United States District Court, District of Columbia
BERYL A. HOWELL, District Judge.
The parties in this lawsuit first met in a hallway at an NBC television studio in January 2008, when the plaintiff, Michael Queen, approached Ed Schultz, the defendant. See May 13, 2015 Tr. at 13, ECF No. 169 (Testimony of Michael Queen). From all outward appearances, the plaintiff seemed to be a "nice guy, " yet his demeanor was "aggressive" and his clothing "Army fatigues." See May 15, 2015 AM Tr. at 65, ECF No. 183 (Testimony of Ed Schultz). The plaintiff was a fan of a popular nationally syndicated radio program, "The Ed Schultz Radio Show, " and seized the opportunity to speak with its host. After exchanging greetings, the plaintiff and defendant had a brief, five to ten minute conversation, in which the plaintiff praised the defendant's radio show and told the defendant "you've got to be on TV." Id. at 65-66 (Testimony of Ed Schultz); see also May 13, 2015 Tr. at 13, 108-11 (Testimony of Michael Queen). The defendant responded, "I agree, " id., since he had been trying seriously for nearly two years to host a national television program. See May 14, 2015 AM Tr. at 94, ECF No. 188 (Testimony of Paul Woodhull). Without prompting, the plaintiff asked the defendant whether he was "working with anybody" in order to get a television show. May 15, 2015 AM Tr. at 66 (Testimony of Ed Schultz). "No. You're it, " the defendant replied, as a good-natured response to one of his fans. Id. This seemingly innocent exchange clenched a multi-year business partnership between the plaintiff and the defendant-at least according to the plaintiff's trial testimony. See May 13, 2015 Tr. at 108-11 (Testimony of Michael Queen). After hearing five days of testimony, and needing only two hours of deliberation, the jury reached an alternate conclusion: The parties never formed a business partnership. See Verdict Form, ECF No. 178.
The plaintiff now seeks to turn aside the jury verdict and present his claim anew for jury consideration. See Pl.'s Mot. & Mem. New Trial ("Pl.'s Mem."), ECF No. 192. For the reasons stated below, the plaintiff's request for yet another opportunity to convince a fact-finder of the merits of his claim is denied.
A. Factual Background
In 2008, the defendant was a political radio host based in Fargo, North Dakota. See May 12, 2015 AM Tr. at 98, ECF No. 186 (Testimony of Ed Schultz). He aspired to host a television show and, to that end, made frequent guest appearances on television news commentary programs. See May 15, 2015 AM Tr. at 60 (Testimony of Ed Schultz). On the day the parties met, the defendant had just made a guest appearance on "Hardball with Chris Matthews" and was leaving an NBC studio in Washington D.C. See id. at 64 (Testimony of Ed Schultz). The plaintiff, who worked at NBC as a cameraman, see May 13, 2015 Tr. at 11 (Testimony of Michael Queen), approached the defendant and introduced himself, see May 15, 2015 AM Tr. at 65 (Testimony of Ed Schultz). The two had a fleeting five-to-ten minute conversation, during which the plaintiff showed the defendant the studio of the "Meet the Press." Id.
During this brief encounter, the plaintiff urged the defendant to get his own television show. See May 13, 2015 Tr. at 13 (Testimony of Michael Queen); May 15, 2015 AM Tr. at 66 (Testimony of Ed Schultz) ("[Y]ou've got to have your own TV show."). The defendant agreed. "Are you working with anybody" to get a television show, the plaintiff asked. May 15, 2015 AM Tr. at 66 (Testimony of Ed Schultz). "No. You're it, " the defendant responded, in what the defendant characterized as a general response to a fan. Id. The plaintiff then asked the defendant for his business card. Id. at 67. To be "courteous, " the defendant's wife provided the plaintiff with the defendant's card, as the defendant did not want to "come off as a jerk" by refusing to give out his business card. Id.
Following this initial exchange and over the ensuing months, the plaintiff and defendant continued to communicate. The plaintiff called the defendant and the two launched "exploratory conversations about... a TV show." Id. These included teleconferences among the plaintiff, the defendant and a third person, Max Schindler, whom the plaintiff had recruited to participate because of Mr. Schindler's prior experience directing television programs. Id. at 68-69. During these teleconferences, the parties discussed the possibility of producing a syndicated talk show that would air on local stations, akin to the popular "McLaughlin Group." See May 12, 2015 PM Tr. at 83-84 (Testimony of Ed Schultz). Shortly after these discussions began, Mr. Schindler insisted on a signed written agreement between the parties. See May 15, 2015 AM Tr. at 70 (Testimony of Ed Schultz).
As a result, in March 2008, less than three months after their first brief introduction, the plaintiff put together a proposed partnership agreement and sent it, unsigned by either the plaintiff or Mr. Schindler, to the defendant for his consideration. Id. at 71. Upon receipt, the defendant forwarded the agreement to his personal attorney, Jeffrey Landa. Id. Mr. Landa's response was immediate and definite: "Ed, please do not sign that agreement." Id. Mr. Landa need not have feared, the defendant knew immediately that the proposed agreement was a "non-starter." See May 12, 2015 AM Tr. at 70-75. During trial, at plaintiff's counsel's express invitation and using a red pen supplied by plaintiff's counsel, the defendant explained all of his problems with the plaintiff's proposed partnership agreement. See id. at 67. Describing the terms on one page as "terrible" and "horrendous, " the defendant proceeded to describe the fundamental unfairness and problems with the central terms of the proposed agreement. See id. at 69.
First, the defendant criticized the agreement's proposal for joint creative decision making. The proposal required creative decision making to be split between the defendant, the plaintiff, and Mr. Schindler (whom the plaintiff had yet to meet). Permitting the plaintiff and Mr. Schindler an effective veto over creative decision making was a "non-starter" for the defendant because "after 35 years of... being in [the entertainment] business, [the defendant was not] going to turn... control of [a] television show over to a man that [he has] never met before." Id. at 70. Second, the defendant criticized the agreement's contemplation of "Ed Schultz T-Shirts" and other related Ed Schultz paraphernalia. The defendant felt that such a term would permit Mr. Queen and Mr. Schindler to "invad[e] his career" and that he would be required to "turn everything over to them." Id. at 71-73. Third, the defendant criticized the term relating to salaries, which permitted "[s]alaries paid to individual partners [to] be negotiated on an individual basis by each individual without the approval of the other partners." Id. at 74-75. The defendant noted that such a term would permit the plaintiff and Mr. Schindler "to dictate... what their salary [was] going to be without [his] approval." Id. at 75. Fourth, the defendant criticized the requirement that all partners live in Washington D.C. and approve of all business-related travel, worrying that such a provision would permit the other partners to veto news stories the defendant might wish to pursue outside of Washington D.C. Id. at 78-80. Finally, the defendant criticized the termination provision of the agreement, which stated that the agreement would stay in effect until the defendant was off the air for a period of three years. Id. at 80. The defendant noted that television shows are frequently cancelled and that such a term would mean he was "done in the industry for the next three years" should any show be cancelled. Id. Needless to say, the defendant never signed the draft agreement and, indeed, the parties never signed any agreement. See May 15, 2015 AM Tr. at 73 (Testimony of Ed Schultz).
Around this same time, the parties also discussed the possibility of dividing any profits from a potential partnership fifty percent for the defendant, twenty-five percent for the plaintiff, and twenty-five percent for Mr. Schindler. See May 12, 2015 AM Tr. at 84 (Testimony of Ed Schultz) (testifying regarding email in which he stated that he would "agree to a 50, 25, 25 percentage formula of profits after expenses of the show"). Although the parties discussed such a potential division of profits, they never entered into a final agreement. See id. at 41. Due to the defendant's continued refusal to sign any agreement, Mr. Schindler stopped participating in the discussions between the plaintiff and the defendant. See May 12, 2015 PM Tr. at 78-79 (Testimony of Max Schindler).
On April 5, 2008, following Mr. Schindler's departure, the defendant sent the plaintiff an email:
I understand your concern about a financial arrangement moving forward. I can't give you specifics at this time. We do not know what we are dealing with at this point and what kind of opportunity may present itself. However, any TV deal will obviously involve you. I will not do a TV deal without your involvement and that includes a financial involvement. Rest assured, we are together on this. I hope this works for you at this point.
Queen II, 747 F.3d at 883. Despite the relevance of this email to the plaintiff's theory, and the fact that the email was specifically identified by the D.C. Circuit in its opinion on summary judgment as a critical piece of evidence, see id., plaintiff's counsel failed to ask the defendant during his direct examination about the email, and, as discussed below, failed to introduce the email into evidence until after he rested his case in chief. See May 14, 2015 AM Tr. at 196-97.
Discussions between the parties continued even after Mr. Schindler ceased participating, but the plaintiff's frustration boiled over in early June. Bothered by the involvement of the defendant's personal attorney, Mr. Landa, the plaintiff sent the defendant an email informing him that he "can't do this." May 14, 2015 AM Tr. at 153-54 (Testimony of Michael Queen). The defendant understood the plaintiff's communication to mean that the plaintiff "had given up" and would not be involved in any more efforts related to a potential television show. See May 15, 2015 AM Tr. at 78 (Testimony of Ed Schultz). The following day, the defendant responded to the plaintiff's email, stating "I'm sorry we can't make this work. I appreciate all your efforts." Id. at 80. Later that same afternoon, the defendant again emailed the plaintiff and stated: "I'm back to my original position. Let's draw up a short letter and join forces to produce the pilot." Id. at 83.
As a result, the plaintiff and the defendant did agree together to produce a television pilot starring the defendant. See May 12, 2015 AM Tr. at 87 (Testimony of Ed Schultz) (testifying regarding "a verbal agreement [between the parties] to make the pilot and send it out to television stations...."). The defendant provided all the content for the pilot, including the music, the political commentary, and interviews with three political figures, whose appearances the defendant arranged. See May 11, 2015 PM Tr. at 74-76, ECF No. 166 (Testimony of Ed Schultz). The plaintiff arranged for the use of his employer's studio at a discounted rate and paid the upfront costs of the pilot, approximately $11, 000, which the defendant subsequently reimbursed along with other expenses. See May 11, 2015 PM Tr. at 82-83 (Testimony of Ed Schultz); May 13, 2015 Tr. at 23 (Testimony of Michael Queen). Upon completion, the plaintiff mailed copies of the pilot to various television executives, including executives at CNN, CBS, MSNBC. See May 13, 2015 Tr. at 48 (Testimony of Michael Queen). The plaintiff also sought funding for the potential show by soliciting funds from wealthy individuals, such as T. Boone Pickens, without prompting or approval from the defendant. See May 14, 2015 AM Tr. at 151-52 (Testimony of Michael Queen).
Subsequently, in November 2008, the defendant appeared as a reporter at President-Elect Barack Obama's first press conference following his election. See May 15, 2015 AM Tr. at 105-07 (Testimony of Ed Schultz). The defendant sat in the front row and was visible to those watching on television. Id. Fortunately for the defendant, among those watching was Phil Griffin, the president of MSNBC. Id. Later, Mr. Griffin contacted the defendant, impressed that the defendant had a front-row seat at the first press conference, and the two discussed the possibility of the defendant hosting his own television show on MSNBC. Id. at 108-09. As a test run, the defendant was required to appear three times as a guest host of various programs. Id. at 111. Due to his success during these temporary positions, the plaintiff entered into an agreement with MSNBC to host "The Ed Show." Id. at 115-16.
After agreeing to host "The Ed Show, " communications between the defendant and the plaintiff dropped off. In his pleadings, the defendant attributed the falling out to the plaintiff's "bizarre conduct, " and the fact that he was "stalking Schultz and Schultz['s] wife." Answer ¶ 71, ECF No. 5. In particular, the defendant alleged that the plaintiff began to harass him and his wife with communications threatening litigation and blackmail if the defendant did not accede to his compensation demands, which resulted in a cease-and-desist letter being sent to the plaintiff on July 30, 2009. Id. The defendant further alleged that, on July 21, 2010, the plaintiff "read a defamatory statement publically accusing Schultz of, among other things, stealing and causing him to finance his home to pay for the pilot." Id. The plaintiff was permitted at trial to show video footage of the plaintiff's accusations, which he made at a company "town hall" meeting directly to the President of the NBC News Division and to the CEO of NBC Universal Media, LLC. See May 13, 2015 Tr. at 67-68. The defendant also claimed in his original pleading that on or before May 20, 2010, the plaintiff "caused to be written a press release' containing the false and slanderous statements, " i.e., "that Schultz had a business contract with Queen and that Schultz reneged on or otherwise breached that contract;" "that Schultz defrauded Queen and that Schultz owed Queen money for, among other things, producing a pilot for a proposed television show; and, that Schultz caused Queen to mortgage his house to finance the pilot for a proposed television show project." Countercl. ¶¶ 11, 20-23, ECF No. 5.
On May 10, 2011, the plaintiff filed suit.
B. Procedural Background
The ever-shifting nature of the plaintiff's claims has resulted in a tortured procedural history. The plaintiff's Complaint asserts five causes of action: Breach of Contract; Breach of Implied-in-Fact Contract; Fraud in the Inducement; Tortious Interference with Business Relationships; and Intentional Infliction of Emotional Distress. See Compl., ECF No. 1. Throughout the proceedings, and even up to and during trial, "the nature of this alleged contract [between the parties] has eluded precise definition and has been characterized by the plaintiff in a variety of ways." Queen I, 888 F.Supp.2d at 158.
In the plaintiff's Complaint, the plaintiff alleged that he entered into a contract to serve as the defendant's agent. See Compl. ¶ 53 ("During December 2008 and January 2009, Michael Queen acted as Ed Schultz's agent in Washington DC....") (emphasis added); id. ¶ 76 ("To date, Schultz has refused to compensate Queen with a percentage of the income that Queen is entitled to as part owner of the show and as an agent for Schultz.") (emphasis added). In opposition to the defendant's first motion for summary judgment, the plaintiff changed course and characterized the contract as an "oral, written, and implied in fact contract to form a partnership for the sole purpose of pitching the concept of a TV show featuring the defendant as host.'" Queen I, 888 F.Supp.2d at 158 (emphasis added) (citing Pl.'s Opp'n Def.'s Mot. Summ J., ECF No. 24). In the plaintiff's own motion for partial summary judgment, however, despite passing references to a partnership, the plaintiff described a contract "to create, produce and pitch the show" and, again, as an "agreement to have [the plaintiff] develop and pitch the concept of a TV show with [the defendant] as host." See Pl.'s Mem. Supp. Pl.'s Mot. Partial Summ. J. at 17-18, ECF No. 30. At several points in the plaintiff's own motion for partial summary judgment and in opposing the defendant's second motion for summary judgment, the plaintiff also referred to the alleged contract as a "joint venture." See id. at 19 ("During the course of the TV project, the parties agreed to basic compensation terms for the joint venture, which was a 50-25-25 split.") (emphasis added); Pl.'s Second Opp'n Def.'s Second Mot. Summ. J. at 33, ECF No. 32 (same). Despite the different theories of liability, the plaintiff did not plead these allegations as separate causes of action. Instead, the plaintiff pled a single breach of contract claim.
This Court previously granted summary judgment to the defendant on all counts in the plaintiff's Complaint. Due to the imprecision in the plaintiff's Complaint, at summary judgment, the Court considered the plaintiff's breach of contract allegation under two distinct frameworks. The Court considered whether the defendant breached a contract under an agency theory and under a partnership theory. See Queen I, 888 F.Supp.2d at 159 ("[T]he Court discerns two distinct, potential agreements: (1) an agreement whereby the plaintiff developed and pitched a show on behalf of the defendant; and (2) an agreement whereby the plaintiff produced and pitched a show in partnership with the defendant."). Under an agency theory, this Court concluded that the plaintiff "failed to create a genuine issue of material fact regarding the absence of agreement on the material terms of the alleged contract." Id. at 162. This Court also concluded that a reasonable factfinder could not "conclude that the defendant ever objectively manifested an intent to be bound." Queen I, 888 F.Supp.2d at 163. With respect to the partnership theory-as noted, first urged in the plaintiff's opposition to the defendant's motion for summary judgment-the Court concluded that the plaintiff' "failed to create a genuine issue of fact regarding whether the parties intended to form a partnership" given that the parties' "relationship... was devoid of any indicia of a partnership." Id. at 166.
The D.C. Circuit disagreed. The Circuit affirmed the dismissal of the breach of contract and other claims in the Complaint, but held that "a reasonable jury could conclude from the parties' conduct and communications that Queen and Schultz intended to, and did, form a partnership to develop a television show." Queen II, 747 F.3d at 888. The Circuit acknowledged that the plaintiff's "complaint contains no assertion of a breach of partnership duties, and in fact nowhere uses the word partnership.'" Queen II, 747 F.3d at 886. Nonetheless, at the urging of both parties during appellate oral argument, the Circuit addressed the plaintiff's breach of contract claim under a partnership theory. The Circuit concluded that the plaintiff's efforts to arrange the pilot, the sworn statements from Mr. Schindler regarding Mr. Schindler's agreement to partner in the project,  and the defendant's statement in an April 5, 2008 email that the plaintiff would have "a financial involvement" in a subsequent television deal, provided sufficient evidence to warrant a jury trial on whether the parties "formed a partnership to develop a television show" and whether the defendant "breached his duty of loyalty under District of Columbia partnership law." Id. at 888-89. Although dismissing the plaintiff's breach of contract claim, which asserted a verbal contract entitling the plaintiff to twenty five percent of any profits, the Circuit permitted a partnership claim to go forward for a "50/50 split of profits with [the defendant.]" See id. at 889 (acknowledging that "[i]t might seem counterintuitive that Queen, having failed to demonstrate the existence of an enforceable agreement entitling him to 25% of the income after expenses from The Ed Show, ' can nonetheless pursue a partnership theory that could entitle him to a 50/50 split of profits with Schultz."). Accordingly, the Circuit concluded that the plaintiff was "entitled to present his case to a jury, " that the plaintiff and the defendant "formed a partnership to develop a television show and that [the defendant] breached his duty of loyalty under District of Columbia partnership law." Id.
Before the case could proceed to trial, however, this Court was left with a procedural predicament: What claim from the plaintiff's Complaint survived summary judgment? The D.C. Circuit had affirmed the dismissal of the plaintiff's breach of contract claim, see Queen II, 747 F.3d at 889 ("We conclude that the district court correctly granted summary judgment to Schultz on Queen's claim that he, Schindler, and Schultz entered into an enforceable contract...."), and the plaintiff's original Complaint did not mention a partnership, see Compl. Having never alleged a partnership, the defendant was now forced to defend himself against a theory of liability of which he had no notice during discovery prior to the first round of summary judgment motions. Consequently, upon remand, discovery was reopened for a period of three months on the issue of partnership formation and breach, see Minute Order, dated May 27, 2014, to supplement the previous five months of discovery leading up to the first round of summary judgement motions, see Minute Order, dated July 8, 2011.
Following discovery on the plaintiff's partnership theory, the defendant again sought summary judgment. Mindful of the Circuit's admonition, based on evidence that remained unchanged, that the plaintiff was "entitled to present his claim to a jury, " Queen II, 747 F.3d at 889, this Court concluded that there were "sufficient disputed issues of material fact regarding the formation, duration, and alleged withdrawal from" the purported partnership to deny summary judgment. See Minute Order, dated November 26, 2014. In doing so, however, the Court also noted the irony of the plaintiff's criticism that the defendant's "argument underlying his Motion for Summary Judgment clearly underscores his precise misunderstanding of the issues to be tried" because "the plaintiff [had] not yet moved to amend his pleading to include a partnership claim, leaving the defendant and the court... to speculate about the precise parameters of the claim.'" Id. (quoting Def.'s Reply Pl.'s Opp'n Def.'s Mot. Summ. J. at 4, ECF No. 73). Thus, the Court afforded the plaintiff the opportunity to clarify his breach of partnership claim and instructed the plaintiff to amend his Complaint to provide the defendant proper notice regarding the claim alleged. Id. Rather than seize the opportunity to detail his side of the story and allege clearly the circumstances giving rise to the alleged partnership, the plaintiff obfuscated.
The plaintiff's proposed amended complaint simply substituted the word "partnership" for "contract" and sprinkled the words "as part of his services provided to the Partnership as a partner" throughout his otherwise unchanged pre-existing allegations. See First Am. Compl., ECF No. 78-1; see also Feb. 27, 2015 Hearing Tr. at 34, ECF No. 88 ("The Court: [W]hat you've essentially done is just scatter the word partner' or partnership' where it previously talked about a contract. Have I got that pretty much right? [Plaintiff's Counsel]: Yes, your honor."). Although leave to amend should be freely given, the plaintiff could not meet even the generous standards afforded to him under Rule 15. At a hearing on February 27, 2015, the Court denied the plaintiff's motion to amend his Complaint due to "undue delay" and "undue prejudice." Feb. 27, 2015 Hearing Tr. at 46. The Court also determined that it was a "close question" whether the plaintiff's submission was made in bad faith. See id. at 44 ("Considering the pattern of shifting theories and allegations the plaintiff has exhibited throughout this suit, it's arguable that the plaintiff's failure to amend his complaint was an actual exercise of bad faith or dilatory motive, since the vagueness of the plaintiff's claims has prevented the defendant from addressing the plaintiff's charges directly, and every time the defendant has managed to do so, the ...