Thursday, April 4, 2013

Back to State Court, Brother

Hulk Hogan (a/k/a Terry Bollea) sued a local radio host (you may have heard of him -- Bubba the Love Sponge) and his ex-wife in state court for releasing a vide of Hogan having sex with Bubba's ex-wife.  Hogan amended his complaint, dropping the radio host, and adding Gawker.  Gawker removed the case to federal court, under the guise that: (1) the radio host's ex-wife was fraudulently joined in the suit; and (2) the suit arose under the Copyright Act.

Fraudulent Joinder
Diversity juridiction requires a disputed amount exceeding $75k and parties being citizens of different states.   Recognizing that Hogan and the ex-wife are both Florida citizens, Gawker needed to establish that the ex-wife was fraudulently joined to the case to satisfy the diversity requirement.  First, Gawker argued that the statute of limitations had run against any claim Hogan could bring against the ex-wife.  The Court disagreed, noting that Hogan's complaint did not indicate a date on which the video was published (publication serving as the basis of Hogan's claims), and thus the Court could not determine from the pleadings alone whether the statute of limitations had run.

Gawker also argued that joining the ex-wife was "so egregious as to constitute fraudulent joinder."  Here, the Court applied the Eleventh Circuit's "logical relationship" test to determine if joinder of the ex-wife and Gawker was permissive under Fed. R. Civ. P. 20(a)(2).  See Republic Health Corp. v. Lifemark Hosps. of Fla., 755 F.2d 1453, 1455 (11th Cir. 1985).  Here, the claims of the ex-wife publishing the video without Hogan's permission are logically related to the claims against Gawker as they rest on the same operative facts (recording and publishing the video).  The Court also found common questions of law (i.e. the video's chain of custody, Florida's privacy laws, and certain defenses).

Federal Jurisdiction -- Copyright Preemption
Gawker's other avenue to keep the case in federal court was to present the case as a copyright dispute.  To remove a state court claim on the basis of a federal question, the federal question must present itself on the face of the complaint.  Here, the Court must address if the federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of federal court resolution without offending the federal-state balance.  See Gunn v. Minton, 133 S.Ct. 1059, 1065 (2013) (concluding that legal malpractice claims based on patent matters will "rarely, if ever, arise under federal patent law).

Here, Hogan's privacy claims arise under state law.  Gawker's argument was that Hogan claimed his rights of privacy "as recognized under the United States Constitution" were violated.  But when read as a whole, Hogan's complaint made only state law claims.

Hogan's claims also were not completely preempted by the Copyright Act.  The Court first acknowledged that the Eleventh Circuit has not decided whether the Copyright Act completely preempts related state law claims.   Those circuits that do find complete preemption ask: (1) whether the work is of the type protected by the Copyright Act; and (2) whether the claim seeks to vindicate rights equivalent to the bundle of rights protected by the Copyright Act.  The state law claim, to be preempted, must not have any extra elements making it different from a copyright infringement claim.

Hogan's claims are not completely preempted.  While he is seeking to regulate publication and distribution of a work that would fall under the Copyright Act, his claims for invasion of his privacy involve additional elements, such as proving "intrusion into one's private quarters." Thus, there is no complete preemption.

Motion for Remand granted.
Bollea v. Clem, Case No. 8:13-cv-00001 (M.D. Fla. Mar. 28, 2013) (J. Whittemore)

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