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Mueller v. Swift

United States District Court, D. Colorado

May 31, 2017

TAYLOR SWIFT, Defendant and Counter Claimant, and FRANK BELL, and ANDREA SWIFT a/k/a Andrea Finlay, Defendants.



         In this action pending under the Court's diversity jurisdiction, 28 U.S.C. § 1332, Plaintiff David Mueller (“Plaintiff” or “Mueller”) brings tort claims for intentional interference with contract, tortious interference with prospective business relations, slander per se, and slander per quod against Defendants Taylor Swift (“Swift”, or “Taylor Swift”), Frank Bell (“Bell”), and Andrea Swift (“Andrea Swift”) (together, “Defendants”). (See generally ECF No. 72; ECF No. 126 at 2.) Swift in turn brings counterclaims against Mueller for the torts of assault and battery. (See ECF No. 36 at 13-14; ECF No. 126 at 5-6.)

         Now before the Court is Defendants' Motion for Summary Judgment. (ECF No. 108 (Defendants' “Motion”).) For the reasons explained below, that Motion is granted in part and denied in part. Mueller has not moved for summary judgment against Swift's counterclaims, and as a consequence all such counterclaims will proceed to trial.

         I. BACKGROUND

         The following facts are undisputed where not attributed to a party or witness.

         Beginning in January 2013, Mueller was employed by a Denver-based country format radio station, KYGO, where he worked as one of the on-air hosts of a morning radio show. (ECF No. 108 at 3, ¶ 1.)[1] He had an employment contract dated January 4, 2013, for a term of two years, with an option for KYGO to add a third year, in its sole discretion. (ECF No. 126 at 7, ¶ 6.)

         On June 2, 2013, Mueller attended a backstage “meet-and-greet” event preceding a concert performed at the Pepsi Center in Denver by Swift, who is a famous musician. (See Id. at 4, ¶ 6; ECF No. 126 at 7, ¶ 15.) After waiting in a line, Mueller and non-party Shannon Melcher (Mueller's then-girlfriend, and a co-worker at KYGO (“Melcher”)) went to a location where they posed for a photo with Swift.

         The central factual dispute in this case is as follows: Swift contends, with great certainty, that while posing for this photograph, Mueller inappropriately touched her buttocks, but Mueller adamantly denies doing so. In deposition testimony taken in this case, Swift described the relevant conduct more specifically as follows:

Mr. Mueller and his friend, girlfriend-he and a woman walked in. I said “Hi, thank you for coming to my show, ” introduced myself. He was very adamant in letting me know that he was with KYGO and that he was with radio. And I said, “Well, thank you so much for coming. Thanks for everything. Would you guys like to get a photo?” And so then we get in a photo formation with me in the middle, and that's when right as the moment came for us to pose for the photo, he took his hand and put it up my dress and grabbed onto my ass cheek, and no matter how much I scooted over it was still there. It was not an accident, it was completely intentional, and I have never been so sure of anything in my life.

(ECF No. 108-9 at 16-17.)[2]

         Mueller denies putting his hand under Swift's dress, denies that he grabbed her buttocks, and has testified unequivocally that “I am sure that I did not.” (ECF No. 119 at 3-4, ¶¶ 6 & 8; ECF No. 108-3 at 41.) Other witnesses, including KYGO's program director, and Mueller's “boss, ” Hershel Coomer (a/k/a Eddie Haskell) (“Haskell”), confirm that Mueller has all along been “very adamant that he did not do it” (see, e.g., ECF No. 108-6 at 13), and Mueller told KYGO officials at the time that Swift's accusation was “absolutely inaccurate, 100 percent incorrect” (ECF No. 108-14 at 10).

         The exact series of events following the meet-and-greet is not well established by the parties' present filings, but the record generally reflects the following. As reported by Swift and her mother, immediately after the meet-and-greet ended, Swift walked to her dressing room, where she told her mother, Andrea Swift, about the alleged incident with Mueller. (ECF No. 108 at 7-8, ¶¶ 16-17.)[3] Thereafter, Bell, Andrea Smith, and others in Swift's “management team” report having met somewhere backstage. (See, e.g., ECF No. 108-17 at 8.) Thereafter, before the concert started, Mueller was approached by members of Swift's security staff, who accused him of improperly touching Swift and informed him that he could not attend the concert. (See generally ECF No. 2 ¶¶ 26-27; ECF No. 36, ¶¶ 26-27.) Several accounts of this interaction, including Melcher's testimony and Mueller's pleadings, reflect that he denied having touched Swift inappropriately, and made statements to Swift's security staff to the effect that he wanted to involve the police to investigate the accusation against him. (See, e.g., ECF No. 108-15 at 10; ECF No. 72 ¶ 25.)

         The record also shows that KYGO personnel and executives were made aware of the incident that same evening, evidently after Bell communicated in person with Haskell at the concert venue. (ECF No. 108-6 at 9; ECF No.119-2 at 7-8.) KYGO then suspended Mueller with pay. (ECF No. 108-8 at 9.) According to KYGO's vice president/market manager, Robert Call (“Call”) this was “so we could begin an investigation. We just didn't feel it was appropriate that he be on the air, both knowing all this was going on and the potential possibility that the press could find out or would find out.” (Id.)

         The following morning, Defendant Bell (who describes himself as Swift's “radio guy, ” and whom Swift now describes as a “senior manager”) contacted Call, who Bell knew, and also understood to be “the executive who would be in a position to deal with a matter of this nature.” (See ECF No.119-2 at 5, 6; ECF No. 119-9 at 24.) According to his own testimony, Bell “did not conduct any investigation” before contacting Call. (ECF No. 119-9 at 10.) Bell has described his communications to Call, in part, as follows: “I know what type of person you are, I know what kind of company [KYGO] is, and I know that you all will do your homework and make your own independent determination of what to do here.” (ECF No. 119-9 at 9.) However, Bell also acknowledged that he told Mr. Call that “[Bell] and Taylor's mother and Taylor and the management team expected Mr. Call to take appropriate action.” (Id. at 10.)

         Call's notes regarding his communications corroborate that Bell communicated that “he was disappointed, Taylor's family was upset and they were looking to us to do the right thing.” (ECF No. 108-7 at 2.) Call's notes state, in part:

[Bell] reminded me of the fact he and I have known each other a long time, he would not be calling me if it were not extremely serious and that they are considering all their options. The relationship with KYGO is important and unless we act could be gravely impacted and that he had assured all of the Taylor team that I would handle it appropriately.

(ECF No. 108-7 at 2.) Call's deposition testimony also corroborates communication from Bell to the effect that “he knew, you know, we would give the situation a fair consideration and do the right thing.” (Id.) Call has testified that Bell never asked him to terminate Mueller (ECF No. 119-2 at 9), but when asked what he understood Bell to mean by KYGO doing “the right thing, ” Call testified that “my belief would be that probably would run the gambit [sic] of some type of disciplinary action, maybe a suspension, maybe up to and including termination.” (ECF No. 119-2 at 8.)

         Bell then sent Call the photograph taken at the meet-and-greet of Mueller, Melcher, and Swift. (ECF No. 119-9 at 11.) Call's impression of the photograph is that Mueller “had his hand in a pretty inappropriate place, ” and that it is “inconsistent with . . . most [recording] artist's [sic] photos.” (ECF No. 119-2 at 10.) But he also testified that he “couldn't conclude from that photograph” whether Mueller's hand was touching Swift. (ECF No. 119-2 at 10.)

         Later the same day, after meeting with Haskell, KYGO's attorney, and other KYGO executives, Call spoke again with Bell, and then he and Haskell met in person with Mueller. (ECF No. 19-2 at 10-11.) At that meeting, Mueller denied inappropriately touching Swift and expressed that “if there were more cameras or other camera angles, it would vindicate him, ” and also explained that “the picture looks the way the picture looked because it was a last-minute thing, ” suggesting the photo captured him in motion as he moved quickly to pose for the photograph, but does not show not that his hand was in contact with Swift. (ECF No. 119-2 at 11.)

         Call did not speak to either the photographer or the security person who had been in the room with Mueller and Swift at the meet-and-greet. (ECF No. 119-2 at 11.) He has testified that he “never considered” talking with the other people in the room at the time and that he “didn't need that information” as a part of his investigation. (ECF No. 119-2 at 12.)

         The next morning, Call made the decision to terminate Mueller and sent him a letter via courier indicating that KYGO was terminating Mueller's employment agreement for cause. (ECF No. 108-4.) The letter indicated that KYGO was acting pursuant to its “rights under Section 16(b) of [Mueller's] Employment Agreement, ” which Haskell describes as a “morality clause, ” and provided, in part, as follows:

If Employee should commit any act or become involved in any situation or occurrence which, in Employer's reasonable opinion, will bring Employee into public disrepute, contempt, scandal or ridicule, will provoke, insult, or offend the community, or will reflect unfavorably upon [KYGO] or any of its sponsors, Employer shall have the right to terminate this Agreement and Employee's employment hereunder for cause.

(ECF No. 108-3 at 10, ¶ 16(b); see also ECF No. 108-6 at 19.)

         When asked in deposition testimony why he made the decision to fire Mueller, Call has summarized three components leading to his decision:

I fired him based on the fact that I had a picture that Taylor Swift's promotion people had sent that-at least in my opinion-represented him in a very uncomfortable place with Taylor. I had direct feedback from her radio management group, including Frank Bell, whom I've known for many years, who indicated that Mr. Mueller had during a photo session touched her inappropriately, I believe, raised her dress or skirt and that she was very clear on what had happened. And it was related to me that her mother felt the same way. And in talking to [Mueller] on Monday [June 3, 2013], he certainly indicated that he did not do it; however-and I believe this is a direct quote-if I had, it was incidental or accidental. The combination of those three elements put me in a position where I felt comfortable making the decision.

(ECF No. 108-8 at 6; see also ECF No. 108-8 at 20.) Regarding Mueller's comment that any contact had been “incidental or accidental, ” Call has also described this as reflecting, in his view, that Mueller “changed his story that it couldn't have occured, then that it was incidental.” (ECF No. 108-8 at 20.)

         Mueller initiated this lawsuit on May 29, 2015 in Denver District Court, asserting claims of intentional interference with contract and intentional interference with prospective business relations. (ECF No. 108-22.) Invoking this Court's diversity jurisdiction, on September 10, 2015 Defendants removed this action to federal court. (ECF No. 1.) Plaintiff subsequently amended his pleadings to add claims for slander per se and slander per quod, and to hold Swift liable for Bell's actions under a theory of vicarious liability or respondeat superior. (ECF No. 72.) Defendants' instant Motion for Summary Judgment seeks judgment as a matter of law against all of those claims. (ECF No. 108.)


         A. Summary Judgment

         Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000).

         A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. The Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge”; therefore, in ruling on summary judgment, “[t]he evidence of the non-movant [here, Mueller] is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

         B. Adverse Inference

         Defendants acknowledge that in this posture the Court must view all facts and evidence in the light most favorable to Mueller, and must also draw all reasonable inferences in his favor. Nevertheless, Defendants ask the Court to “draw an adverse inference against [Mueller], ” as a sanction for alleged spoliation of evidence. (ECF No. 108 at 14-15.)

         Specifically, as described in Mueller's deposition testimony, he made audio recordings of his conversations with Call and Haskell at the time of his termination. However, he then “edited down clips” from those recordings, and provided only those edited clips to his attorney, rather than the full audio files. (See ECF No. 108-5 at 19, 20.) At some point, “the full file was lost.” (Id. at 19.) Thus only “a portion of the entire audio” has been produced in litigation and thus made available for Defendants to review. (ECF No. 108 at 4, ¶ 9 & n.3; id. at 13.)

         Defendants argue that “the Court should, in its discretion, draw reasonable inferences against Plaintiff” regarding what the missing portions of these recordings might have contained. (See Id. at 14.) However, under Tenth Circuit precedent, the Court does not have such discretion, because an adverse inference is only available if there is proof that the party who lost or destroyed evidence did so in bad faith. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009). “Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case.” Id. (quoting Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997)).[4] Defendants cite this controlling precedent but do not candidly acknowledge that it forecloses their request, since they have not claimed or proven that Mueller acted in bad faith. (See ECF No. 108 at 12-13 (citing Turner and Aramburu).)

         The record before the Court-specifically, Mueller's testimony-reflects that the unedited audio files became unavailable because water or coffee spilled on Mueller's laptop (see ECF No. 108-5 at 22, 53-54), and because an external drive on which he might have had backup copies was lost or misplaced “maybe a year” after he was terminated, and before this suit was filed (see Id. at 24). These facts reflect a too-common cautionary tale about file security, and perhaps negligence, but they do not, at least on the record presently before the Court, reflect bad faith. The law does not permit the Court to draw conclusions about disputed facts bearing on the merits of an action as the result of spilled coffee. See Turner, 563 F.3d at 1149. Defendants' request for an adverse inference is therefore rejected and the Court reviews the evidentiary record under the usual summary judgment standard.[5]

         III. ANALYSIS

         A. The Central Factual Dispute is Genuine

         The Court begins its analysis by emphasizing what should be obvious from the background set forth above, namely, that the parties' claims center on an intractable factual dispute between the two irreconcilable versions of the facts offered by the sworn testimony of Mueller and Swift, both with great certainty.

         Initially, the Court concludes that this dispute is “genuine” as that term is meant under the summary judgment standard, meaning the factual dispute is sufficiently contested that resolving it requires submission to a jury. See Anderson, 477 U.S. at 248-49. The Court need look no further than the respective testimony of Mueller and of Swift to determinate that the evidence is sufficiently contradictory that a reasonable jury could decide for either party. See Anderson, 477 U.S. at 248-49.

         The parties spend significant effort summarizing their differing characterizations of what facts should be drawn from the testimony of other witnesses, and the photograph taken of Mueller, Melcher, and Swift. (See ECF No. 108 at 4-5, ¶¶ 9-14; ECF No. 119 at 4-10, ¶¶ 9(a)-(ee) & 14.) But, in the Court's summary judgment analysis, the parties' differing views of this evidence only confirm that the facts are in dispute. Having reviewed these evidentiary materials, the Court finds that the central and genuine dispute remains. Certain witnesses' testimony tends to corroborate Swift's version of events, and Mueller points to other evidence that he argues shows inconsistencies in Swift's story. None of this changes the reality that if a jury accepts Mueller's version of the facts, then it must substantially reject Swift's version, and vice versa. In ruling on summary judgment, it is not the Court's role to resolve this dispute. ...

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