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Zweizig v. Northwest Direct Teleservices, Inc.

United States District Court, D. Oregon

August 29, 2017

MAX ZWEIZIG, Plaintiff,
v.
NORTHWEST DIRECT TELESERVICES, INC.; NORTHWEST DIRECT MARKETING OF OREGON, INC.; TIMOTHY ROTE; NORTHWEST DIRECT MARKETING DELAWARE, INC.; NORTHWEST DIRECT OF IOWA, INC.; ROTE ENTERPRISES, LLC; NORTHWEST DIRECT MARKETING, INC.; and DOES 1-5. Defendants.

          Joel W. Christiansen Attorney for Plaintiff

          Timothy Rote Pro Se Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.

         Despite 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 defendants.[1]

         Plaintiff moves for summary judgment against Defendant.[2] Defendant brings a cross-motion for summary judgment against Plaintiff. The Court denies both motions.

         BACKGROUND

         Plaintiff 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.

         On 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.

         After 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.

         On 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.[3] To date, NDT has failed to satisfy the judgment. Compl. ¶ 22, ECF 1.

         On or 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.[4] 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.

         Defendant's 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.

         Zweizig 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 public interest:

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.

         By the 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.

         STANDARDS

         Summary 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)).

         Once 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).

         The 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 Cir. 2011).

         If the 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. Mats ...


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