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Egli v. Strimel

United States District Court, E.D. Pennsylvania

April 25, 2017

GEORGE STRIMEL, et al., Defendants.


          Rufe, J.

         Before the Court is the motion for summary judgment of Defendants John C. Brooks, George Strimel, and Radnor Studio 21, Inc. (“RS21”). Also before the Court is pro se Plaintiff Christopher Egli's motion to dismiss and/or for summary judgment, which seeks dismissal of Defendants' counterclaims. For the reasons that follow, both motions will be granted.

         I. BACKGROUND

         Plaintiff is a filmmaker, and this dispute concerns the refusal of RS21, a public access television station in Radnor Township, Pennsylvania, to air his 2016 film Americans Risking Everything. Plaintiff alleges that RS21's refusal violated his First Amendment rights, and asserts claims under several legal theories against RS21, Mr. Strimel (RS21's general manager), and Mr. Brooks (the chairman of RS21's board of directors).[1] This is Plaintiff's third lawsuit against RS21 and Mr. Strimel asserting similar claims; Mr. Brooks was not named as a Defendant in the previous lawsuits. Because all three Defendants have moved for summary judgment on res judicata grounds, discussion of Plaintiff's prior lawsuits is warranted.

         Plaintiff first filed a pro se lawsuit against RS21 and Mr. Strimel in 2013 (“Egli I”) alleging that RS21 had refused to air his film My Adventure in Tredyffrin Township in violation of his First Amendment rights. Egli I was assigned to the calendar of the Honorable Paul S. Diamond, [2] and resulted in a settlement agreement whereby Defendants paid Plaintiff and agreed that Plaintiff could continue to submit content to RS21 for consideration.[3]

         Plaintiff filed a second pro se lawsuit (“Egli II”) in 2014 concerning RS21's refusal to air several of his other works, including films entitled Deconstructing the Israel Test and Dog.[4]That case was assigned to the calendar of the Honorable L. Felipe Restrepo, and Defendants moved to dismiss. Among other things, Defendants argued that they were not state actors and therefore could not violate Plaintiff's First Amendment rights.[5] Judge Restrepo granted Defendants' motion as to all of Plaintiff's claims except for his First Amendment claim, holding that factual disputes existed concerning whether Defendants were state actors.[6]

         The case was then re-assigned to the calendar of the Honorable Wendy Beetlestone, and Defendants moved for summary judgment on the ground that they were not state actors. Judge Beetlestone found that material factual disputes still existed and denied the motion. The case then proceeded to trial, at which Plaintiff was unable to establish that Defendants were state actors, prompting Defendants to move for judgment as a matter of law at the close of Plaintiff's case. Judge Beetlestone granted the motion and entered judgment in favor of Defendants.[7]Plaintiff did not appeal that decision.

         After the trial, RS21 revised its “request-for-playback” form, which producers such as Plaintiff were required to sign before submitting material for consideration. The revised form stated that RS21 was not a state actor and required producers to pay RS21's legal fees and costs in the event of a lawsuit.[8]

         In May 2016, after RS21 adopted the revised form, Plaintiff went to RS21 to submit Americans Risking Everything for playback, but was presented with and signed an older version of the form.[9] On June 6, 2016, Plaintiff received an email from Defendants' counsel requesting that he complete the revised form.[10] Plaintiff refused, and emailed back stating, in effect, that he was entitled to submit content to RS21 and that if he went to RS21 and “encounter[ed] any resistance or interference, ” he would “call the police.”[11]

         The next day, Mr. Brooks informed Plaintiff by letter that his privileges at ¶ 21 had been revoked.[12] The letter also informed Plaintiff that “any appearance” by him at ¶ 21 would be considered “both a threat and criminal trespassing, ” and that the Radnor Township Police Department had been informed of the situation.[13] Judge Beetlestone was copied on the letter.

         On June 28, 2016, Plaintiff filed this lawsuit alleging several claims, of which three remain: (1) violation of First Amendment Rights under 42 U.S.C. § 1983; (2) civil conspiracy and false advertising; and (3) defamation.[14] Defendants answered the Complaint and asserted five counterclaims: (1) abuse of process; (2) wrongful use of civil proceedings; (3) declaration that RS21 is not a state actor; (4) declaration that Mr. Strimel and Mr. Brooks are not state actors; and (5) injunction prohibiting future filing.[15]

         Defendants then filed a motion for judgment on the pleadings, which was denied without a written opinion.[16] While that motion was pending, Plaintiff moved to dismiss and/or for summary judgment on Defendants' counterclaims.[17] Defendants then moved for summary judgment on all of Plaintiff's claims.[18] While both parties' motions were pending, the case was reassigned to this Court.


         “The underlying purpose of summary judgment is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense.”[19] A court will award summary judgment on a claim or part of a claim where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[20] A fact is “material” if resolving the dispute over the fact “might affect the outcome of the suit under the governing [substantive] law.”[21] A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[22]

         In evaluating a summary judgment motion, a court “must view the facts in the light most favorable to the non-moving party, ” and make every reasonable inference in that party's favor.[23] Further, a court may not weigh the evidence or make credibility determinations.[24] Nevertheless, the party opposing summary judgment must support each essential element of the opposition with concrete evidence in the record.[25] If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”[26] Therefore, if, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine dispute as to any material fact, summary judgment is appropriate.[27]


         A. Plaintiff's First Amendment Claim

         Defendants argue that the final judgment in Egli II bars Plaintiff's claim under the doctrine of res judicata.[28] The Court agrees.

         Res judicata, or claim preclusion, “bars suit when three elements are present: (1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action.”[29] “The purpose of res judicata is to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.”[30] In determining whether res judicata applies, courts “do not proceed mechanically, but focus on the central purpose of the doctrine, to require a plaintiff to present all claims arising out of the same occurrence in a single suit. In so doing, we avoid piecemeal litigation and conserve judicial resources.”[31]

         1. Final Judgment on the Merits

         The order granting Defendants' motion for judgment as a matter of law in Egli II was certainly “final, ” as it resulted in judgment being entered in favor of Defendants on all claims. Plaintiff suggests that it was not a judgment “on the merits, ” however, because it held only that Plaintiff failed to prove that Defendants were state actors, and did not reach the merits of his claim. Plaintiff seeks to avoid the preclusive effect of this judgment by arguing that this failure resulted from his inexperience with trial procedure, not from any deficiency with his claim, and thus requests a second chance to prove his case.[32] This argument is not persuasive.

         The order was a final judgment “on the merits” because it was entered after Plaintiff had a full and fair opportunity to prove his case and failed to do so.[33] Even if the ruling resulted from Plaintiff's inexperience, that is irrelevant, as “technical” or “procedural” rulings arguably unrelated to the “merits” of a claim are routinely afforded preclusive effect.[34] And importantly, Egli II was not decided on a procedural issue unrelated to Plaintiff's alleged First Amendment violation; rather, Plaintiff failed to show that Defendants were state actors-a threshold issue for his claim.[35] To deny preclusive effect to the order in Egli II would allow Plaintiff to re-litigate his claim despite his earlier failure to prove his case at trial after being afforded a full opportunity to do so, and would encourage precisely the type of piecemeal litigation that res judicata is designed to prevent.[36]

         2. Same Parties or their Privies

         The “same parties” requirement is satisfied as to RS21 and Mr. Strimel, who were both named in Egli II. Mr. Brooks, however, must be in privity with one of the other Defendants for res judicata to bar Plaintiff's First Amendment claim against him.[37] “Privity is merely a word used to say that the relationship between one who is a party on the record and another is close enough to include that other within the res judicata.”[38] A “pre-existing substantive legal relationship[] between the person to be bound and a party to the judgment” may establish privity.[39] Such a relationship exists between RS21 and Mr. Brooks, who served as RS21's chairman during Egli II; it is Mr. Brooks' relationship with RS21 that provides the basis for Plaintiff's claims against him. This relationship sufficiently aligned the interests of Mr. Brooks and RS21 to place them in privity for res judicata purposes.[40]

         3. Same Cause of Action

         Defendants argue that Plaintiff's present First Amendment claim is the same cause of action as the First Amendment claim in Egli II because both claims allege the same pattern of alleged constitutional deprivations. Plaintiff responds that the claims are different primarily because they involve different films.

         Courts in the Third Circuit “take a broad view of what constitutes the same cause of action and [] res judicata generally is thought to turn on the essential similarity of the underlying events giving rise to the various legal claims.”[41] “In analyzing essential similarity, ” courts “consider several factors: (1) whether the acts complained of and the demand for relief are the same . . .; (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same . . .; and (4) whether the material facts alleged are the same. It is not dispositive that a plaintiff asserts a different theory of recovery or seeks different relief in the two actions.”[42] “Further, [t]he fact that several new and discrete [] events are alleged does not compel a different result. A claim extinguished by res judicata includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.”[43]

         Plaintiff's First Amendment claim is the same cause of action asserted in Egli II because both claims allege the same harm: RS21's continuing practice of refusing to air Plaintiff's films. Although there are superficial differences between the claims, Plaintiff's filings make clear that they concern the same pattern of alleged First Amendment violations, the same theory of recovery, and the same material facts. In Plaintiff's own words: “[P]laintiff's Complaints involve the same parties and the same 1st amendment issues . . . they show a continuing pattern of unlawful actions on the part of state actors Strimel and RS21.”[44] According to Plaintiff, both Complaints concern “a continuing pattern of animosity and bad faith aimed at [] plaintiff since 2013.”[45] One of Plaintiff's briefs further explains: “The circumstances and issues have not changed; RS21 has simply repeated its unlawful actions yet again.”[46] And Plaintiff admitted at his deposition that the crux of both this case and Egli II is “whether or not [Defendants] violated [his] First Amendment rights.”[47] Plaintiff's First Amendment claim is thus the same cause of action asserted in Egli II because they both concern the same pattern of alleged wrongdoing and seek the same remedy-the airing of Plaintiff's films on RS21.[48]

         The witnesses and documentation required in both cases are also virtually identical, and largely concern Defendants' status as state actors. In fact, Plaintiff testified at his deposition that if this lawsuit proceeds to trial, his case will mostly consist of presenting the same evidence used in Egli II. For example, Plaintiff plans to question Mr. Strimel regarding RS21's status as a state actor-a line of questioning he pursued in Egli II.[49] Plaintiff also seeks to introduce the documents he presented in Egli II (some of which were not admitted), including a 2002 decision from the District of Massachusetts that dealt with the state-actor issue.[50] These witnesses and documents are not unique to Americans Risking Everything or any events that transpired after Egli II; instead, they are evidence that Plaintiff wishes he had been able to introduce, or use more effectively, during his previous trial.

         Plaintiff stresses that this case involves a different film than those at issue in Egli II, and notes that Americans Risking Everything was allegedly rejected because he failed to complete the correct playback form, whereas the films in Egli II were rejected for various other reasons. These distinctions are immaterial, as Plaintiff's claims in both cases concern RS21's alleged practice of refusing to air any of Plaintiff's films that contain political content.[51] Indeed, in both cases, Defendants have relied primarily on the argument that they were not state actors, rather than asserting content-based justifications for rejecting Plaintiff's films. Thus, although RS21's refusals may differ in the details, the cause of action in both cases is the same.

         Plaintiff also notes that the submission of Americans Risking Everything occurred more than two years after the submission of the films in Egli II. But this is not dispositive, as in both cases, Plaintiff complains of the same harm, and Plaintiff does not explain how Defendants' status as a state actor has changed between Egli II and the present case.

         Finally, Plaintiff has expressed concern that applying res judicata here will allow Defendants to violate the rights of all RS21 participants at will.[52] But the Court's ruling has no bearing on the rights of other plaintiffs to bring First Amendment claims against RS21; it only prevents Plaintiff (and his privies) from re-litigating the same claim raised in Egli II. Summary judgment will be granted in favor of Defendants on Plaintiff's First Amendment claim.[53]

         B. Plaintiff's Civil Conspiracy and False Advertising Claim

         Plaintiff alleges that Defendants conspired in 2014 to adopt a policy disenfranchising Plaintiff and the public from using editing equipment at ¶ 21 in violation of Radnor Township's Franchise Agreements with cable operators Verizon and Comcast.[54] The “civil conspiracy, ” then, is Defendants' agreement to limit the use of RS21's equipment, and the “false advertising” consists of a statement on RS21's website that Radnor Township residents are, in fact, able to use RS21's equipment.[55] However characterized, Plaintiff's claim fails for at least three reasons.

         First, Plaintiff's claim is barred by res judicata because it is nearly identical to a claim Plaintiff raised in Egli II, which was titled “Ongoing Breach of Contract, Fraud, Civil Conspiracy, and Tortious Interference.[56] As explained, Egli II resulted in a final judgment on the merits, involved the same parties, and Plaintiff could have (and for the most part did) raise his current claim in that case.[57] The only discernible differences between Plaintiff's current claim and its predecessor in Egli II are new allegations about RS21 and Radnor Township's responses to Plaintiff's discovery requests in Egli II, and Plaintiff's attempt to re-cast his claim as one for false advertising. But the addition of a few facts that could have been presented in Egli II and a new legal theory are insufficient to overcome res judicata's bar, as both causes of action are based on the same underlying events.[58]

         Second, Plaintiff fails to identify a legal basis for his claim. Plaintiff identifies three sources of liability: the Franchise Agreements, Section 531(e) of the Cable Communications Act, and § 1983. But neither Plaintiff nor Defendants are parties to the Franchise Agreements, so Plaintiff cannot assert (and Defendants cannot be liable for) a breach of their terms.[59] And Plaintiff cannot assert a claim under Section 531(e) of the Cable Communications Act because that provision provides no private right of action, as at least two courts in this district have held in cases involving Plaintiff.[60] Finally, § 1983 does not provide a standalone basis for relief in the absence of a violation of Plaintiff's constitutional or federal statutory rights, and as Plaintiff has alleged none here, his claim fails.[61]

         Third, even interpreting Plaintiff's claim as a state-law claim for civil conspiracy or false advertising, it fails because Plaintiff has not alleged the necessary elements. A claim for civil conspiracy under Pennsylvania law requires: “(1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage.”[62] “A claim of civil conspiracy cannot be pled without alleging an underlying tort.”[63] “Furthermore, the allegations of conspiracy must be grounded firmly in facts; they cannot be conclusory nor can they hinge on bare suspicions and foundationless speculation.”[64]

         Plaintiff's conspiracy allegations fall short because they boil down to a complaint that RS21 restricts the use of its equipment in a way that is inconsistent with the Franchise Agreements, but they do not suggest RS21 conspired with any other entity for an unlawful purpose. Although Plaintiff plainly disagrees with the way RS21 is run, his allegations are insufficient to ground a claim for civil conspiracy.[65] Similarly, Plaintiff fails to allege the elements of false advertising, including a likelihood of injury resulting from a false or deceptive statement.[66] Summary judgment will be entered in favor of Defendants on this claim.

         C. Plaintiff's Defamation Claim

         Plaintiff asserts a defamation claim based on the June 7, 2016 letter to Plaintiff and Judge Beetlestone that revoked Plaintiff's access to RS21, arguing that the letter falsely portrayed him as a threat to RS21 employees.[67] Defendants argue that Plaintiff fails to establish the necessary elements of his claim. The Court agrees.

         A defamation claim under Pennsylvania law requires:

(1) The defamatory character of the communication;
(2) Its publication by the defendant;
(3) Its application to the plaintiff;
(4) The understanding by the recipient of its defamatory meaning;
(5) The understanding by the recipient of it as intended to be applied to the see also Ruder, 790 F.Supp.2d at 405 (dismissing civil conspiracy claim where plaintiff failed to allege that defendants acted in ...

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