included various
negative statements about Plaintiff, including comments about
his appearance, his performance at the NDT job, and his
trustworthiness. Id. One blog entry stated that
Plaintiff had breached his contract with Defendant and then
had “sought whistle blower type protection to save his
job.” Id. at 3. Defendant also accused
Plaintiff of destroying digital evidence and illegally
downloading thousands of movies, including pornography.
Zweizig Decl. Ex. 7 at 13-16, ECF 118-7. The website also
contained negative statements about Plaintiff's
fiancé and attorneys. Zweizig Decl. ¶ 8.
Defendant characterized the website content as a topic of
The Sitting Duck Portland blog is about 90 Chapters in
length, roughly 90, 000 words and remains the basic outline
of a book and screen play written by Rote on the arbitration,
the interaction between Zweizig's attorney and the
arbitrator, the brazen request by counsel for the arbitrator
to seek the opinion of a Senior U.S. Federal Judge, tainted
evidence, influence, corruption, and criminal behavior.
Def.'s Mot. 16, ECF 115.
end of 2015, a Google search of Plaintiff's name resulted
in a prominent display of the Sitting Duck Website.
Id. at ¶10-11; Zweizig Decl. Ex. 9-10, ECF
118-9, 10. Defendant publicized his websites through his
LinkedIn.com profile, which reaches over 500 of his contacts.
Zweizig Decl. Ex. 14-16, ECF 118-24, 26.
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party bears the initial responsibility of informing the court
of the basis of its motion, and identifying those portions of
“‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed.R.Civ.P. 56(c)).
the moving party meets its initial burden of demonstrating
the absence of a genuine issue of material fact, the burden
then shifts to the nonmoving party to present “specific
facts” showing a “genuine issue for trial.”
Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924,
927-28 (9th Cir. 2009) (internal quotation marks omitted).
The nonmoving party must go beyond the pleadings and
designate facts showing an issue for trial. Bias v.
Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 324).
substantive law governing a claim determines whether a fact
is material. Suever v. Connell, 579 F.3d 1047, 1056
(9th Cir. 2009). The court draws inferences from the facts in
the light most favorable to the nonmoving party. Earl v.
Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th
factual context makes the nonmoving party's claim as to
the existence of a material issue of fact implausible, that
party must come forward with more persuasive evidence to
support his claim than would otherwise be necessary.