United States District Court, W.D. Virginia, Lynchburg Division
James M. Tharpe, Jr., Plaintiff,
Rudy K. Lawidjaja, Defendant
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For James M. Tharpe, Jr., Plaintiff, Counter Defendant: Alison Ferguson Gobble, Robert C. Wood, III, Stover Henry Creasy, IV, EDMUNDS & WILLIAMS PC, Lynchburg, VA, USA.
For Rudy K. Lawidjaja, Defendant: Joseph Peter Drennan, LEAD ATTORNEY, Alexandria, VA, USA; Richard Daniel Scott, LEAD ATTORNEY, Law Offices of Richard D. Scott, Roanoke, VA, USA; John D. Mason, PRO HAC VICE, Intellectual Property Group PLLC, Stevenson, MD, USA.
For Rudy K. Lawidjaja, Counter Claimant: Richard Daniel Scott, LEAD ATTORNEY, Law Offices of Richard D. Scott, Roanoke, VA, USA; John D. Mason, Intellectual Property Group PLLC, Stevenson, MD, USA.
NORMAN K. MOON, UNITED STATES DISTRICT JUDGE.
For the reasons stated herein, I will deny Defendant's motion for partial summary judgment, and I will dismiss his counterclaims without prejudice for lack of subject-matter jurisdiction. Additionally, Defendant's counsel's renewed motion to withdraw will be denied, without prejudice, and Plaintiff's motion to set this case for a bench trial will be granted. Additionally, I will deny Defendant's motions, filed by counsel long after filing counsel's renewed motion to withdraw, seeking to exclude or limit testimony presented by Plaintiff's physician and expert witness.
Seeking damages, injunctive relief, and cancellation and rescission of a purported contract, Plaintiff filed a complaint alleging intentional infliction of emotional distress, fraud in the inducement, tortious interference with contract, and defamation. The crux of the complaint is that Defendant, who resides in Maryland, reached out to harass Plaintiff, who resides in Lynchburg, Virginia, by conducting a campaign of tortious acts in a deliberate attempt to adversely affect Plaintiff's employment in Lynchburg. Defendant removed the case from the Circuit Court for the City of Lynchburg, and then filed a motion to dismiss for improper venue or, in the alternative, to transfer venue to the United States District Court for the District of Maryland or the District of Columbia. The matter was briefed and heard, and at the conclusion of argument I stated that I would deny the motion. Thereafter, on October 26, 2012, I issued a memorandum opinion further explaining that venue appropriately lies in
this court, and the propriety of retaining venue here.
Subsequently, Defendant filed an answer and counter-complaint, alleging " a copyright infringement action" and " a Tortious Interference with Contract Expectancy and Prospective Business Relationship action." Defendant has changed counsel twice (he is currently represented by his third set of counsel in this case), and the scheduling order in the case has been amended several times. Defendant filed a motion for partial summary judgment, which has been fully briefed, and Defendant has filed a notice indicating that he has waived any request for oral argument on the motion.
Plaintiff has filed a " motion to schedule case for trial without jury," and Defendant's counsel has filed a renewed motion to withdraw as counsel for Defendant based on " counsel's continuing inability to communicate fully and effectively with Defendant" and " Defendant's failure substantially to fulfill an obligation to counsel regarding their services as required by the signed retainer agreement . . . ." Nonetheless, counsel for Defendant continues to file motions on Defendant's behalf, including two pending motions seeking to exclude or limit testimony presented by Plaintiff's physician and expert witness.
With some few additions and annotations, I repeat the summary of Plaintiff's factual allegations that I stated in my memorandum opinion of October 26, 2012.
Defendant's motion states that he is a " commercial and fine art photographer with fifteen years of work in the fashion industry and in photojournalism."  Plaintiff posted photographs of himself on a Web-site used by aspiring models to promote themselves, and thereafter, in April or May 2010, Defendant contacted him. In the course of the ensuing acquaintanceship between Plaintiff and Defendant, Plaintiff signed two broad, seemingly boilerplate photographic release agreements, neither of which contains an integration clause, makes any reference to nudity, or recites with any specificity the supposed " valuable consideration received" by Plaintiff. The releases do not contract for any specific services; rather, they purport to grant to the photographer the rights " to all photographs taken of [Plaintiff] on or between . . . Friday January 1st 2010 and Monday December 31st 2012," and " all photographs or videos taken of [Plaintiff's] person on or between . . . August 15th 2011 and December 31st 2015." 
Defendant photographed Plaintiff a number of times (at least once in Lynchburg) and promoted Plaintiff as a model. Eventually, Plaintiff posed nude for Defendant. Plaintiff asserts that he agreed to do so only after Defendant assured Plaintiff that Defendant would not distribute photographs displaying Plaintiff's genitals or buttocks, and exhibits submitted in support of the complaint suggest that Defendant may have given Plaintiff this assurance.
Over time, relations between the parties deteriorated. There were angry scenes and tentative reconciliations between the parties. At least one of the angry scenes between the parties involved Defendant contacting Plaintiff's mother in Lynchburg. Plaintiff, who works as a soccer coach and was more committed to his employment as a coach than he was to pursuing modeling opportunities, apparently failed to attend some modeling appointments or commitments. More importantly, Plaintiff refused Defendant's request that Plaintiff leave his employment as a coach, relocate to the Washington, DC area, and serve as Defendant's " house model."
During the course of the parties' increasingly strained relationship, Plaintiff moved, in May 2010, to Tennessee to take a one-year coaching job. In May 2011, Plaintiff accepted his current coaching position, which began in July 2011, with Central Virginia United Soccer Club (" CVUS" ) in Lynchburg.
In August 2011, Plaintiff learned through his employer that an Internet search using Plaintiff's name had returned Web-sites displaying " inappropriate and embarrassing" photographs of which parties associated with CVUS " did not approve." Apparently there was a Web-site, maintained or controlled by Defendant, using Plaintiff's name. Defendant agreed to remove some of the pictures, " but left on the site a photograph which was still objectionable . . . ."
On August 19, 2011, Defendant sent an e-mail to Plaintiff and to Plaintiff's employer, stating his position regarding Plaintiff's request to take down the photographs.
On September 16, 2011, Defendant sent an e-mail to Plaintiff, stating that he had " officially withdrawn" his support for Plaintiff at a modeling agency. Defendant added, " [a]s far as I know you [ sic ] no longer on their website." Defendant concluded the e-mail by telling Plaintiff, " you are a great soccer coach, however, not much on modeling initiatives."
On September 17, 2011, Defendant sent Plaintiff an e-mail directing Plaintiff to stop using Defendant's contact list and to use his own contact resources. The complaint states that " Plaintiff responded to Defendant[,] explaining his reaction to Defendant black listing Plaintiff as a model." That day, the parties continued to exchange e-mails regarding Plaintiff's career choices, with Defendant condemning Plaintiff for refusing to make a greater effort to pursue modeling, yet also condemning Plaintiff's ability to be a model.
Later in September 2011, Defendant called Plaintiff to tell him that one of his clients had requested Plaintiff, and Defendant offered Plaintiff the job. The complaint states that " Plaintiff agreed, as he needed the money; Defendant again began taking photographs of Plaintiff."
According to the complaint, Defendant told Plaintiff that there was a publisher who wanted to do a calendar -- apparently of nudes -- " and that he would get 20% of the profits." The complaint states that " Defendant sad the theme was artistic/athletic; however, no genitals would be shown. Plaintiff agreed to the photo shoots with the understanding that no genitals would be shown." In a series of text messages between October 5 and October
13, 2011, Plaintiff asked Defendant to make sure that any photographs of his body below the waist be cropped so as not to show his genitals, but Defendant would give him no such assurances. Plaintiff informed Defendant that he would no longer pose fully nude.
In September and October 2011, Plaintiff grew suspicious that Defendant had placed spyware on Plaintiff's cell phone, allowing Defendant to view text messages and e-mails exchanged between Plaintiff and Plaintiff's girlfriend. As a result of these suspicions, Plaintiff turned down a modeling opportunity presented to him by Defendant, and Plaintiff " then called Defendant and left a message informing Defendant that Plaintiff believed he had installed spyware on his phone, that he could no longer trust Defendant, and that he was finished working for Defendant." The next day, Defendant sent a text message to " Plaintiff's mother and told her to tell Plaintiff never to contact him again." Plaintiff states that he " had no further contact with Defendant until he heard about a cease and desist order . . . and learned further that Defendant had posted one nude photograph [of Plaintiff] on [the] website [that used Plaintiff's name in the address] and other nude photographs [of Plaintiff] on Defendant's [own] website . . . ."
On December 8, 2011, Defendant wrote and sent a purported " cease and desist" letter to Plaintiff and to others at Plaintiff's place of employment. Among other things, the letter airs a number of Defendant's personal complaints about Plaintiff, and includes two appendices cataloguing such complaints.
On December 17, 2011, Plaintiff sent an e-mail to Defendant upon learning that Defendant had posted (on Defendant's Web-site) full nude photographs of Plaintiff, and Defendant had tagged those photographs under the name of Plaintiff's employer, so that any Google search for CVUS would return the nude photographs of Plaintiff. Plaintiff asked Defendant to " please" remove the photographs for the sake of Plaintiff's future as a soccer coach. Plaintiff went to pains to wish Defendant well, and stated that all Plaintiff wished to do was to get on with his life. Later that evening, Plaintiff called Defendant and left a voice-mail asking Defendant to remove the photographs from the Web-site.
On December 18, 2011, Plaintiff again e-mailed Defendant, asking Defendant to take down all of the photographs showing
Plaintiff's " genitals and butt," and reminding Defendant that he had verbally agreed to never release any nude photographs of Plaintiff. Plaintiff added that Defendant had not only released several photographs, but that Defendant had also tagged CVUS in those photographs, even though CVUS was in no way connected to Plaintiff's modeling or Defendant's photography, " 'and therefore is only tagged to get me caught and henceforth fired from my job." Plaintiff also pointed out that " one of the photos has a photoshopped erect penis, which furthermore depicts me in a negative fashion," and stated his view that Defendant's actions were " a malicious attack for me to lose my job and jeopardize my future as a coach and any other jobs I may pursue."
Copying Plaintiff and others at Plaintiff's place of employment, Defendant forwarded this e-mail to a lawyer who was apparently representing him at the time. The attorney, Mr. Arnold Lutzker (who does not represent Defendant in this matter), replied to Plaintiff, asking Plaintiff to " please communicate with me as his attorney as we attempt to resolve this matter," and stating that the attorney would " encourage [Defendant] to reach an understanding with you and provided there is both mutuality and full follow through on your part, I believe he can be convinced to take such steps he believes useful to facilitate that understanding." (Emphasis added.)
In an e-mail dated December 20, 2011, Plaintiff replied as follows:
I appreciate your e-mail. Please be aware that your client, Rudy K, is posting full frontal nude photos of me on his website. We have a verbal agreement for such nudity never to be published. In addition, Rudy K has photoshopped an erect penis on some of the photos, which portrays me negatively. Not only has he done all of the above, he has tagged the pictures under my soccer club's name and position with the club. Doing this causes my naked photo to appear when googling the image of the club. My club has nothing to do with modeling or Rudy K's photography, and he knows that such photos are detrimental to my position at the club, as we had a similar incident a few months ago. He is doing this maliciously to cause me to lose my job and will be detrimental to my future career as a coach and in other professions I may choose.
I do apologize that my actions would cause Rudy such hurt that he feels the correct action would be one that would tarnish my career. I never did anything intentionally, and Rudy always knew that my coaching took priority over modeling. He had dropped me a couple times in the past as a model for conflicting issues, and he pursued to get me back, which is simply bad business on his part knowing my limitations. I have e-mails to prove such. Despite the Model Release I signed, I never signed a contract where I was obligated in such ways to make Rudy K financial gains. I never received a copy of the Model Release, and I request to have one sent to me. If not, it will be subpoenaed if the matter goes further.
Rudy K contacted my mother several weeks ago to never have me contact him again. I adhered to that, as how things ended with us did not warrant me to want to speak to him again. If such a request, why perform such actions that would make an interaction a must? I understand I was a disappointment in Rudy's eyes, but I do not think it is illegal to be a bad model. I have sent you all the printed materials I have in my possession, have taken down all the
photographs taken by Rudy K on Facebook, and have deleted my domain name account for my website, as well as deleting all photos from my computer.
I do not wish to have this matter go further; however if Rudy K persists to publish such malicious material of myself with the purpose of getting me fired and tarnishing my reputation and career as a soccer coach, I will take necessary actions. I request Rudy uphold our verbal agreement to never publish any full nudity photos of myself and take down the ones on his website. I wish for this matter to be resolved as quickly as possible.
In a follow-up e-mail dated December 21, 2011,, Plaintiff asked Lutzker, " What does Rudy K want? I received a text stating 'There is one thing you can do in person amp [ sic ] will amend the situation for all parties as well as saving your future.'"
Beginning in January 2012, e-mails were exchange and meetings were held to try to resolve the issues between the parties, in particular Plaintiff's demand that Defendant remove all of the frontal nude photographs from his Web-site, and Defendant's demand for consideration before he would remove the photographs.
In an e-mail exchange dated January 18, 2012, Plaintiff asked Lutzker when they could have a discussion to try to resolve the situation. Lutzker replied, " I think the best thing to do first is for you to try to work this out directly with Rudy. You should particularly be thinking what you can offer him in return for what you want from him." (Emphasis added.)
Also on January 18, 2012, Defendant wrote an e-mail message to Plaintiff expressing his dissatisfaction with Plaintiff, apparently borne of resentment Defendant felt for having made gifts or loans to Plaintiff. The message included the following: " Gee even your own mother either cant remember or don't want to say what she has told me. With the rate this is going I might as well unblock everything and posted more pictures as usual." (Emphasis added; otherwise quoted verbatim.)
In an e-mail message dated February 8, 2012, stating in the subject line, " This is non negotiable," Defendant sent to Plaintiff a demand outlining what he wanted from Plaintiff in exchange for taking any steps to attempt to remove the nude photographs. First, Defendant demanded that Plaintiff " [a]ctivate [his] website," and Defendant provided specific instructions how to do so. Then, Defendant directed that Plaintiff was to " start blogging till end of September 2012 with [at] least 3 posting a month," adding that " [t]he posting may not contain anything that show hates/discrimination towards LGBT community and fashion/modeling." (Bracketed insertions added; otherwise verbatim.) Defendant ordered Plaintiff " to tell [Plaintiff's employer] today That You are back into modeling and will do/aiming for September fashion week 2012 to FINISH what you STARTED." (Bracketed insertion added; otherwise verbatim.) Defendant repeated that his demands were non-negotiable, and that Plaintiff had until 5:00 p.m. that day to meet his demands, or Defendant would " not do anything."
Also on February 8, 2012, Defendant sent Plaintiff a series of text messages that included the following statement: " Read the email I just sent and its non negotiable. Its only valid for google cache problem." (Verbatim quote.) Another message from Defendant stated, " Maybe when you lost ur job and move out of lynchburg good for everyone. That way nobody win. At the moment u, bren and cvu have everything to gain from [me] helping you. That's [a]ll I'm gonna say[.]" (Bracketed insertions added; otherwise verbatim.)
When Plaintiff responded, " That is fucked up that you want me to lose my job," Defendant replied, " Lost, quit, move or whateveru call it. so nobody win." (Verbatim quote.) Defendant sent other messages stating the following: " Mark my word, even after google finish clearing the cache and cvu still letting u go, u gonna react differently" ; " Again I'm sorry for snapping at u today and threatening to put the pictures back up. No excuses just apology[.]" (Emphasis and bracketed insertion added; otherwise verbatim.)
On February 9, 2012, Defendant sent Plaintiff an e-mail reiterating his demands from the day before, e.g., stating " [n]ow show me something that you support me and trying to make this Fashion week not as painful. And this support need to be directed to my industry." (Bracketed insertion added; otherwise verbatim.)
On February 14, 2012, Plaintiff e-mailed Defendant, stating that Defendant's posting the nude photographs on various Web-site had " been one of [Plaintiff's] worst nightmares." Plaintiff informed Defendant that he was finished with modeling and that he would have no further contact with Defendant.
On February 14, 2012, Defendant responded by e-mail that included the following statement: " As we discussed over the phone on February 12th, 2012 at 11.30 pm as well as your email, dated 02/12/2012, you stated that you 'can't and won't do things you don't want to do,' I am responding in likeness." (Verbatim quote.) Defendant also wrote the following:
The fact that you can't even follow through on anything or do what you said you would do, in essence reversing your action -- I am reversing all my actions as well. After that I will not do anything until I receive offers from you which are comparable to what you are asking of me. It is now your responsibility to arrange propositions that will entice me into agreement. I refuse to continue in any further discussions with you concerning your pictures until these conditions are met and your obligation fulfilled.
The complaint alleges that, " in March/April 2012, Defendant created three more websites in Plaintiff's name," and posted on those Web-sites nude photographs of Plaintiff, " some of which had been edited" to depict Plaintiff with a tumescent penis or ejaculating. Plaintiff adds that the Web-sites also promote photographs that are password-protected, that nude photographs of Plaintiff have been posted on other Web-sites, and that ...